R v Songcuan (No 3)

[2023] NSWSC 183

Supreme Court

New South Wales

Medium Neutral Citation:

R v Songcuan (No 3) [2023] NSWSC 183

Hearing dates:

7-11, 14-16 November 2022, 3 February 2023

Date of orders:

3 March 2023

Decision date:

03 March 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The offender is sentenced to a term of imprisonment having a non-parole period of 5 years with an additional term of 2 years and 6 months.

Catchwords:

SENTENCING — manslaughter of wife — extreme provocation — uncharacteristic loss of control — otherwise exemplary life — advanced age in sentencing — special circumstances regarding standard non-parole period

Legislation Cited:

Crimes Act 1900 (NSW) ss 23, 421

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 7, 13

Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E

Cases Cited:

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 6

Fuller v R [2022] NSWCCA 203

Gulyas v Western Australia [2007] WASCA 263; 178 A Crim R 539

Liu v R [2023] NSWCCA 30

Killic v R (2016) 259 CLR 256; [2016] HCA 48 at [21]

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Paterson v R [2021] NSWCCA 273

R v Blacklidge (Unreported 12 December 1995, NSWCCA)

R v Isaacs (1997) NSWLR 374

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54;

Category:

Sentence

Parties:

Rex (Crown)
Engracio Songcuan (Accused)

Representation:

Counsel:
A Robertson (Crown)
B Royce (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Chidiac Lawyers (Offender)

File Number(s):

2020/131543

Judgment

1. When arraigned before the jury on 7 November 2022, on the charge of murdering his wife, Erlinda Songcuan on 2 May 2020, Engracio Songcuan pleaded not guilty of murder, but guilty of manslaughter. It is common ground that he had offered to plead guilty to manslaughter throughout the proceedings in the Local Court, prior to his committal to this Court for trial.

2. After a trial lasting 8 days, on 17 November 2022, the jury returned a verdict of not guilty of murder, but guilty of manslaughter in accordance with Mr Songcuan’s plea. It is now my task to pass sentence on him for the offence of manslaughter.

Principles

3. The principles applicable to fact finding for sentencing purposes after trial are not controversial. [1] By their verdict the jury has determined Mr Songcuan’s legal responsibility for the manslaughter of his wife. It is for me to make the decision about the degree of Mr Songucan’s culpability for the offence for sentencing purposes. The power and responsibility of determining the punishment to be visited upon Mr Songucan rests with me and not with the jury. I am to determine the facts relevant to sentencing on the basis of the evidence I heard at the trial and such further relevant material as was put before me on the proceedings on sentence. My assessment of the facts is constrained by the consideration that my conclusions must be consistent with the jury’s verdict. Having said this, it is not my task to attempt in some way to divine the pathway by which the jury reasoned to their verdict. Such an attempt could never rise above the realm of speculation, which has no place in the criminal court. More importantly, perhaps, any such attempt would impermissibly trespass upon the confidentiality of the jury room. Moreover, in accordance with the directions conventionally given to juries, the jury was instructed that while their verdict must be unanimous, the path by which each of them reasoned to that single verdict need not be the same. The verdict of manslaughter in this case is a good illustration of that principle. Consideration of the alternative of manslaughter was left to the jury on two alternative bases. The first was manslaughter by excessive self-defence; [2] and the second, manslaughter by extreme provocation. [3] Different jurors may have adopted different views in accordance with the direction, yet the whole jury reached a common verdict. [4]

   1. R v Isaacs (1997) NSWLR 374 (at 377–378); Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67.

   2. Crimes Act 1900 (NSW), s 421.

   3. Crimes Act 1900 (NSW), s 23.

   4. R v Isaacs (at 379–380).

4. I must make my own decision about the facts of the offending and to the extent relevant the category of manslaughter involved for sentencing purposes. I direct myself that matters adverse to Mr Songcuan must be proved by the prosecution beyond reasonable doubt. Factors mitigating the sentence must be proved by him on the balance of probabilities. [5]

   5. R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

5. While it is necessary to make an assessment of the objective seriousness or gravity of the offending, it is erroneous to proceed on a premise that some legal categories of manslaughter are inherently more serious than others. As the unanimous five judge Bench in R v Isaacs observed: [6]

“The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily, or at least ordinarily, worse than a case of manslaughter by an unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non-custodial sentences”.

I interpolate that it was not suggested on Mr Songcuan’s behalf that this would be a case where a non-custodial sentence would be appropriate.

6. R v Isaacs at 381.

Factual matters in dispute

6. It is not in dispute that on the morning of Saturday 2 May 2020, Mr Songcuan killed his wife of 44 years by choking or strangling her with the crook of his right elbow in the garage of their home. Nor is it in dispute that when he did so, he had the actual specific intention of killing her. No question of manslaughter by unlawful and dangerous act arises on the evidence led at the trial. As I have said, the question was whether Mr Songcuan’s legal responsibility for what would have been murder was reduced to manslaughter by either excessive self-defence or extreme provocation.

7. What was in dispute for sentencing purposes were the precise circumstances in which Mr Songcuan killed his wife. It is the Crown case that having regard to recent events, and particularly the events of 30 April 2020 when his wife accused him of infidelity, verbally abused him, made threatening gestures towards him with a knife and struck him with her shoe, still fresh in his mind, Mr Songcuan lost control and killed his wife. For this purpose he lured or enticed her into the garage where he strangled her.

8. While the Crown accept that when arrested by police in the afternoon of 2 May 2020, he waived his right to silence and made frank admissions “tantamount to a full confession”, he nonetheless lied about the immediately surrounding circumstances of the killing.

9. The defence position is that when Erlinda awoke on Saturday morning she was in the mood to continue the confrontation which had been merely interrupted by a pleasant family get-together the previous evening with the couple’s eldest daughter, her husband and children. On Saturday morning while Mr Songcuan was still asleep, Erlinda barged into his room hitting him with a rolled up canvas backed photograph. [7] In her anger, Erlinda threw the remote control for the television in his bedroom with sufficient force for it to break up when it hit the bedroom wall or floor. [8] She was shouting at Mr Songcuan, calling him a liar with a fierce expression “like a tiger”. [9] As he did not wish to wake his daughter, Catherine, who was sleeping in a nearby bedroom, he ran downstairs to the garage, followed by Erlinda who was still shouting as she followed him into the garage where she picked up some pliers with which she threatened Mr Songcuan. He disarmed her and felt he “had no choice but to silence her”. [10] He put his arm around her throat and his hand over her mouth. He applied pressure until she calmed down and then stopped breathing.

   7. Exhibit H.

   8. Exhibit G.

   9. Exhibit V, A 226.

   10. Exhibit V, A 49.

10. It should be borne in mind that the Crown carries the legal onus of proving the facts of the offending beyond reasonable doubt. I am left in the state of persuasion that the account given by Mr Songcuan to the police is at least reasonably possible. Accordingly, I am not satisfied beyond reasonable doubt that the facts are as contended for by the Crown.

11. Moreover, given the evidence at the trial of the long breakdown in the marital relationship of Mr Songcuan and his wife, including the evidence of her aggression towards him which does not wholly depend upon the account given to police, and the very recent history of violent aggression by his wife towards him, were it strictly necessary to say so, I would regard his version as probably true.

12. There are some aspects of his post-offending conduct which are capable of casting doubt upon the accuracy of his account, and at least elevated the objective seriousness of the offending. In particular, he attempted to make the scene look like a suicide and left a note to that effect for his daughter, Catherine, the only other member of their household at that time, to find and this circumstance certainly added not insignificantly to her distress, I observe. It is probable that this was a comprehensible attempt to hide the truth from his daughter in some misguided attempt to protect her.

13. I am satisfied that he was genuine in his stated intent to also take his own life, although he hesitated sufficiently about the best time, place and method for achieving that purpose to be arrested by police before he could act on it. Given that he did not persist in that subterfuge that Erlinda suicided for long and made what I regard as frank admissions to the police about his actions, and his state of mind, I do not regard the circumstances of his post-offending conduct as demonstrating that his account to police was untrue. I repeat, it does elevate the objective gravity of the offence to some extent but not by very much.

14. I am also of the view that Mr Songcuan’s version is consistent with the pattern of unhappiness that developed in the marriage over a number of years, supported by other witnesses, in particular Catherine. From her evidence, I would infer that they had been unhappy with each other for many years, although in the way of these things, not invariably. There were still some good times. But the evidence left me with the strong impression that things had gone downhill since Mr Songcuan’s retirement from his job as an accountant in 2012. In 2017 he obtained work as a driver for autistic children. Erlinda underwent surgery in or about April 2018 and certainly from that time they slept in separate rooms. She ceased work about that time.

15. After commencing work with the autistic children, Mr Songcuan formed a platonic friendship with a female co-worker in whom he confided about his troubles at home. It is important to say that it was no part of the Crown case that there was an affair between them. The co-worker denied it in evidence, and I accept her evidence. In 2018, the co-worker gave Mr Songcuan a birthday card which was written in affectionate and respectful terms. It did not have the tone of a love letter, but it played some part in the final deterioration of Mr Songcuan’s relationship with his wife, at least from Erlinda’s perspective. She discovered it in their garage at around the time of his birthday in April 2020 and regarded it as confirming all of her suspicions. The card and her perception that money was being siphoned out of their joint bank account seems to have added fuel to the fire of her emotional volatility towards her husband.

16. To put this in some perspective, on 6 February 2020, Mr Songcuan and Erlinda signed a divorce application in the presence of a Justice of the Peace. [11] This document asserted that they had separated as long ago as 11 January 2010 while living under the one roof. This circumstance too adds support to Mr Songcuan’s account to the police of a deteriorating relationship over some years. Notwithstanding this, they travelled to their homeland of the Philippines together in February 2020, perhaps, the evidence is not clear, to bring their relationship to an end. Upon their return in about mid-March 2020, they, like the rest of our community, experienced the first COVID lockdown, which rather threw the unhappy couple together more frequently under the one roof. I infer this greatly added to the tension between them.

    11. Exhibit K.

17. They did not act on the draft divorce application. According to Catherine’s account, her mother was reluctant to pay the necessary filing fee and had not got around to ascertaining whether there was a senior’s discount. From the point of view of Mr Songcuan, when it came to it, he was concerned about social and religious embarrassment if he initiated a divorce. Mr and Mrs Songcuan were regular churchgoers and were in leadership positions in a lay fellowship group within the church. From what he said to police, I formed the impression that he did not wish to attract the opprobrium which would have naturally followed in those circles if it was known he was divorcing his wife. However, I have no doubt that their desire to finalise their marriage was genuine in the context of Erlinda having long suspected Mr Songcuan of infidelity. As I have said, to her mind, those suspicions were confirmed when she found the birthday card in April 2020. She also asserted to Catherine and Father Creta that she had located female underwear amongst Mr Songcuan’s things. This was not really confirmed in the evidence led at trial and the case proceeded on the basis that Erlinda had formed a false belief about Mr Songcuan’s fidelity.

18. I accept that Mr Songcuan’s account to the police about the deterioration in his relationship with his wife is generally accurate. Her behaviour towards him was aggressive and controlling. But also involved a level of actual physical violence. The aggressive behaviour involved taunting, quarrelling and throwing objects at him. On one occasion she damaged his mobile phone by throwing it in the toilet. Controlling behaviour involved quizzing him about his whereabouts if she regarded him as late home from work, suggesting he had been with “his (non-existent) girlfriend”, checking calls and messages on his mobile phone including asking whether a caller was “his girlfriend” and threatening to kill him if she caught him being unfaithful. She had struck him more than once. There was no evidence of any aggressive, controlling or threatening behaviour on Mr Songcuan’s part. He had no history of domestic violence whatsoever.

19. From his account to police during his record of interview on 2 May 2020, he was fearful for his life and felt he always had to watch his back. This is why he said he had moved out of the matrimonial bedroom. He felt he had been “living in hell” and that he would now have more freedom in prison. One of the episodes of Erlinda striking Mr Songcuan with her shoe occurred while he was driving, which of course, was very dangerous and could have had serious consequences not only for them but for other road users.

20. In my judgment Mr Songcuan’s state of mind following the incident of 30 April 2020, where he was threatened with a knife is evinced by his text message to his daughter, Catherine, which included the following:

“Will you pls calm her down (sic). She was too paranoid eversince (sic). This was my 3rd to hit me with that slippers (sic). The last one was while we were driving & smashed it to my face. But I did not fight back coz I love her (sic). The truth is there’s is no other woman. Can you reconcile us and move on? I don’t want this family to be broken due to false allegation. Pls keep this among ourselves. Thanks”

In my judgment this text message is entirely spontaneous and has about it a ring of truth, not that Mr Songcuan carries the onus of proof in relation to the facts of the offending. But it is certainly devoid of any suggestion of any homicidal intent. Rather it is an expression of a desire to reconcile.

21. Another circumstance which, to my mind, demonstrates that on 30 April 2020 Mr Songcuan was desirous of reconciling with his wife is that he called Father Creta who was a pastor to both him and his wife and requested that he attend the home because Erlinda was distraught. Father Creta complied and sought to counsel Erlinda who told the priest about her suspicions concerning Mr Songcuan’s fidelity. Father Creta said he was able to calm Erlinda down. He also said that he observed a kitchen knife in her bedroom, which detail was challenged by the prosecution. In any event, he raised Erlinda’s concerns with Mr Songcuan, who denied the affair. He had formed the view that it would be difficult for Mr Songcuan to repair his relationship with his wife and expressed the view that Mr Songcuan would have to “woo her.” That Mr Songcuan sought the intervention of Father Creta is to my mind, for present purposes, the important consideration. It demonstrates that he was seeking a reconciliation with Erlinda, rather than to be rid of her.

22. There was another argument on the afternoon of Friday 1 May 2020. This time about the bank account. Catherine saw her mother and her father seated in the kitchen with the bank statements while waiting on the phone to the bank. Apparently, things had descended into a shouting match. As I have said there was a peaceful interlude that evening.

23. Catherine left the home at about 7:30 pm to spend a night at her partner’s home and did not return until 5 am on Saturday 2 May, retiring to her bed when she did so. The presence of Catherine in the home is relied upon by the Crown to suggest that Mr Songcuan’s version of what happened on 2 May could not possibly be true. The submission is that had an angry confrontation been initiated by Erlinda in Mr Songcuan’s bedroom at 8:30 am Catherine would surely have been awoken by the ruckus. I do not think that follows. A young woman who returned from her partner’s home at 5 am equally may well have been in a very deep sleep by 8:30 am.

24. Another circumstance relied upon by the Crown is that the contentious bank statements and the signed divorce application were located by investigating police, within a few days of 2 May, torn up in the garbage bin. It was put that these matters were evidence of a consciousness of guilt. Given that he pleaded guilty to manslaughter it is difficult to assess this argument. But fundamentally the evidence does not enable me to find who tore up the documents and placed them in the bin. The documents were last seen in Erlinda’s possession. Even were I satisfied it was probably Mr Songcuan who destroyed them, it is not a circumstance which I find does anything to prove what happened on 2 May 2020.

Objective seriousness

25. It is generally necessary to make an assessment of the objective seriousness of an offender’s offending for sentencing purposes. But given the great variety of offending conduct which may constitute the crime of manslaughter, which is not a standard non-parole period offence, it is unnecessary to gauge objective seriousness by reference to a notional mid-point. [12] Indeed current jurisprudence is that “it is best to avoid identifying where a particular offence of manslaughter falls on a hypothetical range of manslaughters.”[13]

    12. Fuller v R [2022] NSWCCA 203 at [82] (Adams J).

    13. Fuller v R at [82] (Adams J); Paterson v R [2021] NSWCCA 273 at [33] (Beech-Jones CJ at CL)

26. However, “a key element in the assessment of the gravity of the objective circumstances” of any case of manslaughter is that the offence involves “the felonious taking of a human life”. [14] On the score of the felonious taking of a human life, it needs to be borne in mind that this was an instance of serious domestic violence and that current sentencing practices are informed by changing societal attitudes to domestic relations. [15] As the High Court said in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [55]:

“A just sentence must accord due recognition to the human dignity of the victim of domestic violence”

14. R v Blacklidge (Unreported 12 December 1995, NSWCCA per Gleeson CJ).

15. Killic v R (2016) 259 CLR 256; [2016] HCA 48 at [21].

27. It has been recognised that in the assessment of objective seriousness of a case of manslaughter by extreme provocation there are three factors which may be of particular relevance in a given case. [16] They are (footnotes omitted):

“(1)   the degree of provocation offered (or, alternatively, the extent of loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence;

(2)   the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency reducing the objective gravity of the offence; and

(3)    the degree of violence and aggression displayed by the prisoner, which when excessive has the tendency of increasingly objective gravity of the offence.”

In Mr Songcuan’s case, the degree of provocation offered is perhaps not accurately described as great, but it was ongoing over a number of years and intensifying over the short period leading up to the killing of Erlinda. Having regard to Mr Songucan’s attempts at enlisting intermediaries to reconcile Erlinda to him on 30 April, both Catherine and Father Creta, and bearing in mind his account to police, I am satisfied that to act as he did on the morning of 2 May 2022 his loss of self-control must have been of considerable magnitude. Although Erlinda’s provocative conduct was cumulative in its effect, it was also immediate in as much as she visited voluble harassment on Mr Songcuan, involving a degree of physical violence and the offer of more physical violence, in the minutes leading up to Mr Songcuan losing self-control. The loss of control was immediate. I do not accept there was any contemplation, reflection or planning involved in his actions. The loss of self-control and his homicidal actions were entirely spontaneous in the circumstances pertaining on 2 May 2020.There was no weapon used. While the violence was fatal, it was manual violence, and his conduct was not marked by any particular degree of great violence. The violence was fatal but not gratuitous. I have not overlooked the subterfuge short lived as it was.

16. R v Alexander (1994) 78 A Crim R 141 at 144 (Hunt CJ at CL); Fuller v R at [96] (N Adams J).

28. While this may be more apt to Mr Songcuan’s subjective circumstances, this was not a case where his homicidal conduct was part of an ongoing or escalating pattern of violence by a husband against his wife. There is absolutely no evidence, or even mere suggestion, of any previous violence by Mr Songcuan towards Erlinda. It was a truly isolated incident borne of his loss of self-control. There was no brutality or ferocity in his conduct.

Victim impact statements

29. I have had the benefit of hearing a victim impact statement from each of Mr Songcuan and Erlinda’s three daughters read in court. On the application of the Prosecutor, I consider it appropriate to take them into account on the basis that the harmful impact of Erlinda’s death on her daughters is an aspect of the harm done by Mr Songcuan’s offending to the broader community.

30. I found each of the statements moving. In their own terms they were each articulate and I was left with a strong sense of the loss of each of the daughters and their children suffered because of the actions of Mr Songcuan. I was impressed by the consideration that each of his daughters, independently of one another, gave to the point that by his offending he not only deprived them of their mother, but of their father too. I offer the condolences of the Court to each of them and thank them for being prepared to share their loss with me on behalf of the wider community.

Conclusions about manslaughter

31. As I have said I have accepted Mr Songcuan’s version of what happened on Saturday 2 May 2020. I am not satisfied that the Crown have proved the version for which they contend beyond reasonable doubt. While it is not strictly necessary for me to make any definite findings about what category the manslaughter of Erlinda by Mr Songucan falls into, I am satisfied that the Crown have excluded manslaughter by excessive self-defence beyond reasonable doubt. I accept that when she followed Mr Songcuan into the garage, Erlinda picked up, and threatened him with, pliers. However, he easily disarmed her of them and simply put them in a drawer out of the way. At the time he commenced to strangle Erlinda she was not posing any threat to him, and I am satisfied beyond reasonable doubt that he did not then believe that strangling her was necessary to protect himself from any threat she presented to him.

32. The facts as I have found them are more consistent with manslaughter by extreme provocation. Early on in his interview with police, Mr Songcuan explained what happened in the following terms (A 49):

“I’m not like that. I cannot, hurt other people but I’m really fed up, I cannot stand it any more. It is, uh, tails with dog….pet, a dog…If you are very good to dog…the dog is, uh, always, uh with you. When you arrive he’s happy…when he sees his master, always jumping. But there is some time that if that dog was cornered and he went to [hit] him it will bite back. That’s…[an] example… [of] what I have, uh, done.”

It must be remembered that English is not Mr Songcuan’s first language, but his metaphor is more consistent with a loss of self-control, which is of the essence of provocation, in response to Erlinda’s conduct towards him over the period of time that I have described. There are other aspects of his account to the police which I also regard as evidencing a loss of self-control. He mentioned the need to compose himself (Exhibit A 148). When asked about his intention (question 306), he answered, “to keep her [from] shouting and to, to stop…nagging me, to stop…bullying me. Because … she was trying to go for my patience. But…I [don’t know]… I just my mind just …”. I accept that although his account trailed off, his hand gestures were consistent with what is often referred to colloquially as a brain snap. When asked what he thought would be the result of his actions (308), he said, in part, “to stop her screaming”, adding “I think I over, uh, acted”. I took the latter to mean overreacted.

33. I am also satisfied that Erlinda’s course of threatening, controlling, aggressive and violent conduct toward Mr Songcuan over a number of years which seemed to intensify in the short period leading up to 2 May 2020 constituted the serious indictable offence of intimidation contrary to the provisions of s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW). The elements of that offence are intimidating another person with the intention of causing the other person to fear physical or mental harm. The offence carries a maximum penalty of five years imprisonment. By s 7 of that Act intimidation means conduct amounting to harassment or molestation of the person and extends to conduct that causes a reasonable apprehension of injury to that person. A court is entitled to “have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour”.

34. I have already said that on his account, I am satisfied that Mr Songcuan did lose self-control in the garage in the morning of 2 May 2020 when Erlinda continued with her harassment of him. A more difficult question is, could Mrs Songcuan’s conduct have caused an ordinary person to lose self-control to the extent of intending to kill or inflict really serious bodily injury on her. However, accepting Mr Songcuan’s account to the police, as I do, I am satisfied that the Crown have not excluded this element of the partial defence of extreme provocation beyond reasonable doubt. Erlinda’s harassing, controlling, aggressive and violent behaviour had continued for a number of years. It seems to have escalated in the short period leading up to 2 May 2020. While I have misgivings about whether an ordinary person could have formed the intent to kill her, I have no doubt that her conduct could have caused an ordinary person to lose self-control to the extent of lashing out at her with the intent of inflicting really serious bodily injury on her. At least, I repeat, I am not satisfied beyond reasonable doubt that the Crown have excluded this element, even as a reasonable possibility.

35. Obviously, the Crown is bound by the jury’s verdict, and it goes without saying that there was no attempt to gainsay the verdict in the proceedings on sentence. However, the version for which the Crown contended is unpersuasive. Even accepting everything Mr Songcuan said about Erlinda’s conduct up until 30 April or 1 May 2020 and accepting that the relevant provocative conduct need not have occurred immediately before Mr Songcuan strangled his wife, the submission that he lured her into the garage to kill her, having regard to previous provocative conduct, seems cold-blooded, rather than indicative of a loss of self-control; such cold-blooded conduct is more consistent with murder than manslaughter and to that extent inconsistent with the verdict of the jury.

Subjective circumstances

36. Mr Songcuan was born in April 1947. He was aged 73 at the time of offending. He will be 76 in the coming April. He was born in the Philippines. He and Erlinda married there and had four children together. A son, Edgar died from cancer in 1996. I have the impression that this loss was borne heavily by each of them. From the evidence of their daughter, Catherine, and from the circumstance that they described in their divorce application, one may say the marriage had not been happy for many years, but they nonetheless remained together.

37. After the family migrated to Australia, Mr Songcuan lived what in the jargon of criminologists is referred to as a pro-social life. Perhaps in former times it would be said that he was a pillar of the community. As I have said, he and his wife were actively involved in their church enjoying a leadership role in a lay fellowship network. As I have already remarked, he worked in his profession as an accountant with an Australian manufacturing company retiring at the age of 65. Mr Songcuan and his wife raised their three surviving children to become in their turn pro-social contributing members of the community. This, of course, reflects well on both of their parents.

38. In objective terms Mr Songcuan previously lived a completely blameless life. He has absolutely no criminal record. Like his wife, he worked hard until retirement. After retirement he did casual work for his former employer, which of course says he was well regarded by it, before taking up retirement work as a driver for autistic children.

39. I appreciate that in her victim impact statement one of his daughter’s gave an account of him being an inattentive husband and father when his children were young. However, this is inconsistent with the objective facts to which I have referred and in any event is not material which is properly before me, given my limited power to have regard to victim impact statements by the terms of s 30E of the Crimes (Sentencing Procedure) Act 1999 (NSW). I have not had regard to that material. Looking at the established objective facts, one can say that Mr Songcuan by the ordinary standards of the community lived an exemplary life until 2 May 2020.

40. As I have said, as late as 30 April 2020, he attempted to effect a reconciliation with Erlinda. First, through his daughter Catherine, and secondly through their pastor, Father Creta.

41. I am certainly satisfied that by reason of his previous good character and his age Mr Songcuan is a person who is extremely unlikely to re-offend and for the same reasons he has very good prospects of rehabilitation. Other than by his guilty plea to manslaughter, and his facilitation of the interests of justice by raising little contest to the Crown case at trial, Mr Songcuan has not proffered evidence of remorse. That being so, it is difficult to place emphasis upon that as a mitigating factor. Having said so, in the circumstances of the case, I am not of the view that this is a bar to a positive finding in his favour in relation to prospects of rehabilitation. Although I am not able to take the aspect of provocation into account as a separate mitigating circumstance given my findings in relation to the reduction of his legal responsibility from murder to manslaughter, I would regard the unjustified killing of Erlinda as an aberration in the progress of an otherwise exemplary life founded entirely upon what appears to have been an uncharacteristic loss of control.

42. At nearly 76 years of age, Mr Songcuan falls into the category of a person of advanced age. Advanced age is a factor capable of operating in mitigation of the severity of a sentence that would otherwise be imposed. [17] The principles were summarised in the decision of the Western Australian Court of Appeal in Gulyas v Western Australia. However, it must be borne in mind that advanced age does not automatically lead to the imposition of a lesser sentence than the objective circumstances require. In the present case there is no aspect of continuous ill health or some other age-related state making incarceration more onerous for Mr Songcuan than that which is normal.

    17. Gulyas v Western Australia [2007] WASCA 263; 178 A Crim R 539 at [54]; Liu v R [2023] NSWCCA 30 at [39].

43. There is no evidence of any aspect of age-related mental impairment, ill health or physical frailty. However, it is appropriate in the present case to take account of the consideration that Mr Songcuan may experience additional hardship in custody because of his knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of a useful life after release. However, this consideration remains subject to the central concept of proportionality in sentencing and the sentence passed must still fit the crime.

44. Mr Songcuan’s age and his previously exemplary life reduce the relevance of general and specific deterrence in sentencing, but they do not eliminate them entirely.

The sentence to be passed

45. In the present case, one must start with considerations of retribution and denunciation. There is nothing in the evidence that reduces Mr Songcuan’s moral culpability for this offending. As I have said, general and specific deterrence are attenuated as relevant considerations because of Mr Songcuan’s age and his previous good character. I bear in mind that I am concerned with the felonious and intentional taking of the life of another. That is to say, his wife, who was entitled to look to him for protection and to feel safe in her own home.

46. The aspect of denunciation to which I have already referred must reflect the community’s strong disapproval of crimes of domestic violence. In this regard, the dictum of Lee J (as he then was) from R v Whalen (Unreported 5 April 1991, NSWCCA) remains apposite:

“[S]ociety can never condone the taking of a human life as a solution to marital discord. The law does no more than recognize that provocation can overcome a person’s self-control and result in that person killing another and in that circumstance it allows the crime to be seen as manslaughter, not murder.”

47. I have had regard to the maximum penalty for the offence of manslaughter of 25 years imprisonment as a guidepost to the seriousness of Mr Songcuan’s offending.

48. I accept that Mr Songcuan’s time in custody since 2 May 2020 has involved greater hardship than usual because of the restrictions imposed in custody by reason of the coronavirus pandemic. Moreover, his trial has been delayed for COVID reasons, increasing the uncertainty of mind that any person on remand faces about the outcome of the trial process. And, I have not overlooked Mr Songcuan’s statutory entitlement to a discount of 25 percent on the sentence I would otherwise impose for his early appropriate plea of guilty to manslaughter. I note also that, as one would expect of a man of his previous character, he has been of good behaviour in custody.

49. All that has gone before, of course, proceeds on the premise that no sentence, other than one of full-time imprisonment is appropriate for this offending and this offender. The sentence I impose must consist of a non-parole period and an additional term. The non-parole period is the minimum time that justice requires Mr Songcuan to spend in full-time custody for this offending. However, whether he will be released to parole when he is first eligible is not a foregone conclusion but will depend upon a decision of the State Parole Authority, no doubt having regard to the question of whether he has continued to be of good conduct while in custody.

50. But for the early plea of guilty I would have imposed a sentence of imprisonment of 10 years on Mr Songcuan for the manslaughter of Erlinda Songcuan. His plea of guilty entitles him to a reduction of 25 percent, reducing the head sentence to one of 7 years and 6 months duration.

51. I am asked to give consideration to a finding of special circumstances justifying an alteration of the statutory ratio between the non-parole period and the additional term in Mr Songcuan’s favour. I am conscious that I have taken his age and COVID-related hardships into account in the synthesis of factors leading to the fixing of the maximum term. However, the same factors may be relevant for more than one sentencing purpose. That is to say, provided care is taken to avoid double-counting, the same factor may inform all of the fixing of the head sentence, the non-parole period and the question of whether special circumstances exist. Bearing in mind the uncertainty related to the delay in the finalisation of Mr Songcuan’s prosecution and that this is his first time in custody as an elderly man, I think it appropriate to reduce the non-parole period from the statutory 75 percent of the maximum penalty to one of two-thirds of the maximum penalty. The non-parole period will be one of 5 years imprisonment.

52. Under s 25C Crimes (High Risk Offenders) Act 2006 (NSW), Mr Songcuan I advise you that your offence is one to which the provisions of that Act may apply, and the Attorney General may make an application for your continued detention or your extended supervision in the community at the expiration of the sentence I will impose. While it is not for me to say so, whether a decision is made to make an application against you may depend upon your continued good conduct in custody and the steps you take towards your rehabilitation while incarcerated.

53. Mr Songucan, by its verdict the jury convicted you of the manslaughter of your wife, Erlinda Songcuan on 2 May 2020. I sentence you to a term of imprisonment having a non-parole period of 5 years commencing on 2 May 2020 and expiring on 1 May 2025 with an additional term of 2 years and 6 months commencing on 2 May 2025 and expiring on 1 November 2027. You will first be eligible for parole after the expiration of the non-parole period on 1 May 2025.

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Endnotes

Decision last updated: 03 March 2023