R v Wang - [2015] NSWSC 433

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Wang [2015] NSWSC 433
Hearing dates: 27 March 2015
Decision date: 17 April 2015
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
Sentenced to imprisonment for 20 years to date from 25 February 2013 and expire on 24 February 2033, comprising a non-parole period of 15 years, followed by a balance of the term of sentence of 5 years. The first date upon which the offender will be eligible for parole is 24 February 2028.

Catchwords: CRIMINAL LAW – remarks on sentence – plea of guilty to murder – deceased attacked with a weapon in her own home – intention to kill – loss of control – evidence of deep remorse by offender – prior good character
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Cases Cited: R v Previtera (1997) 94 A Crim R 76
Category: Sentence
Parties: Regina
Zhaoyun Wang
Representation:
Counsel:
C Maxwell QC (Crown)
M Ramage QC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Bilias & Associates (Offender)

File Number(s): 2013/59044

Judgment

Introduction

On 7 May 2014, Zhaoyun Wang (the offender) pleaded guilty in the Local Court at Newcastle to murdering Shan Wu (the deceased) on 25 February 2013. He was committed for sentence. On arraignment in this Court on 5 December 2014, he adhered to that plea.
I received oral and documentary evidence in the proceedings on sentence on 27 March 2015. The culmination of that procedural background is the imposition of sentence today.
The maximum penalty for the offence of murder is imprisonment for life without parole. Parliament has prescribed an applicable standard non-parole period of 20 years in the circumstances of this case. I have regarded the maximum penalty and the standard non-parole period as important guideposts in my exercise of the sentencing discretion. The learned Crown Prosecutor did not submit that this was a case that called for the imposition of the maximum penalty.
A comprehensive set of agreed facts was tendered in the proceedings on sentence. In truth, there were only two circumscribed areas of dispute between the parties, the first being the precise things said by the deceased moments before the offence, and the second being an aspect of the motivation for the offence. I have approached those disputed facts as follows. Any disputed fact that aggravates the criminality of the matter must be proven beyond reasonable doubt. Any fact that sounds in mitigation in favour of the offender must be proven on the balance of probabilities only. It is possible, of course, that some disputed facts will not be able to be determined by me.

Facts

The deceased was born in the People’s Republic of China in December 1982. Accordingly, as at the date of her death she was aged 30 years. The offender was born in the same country in June 1982. On the day of the murder, he was also aged 30 years.
The deceased and the offender met in late 2011 at premises in Beijing where people would congregate in order to practice their English in a social setting. Both of them were very high achievers and had obtained qualifications from highly regarded universities in China. The offender was working as a corporate lawyer. The deceased was working for an international accounting firm. They formed a romantic relationship, and quite soon after their meeting the deceased moved into the apartment of the offender in Beijing. Later that year she introduced him to her family. Early in 2012, the offender introduced the deceased to his family. Every aspect of their lives was proceeding well.
In May of that year, the deceased transferred to the Newcastle office of her employer. Her father accompanied her, and the two of them lived in a rented apartment in that city. The offender remained in Beijing, but he and the deceased stayed in very close contact by way of email and telephone. The intention of the two of them was that the offender would in due course move to Australia, and the couple would build a new life together in this country.
The father of the deceased developed cancer, and moved back to China for treatment. She accompanied him, and moved back in with the offender. Things continued to progress well, though there is a suggestion that the deceased had become a little uncertain about sharing her future with the offender. She returned to Australia alone in early January 2013.
Whilst he had been separated from the deceased and living alone in Beijing, the offender was arrested in June 2012 in the vicinity of the premises of a sex worker. He was imprisoned for two months in a Chinese jail. As a result, his employment was terminated. He was also deeply ashamed of himself. He admitted what had happened over the telephone to the deceased. She forgave him, and was prepared to continue with the relationship.
Separately, shortly after her return to this country in early 2013, the deceased formed an intimate relationship with a younger man, also of Chinese background. Again, she told the offender by telephone of that setback to their relationship. Again, he was prepared to maintain his commitment to the plan that they would build a life together in this country. In the meantime, he had obtained another professional position, but was prepared to forego it and start his career afresh in Australia with the deceased.
It was in that rather unsettled context that, on 23 February 2013, the offender left China with the intention of beginning his new life with the deceased. He flew from Beijing to Hong Kong, and then on to Sydney. On arrival the next morning, he was greeted lovingly by the deceased. The two of them travelled by train to Holsworthy, where they enjoyed lunch with the family of the deceased’s uncle. Thereafter, they travelled by train to Newcastle and arrived at the apartment of the deceased. They made love, showered, strolled around the sights of the city, and did some grocery shopping before returning to the apartment.
After that, the deceased explained to the offender that she wished to visit the other man to whom she had been close in the absence of the offender. Somewhat surprisingly, the offender, who had just arrived to begin their romantic co-habitation, agreed to that course. The deceased left the apartment and travelled the short distance to visit the other man. After she had been away for some time, the offender sent her a text message asking when she would return, and requesting that she purchase some headache tablets for him.
The deceased returned to the apartment at about 9 PM. What precisely occurred after that is a little unclear, at least with regard to the things said between them. Generally, I accept on the balance of probabilities the truth of what the offender said in his recorded interview with police the following day. I do not accept to that standard the further things, above and beyond the contents of that interview, that the offender has claimed the deceased said, both in his discussions with a psychologist and a psychiatrist and also in the witness box. In particular, I am not satisfied that the deceased spoke of the mother of the offender in harshly disparaging terms.
I am satisfied that the deceased told the offender that she intended to end her romantic relationship with him, and continue her relationship with the other man. I am also satisfied on the balance of probabilities that, in blunt terms, she drew a number of unflattering comparisons between the offender and that man. I am further satisfied that the intensity of the conversations between the two of them increased throughout the evening and into the early morning.
At some stage both the deceased and the offender slept. In the early hours of the morning they were both awake. The conversations resumed and became more intense. At about 3 AM on 25 February 2013, the offender inflicted very great violence upon the deceased. He repeatedly attacked her with a meat cleaver that he obtained from the kitchen of the apartment. The fatal ordeal of the deceased was by no means of short duration; so much is demonstrated by the numerous and severe defensive wounds that she suffered, and the fact that blood was found in more than one room of the apartment. The attack culminated in the offender embedding the meat cleaver in the throat of the deceased with very great force. There can be no doubt but that the offender intended to kill the deceased.
I am satisfied that, at that time of those actions, the offender had completely lost self-control, and was in a blind rage. To the extent that his recorded interview with police suggests that he was angered by the lack of “respect” shown to him by the deceased, I accept on the balance of probabilities that he was referring to his state of mind as the discussions became more heated, and not at the time of the infliction of the fatal violence.
That loss of self-control is not easy to understand. That is because the offender had never shown himself to be a person prone to violence or even anger in the past; to the contrary, he has been generally shy and quiet throughout his life. Nor is it the case that he has suffered from any severe psychiatric difficulties in the past, although his incarceration and loss of employment in China affected him in ways that I will discuss later.
I think that one can only understand that loss of self-control as the product of disappointment and shock at the unexpected termination of the relationship; the belief that it constituted a further humiliation of the offender after his incarceration and shame as a result of the contact with the sex worker; jealousy of the intimate relationship between the deceased and the other man; resentment of the fact that he had put an end to things in China only to be told that there would be no new life for him in this country; a sense of helpless isolation, having arrived in Australia less than 24 hours previously and having no contacts here other than the deceased; and, to a small degree, exhaustion arising from the overnight plane trip and the day spent socialising and sightseeing in Australia.
I interpolate to say that it is true that the offender lost control as a result of things said by the deceased. That serves to explain his fatal actions. It does not justify or excuse them to the smallest degree. It hardly needs stating that adult persons in this country are entitled to engage in lawful romantic or intimate relationships with whomever they choose. Persons who may take exception to those relationships are entitled to be disappointed or unhappy or upset. They do not have the slightest entitlement to inflict violence, let alone fatal violence, upon a person whose relationships meet with their disapproval. And I consider that sentences that are imposed on persons who commit murder because of their emotional reaction to the intimate relationships of others must give significant weight to deterrence, both general and specific.
Thereafter, the offender showered. I accept on the balance of probabilities that that was done in a state of shock, rather than with any intention to escape punishment for what he had done. He then promptly telephoned the emergency services, confessed his guilt, and waited at the scene for the police to arrive. He was arrested immediately. Later that day he engaged in a recorded interview with police with the assistance of an interpreter. He has been in custody ever since.

Assessment of objective seriousness

This murder was completely unplanned. Were it otherwise, the offender would have taken steps to evade detection before and after the offence. He took none. The weapon was obtained from the kitchen of the home. As I have said, the murder was the result of a complete loss of self-control.
To be weighed against those factors is the fact that the offender possessed an undoubted intention to kill. The deceased, a young woman with her whole life ahead of her, was savagely hacked to death in her own home. The murder was completely unjustified. A deadly weapon was used, against which the deceased was defenceless. The fatal ordeal to which she was subjected was terrifying and excruciatingly painful. Even if that ordeal extended for no more than two or three minutes, it must have seemed like hours to her in her suffering.
In all of the circumstances, this murder must be assessed as being above the middle of the range of seriousness of such matters. Indeed, I regard this murder as a very grave example of the offence.

Subjective features

I turn from a discussion of the offence to a discussion of the life and character of the offender.
As I have said, the offender pleaded guilty to the offence in the Local Court. Although there was some delay in the progress of the proceedings after that, I ascribe that to the need for a number of matters to be thoroughly checked, in light of the enormity of the offence to which the offender had pleaded guilty. I allow a discount of 25% for the usefulness of that plea of guilty to the criminal justice system. To the extent that that discount results mathematically in a head sentence and non-parole period that feature a few weeks or months, they will be rounded down, because the law does not concern itself with trifles.
Separately, I am amply satisfied that the offender is deeply remorseful for what he has done. Quite apart from his plea of guilty, as I have said, he admitted his guilt in the phone call very shortly after the offence was committed. During the reading of a lengthy and poignant victim impact statement prepared on behalf of the family of the deceased, the offender showed himself to be deeply upset. That stands in contrast to the behaviour of other offenders that I have observed when victim impact statements in homicide matters have been read out. I do not believe that the offender was feigning his reaction at that or any other stage. In the witness box, he stated that he deserves to be “severely punished.” Indeed, in speaking to one of the experts who assessed him, he stated that he deserved the ultimate penalty available to humankind. Even now, more than two years after the offence, he struggles to understand how and why he murdered the woman he loved.
For all of those reasons, I accept that the offender bitterly regrets his actions that morning, is deeply ashamed of them, and understands the enormity of what he has done.
Despite his incarceration for the contact with the sex worker pursuant to the Chinese legal system, I approach the offender as a man of unblemished record and good character before 25 February 2013.
The offender grew up in a small town in rural China. His parents were agricultural workers, and his living conditions were very deprived materially. As well as that, from an early age he suffered from profound short-sightedness. That condition limited him physically, including with regard to engagement in sports. It also affected him emotionally, in that he was bullied about it and was embarrassed by it. He was an introverted and bookish child and young man. The fact that the deceased, an attractive and accomplished young woman, took a romantic interest in him surprised and flattered him.
As I have explained, the offender was a person of considerable intellectual and professional achievements in China. In a letter that was tendered before me, his sister described him as having been, before this catastrophe, “the pride of the village.”
In Australia, the offender has neither family nor friends. Due to the cost of travel from China to Australia, it is very unlikely that any of those who love and support the offender will be able to visit him. He is able to telephone them only infrequently. I accept that his incarceration in this country will be extremely difficult due to that isolation. I also accept the submission of senior counsel for the offender that, in the circumstances of this case, that isolation is not something that arises inherently from the offence in which the offender chose to partake, in contrast to other offenders such as drug couriers. Those isolated conditions of custody over many years sound in mitigation.

Expert opinions about the offender

A forensic psychiatrist who examined the offender recently noted that he is being medicated in custody for depression. He considered that the incarceration of the offender in China had brought on a period of depression that had never truly abated. The psychiatrist was also of the view that the offender could be described as having an “obsessive compulsive and avoidant personality” that could well have led to him avoiding conflict and “bottling things up”. A psychologist concurred in the opinion that the offender is currently depressed, and also thought that the offender had been suffering post-traumatic stress disorder since his incarceration in China.

The future

The offender is not burdened by problems with alcohol or prohibited drugs. He is intelligent and hardworking. I infer that he will be able to spend his time in custody in the years ahead quietly and constructively. It is to be hoped that he will seek to understand, with the benefit of psychological or psychiatric therapy, how this offence came to be committed. It is impossible to predict how his life will unfold once he is released, but one can safely infer that his career as a lawyer has been destroyed. There must be an inevitable caution about how the offender may react in the future to a soured romantic relationship. Nevertheless, I assess his prospects of rehabilitation as being very good.

Various matters

I turn to deal briefly with a number of separate aspects of my task.
First, each party agreed that my sentence should be backdated to the date of arrest; namely, 25 February 2013.
Secondly, I do not propose mechanistically to link the aggravating and mitigating features that I have taken into account to the various parts of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). These remarks on sentence fulfil that role. I have referred myself to the section, and taken care to avoid double counting.
Thirdly, the parties provided me with a number of judgments of this Court in broadly similar matters. That was of assistance; nevertheless, every matter must turn on its own facts.
Fourthly, senior counsel for the offender submitted that it would be appropriate for me to find special circumstances whereby the ratio between the head sentence and the non-parole period could be adjusted. He relied upon a number of subjective matters, all of which I have sought to summarise above, and all of which I have taken into account in mitigation in my determination of the appropriate head sentence. Whilst that submission of defence counsel was not without force, I consider that the lengthy period on parole that will inevitably be imposed sufficiently provides for the rehabilitation of the offender. For those reasons, I do not propose to vary the statutory ratio between the head sentence and the non-parole period.
Fifthly, in accordance with authority, I have put from my mind any prospect of the offender being deported upon his release from custody in Australia.
Finally, I am required by s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) to inform the offender that it is possible that he could be detained even after the complete expiry of his head sentence, if it is considered that he remains a danger to the community.

Victim impact statement

As I have said, a victim impact statement was prepared on behalf of the family of the deceased, and read by a member of her extended family. It was agreed between the two members of the Inner Bar who appeared in the matter (each of whom is highly experienced in criminal law) that, because of the transitional provision attaching to s 28 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the recent amendments to that section have no application. In accordance with that joint position, I have approached the following matters, which are derived from the victim impact statement, in accordance with principles that had until recently stood for many years: see R v Previtera (1997) 94 A Crim R 76.

The deceased was the apple of her parents’ eye. They were justifiably proud of her achievements at school, at university, and at work. That was especially the case since she herself grew up in difficult circumstances in the metropolis of Beijing. The immense pain inflicted upon them has been made worse by knowing that their daughter met a violent death thousands of kilometres from her family and her home. Her grandmother, who also loved the deceased very deeply, has not been told of her murder, because it is felt that it would simply be too much for her to bear. The expectation of her parents that the deceased would love and support them in their old age has been dashed. She was their only child.
On behalf of the Supreme Court of New South Wales, I extend my sincere condolences to the family of Ms Shan Wu on their loss, and the deep pain that it has caused. It is possible that the resolution of the matter today will provide a measure of relief to those who are grieving. But I accept that the suffering of many will be unrelenting.

Imposition of sentence

Zhaoyun Wang, you are convicted of the offence of murder.
I sentence you to a non-parole period of imprisonment for 15 years to date from 25 February 2013. That will be followed by a parole period of five years. The earliest possible date for your release to parole is 24 February 2028.
To express my sentence another way, the offender is sentenced to a head sentence of imprisonment for 20 years to date from 25 February 2013, with a non-parole period of 15 years.
I indicate that, but for the discount for the plea of guilty of the offender, I would have imposed a head sentence of imprisonment for 27 years.

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Decision last updated: 17 April 2015

Medium Neutral Citation:	R v Wang [2015] NSWSC 433
Hearing dates:	27 March 2015
Decision date:	17 April 2015
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	Sentenced to imprisonment for 20 years to date from 25 February 2013 and expire on 24 February 2033, comprising a non-parole period of 15 years, followed by a balance of the term of sentence of 5 years. The first date upon which the offender will be eligible for parole is 24 February 2028.
Catchwords:	CRIMINAL LAW – remarks on sentence – plea of guilty to murder – deceased attacked with a weapon in her own home – intention to kill – loss of control – evidence of deep remorse by offender – prior good character
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28 Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Cases Cited:	R v Previtera (1997) 94 A Crim R 76
Category:	Sentence
Parties:	Regina Zhaoyun Wang
Representation:	Counsel: C Maxwell QC (Crown) M Ramage QC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Bilias & Associates (Offender)
File Number(s):	2013/59044