R v Liu

[2020] NSWDC 698

District Court

New South Wales

Medium Neutral Citation:	R v Liu [2020] NSWDC 698
Hearing dates:	21 August and 23 October 2020
Decision date:	23 October 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 13 years 6 months with a non parole period of 10 years.
Catchwords:	CRIMES - SENTENCE - wound with intent to murder - intimidation.
Legislation Cited:	Crimes Act 1900 (NSW): s27; Crimes (Domestic and Personal Violence) Act 2007 (NSW): s13(1)
Category:	Sentence
Parties:	Regina (Crown) Wayne Liu (The offender)
Representation:	Mr Kotsis (Crown Prosecutor) Mr Rajalingham (Counsel for the offender)
File Number(s):	2019/00000294
Publication restriction:	Nil

Judgment

1. Wayne Liu you appear today for sentence in relation to two offences: first, wound with intent to murder; and secondly, intimidation.

2. The first offence involves a contravention of s 27 of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment. There is a standard non-parole period of ten years imprisonment.

3. The second offence involves a contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty for that offence is five years imprisonment. There is no standard non-parole period.

4. The facts surrounding your offending conduct can be summarised as follows.

5. You were born in China in 1957.

6. By 1984, you were living in New Zealand and, whilst in New Zealand, you met Ms Yu.

7. At the time that you met Ms Yu, she already had a daughter from another relationship.

8. In the year that you and Ms Yu met, you married each other.

9. In 1991 you, Ms Yu and your step-daughter came to Australia. In 1994 you and Ms Yu had your own daughter.

10. In 1997 you and Ms Yu bought a house in the suburb of Canley Vale and you lived there with her and the children after that date, apparently without incident.

11. But in 2016 things changed.

12. On 6 January 2016, you viciously attacked your wife. It involved punching her to the head with a clenched fist, striking her to the back of the head as she crawled to escape your attack, pulling her by her hair to her feet so you could continue the attack; and it included choking her and threatening her with death by strangulation.

13. You came before the Local Court for sentence in relation to that cowardly, brutal and vicious attack on your wife on 23 February 2016 when you advanced considerable material before the Local Court to suggest that this was a one off incident and that, in some way, it had been provoked by you having a bad day at work. And for this disgraceful attack on that vulnerable woman you received 200 hours community service.

14. I emphasise though, Mr Liu, that the apparent inadequacy of that sentence is not the focus of my attention this afternoon. But it sets the scene for what followed and which is the focus of my attention this afternoon.

15. Four or five months after that attack, you and Ms Yu divorced. The assets of the two of you were divided and, in that division of property, Ms Yu retained full ownership of the former matrimonial home.

16. Somewhat generously, your former wife, as she had become, agreed that you could continue to live on the property, but in a granny flat at the back. You were permitted to have access to the main part of the house, specifically the kitchen, the bathroom and the laundry.

17. But, apart from you living in the granny flat and having access to those three rooms in the house, you and Ms Yu lived separate lives. You discussed what would happen if either of you entered into a new relationship; and you and she agreed that, if either of you did enter a new relationship, your previous marriage to each other would not be revealed to that newcomer. I emphasise that this is something you agreed to.

18. Around the end of 2017 Ms Yu did enter into a new relationship with Mr Peng.

19. A short time after Ms Yu and Mr Peng started their relationship, he moved into the former matrimonial home. Mr Peng was aware that you were living in the granny flat. He was unaware that you had been married to Ms Yu. You were referred to by her and the children as “Uncle”.

20. You would come into the house, whilst Mr Peng was living there, to use the bathroom, the kitchen and the laundry as you had done before Ms Yu started her relationship with him. You and he would say “hello” to each other.

21. But, from the time Mr Peng moved into that house, you were consumed with hatred for him and you planned, almost from the day he moved in, to kill him.

22. And that is what you tried to do on 31 December 2018.    

23. At about a quarter to 6 in the evening on that day, Ms Yu and Mr Peng were sitting down having a meal in the kitchen. You went into the kitchen, armed with a small knife, which had a serrated blade, and which was about 9 centimetres long - and you intended to kill Mr Peng. You had even taken the step of wrapping insulating tape around the handle so that, if there were blood, the blade would not slip from your hand.

24. As Mr Peng and Ms Yu were sitting there having their meal, you walked up behind him and cut his throat with that knife and, as that blade passed through that neck, it was your intention to kill that man. You said nothing as you attempted the execution of this totally innocent, unarmed and unprepared person.

25. Mr Peng grabbed his neck, from which blood was coming. Indeed, he was bleeding heavily; and he ran out of the premises to a neighbour’s place who rang triple-0.

26. But your offending did not stop there. You then turned your attention to your former wife, who had seen what you had done to her partner. You pulled her by her hair and held that knife to her neck. You were angry and aggressive. You pushed her against a wall and grabbed the top of her hair. You had the knife still against her neck. She was begging you to be released. You released your grip and she fell to the floor.

27. But then, reminiscent of what you had done in early 2016, you pulled her up again by her hair and pushed her against a sliding door with such force that that door broke. Her head hit that door. You grabbed her again by the hair with your left hand and with your right hand you made a stabbing motion towards her. You were still holding that knife in that right hand.

28. She managed to get away from you, but only for a short time, because you grabbed her again by her hair and pushed her to the floor. You lent over her with the knife pointing towards her. She was begging you to leave her alone. In fact, throughout all of this, that lady thought that you were going to kill her.

29. Eventually you left her and went outside holding the knife. Mr Peng saw you and you started to chase him. But fortunately for everybody you did not catch him and you returned to the house.

30. The police came and you were arrested.

31. Mr Peng was taken to hospital where it was discovered that fortunately no serious damage had been done to the trachea, the oesophagus, or the arteries in his neck. But he did undergo surgery.

32. As I have said, you had planned to kill Mr Peng for some time, but you delayed until the children had finished their exams.

33. So this incident was not a spur of the moment decision; a rush of blood to the head. It was a cold, calculated, deliberate act planned over many months, including obtaining and making alterations to the blade so it would not fall out of your hand.

34. In terms of their objective seriousness for offences of their kind, the wounding with intent to murder is a midrange offence and the intimidation offence is into the upper range.

35. The first offence is additionally aggravated because of the planning involved.

36. The second offence is additionally aggravated by the use of actual violence. It is additionally aggravated by the use of a knife. It is additionally aggravated because of your prior record involving a conviction for a prior incident of domestic violence against the same victim.

37. Each offence is additionally aggravated because it was committed in the home of the relevant victim.

38. There are no victim impact statements from either of the two victims of your offending conduct. But undoubtedly the experience would have been terrifying for both of them. It is somewhat disappointing that there is no victim impact statement, especially from Mr Peng. I am unable in the circumstances to conclude that the psychological injuries which he undoubtedly would have sustained, over and above the physical injuries, were greater than might ordinarily be expected for an offence of this kind.    

39. You were 61 when you committed these offences. You are now 62 or thereabouts.

40. I have mentioned something of your background: that you were born in the Peoples’ Republic of China; and that you migrated to New Zealand and then Australia.

41. You have worked hard as an adult in all three countries. You have brought up two daughters, both of whom (at least at the time of the 2016 offences when they gave references for you in the Local Court) held you in high regard. However, I cannot help but notice that they have not been present on any occasion when these present matters have been in this court.

42. Because of the 2016 offence, you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.

43. You have no relevant mental health illnesses, intellectual disabilities, or issues involving alcohol, illicit drugs or gambling.

44. I am unable to make any finding as to whether or not you have any support in the community. I am unable to make that finding (either in relation to your daughters or in relation to other friends or family members) because the evidence is missing.

45. Your plea was entered very late. As I said, you were arrested on 31 December 2018. You were arraigned in this Court on 25 October 2019 when you pleaded not guilty and, at which time, a trial date was fixed for 9 June 2020. It was not until 4 June 2020, some few days before the trial, that you offered to plead guilty to certain counts on the indictment, which offer was accepted by the Crown. There will therefore be a discount of 5% for each of the sentences you are to receive    

46. You gave evidence in the sentence hearing. In that evidence, you were taken by your own counsel to the contents of the psychiatric reports which had been obtained by your lawyers and which you allowed to be given to this Court - and in which you told obvious lies.

47. I am not persuaded on the balance of probabilities that you are remorseful for what you did on 31 December 2018, although I am satisfied, on the balance of probabilities, that you are unhappy at the situation in which you find yourself. That is a different thing from genuine remorse for offending. 

48. Remorse is an important element in assessing a person’s prospects for rehabilitation. It is difficult for me to form an assessment of your prospects because your offending has been, to a large extent, solely focused on one person who is still alive, that is, your former wife. I think the best I can say is that your prospects of reoffending against that person are guarded.

49. It is important that, in the context of violence against women in their own homes by their partners and their ex-partners, the Court imposes a sentence that will deter others from doing what you have tried to do. The prevalence of domestic violence against women in this country is a matter of serious concern and the courts need to impose sentences that make it clear to those who are contemplating abusing their partners that there will be stern consequences.

50. You also need to receive a sentence that will deter you from considering offending again, either generally or in relation to the person against whom you have already offended twice - if not, indirectly, three times.

51. To an extent, your rehabilitation remains a relevant consideration.

52. And specific and general deterrence are fully engaged.

53. There were two victims on this night and therefore in relation to each offence there will be partial accumulation. But I have taken totality into account.

54. I intend imposing an aggregate sentence. The discount of 5% will be applied to the indicative sentences underpinning the ultimate aggregate sentence.

55. In relation to the offence of wound with intent to murder, except for your plea of guilty, the indicative sentence would have been 12 years imprisonment. After the discount of 5%, the indicative sentence is imprisonment for 11 years and 4 months. The indicative non parole period is 8 years 6 months.

56. In relation to the offence of intimidation, except for your plea of guilty, the indicative sentence would have been imprisonment for 4 years and 6 months. After the discount of 5%, the indicative sentence is imprisonment for 4 years and 3 months.    

57. In the result, you are sentenced to an aggregate term of imprisonment of 13 years and 6 months.    

58. I decline to make a finding of special circumstances. It was advanced on behalf of your counsel that, because of your age and because of a need to reintegrate into the community after your release, there should be such a finding. The period of parole that you will be on will be more than sufficient for that purpose.   

59. I therefore fix a non-parole period of 10 years imprisonment to date from 31 December 2018 and which will expire on 30 December 2028.

60. I fix a balance of 3 years and 6 months to date from 31 December 2028 and which will expire on 30 June 2032.

61. Sequence two is withdrawn and dismissed.

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Decision last updated: 16 November 2020