R v Leung

[1999] NSWSC 1108

CITATION:	R v Leung [1999] NSWSC 1108
CURRENT JURISDICTION:
FILE NUMBER(S):	70105/97
HEARING DATE(S):	17 June 1999 to 18 August 1999 - trial 11 November 1999 - sentence
JUDGMENT DATE:	11 November 1999
PARTIES :	Regina Francis Leung
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Mr G Smith - Crown Mr B Mulligan - Accused
SOLICITORS:	SE O'Connor - Crown Legal Aid New South Wales - Accused
CATCHWORDS:	Criminal law - sentence - murder - spouse - no question of principle
DECISION:	Minimum term of 14 years servitude with an additional term of 4 years. The commencing date of the minimum term will be 28 July 1999 a date which reflects the date of 18 August 1999 when the Prisoner went into custody after the jury's verdict and 3 weeks custody subsequent to his arrest. He will become eligible for parole on 28 July 2013.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

NO: 70105/97

Thursday, 11 November 1999

HULME J

R v Francis LEUNG

REMARKS ON SENTENCE

HIS HONOUR:

1    On 18 August 1999 after a lengthy trial the Prisoner was convicted of having murdered his wife on 25 February 1997. He now stands for sentence.

2    Prior to coming to a conclusion as to the sentence to be imposed, I must come to such conclusions as I can, consistent with the verdict of the jury, bearing on the question of sentence. Before I rely on any such conclusion adverse to the Prisoner, I must be satisfied of it beyond reasonable doubt. That said, it is not possible to reach some of the views I have formed to that level of satisfaction but as these are matters which operate in his favour. In respect of these latter matters, I shall indicate that my findings are on a more limited basis.

3    It was common ground that on the morning of 25 February 1997 the Prisoner and his wife had taken their children to school shortly after 9am , done some shopping, and had breakfast together at a restaurant at Bankstown. The Prisoner asserted that the two had then returned to their home for a limited period. The deceased’s body was found in a Padstow car park between the front of a parked car and a fence at about 11.15am that morning. It was also common ground that the Prisoner’s 4-wheel drive motor vehicle had been reversed into a car space adjacent to where the body was found in the preceding three-quarters of an hour or so.

4    No one saw the Prisoner kill the deceased. Both in the course of interviews with the police and in evidence, the Prisoner denied doing so and thus the circumstances of and reasons for her death can only be matters of inference.

5    Although it is clear that the deceased had bled and there was no blood found in the home of the deceased and the Prisoner, none in his car and no indication that the latter had been cleaned, the probability is that the deceased was killed at home and her body then carried in his car to the car-park. Factors pointing in that direction are that, at the time her body was found the deceased’s shoes were undone - the family practice was not to wear shoes in the house - the presence of a torn up Valentine’s day card and a picture frame in a rubbish bin at the house, and the fact that a pillow slip matching one found in the home was covering the deceased’s head at the time she was found. There were also tyre marks over the lawn leading to the back door.

6    At the time of the deceased’s death, she and her husband carried on a business of running two take-away food outlets, one principally managed by the deceased at Circular Quay and one principally managed by the Prisoner at Blacktown. I am satisfied that the takings of the Blacktown business which were banked in the second six months of 1996 were very substantially lower than they had been previously.

7    There was a deal of detailed evidence as to the financial situation of the business. I referred to this evidence in my summing up and do not think it necessary to carry out a detailed analysis of it here. The evidence satisfies me that, to a substantial degree, takings were being, as it were, siphoned off and not banked. The Prisoner gave explanation for the reduction in bankings and attributed this reduction to actions of his wife.

8    Sometime after the deceased’s death, the Prisoner wrote a suicide note in which he said “I have gambled my life away and my fortune” and it may well be that this is the explanation for the downturn in the bankings apparent from the Blacktown business. He gave evidence and told a psychiatrist that his gambling only became a problem after his wife’s death but, having regard to my views as to the Prisoner’s credibility, I am not disposed to accept these statements. Nor do I accept his evidence that it was his wife who was responsible for the those bankings being reduced, certainly to anything like the magnitude of the money that disappeared.

9    I am satisfied that the deceased was concerned at the financial situation of the Blacktown business. I am also satisfied that in the past and probable in the months leading up to her death, the deceased gave consideration to the possibility of divorcing the Prisoner and expressed thoughts to this effect.

10    There is a deal of evidence that, at least to outward appearance, the relationship between the deceased and the Prisoner was good and there is nothing to suggest that his killing of her was to any extent pre-meditated. Indeed the limited amount of time which elapsed between when they were seen at Bankstown and her body was discovered and the location and time at which her body was dumped - a public car park in broad daylight - leads me to the view that her death was not pre-meditated to any significant extent. I think the probability is that an argument developed after the Prisoner and his wife left Bankstown, that the argument commenced or continued at their home - the torn Valentine’s day card and picture frame so suggest - and it was in the course of, or in response to, that argument that the deceased was killed. I am not able to be satisfied beyond reasonable doubt that her death occurred other than, as submitted by Mr Mulligan, in the course of an argument that got out of hand. The deceased’s concern at the financial situation of the Blacktown business and thoughts of divorce certainly provide possible bases for an argument.

11    On the other hand, the method of death - strangulation - satisfies me that at the time, the Prisoner intended to kill his wife. I am unable to understand how he might have only intended to do grievous bodily harm.

12    In arriving at the conclusions I have, I am not unconscious of the fact that the Prisoner’s actions in and about disposing of his wife’s body reveal a deal of care and that his actions in, for example, telephoning her place of work purportedly with the intention of speaking to her demonstrate a degree of conscious cunning. However, even though many and perhaps most people would not have reacted that way, those matters are explicable upon the basis of a desire to avoid the consequences of what had occurred.

13    Under the New South Wales Crimes Act the maximum penalty for murder is life imprisonment. However, the law is that that penalty is to be imposed only in cases which may be regarded as falling within “a worst type” of murder. Examples of that are premeditated contract killings, second or later offences, or where torture or great humiliation or pain has been inflicted on the victim. Those examples are not intended to be exhaustive. The circumstances I have outlined clearly do not come within a worst category. I was taken by the Crown Prosecutor to a number of prior decisions of the Court which lead to the conclusion that the usual range of sentences in the cases of a murder of a woman by a man, occurring in circumstances of a continuing or recently terminated relationship between them, reveals total sentences ranging from about 16 to about 22 years with minimum terms ranging from about 11 to 16 years.

14    I turn to the subjective circumstances of the Prisoner. He was born on 7 January 1958 in Hong Kong where he attended school until about the equivalent of year 9. He completed his schooling in year 12 at a Sydney High School. He joined a bank in early 1976 becoming a senior loans officer in 1987. He took some long leave in 1991 at which time he and his wife took over the running of one of the take-away businesses which was later acquired. He resigned from the bank in 1992 or 1993 and from that time onwards, his employment has been in running one or other of the take-away food businesses he and his wife, or their private company, has run.

15    He has two children, a daughter born in March 1987 and a son born in June 1991. There is one matter on his record which is of no significance for present purposes.

16    There was also tendered by the Crown a victim impact statement by Jean Mei, the sister of the deceased. I have read that statement but the use to which I can put it has been defined in R v Previtera (unreported, HUNT CJ AT CL, 27 May 1997)

17    On the Prisoner’s behalf was tendered a psychiatric report from Dr Canaris. I find little in that report of assistance. The only significant aspect is its reference to the Prisoner’s depression, evidenced also by his suicide note. These are matters to which the Jail Authorities should have regard. Any tendency towards depression I am sure will be exacerbated by the realisation that he will be separated from his children from much of their growing up years.

18    Evidence was also given by a person who had previously been the Prisoner’s superior at the bank at which he worked, who indicated that the Prisoner was a very valuable and efficient employee.

19    There is nothing in the circumstances of this case to indicate any likelihood that the Prisoner will offend again. Although the intent to kill which I have found argues against this conclusion, the lack of pre-meditation and the absence of any suggestion of violence in his past argue in favour of a sentence which is towards the lower end of the range to which I have referred.

20    The sentence I impose is one of minimum term of 14 years penal servitude with an additional term of 4 years. The commencing date of the minimum term will be 28 July 1999, a date which reflects the date of 18 August 1999 when the Prisoner went into custody after the jury’s verdict and 3 weeks custody subsequent to his arrest. He will become eligible for parole on 28 July 2013.

Last Modified: 11/17/1999