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

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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 183
Decision Date: 03 March 2023

CaseChat Overview and Summary

In the case of R v Songcuan (No 3), the defendant, Songcuan, faced sentencing for the manslaughter of his wife. The incident arose from a loss of control due to extreme provocation. The court was tasked with determining an appropriate sentence, considering factors such as the uncharacteristic nature of the loss of control, Songcuan's otherwise exemplary life, his advanced age, and the special circumstances surrounding the non-parole period. The court was required to balance these considerations to ensure the sentence was just and appropriate for the crime committed.

The legal issues before the court included the assessment of the mitigating and aggravating factors in sentencing, the role of extreme provocation in reducing culpability, and the impact of Songcuan's age and life circumstances on the sentence. The court had to decide whether the factors presented by Songcuan warranted a reduced sentence and whether the standard non-parole period should be adjusted due to the special circumstances of the case.

The court considered the uncharacteristic nature of Songcuan's actions, attributing them to extreme provocation, which significantly reduced his culpability. It also noted Songcuan's otherwise exemplary life and advanced age as mitigating factors. After weighing these considerations, the court concluded that a sentence should reflect the special circumstances of the case, leading to a reduced non-parole period. The court's decision was aimed at achieving a sentence that was both punitive and rehabilitative, taking into account all relevant factors.

The final orders included a sentence with a reduced non-parole period, reflecting the special circumstances of the case and the mitigating factors presented. The court's ruling balanced the need for punishment with the recognition of Songcuan's otherwise exemplary life and the impact of his age and the nature of the provocation on his actions.

Orders