Regina v Wang

[2000] NSWSC 447

CITATION:

REGINA v WANG [2000] NSWSC 447

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 70048/99

HEARING DATE(S):

17.04.2000, 18.04.2000

JUDGMENT DATE:

23 May 2000

PARTIES :

Regina

v

Joyes Hong WANG

JUDGMENT OF:

Adams J at 1

COUNSEL :	Mr W Dawe QC (Crown) Mr Phillip Segal (Accused)
SOLICITORS:	S E O'Conner (Crown) Barber & Massey (Accused)
CATCHWORDS:	Sentence - manslaughter - substantial impairment of mental capacity - depression - attempted suicide - relevance of general and personal deterrance - role of denunication in sentencing
LEGISLATION CITED:	Crimes Act 1900
DECISION:	See paragraph 39

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL REGISTRY

ADAMS J

TUESDAY 23 MAY 2000

70049/99

REGINA v JOYES HONG WANG

JUDGMENT ON SENTENCE

1 HIS HONOUR: On 17 April 2000 the offender, Joyes Hong Wang, was arraigned upon an indictment containing two counts of murder, the first alleging that between 22 and 24 September 1998 at Padstow in the State of New South Wales she murdered Yujian Alan Wong (who was her husband) and the second, that between the same dates and at the same place she murdered Shi Rui (Serena) Wang (who was her daughter then just short of two years old). To each of these charges she pleaded not guilty to murder but guilty of manslaughter, which pleas were accepted in full discharge of the indictment. The Crown’s contention, so far as the death of the husband is concerned, is that but for the provisions of s 23A of the Crimes Act 1900 (the Act), which permits a verdict of manslaughter where the offender’s mental capacity in relevant respects is substantially impaired by an abnormality of mind, the offender would have been liable to be convicted of murder as having, at least, caused his death with the intention of causing grievous bodily harm or being recklessly indifferent to human life. So far as the death of the child is concerned, the Crown submitted that manslaughter was also applicable by virtue of the operation of s 23A of the Act but the death of the child was intentional. On behalf of the offender, it is conceded that she intended to kill the child and is guilty of manslaughter by virtue of s 23A of the Act but it is submitted that she is guilty of the manslaughter of the husband upon the basis that the act causing death was unlawful and dangerous rather than having been accompanied by a state of mind which, apart from s 23A, would have made her liable to be convicted of murder. 2 At about 10.25am on Thursday 23 September 1998 two police officers attended at premises at Padstow, having been called there by a Mr Tran who had some acquaintance with the deceased. The building was a factory containing also some domestic premises in which the offender lived with her husband and daughter. The police, together with two ambulance officers, obtained access to the building and commenced a search. After a little time, one of the ambulance officers forced open the locked door to a bedroom. Inside was the husband lying on the floor with a quilt covering most of his body. Both his ankles were tied with flat woven cord. Similar cord was found wrapped four times tightly around the husband’s neck with one granny knot at the front to the right of the midline and another at the back to the left of the midline. In the left forehead region above the eyebrow was a full thickness 20mm laceration and bruising around the left eye. On the chin, 30mm below the lower lip was a 10mm x 5mm abrasion but there were no injuries to the mouth. There were a number of other relatively minor injuries on the deceased’s arms, trunk and legs. At autopsy, bruises of around 100mm in diameter were found on the scalp in about the left and right parietal regions. It is clear that he died from strangulation. I will return in due course to the significance of these injuries. 3 The husband’s body was discovered at 10.50am. Other police came to the scene shortly thereafter and a further search of the premises was undertaken. Just after 11pm two police officers climbed up to a storage area located above the kitchen and, on forcing the door, found the offender lying on a foam mattress on the floor, apparently unconscious. She was covered with a doona which was splattered with blood. Next to her was her baby daughter lying on her back, and wearing over some underwear, a red jumpsuit, multicoloured red socks and red shoes. The offender was wearing a red dress. A police officer lifted her hand, I take it to check her pulse, and saw a puncture wound surrounded by dry blood inside the offender’s right wrist. The offender opened her eyes and said, “I want to be with my daughter”. She raised her right arm and, placing it on her dead child said, “I love you, I want to die”. She added, “I want to be with my daughter, she’s waiting for me”. There were a number of medicine bottles and empty blister packs lying on the floor near the offender together with a glass in which was a residue of white powder. The ambulance officers noted that the offender was conscious and able to communicate but would neither confirm nor deny any drug overdose. She stated that she did not want any help but wanted to stay with her daughter. She said that her daughter was her “whole life” and, when told that she was dead, said that she knew it would be so and wept. A bloodstained knife was found nearby. 4 The offender was taken immediately to hospital and was treated for a drug overdose. Her right wrist was sutured and she was released several days later into the custody of police. Before her release from hospital the offender was interviewed by police during which she became, at times, hysterical. The police officers were suspicious that this behaviour was feigned or, at least, exaggerated but I do not think that this is the case, though it may have been to some degree voluntary. 5 When the offender was asked by police what she could tell them about what had happened she said, “I didn’t have the intention to kill my husband. That was an accident. I only wanted to kill the two of us, my child and myself.” She told the police officers that she had tied her husband up because she was afraid that he might prevent her from killing her daughter and herself. She said that she put two sleeping pills in the soup which she had made for him and, when he fell asleep, tied him to the bed. Quite how he came to be in the bedroom is not clear. However, he woke up after she had only tied both his hands and one foot. The offender said that she then told her husband that she was going to die, that he asked her not to kill herself and started to scream. She said that she found a stick and hit him on the head intending to render him unconscious but this was unsuccessful. He continued to struggle and the offender believed that he thought that she intended to kill him also. She said that he kicked out at her and she struck him on the legs. She said that he kept screaming and “we talked about what had happened in the past”. When she realised that it was morning and she might lose her chance of committing suicide (because employees might start arriving) she said that she decided to gag him but as she did so, her husband kept struggling. She said the rope slipped down to his neck, “at that time, I kept pulling and he kept struggling, struggling, struggling. I kept pulling him. I didn’t want him to struggle. He kept struggling and screaming.” At one stage, she said that she had untied one of his bonds and that he jumped up and kept screaming. She had some recollection of striking him perhaps with a beer glass. She said: “I didn’t want him to die. I only wanted myself to die. I only have one request. Sentence me to death. I only have this request. I want to go with my baby. My baby needs me to look after her. I must go.” 6 The offender said that she killed her daughter by giving her two mouthfuls of medicine, which she then took herself, that she then fell asleep and knew nothing more until the police came. When asked why she killed her daughter she said -

“Because my husband said that he would send my daughter back to the mainland. Because my daughter cannot move, cannot do what she...she doesn’t know anything. No one but I loved her. She couldn’t go without me. Only I loved her. Because I loved her, I couldn’t leave her.”

7    On 13 October 1998 police again interviewed the offender at Burwood Police Station. In effect, she said that it was difficult for her to recall the events relating to her husband’s and her daughter’s death because she became too upset. However, she reiterated, in effect, that she had not intended to kill her husband. She explained that she managed to get into the storage area by climbing on top of a wardrobe and using a knotted rope to support her, managed to get herself into the room. It appears that she had used a ladder from the factory to get into the room, attached the rope ladder to a fixture, then, returning the ladder to the factory, used the rope to clamber in. She did this so that she could not be found. As the interview continued she became able to describe how she had given her daughter the tablets. When she was asked why she said -

“Because my daughter was very, very sick, she’s got the brain, cerebral palsy and also my husband said once that if I die, he’s going to take my daughter back to China and put her in the orphans’ centre and I wouldn’t want that to happen so I took her with me because my daughter is very disabled.”

She was asked whether she intended to kill her baby and said -

“I can’t say that I intend to kill her. It’s something like, I don’t want my baby to suffer as what I’ve seen like in TV, like the orphans in China, those babies or disabled people. All the people suffer there. And I can’t bear that my baby is going to have this torture, or that suffering. So I took her with me hoping that she will have, she will come back to have a new life, have a healthy body and have a new life, because that’s in our Chinese, that’s our custom and I am sure you know that, you understand that.”

8    She said that she was preparing to commit suicide and, when asked whether she intended “to take Serena from this life as well”, she replied -

“Well I had for many times asked my husband whether he can look after Serena and if he did promise he could, I could leave Serena to him. But he can’t guarantee, he can’t promise. He said that he didn’t have time to look after such a sick, disabled daughter and he does not want his relatives to know that he has got such a daughter. So I am going to die and want to take my daughter with me. I took her and she can follow me no matter where I go, no matter it’s in the heaven or it’s under the earth, or it’s in hell.”

9    The offender did not give evidence before me so that no more details about the sequence of events are available than those which I have set out. Nevertheless, I think it fair to say that the objective evidence, by and large, reflects those circumstances. 10    The cause of death of Serena Wang was certified to be the combined effect of oxazepan toxicity and pneumonia, there being both a toxic level of oxazepan (a benzodiazepine) and widespread areas of pneumonia in the lungs which together was sufficient to cause death. Serena had been born severely premature on 18 October 1996 with complications of periventricular leukomalacia and was later diagnosed with cerebral palsy. Pneumonia is a significant risk for sufferers of this condition. 11    I have already mentioned that the offender and her child were dressed in red when they were found. It is clear that this had ceremonial significance associated by the offender with the occasion, although all she said to the police was that she liked the colour red. The offender had mentioned to a friend, Amanda Ho, from time to time in the two years or so before the deaths, that she would commit suicide if her husband wished to divorce her, saying that she believed that he married her only to help him get his Australian citizenship, as she was an Australian citizen. I interpolate here that the offender was often seriously depressed - a matter to which I will come in due course - and it is therefore necessary to bear in mind that what she believed or said from time to time may not have represented the true position but rather her state of mind. On 19 September 1998, when the offender, her husband and child had dinner with Amanda Ho and her husband, the offender said to Mrs Ho, having already mentioned that she intended to kill herself and her baby, “I have prepared everything, I have already bought red clothes, underwear, and even for my daughter”. There is some controversy about the significance of red in this context but the evidence does not permit me to infer more than I have already stated. 12    A number of psychiatric reports were tendered concerning the offender’s state of mind at the material time. Each of the doctors obtained a history from the offender in more or less detail. A summary of their effect follows. It should be borne in mind that these very much reflect the offender’s subjective frame of mind so far as they attribute attitudes and personal characteristics of other persons with whom she had significant contact, especially so far as her two husbands and their families are concerned. In relating these matters I do not wish to be taken as accepting this material as any more than the offender’s beliefs although I do not doubt that they were genuinely held. 13    The offender was born in Taiwan in April 1958 and was educated to the equivalent of the Higher School Certificate at the age of eighteen. Her parents had separated when she was one or two years old and her mother later remarried. Her stepfather died of cancer when she was eighteen and she experienced severe grief and depression following this. Since going to school she had suffered from panic attacks which appeared to take the form of hysteria. After leaving school, the offender worked in Taiwan doing bookkeeping and went on to the equivalent of a TAFE college to do a business course. 14    In 1981 the offender came to Australia and married her first husband, whom she had known in Taiwan, and who was studying in Australia at the time. She worked as a machinist in a factory until her second child was born in October 1988, her first child having been born three years earlier. A third child was born in June 1990. The marriage did not appear to have been a happy one, partly because her husband’s parents had opposed the marriage and continued to do so over the years. She says that in December 1990 her husband told her that he had a girlfriend and wanted a divorce. A report from the Royal North Shore Hospital noted that the offender was admitted on 19 July 1991 following an alleged overdose of prescription drugs with suicidal intent. It was reported that she had long-standing marriage and family difficulties and had previously overdosed and cut her wrists in 1990. At first she refused medical treatment, food and water but later this state of mind changed and she was eventually discharged. She said she went to stay with a friend but her mother-in-law, who apparently then had control of the children, would not let her take them with her. Eventually, she went back to work as a machinist and arranged to see her children weekly. She felt that they had been turned against her by their father and that they had rejected her. Her husband obtained a divorce in 1993 and shortly after she met her second husband, Mr Wang. 15    Mr Wang had a working visa and had applied for Australian residency but was uncertain whether this would be granted and, consequently, when he proposed, the offender suspected that he was motivated by these concerns. However, they were married a few months later in October 1993. Although her children continued to visit, after six months Mr Wang said that he no longer wished to spend time with them as they were rude to him and the offender therefore saw them on her own for the next year and a half. It is clear that she became somewhat depressed once more, feelings exacerbated by the discovery of a continuing, though distant, relationship of her husband with a girlfriend in Beijing. The offender then fell pregnant but her husband told her that he was not ready to have a child and wanted her to have a termination. She became extremely depressed and, after some time, her husband agreed to let her continue with the pregnancy. Unfortunately, at four months it was discovered that the foetus had died and it was necessary, at all events, to terminate the pregnancy. Following this, suicidal thoughts returned. Even though her husband obtained his Australian residency at about this time and nevertheless stayed with her, her doubts about his motives for doing so remained. She believed that he wished to obtain Australian citizenship as well. Of course, I have no way of knowing whether these suspicions were well-founded but I accept that they were sincerely held. 16    In due course, the offender fell pregnant once more, a situation which the husband accepted, although her concerns about his long-term intentions became more acute. Whether she was depressed I am unable to say but there is no doubt that she continued to be quite unhappy. The husband told his sister in 1996 that he and the offender had decided to separate but, because of the pregnancy, they had decided to stay together. In October 1996, Serena was born thirteen weeks premature and weighing only 1.5 kg. As I have mentioned, the baby suffered brain damage and later developed typical signs of a severe cerebral palsy. This was obviously a severe blow both to the offender and her husband. The offender believed, rightly or wrongly, that her husband could not cope with having a brain-damaged child and blamed her for giving him a “sick baby”. Indeed, she said that her husband did not want his parents to know that the baby had cerebral palsy as this would be a shame for the family in China. 17    In early January 1997, Serena was brought by her parents to the Child Development Unit at Bankstown. An intervention program, firstly consisting of fortnightly physiotherapy, was instituted and continued for about twelve months. Serena also underwent speech therapy sessions. Any parent would readily understand the enormous anguish, anxiety and emotional turmoil which the offender would have felt in this situation. It is clear that the offender felt very much alone, although I do not doubt that her husband also suffered during this time. She had no close friends or family support. 18    In February 1997 Mr Wang bought a factory in his mother’s name. There may well have been good reasons for this but the offender believed that this was because he intended to divorce her. The two, with Serena, moved into two of the rooms in the factory building where the husband’s business was conducted. The offender, who was very unhappy and often thought of killing herself, had regular contact with a social worker at Westmead Hospital. 19    The offender found out in April 1997 that her husband was having an affair and he then told her that he intended to leave her and the baby. On 6 April 1997, shortly after this, the offender was admitted to Bankstown Hospital following an overdose. In a report forming part of the hospital file, it was noted that the offender was preoccupied with problems relating to her husband’s wishing to leave her and continued to express suicidal thoughts but no true plans. A psychiatric entry notes that the “overdose was impulsive, with sudden desire for oblivion. She had not thought through to actually being dead”. The psychiatrist noted, “One main problem is husband’s desire for ‘perfection’ in all areas of life. Hence to his shame had a defective daughter. He asked wife to take baby and go live elsewhere to hide his shame”. As Dr Jolly (who had examined the offender for the purpose of these proceedings) observes, “This stressor persisted through the marriage, right to the end”. Although they continued to have a sexual relationship, it appears that each regarded the marriage as over and that they were separated pending divorce. About this time also the offender stopped her contact with her other children. (She has not seen them since.) In May 1997 the offender confided to her case manager that she was separating from her husband and was worried about not getting custody of her daughter. 20    The case officer noted that between the months of July and October 1997 Serena had made steady progress “and the effort put into the program by Joyes was very good”. During late October and early November 1997 Serena started with speech pathology sessions and continued with her physiotherapy sessions. It was in March 1998 that the Westmead Hospital Growth and Development Unit reported that Serena had been diagnosed with cerebral palsy, and having moderate to severe developmental ability. She would almost certainly never walk. 21    Confirmation of Serena’s condition increased her mother’s worries especially in light of the impending divorce. She said that she was concerned that her husband would not take care of Serena. For some considerable time before September 1998, perhaps something more than a year, her husband had indicated to the offender that he wished to divorce her. During this time the offender told friends that if she was divorced she would commit suicide and “take my baby as well, so no one can have her”. The offender told Dr Giuffrida, who treated her psychiatrically by virtue of her condition when she was received into prison following her arrest, that she had planned for some time that when her husband left her for another woman she would suicide. She feared how her daughter would be cared for and was very worried that her husband would take Serena back to China and place her in an orphanage in circumstances that were grossly inadequate. In February 1998, when Mrs Ho was planning to travel overseas, the offender had asked her to get sleeping tablets so that she could kill herself. 22    After June 1998, when her husband obtained his Australian citizenship, he made preparations to go to China on a trip in October that year. The offender expected him to bring back a new wife. She believed that, when she was left alone, she would be incapable of looking after Serena by herself because of the multiple problems caused by the child’s cerebral palsy. She said that her husband made it quite clear to her that he did not wish to take any responsibility for Serena and effectively repudiated her as his own. The husband told the offender that all she now had to do for the purpose of obtaining a divorce was to sign some relevant papers but she would not do so. The husband had mentioned to a friend, when his parents were going back to China for personal reasons, that they had wanted to take Serena with them. The husband’s mother was a doctor and the husband felt that she could treat the baby better. If he said this to the offender, it must have caused considerable distress. On the other hand, it suggests that the husband had reconciled himself to some extent to acknowledging to his family his daughter’s handicaps. 23    Towards the end of August 1998 the offender asked a friend of hers, Mrs Chan, to arrange on her behalf with the Nantian Buddist Temple in Wollongong for provision of two plaques in respect of which she would make an appropriate donation. It is clear that these were funerary or memorial plaques. At the beginning of September 1998 the offender gave to Mrs Chan’s husband over $4,000 in cash together with photographs of her children from her first marriage. On the following day, the offender spoke to Mrs Chan to say that she would give her another $4,000 and asked her to burn the photographs “after I am gone”. 24    On 18 September 1998 the offender took her car to a car dealer and sold it for $3,800. By this time the husband had made arrangements to sell the factory and it was clear that the moment of separation was near. On 21 September he told a mutual friend that the deposit on the purchase had been paid and that the new occupant would move in on 10 October 1998 and that his wife would then have to move out. He said that he would find her accommodation and support her and Serena financially. On 21 September the offender visited Mrs Ho at her home but she did not go inside. She told Mrs Ho, “I am very tired. Since I arrived in this country eleven years or so ago, my life has not been good. I want to go away to a very distant place. You wont be able to find me.” Mrs Chan told her not to do anything silly. The offender replied, “It’s OK. Don’t worry about me. I will give you that other $4,000 now, it’s a total of $8,000. This is to purchase two plaques, one for myself, the other for my daughter. My name is Hong Kai Ying, my date of birth is 30 March 1958. The day of death is 22 September 1998. My daughter’s name is Wang Shi Rui. Her date of birth is 18 October 1996 and the date of death is 22 September 1998.” Mrs Chan noticed that the offender was upset although not crying. She tried to comfort her and told her not to do anything foolish. The offender then counted out $4,000 from an envelope she was holding and gave it to Mrs Chan.. She said, “I am in poor health. I am not happy. I will give you a letter tomorrow. I do not want to disturb you from doing your house duties.” She then left. Sometime later, after talking to another mutual friend about her concerns for the offender, Mrs Chan telephoned the latter who told her that she had not been well and that she had lost her house keys. Later that night Mrs Chan telephoned the offender at her home but there was no answer. 25    On 23 September Mrs Chan telephoned a Mrs Tran, who was also an acquaintance of the offender, to tell her that she was concerned that the offender intended to kill herself. Mrs Tran immediately telephoned the offender to ask her how she was. She said that she was suffering from the flu and also had been injured from a fall, which had also hurt her baby. Mrs Tran asked if she wanted a doctor but was told no. She thought that the offender’s answers were very blurred and did not make much sense. A few minutes later she rang back and again asked the offender whether she wished to see a doctor and pointed out that she would not be able to look after her daughter if she were ill. The offender told her that her child was not a daughter but a son, she mentioned that her husband had gone out and wanted a divorce and then changed the subject to Mrs Tran’s business. After giving some more reassurance Mrs Tran ended the call. She was very concerned. I understand that she wished to go to see the offender but could not find her address. 26    Early the following morning after contacting the offender’s previous employer to ascertain her address, Mrs Tran asked her husband to visit the offender to ensure that she was all right. It was this visit by Mr Tran which prompted the police entry to the premises and the discovery of what the offender had done. 27    When the offender was removed a note was found where she had been lying. It was in Chinese script and, translated, read as follows -

“Amanda, I didn’t mean to hurt Alan. It was precisely accidental that I injured him. You know that I did not have the intention to kill him. Well, three people have gone together now. Hopefully you will help me. Help me to put my ashes and those of my daughter together at Lingshan Temple of Nantian Temple. Take the cheapest price. Thanks. I will certainly bless you, Joyes. Telephone Catherine Chan...incidentally will you tell my friends the time of my death 9.00am 22 September 1998.”

28 A letter was also received by the social worker who had been helping the offender to the effect that she was leaving the human world and taking her daughter with her. On the same day Amanda Ho received a letter from the offender stating that she and her daughter could be found in the attic. 29 The offender has given a number of accounts, not all of which are consistent, about the way in which her husband came to die. It is unnecessary for present purposes that I should set them all out here. At autopsy the husband’s body demonstrated numerous small cuts and bruises, somewhat larger on the left leg. These injuries, together with the fact that the deceased was found on the floor in the position which I described earlier in these reasons, indicate that there was a very real struggle preceding death, as to which the offender’s accounts have been very incomplete. Having regard to the terms of the note which was found on her removal from the premises, I am satisfied that the offender was aware when she set out to kill herself and her daughter, that her husband was dead and that it must have been her acts which killed him. I accept that, initially at least, she placed the tape around his mouth to ensure that he did not call out, although, having regard to the knots in it, I doubt this was done when he was struggling. It is clear that some kind of struggle ensued and I accept that somehow the tape became dislodged to his neck. I think it almost certain that the offender was by this time beside herself with despair, in all likelihood hysterical and quite possibly angry. She kept pulling on the tape until her husband ceased to move, in the result killing him. At one stage the offender struck him on the head with a beer glass, hard enough to break it. It is clear that at some stage she cut the tapes around her husband’s neck and some of the other bonds. It is very likely, however, that he was dead at the time. I do not think that she intended at any stage to do him any real harm. But she was prepared to use as much violence as was needed to prevent him from interfering with her plans. 30 It was submitted to me on behalf of the Crown that I should find the offender guilty of the manslaughter of her husband upon the basis that, although she intended to cause him grievous bodily harm, the crime of murder was reduced to manslaughter by virtue of the provisions of s 23A of the Crimes Act 1900. Although I am satisfied that, as it happened, at the time that she killed her husband and her daughter, the offender’s capacity to understand events and to judge whether her actions were right or wrong was substantially impaired by an abnormality of mind arising from a pre-existing mental condition, which so far as her daughter is concerned, reduces what would otherwise be the offence of murder to manslaughter, this does not provide the basis for my determination that she is guilty of manslaughter in respect of her husband’s death. It is obvious, nevertheless, that the state of mind in which the offender committed both offences is a material factor in considering the appropriate sentence to be passed upon her. 31 The offender was examined by a number of psychiatrists all of whom, with one exception (Dr Wong who, however, noted that he did not have an opportunity for a full consultation and hence his conclusions were necessarily qualified) stated that at the time of the killings she was suffering from a severe depressive illness such as to substantially impair her ability to form a rational judgment as to whether what she was doing was right or wrong. I have no doubt that this was the case. Dr Giuffrida, who had the advantage of seeing her at frequent intervals after she was brought into the prison system, concluded that the offender had suffered from a life-long dependent and asthenic personality disorder together with recurring episodes of panic disorder, probably from the age of sixteen onwards which have tended to be precipitated by situations of undue stress or fear. All psychiatrists, except Dr Wong, concluded that the offender, from a period at least several months prior to the offences, was suffering from major depression. Dr Giuffrida added -

“After the death of her daughter and her husband she experienced a severe grief reaction which merged with features of a Post Traumatic Stress Disorder. The Post Traumatic Stress Disorder was particularly characterised by intense, vivid and continuing reliving phenomena or experiences of her own attempted suicide, the death of her daughter and her husband’s struggling and her subsequent knowledge that he had died. The Post Traumatic Stress Disorder was also complicated by features of severe and continuing anxiety and fear together with features of a severe depressive illness with marked vegetative features.”

32 I accept that the offender is remorseful and contrite so far as her killing of her husband is concerned. 33 The reasons which led the offender to her actions on the fatal day were powerful ones and I accept that the offender believed that, of the choices available to her, she did what she thought was best. Her prediction of the husband’s likely course of action, so far as Serena was concerned should she commit suicide, may well have been realistic. The enormous problems and anxiety which must have attended the prospect of having to look after herself and her severely disabled daughter without help are difficult to overestimate. Even a psychologically healthy person, aware of help from government and private agencies, would have found it daunting, to say the least. I accept that the offender felt overwhelmed by circumstances beyond her control and that the only impact she could have on events was to remove herself and her baby from the situation by death. 34 The offender’s state of mind at the relevant time makes any question of personal or, indeed, general deterrence, immaterial. Where a person intends to commit a crime, even a serious one, and thereafter to commit suicide, which I accept was the offender’s plan, the question of a possible gaol sentence does not arise. I do not think I should second guess the offender’s conclusion that she would be unable to look after her child herself and I accept the genuineness of her belief that the only alternative was an orphanage in China, which was a fate for Serena too cruel for her mother to accept. The offender had come to the end of her personal resources and saw in the possible existence of an afterlife the only inkling of hope for both of them. So far as I can judge, I consider that the offender’s belief is still that her suicide was the only way of escape from her irresolvable unhappiness and that, so far as her decision to kill Serena is concerned, it was the right one if she was also to die. Since the offender has been in gaol, she has become involved with a Christian support group and has undertaken English classes and other activities. These are positive developments. 35 It is obvious from the offender’s own contrition over her husband’s death that she appreciates that what she did to him was indeed not only a serious crime but seriously wrongful. Although impaired by her psychiatric condition, the offender had a real notion of the seriousness of her actions although I have no doubt that she did not intend any serious injury. The way in which she first drugged him then tied him up indicates a high degree of planning and organisation. The presence of two knots in the tape wrapped around the deceased’s neck supports this view of the offender’s capacity at this time. The infliction of violence during the deceased’s struggles, culminating in the offender’s pulling the dislodged tape so tightly around the deceased’s neck as to asphyxiate him, shows that she was prepared to use considerable force to ensure that her plans to kill her daughter and herself were not frustrated. I accept that her initial acts of violence were tentative but I think it likely that, at the end, when she was holding the tape which was around his neck (which she must have observed) she was exerting as much force as she could to restrain and silence him. 36 It is a very serious criminal offence to commit an unlawful and dangerous act carrying with it an appreciable risk of serious injury which leads to fatal consequences. I have already said that I do not think at this time that the offender was really capable of acting reasonably but I am sure that she appreciated that what she was doing was dangerous, although she may not have measured its extent, and that she undertook those actions to enable her to carry through the objective of killing herself and her daughter. 37 The circumstances, therefore, reveal not only a serious degree of objective culpability but also subjective culpability, despite the fact that the offender’s judgment and processes of reasoning were significantly distorted by depression. For all the mitigatory consequences of the relevant subjective factors, two lives were lost as a result of her actions. 38 In the case of Serena, the acceptance by the Crown Prosecutor of the offender’s plea of guilty to manslaughter by virtue of s 23A of the Act in full satisfaction of the indictment which charged murder, is entirely proper. I have no doubt that, at the time of the relevant acts, the offender’s capacity to judge whether her actions were right or wrong or to control herself, was substantially impaired by the abnormality of mind constituted by her depression and that this impairment was so substantial as to warrant liability for murder being reduced to manslaughter. The circumstances provide compelling reasons for substantially mitigating the sentence which I must impose for this crime. So far as the manslaughter of her husband is concerned, I am satisfied for the reasons which I have mentioned that the offender did not intend to cause him either death or grievous bodily harm; nor did she advert to the likelihood that he might die. Accordingly, the proper basis for sentence is that he died by virtue of an act or acts which were unlawful and relevantly dangerous. I am satisfied that, at this time also, the offender’s capacity to judge the extent of her wrongdoing and the risk of serious injury or death and to control her reactions to her husband’s attempts to escape from his bonds was substantially impaired by her depression. This must necessarily constitute a significant factor in mitigation of the seriousness of this crime. I also take into account the offender’s pleas of guilty. Nevertheless, the mitigation is not so substantial as to counterbalance entirely the offender’s culpability. The infliction of fatal violence for the purposes stated by the offender, even if there were some limitation in understanding the extent and consequences of that violence, remains significant and requires denunciation by the criminal law. 39 In determining the sentences which I am about to pronounce I have, of course, taken into account the principle that requires me to adjust the sentence by virtue of the total criminality involved in the offences. I accept that there are present special circumstances requiring adjustment of the statutory formula for calculating the non-parole period. These comprise the circumstances of the crimes and the history of the offender to which I have already referred.

Accordingly, I impose the following sentences -

For the manslaughter of Shi Rui Wang, imprisonment for a term of two years commencing 24 September 1998 and ending on 23 September 2000;
For the manslaughter of Yujian Alan Wang, imprisonment for six years with a non-parole period of four years. The sentence is to commence on 24 September 1998 and to end on 23 September 2004 with the non-parole period ending on 23 September 2002.
I direct that the sentences be served concurrently.


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Last Modified: 09/25/2000