R v Liu
[2007] VSC 42
•28 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1404 of 2006
| THE QUEEN |
| v |
| SHAOYI LIU |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 DECEMBER 2006 | |
DATE OF SENTENCE: | 28 FEBRUARY 2007 | |
CASE MAY BE CITED AS: | R v LIU | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 42 | |
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Sentence – Murder by manual strangulation – Preceded by premeditated rape – Victim killed in course of employment as real estate agent - Difficulty in reconstructing events and motivation surrounding commission of the offence - Lack of remorse – Need for specific and general deterrence and protection of the public – Sentenced to ten years’ imprisonment on the count of rape of which five years to be served cumulatively with the sentence of 22 years’ imprisonment on the count of murder –Total effective sentence 27 years with a non-parole period of 22 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Horgan SC | Angela Cannon, Solicitor for Public Prosecutions |
| For the Accused | Mr B Lindner | Geoffrey Tobin Pty |
HIS HONOUR:
Shaoyi Liu, you have been found guilty by a jury of the rape and murder of Ms Lorelle Makin and I must now sentence you for these offences. In order to do so it is necessary to set out the facts surrounding their commission.
On 15 September 2005 you rang Ms Makin at Elders Real Estate in Melton and arranged a meeting with her at 30 Milverton Street, Melton to inspect that property which had been advertised for sale. It was a vacant two storey dwelling. Documentation obtained from Elders indicates that you had previously met with Ms Makin in June 2005 for the purpose of viewing another property. Consequently you were aware of her appearance. Indeed, you later told your former partner, Ms Maree Swan, that Ms Makin reminded you of her.
Despite possessing four mobile phones, you made the second appointment from a public phone box and, instead of driving to the Milverton Street property, you parked your car near Hannah Watts Park, about 24 minutes walk from your destination. You later told police in a videotaped record of interview that you had used the public phone because it was cheaper and that you had walked for about 10 minutes to the vacant house because you were feeling unwell.
It was the prosecution case that the rape of Ms Makin was premeditated. Apart from your method of contacting her, and the parking of your car well away from the crime scene, the prosecution also pointed to evidence that you had debts of about $60,000 and consequently you were in no position financially to purchase any property.
It was further alleged by the prosecution that you took with you a roll of clear plastic adhesive tape. That tape was used by you to cover the deceased's mouth. You told interviewing police that you did this, in effect, because you were scared that she would scream when you were trying to rape her. Tape which partially matched this gag was later located where you had dumped it in a garbage bin in Wilson's Car Park in Flinders Lane, Melbourne. You told police that you had found the tape on a bench in the upstairs bathroom at Milverton Street. However, the vendor of those premises, Mr John Handley, gave evidence to the effect that there was no roll of tape in the upstairs bathroom prior to these offences and that a roll of tape that had been on a downstairs table was missing.
I cannot be satisfied beyond reasonable doubt on the evidence that you brought the tape to the premises, but I am satisfied (as would the jury have been) that you were the person who transported the roll of tape into the upstairs bathroom.
Further, in my view, despite your denials in the police record of interview of a planned rape, the jury would have been satisfied beyond reasonable doubt that your sexual attack on Ms Makin was premeditated. The method of contact of Ms Makin, the clandestine approach to the premises, the fraudulent presentation of yourself as a potential purchaser, and your conveying of the tape to the scene of the sexual assault, would have compelled that view.
In arriving at this conclusion the jury did not have the benefit of knowledge of your sexual predilection, exemplified by a large number of hard core pornographic images saved on your computer. This material was not admitted into evidence during the trial, but was one of the subjects canvassed in a very frank psychological report dated 7 December 2006 prepared on your behalf by Mr Ian Joblin, a forensic psychologist. I will return to this topic later in my sentencing remarks.
Your account to police of the immediate events surrounding Ms Makin's death is not necessarily reliable. Before examining it, I will make reference to the independent evidence that emerged during the course of the police investigation.
Ms Makin was found dead in the bath shortly after 7.00 p.m. on 15 September 2005. She was lying face-down. Her hair was slightly wet. Her upper garments, which had been disturbed to expose her breasts, were also wet. Ms Makin's lower garments were missing and this part of her body was covered with a black plastic bag.
Adjacent to the bathroom door at the top of some stairs were a number of bloodstains. The bathroom itself was clean and tidy.
Ms Makin's Commodore vehicle was subsequently located by police at the Melton Valley Golf Course.
The objective facts to which I have referred confirm your account to police about placing Ms Makin face-down in the bath, putting some water on her head from the bath tap, and cleaning up the bathroom. It is also consistent with your account of placing the missing clothes, which you had stripped from Ms Makin, together with shoes and mobile phone, in plastic bags which you ultimately disposed of in bins near the Highpoint Shopping Centre. The objective evidence also confirms your account of leaving the crime scene in Ms Makin's vehicle.
A number of injuries were observed on Ms Makin by the pathologist, Dr Malcolm Dodd. These included minor bruising and abrasions to the left and right cheek, and the left side of the nose, as well as a haemorrhage on the inner surface of the upper lip. All were attributable to blunt trauma. Bruising and abrasions beneath the chin and on the right side of the neck were consistent with manual neck compression; whilst petechial haemorrhages around the facial skin, eyes and inside the lower lip, were indicative of asphyxia.
Bruising over the left knee could, in Dr Dodd's opinion, have been caused by contact with the bathroom tiles. Symmetrical bruising over the maximum part of the curvature of the chest could have been caused by the rim of the bath. A similar cause could be assigned to bruising on the prominent point of each hip bone. Each of these four areas of trauma would have required the application of considerable force.
Another injury of significance was a small area of bruising to the labia majora – being the outer lips of the beginning of the vaginal area. In Dr Dodd's opinion this would have been caused by blunt trauma occasioned by penile or digital or other penetration.
Dr Morris Odell, from the Victorian Institute of Forensic Medicine, agreed with Dr Dodd's view that this injury was the result of penetrative blunt trauma.
It was the Crown case that your sexual penetration of Ms Makin with your penis led to this injury. Although none of your semen was located in the deceased's body, the penile penetration, which the jury must have found had occurred, was legally sufficient to constitute the physical act required for the completed offence of rape.
You were examined by a Dr Helen Parker, who observed some minor injuries to your hands, arms and legs, which were consistent with your involvement in the struggle with Ms Makin.
Dr Dodd's evidence indicated that Ms Makin died from manual neck compression. That is, she was strangled. How long it would have taken to cause death is an open question, but the evidence of Dr Dodd was that it would take about 45 seconds or longer to produce the petechial haemorrhages observed in the various areas of the deceased's head.
The exact sequence and nature of your attack upon Ms Makin will never be precisely known. In my view, your own version of events to police and to your former partner, Ms Maree Swan, is laced with a mixture of lies, half truths and self-serving statements. Your claims of a spontaneous attempt at rape and a lack of any murderous intent when you caused Ms Makin's death, were both rejected by the jury.
Your first contact after the killing was with Ms Swan. You phoned her in Perth on the afternoon of 15 September at about 4.15 p.m. Melbourne time and, amongst other things, you told her that you had done something that you could not change. In a second phone call at 7.15 p.m. Melbourne time, when you told Ms Swan that Ms Makin reminded you of her, you claimed that, after Ms Makin had said something to you (you did not know what), you snapped and became uncontrollably angry. You then said: "I was choking her."
In that conversation you also claimed to be unaware as to whether or not Ms Makin was dead. Since, on your later account to the police, you had spent some 45 minutes in the house including time cleaning up in the bathroom because it was messy, and using Ms Makin's clothing to do so, the jury would have regarded your asserted lack of knowledge that she was dead as false. Even at the time of your arrest in the early afternoon of 16 September, you maintained the pretence of uncertainty about Ms Makin's fate despite having told Ms Swan in a conversation with her earlier that morning of having seen a report of this matter on the news.
Of course, consistent with your knowledge, you made no attempt to seek assistance for Ms Makin. Indeed, your complete course of conduct after the killing, was designed to cover your tracks. At one point, you contemplated leaving Victoria and went as far as packing a suitcase and travelling to Tullamarine Airport. You later told police that you had been talked out of fleeing by your mother, who resided in China, in the course of a telephone conversation with her. It may be, at this time, you determined to give yourself up, but not before your disposal of various items including clothing and the roll of tape and the keys to the Milverton Street address in various bins at the Flinders Lane car park. Your jeans and jumper which, to your knowledge, had Ms Makin's bloodstains on them, were also deposited in bins at this location.
I should add that the jury, in my opinion, would have rejected the claim you made in your record of interview that you put water on Ms Makin in an attempt to revive her. Rather, the jury would have been satisfied, in all the circumstances, that your actions were an attempt to remove any forensic evidence which may have linked you to the scene.
Prior to your arrest, in the early afternoon of 16 September 2005, you had a second conversation with your mother in which you discussed your future course of action. It is clear that you were very concerned that a number of your personal possessions, including jewellery and money, should be received by your family, and in particular, your daughter who was born in 1999 from your relationship with Ms Swan.
In your record of interview, you reiterated that something was said by Ms Makin which caused you sudden anger and you just exploded. You spoke of a struggle at the top of the stairs and of "putting a choke on" Ms Makin. (This was your expression.) You went on to say that in the course of the struggle, and because of the friction, you had an erection. Let me say immediately that I regard that particular claim as a nonsense.
You told police that you then tried to rape Ms Makin. You described putting tape around her mouth because you were scared she was going to scream, putting her over the bath tub, stripping her, and trying to rape her. The injuries observed by Dr Dodd are consistent with your description of forcing Ms Makin over the edge of the bath. You claimed that this intention to rape was not derived from sexual attraction but was just anger. This explanation flies in the face of a premeditated sexual assault.
You went on to tell police that whilst you moved your hips trying to effect penetration, you looked down and found you did not have an erection. This assertion was reflected in your defence that you were liable only for attempted rape, rather than the completed act. This defence was rejected by the jury.
Whilst it is clear that Ms Makin struggled to resist the attack you made upon her, she was clearly no match for you. Despite your disclaimer of fitness in the record of interview, the video images in fact depict a fit looking young man and one, revealed by the evidence, to have been an instructor in the martial arts.
In the course of your record of interview you provided no real explanation for your attack upon Ms Makin except that, in general terms, you had an anger problem. You also said: "When I get angry, I lose control." As to whether Ms Makin said or did anything to make you angry, you responded: "No. Honestly, she was a very nice lady." Asked therefore why you killed her, you responded: "I couldn't explain why I did it." You added:
"It could be … a thing I was thinking. I was thinking about my financial situation. I get frustrated … It could be a lot of things. I don't think it could be only a single reason. It could be a combination of a lot."
I have mentioned these aspects of your record of interview to indicate the absence of any sufficient satisfactory material before the Court as to how the events in this house unfolded. What you said to police was, in my view, designed to minimise the gravity of the crimes you had perpetrated. Even if you are genuinely unable to advance reasons for your actions, that circumstance must be of concern to this Court and the community.
On your vague account you appear to be claiming that you were choking Ms Makin prior to raping her. Given that the bruising to her hips and genital area indicates that she was alive when the rape occurred, any strangulation must have occurred simultaneously with, or subsequent to, the rape. If the former, you must have been grasping her neck from behind at the time of the sexual assault. No forensic evidence was presented on this aspect of the case. Indeed, the Crown case was that the murder occurred discretely and at a time subsequent to the rape.
On this aspect of the matter, I note the comment in Mr Joblin's report, namely:
"During my interview with him he actually contradicted himself … at one point indicating that he choked her first and then had sex. On another occasion he indicated that he had sexual relations with her and then choked her."
Again, it is an open question as to whether the killing was perpetrated in order to eliminate Ms Makin as a witness to your sexual assault upon her or in anger at her courageous response to your predatory advances, or whether it was the product of an ongoing loss of control. If it was the first of these possibilities, the heinousness of your offence would be further increased. However, it is impossible to determine your motivation beyond reasonable doubt. The circumstances that you took no weapon to the scene or had at any time planned to dispose of the body tend to support the Crown concession that the killing of Ms Makin occurred spontaneously after the rape and was not premeditated. Accordingly, I will sentence you on that basis.
The crime of rape will always constitute a serious offence. In your case it is aggravated by a number of factors. The sexual assault you perpetrated was premeditated. It was accompanied by considerable violence. Your unsuspecting target had done absolutely nothing to provoke your assault upon her. She was simply carrying out the duties of her employment in what should have been a safe working environment.
The offence of murder is the gravest crime with which this Court is consistently confronted. It may take many forms but, unlike some methods of killing, manual strangulation is calculated to produce a high level of trauma involving, as it does, a protracted level of intimacy between perpetrator and victim. Moreover, as with the rape, the unprovoked killing of your innocent victim as she pursued her vocation, adds to the gravity of this offence.
Any sentence imposed for these offences must reflect not only the denunciation by the Court of the type of conduct in which you engaged, but it must also be directed to deterring others from embarking upon a similar course of conduct. Further, the circumstances of your offending require considerable weight to be given to the principle of specific deterrence.
There are a number of matters personal to you that are relevant to the sentences to be imposed. However, before adverting to them, I wish to say something about the deceased.
The tragic and untimely death of Lorelle Makin occurred when she was 48 years old. Ms Makin was the eldest of five children and she was the loving and supportive mother of two children, now in their twenties, Samantha and John. She enjoyed her employment as a sales consultant at Elders Real Estate in Melton as well as her recreational activities of aerobics and netball and supporting the St. Kilda Football Club.
The Court was provided with statements from her family as to what the loss of her life has meant to them.
Samantha Makin writes eloquently of her mother as her mentor and her best friend who supported her, and her brother, with unconditional love. She describes her mother as living for her children until they had grown up. She also describes the emotional trauma, including depression and nightmares, occasioned by her mother's death. For John Makin, words cannot describe the suffering that he has experienced other than that he misses his mother every day.
Ms Makin's sister, Lisa Preston, refers to her as a beautiful person and describes the loss of the joy of shared laughter, of shopping, of watching films and football and having dinner. She also describes the emotional trauma and pain she has experienced as being like a knife wedged in her heart.
Lorelle Makin's brother, Michael O'Keefe, speaks of her as his best friend and writes of such matters as his feelings of anger and depression at her death, and his torment as to how it occurred.
Catherine Dawes details the life changing effects she has experienced, including feelings of helplessness, anger and isolation, which have been caused by the death of her sister.
The death of Lorelle Makin, and the circumstances surrounding its occurrence, are events from which her family and friends will never fully recover.
You are presently 36 years old, having been born in China in September 1970. Your parents, who still reside in China, are both retired teachers. You have two younger brothers, aged 31 and 35, who also reside in China. They work for government departments in the areas of immigration and trade respectively.
I am informed that you have a distant relationship with your father who had been an alcoholic with a capacity for aggression, but your relationship with your mother is a close one. You completed two years of secondary education in the area of Quanzhou in the Fujian Province of China. In January 1987, at the age of 16, you came to Western Australia on a student visa. You attended an international college in Perth which had a business orientation, for about a year. During this period you learnt English and, ultimately, in 1989, you completed year 12 at a Catholic college in that city.
Thereafter, you attended a TAFE institution in Perth with the ambition of becoming a mechanical engineer. Apparently you did not find the practical aspects of the course congenial and you left after one year. Your continued sojourn in Australia was facilitated by an extension of your student visa by the Australian Government after the incident in Tiananmen Square, and in about 1997, you became an Australian citizen. Meanwhile, in 1991, you commenced working as a kitchen hand in Perth restaurants, an occupation you did not find intellectually stimulating. You then spent some five years driving a delivery van for a Perth bakery called Minas. At one stage you attempted a computer engineering course for one semester. As an employee your final occupation was as a security guard for the City of Perth.
Another activity which you pursued in Perth was as an instructor in a form of martial arts called Ninju Kai Jitsu.
Prior to leaving Perth in 2003 to settle in Melbourne, you established your own business which essentially involved importing porcelain lamps and clothing from China. There is some evidence from witnesses (although it was reliant on your own account to them) that you had purchased a house in Perth which you sold to fund your business. Whatever may be the case, it is clear that when you transferred the business to Melbourne, it was beset by financial problems and it failed.
While living in Perth you formed a relationship with Maree Swan and, as I have already mentioned, a daughter was born in 1999. There is no doubt you were devoted to your daughter ringing her at least every second day once you had moved to Melbourne. It appears that you have had no contact with her since September 2005.
Your employment record indicates that you have been a consistently hard worker. Further, you have demonstrated initiative in setting up your own business. You are (as Mr Joblin indicates) of good intellect. Indeed, not only are you able to speak Mandarin, Cantonese and your own dialect, you also have become proficient in English.
You have no prior convictions whatsoever, and the Court was provided with several character references. A former school friend and housemate, Mr Martin Chang, and a colleague in the security industry, Mr Neil Watts, used such terms as honest and polite, helpful and compassionate, diligent, caring and honourable to describe you. Both referred to your work ethic and your relationship with Ms Maree Swan and your devotion to your daughter. They both regarded these offences as an aberration. Mr Watts had visited you at Port Phillip Prison and expressed the view that you were remorseful.
Your former employer, Mr Peter Douglas, of Security Concepts Australia Pty Ltd, described you as diligent and professional in your duties and willing to go out of your way to help others. His reaction to your involvement in these offences was one of disbelief. Like the other correspondents, he found you to be a committed, loving and supportive father. All the personal matters I have set out to this point suggest that you have reasonable prospects of rehabilitation. There are, however, other aspects of your personality which I must also take into account. A number of these aspects emerged in 2005 in the months leading up to these offences.
By way of background, your time in Melbourne was characterised by loneliness. This is illustrated in the computer diary entries which formed part of the depositions. In March 2005 you resorted to placing an advertisement in a local newspaper as an Asian male looking for intelligent conversation. One of the witnesses in this case responded to your advertisement and a two month affair ensued, culminating at the end of June. Whilst the material in the diary entries was not before the jury, your counsel adverted to it in the course of the plea made on your behalf. In that material you remark (11 August 2005):
"Another escape for me is looking for good sex. I feel calmer after … good sex and able to focus and think better."
These observations were also mentioned in the report of Mr Joblin to which I have previously referred. He particularly noted your strong drive to watch pornography on the internet. According to Mr Joblin's report, you told him that it was necessary for you to have sexual release and this was the reason you had the large amount of pornography on your computer. Mr Joblin expressed the following view about you:
"It does seem that he has a degree of hyper sexuality. That may be the result of hormonal imbalance and that would be a matter that would have to be investigated elsewhere. Certainly he does seem to have this preoccupation with pornography. He believes the appropriateness of that lies in its ability to excite him and then relieve him of stress. Indeed, he reported that the excitation obtained from viewing pornography and sexual activity is very important. To him at the time there was little other source of excitation particularly when living in the flat in Sydenham with little else to stimulate him."
Mr Joblin's report also records:
"Towards the end of my interview with Mr Liu I thought his presentation changed somewhat. He then began talking about pornography and sexual relations. He indicated that he became interested in determining why people would find bondage and pain in sexual relations pleasurable and decided to so some research in that. The discussion evolved because I confronted Mr Liu about the nature of the pornographic material found and strongly questioned whether that pornography formed a blueprint for the attention he had given the victim in this matter.
In my view that cannot be discounted."
There is, however, a vast difference between not being able to discount a possible fact situation and being able to make a positive finding as to its existence. This was one reason why the pornographic material was not placed before the jury and why you are not being sentenced on that specific basis.
For completeness I should add that there are facts upon which Mr Joblin's psychological assessment of your mental state immediately prior to the rape is dependent, which I do not regard as being accurate. In predicating a build up of psychological tension and excitement before the offence, he was relying on your account to him of your feeling ill prior to going to the house and of feeling dizzy when inside the premises. As I have indicated I regard the first claim as false and I note that the latter one had never been made to the investigating authorities. It is not necessary to go into any further detail in relation to this particular aspect of the psychological assessment.
However, putting these matters to one side, Mr Joblin goes on to express the opinion:
"There are aspects of Mr Liu's psychological presentation that involved sexual masochism or sexual sadism. Certainly there seems to be a very strong element of sexual sadism in this incident where he has repeatedly and intensively inflicted psychological and physical suffering on a non-consenting partner, that is the victim, to achieve sexual excitement."
He subsequently continued:
"It is noteworthy that the severity of such acts may increase during [a] period of stress. Certainly he reported to me at the time of the offence he was suffering considerable stress with regard particularly to his loneliness, his estrangement from his daughter, difficulties with his business and difficulties finding work."
Two factors are of considerable significance in determining the appropriate sentences. The first which I have previously mentioned, is your failure to provide any satisfactory explanation for your behaviour. This, coupled with the opinions expressed by Mr Joblin as to your psychological profile, raise real concerns about your future conduct. In these circumstances the need to give considerable weight to the objective of protecting the community in any sentence imposed, is highlighted.
The second factor of significance is what I consider to be your lack of any real degree of remorse. In this regard I do not accept the view of your remorsefulness contained in one of the character references. Nor do I accept counsel's submissions that there are any specific expressions of remorse made by you to Ms Swan when you contacted her after the killing.
On the issue of remorse Mr Joblin recorded:
"Mr Liu reported that while he disagrees with the decision of the jury he acknowledges responsibility for the death of the lady. He indicated that he believes he should receive the death penalty as would occur in China because he has taken her life and the only punishment he perceives as being appropriate is to take his life."
Whilst you may have intellectually acknowledged that your actions were the cause of Ms Makin's death, you have not, in my estimation, accepted any moral responsibility either for her actual rape or her murder. Indeed, as I have already found, you sought to minimise your role. Furthermore, I consider your comments on the death penalty to be empty rhetoric given your undoubted knowledge that such a penalty does not exist in this State.
You do not receive any added penalty for defending these charges, but neither do you get the benefit of any real remorse. The most that can be put in your favour is that ultimately, after attempting to sort out your family affairs, you determined to give yourself up to the police.
You have already served 531 days (inclusive of today's date) of any sentence to be imposed. I direct that this declaration and its details be noted in the Court records.
Application was made by the Crown that you be the subject of reporting provisions pursuant to the Sex Offenders Registration Act 2004. Assuming that such Act is applicable, it is my view that, given the length of the total effective sentence I intend to impose, in conjunction with the level of supervision which must attend any parole period which is fixed, such an order is superfluous at this time.
Balancing as best I can the principles enunciated in the Sentencing Act, and bearing in mind the principles applicable in arriving at a total effective sentence, I conclude that the appropriate sentences in your case are as follows.
On count 1, that of rape, you are sentenced to be imprisoned for 10 years. On count 2, being the count of murder, you are sentenced to 22 years' imprisonment. Further, I direct that 5 years of count 1 be served cumulatively upon count 2 making a total effective sentence of 27 years. I fix a minimum period of 22 years before you become eligible for parole.
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