R v Wu

[2013] VSC 375

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.  0175 of 2012

THE QUEEN
v
Yeng WU	Prisoner

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2013
DATE OF SENTENCE:	9 July 2013
CASE MAY BE CITED AS:	R v Wu
MEDIUM NEUTRAL CITATION:	[2013] VSC 375

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CRIMINAL LAW – Sentence – Murder – No mitigating features – General deterrence, denunciation and punishment – Sentenced to 27 years’ imprisonment with a minimum non-parole period of 21 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Bourke	Office of Public Prosecutions
For the Accused	Mr D. Sheales	Grigor Lawyers

HIS HONOUR:

1. Shen Qing Chen was brutally murdered in the early hours of Saturday 11 February 2012.

1. His assailant entered Mr Chen’s home through the unlocked front doors, entered the nearby bedroom, and set about him with a sharp heavy weapon – perhaps a machete or an axe. Mr Chen was probably asleep as the assailant entered his bedroom.

1. He was struck on scores of occasions with this weapon. At a time when he was still conscious he was coerced from his bedroom down a short flight of stairs to the kitchen/lounge room area. This is where his life ended. Sharp force injuries were observed to the back of his head, the base of his neck, to his left ear, cheek, jaw, temple and hairline. His chin, his lips and his nose were slashed with full thickness trauma. His right eye, eyebrow, mandible and cheekbone were exposed to the bone. Four parallel strikes exposed his skull beneath the forehead. His arms and hands were lacerated, mutilated and parts of them amputated as he tried to ward off the murderous attack.

1. Such was the force of this attack that a large defect or hole was created in the back of Mr Chen’s head. The assailant then physically removed Mr Chen’s brain from the cranial vault, depositing it adjacent to the deceased man’s head.

1. In my thirty five years involvement in criminal law I have not encountered a crime as appallingly and gratuitously violent.

1. A jury has determined to the criminal standard Mr Wu, that you were the assailant. You are married to Mr Chen’s sister. He lent you large sums of money over the years. Apparently many years ago there was some falling out between you over your purchase of a plastering business and clients of that business defecting to Mr Chen’s similar business. None of this, in my view, adequately or at all explains your torture, murder, and cranial dismemberment of Mr Chen.

1. On the evening of 10 February you dined out with Mr Chen, your brother, and Dong Wang. No-one observed acrimony between you and the deceased; nor is there any evidence of acrimony between you when you, your brother and Mr Chen returned to his house for a drink.

1. At some time shortly before 1:00AM you and your brother left Mr Chen’s house. You noted that the doors were not able to be locked. The jury verdict necessarily involves they being satisfied beyond reasonable doubt that you returned to the house armed with a heavy sharp weapon and carried out the activities that I have described. A bloody path of shoe impressions was undoubtedly left by the murderer. Your DNA mixed with the deceased’s DNA was found in blood droplets or smears in four separate locations along that bloody path. I consider it likely that these activities occurred shortly after 1AM; in other words shortly after you and your brother had left Mr Chen’s house. The murder weapon has not been found.

1. On your behalf, and presumably on your instructions, the trial was conducted on the basis that another brother in law of the deceased, Dong Wang, was the likely assailant, although your counsel backed away from this in his final address. On the plea your counsel accepted, sensibly in my view, that the circumstances that attach to your offending necessarily place this in the higher end of the sentencing range for the crime of murder. I regard your moral or criminal culpability as very high and this must be reflected in my sentence.

1. You are now 45 years old. You were born in Inner Mongolia and lived there until commencing tertiary study in 1983 – you attained a Diploma of Construction. In 1987 you returned to Inner Mongolia. You married the deceased’s sister in 1987 and you both made a life in Australia. Your plastering business ultimately failed in about 2007 and since then with funds borrowed from the deceased and others you have endeavoured to run various restaurants specialising in Asian cuisine. A number of meat cleavers were found at your home although none could be linked forensically to this crime.

1. You have two children. Your daughter is twenty five. She lives with your wife and your 13 year old son in rented accommodation. Their circumstances are reduced, although the charity of your extended family allows your son to attend a private school. You will be denied the pleasure that any father has of watching his family grow and develop around him. Your son will be in his 30s when you become eligible for parole. You will be in your 60s. The Chen family have been denied forever the pleasure of interacting with their father and husband. I have listened to and read moving Victim Impact Statements tendered on their behalf and on behalf of their extended family. I take into account the impact of this crime upon those unfortunate victims who are, after all, members of your extended family too.

1. You have two prior convictions for recklessly causing serious injury, the last in 2000. Suspended terms of imprisonment were imposed on both occasions. In the earlier offending (1991) you were also convicted of engaging in reckless conduct so as to endanger life. More recently (2011) you were convicted of various firearms offences including possessing a firearm with a defaced or altered serial number. You were released on a Community Based Order with conditions that you perform 200 hours of community work, undergo assessment and treatment for “psychological and/or psychiatric problems” and that you undergo assessment and treatment for “alcohol and/or drug problems”.

1. Also in 2011 you were convicted for exceeding the prescribed concentration of alcohol within 3 hours of driving and also for breaching alcohol related vehicle interlock conditions. You were released initially on an Intensive Corrections order but when you drove whilst disqualified that order was breached and you were sentenced to 4 months’ imprisonment wholly suspended. Your licence was cancelled and you were disqualified from driving for 5 years. It appears that your driving on the evening of 10 February 2012 and the following morning was during this period of disqualification.

1. Overall your prior criminal history is not insignificant but it pales when compared with the nature and quality of your current offending. I have no evidence or other information about any psychological or psychiatric issues that your may suffer from, other than oblique references to “problems” in your 2011 CBO conditions. Insofar as I can assess them, I regard your prospects for rehabilitation as fair only. You will be substantially older when released and you have demonstrated an industrious nature, if not a capacity for financial management. The inexplicably violent nature of your offending causes me to have substantial reservations about these prospects however.

1. I regard the nature of the torture and execution of your brother in law as a substantial aggravating feature that attaches to your offending. I regard the subsequent defilement of Mr Chen’s body also as an aggravating feature. There are no mitigating features; this is an appalling crime and you must be punished for it. I consider that general deterrence, denunciation and punishment must weigh heavily on the sentence I impose. There is no remorse.

1. On the charge of murder I sentence you to 27 years’ imprisonment.  I fix a minimum term of imprisonment before parole eligibility of 21 years.  I declare that 497 days, including this day, have been served by way of pre-sentence detention.