DPP v Kabo [2006] VSC 340 (21 September 2006)

Last Updated: 21 September 2006

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1505 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS
v
ANDREW JEK KABO

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20, 24, 26-28 April, 1-5, 8 May, 28 August 2006
DATE OF SENTENCE:	21 September 2006
CASE MAY BE CITED AS:	DPP v Kabo
MEDIUM NEUTRAL CITATION:	[2006] VSC 340

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Criminal Law – Sentencing – Stabbing murder of husband and wife – Serious mental health problems not amounting to mental impairment – 25 years imprisonment – 20 years non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Quin	Office of Public Prosecutions
For the Accused	Mr M. Perry with Ms D. Manova	Kabo Lawyers

HIS HONOUR:

1 Andrew Kabo, you have been found guilty by a jury on two counts of murder. The murders were of a married couple. The two of them had come from China to Australia, intending to study and work here. The husband was Yuqing Li, born in September 1972. The wife was Ying Zhao, born in December 1972. In April 2004, they had moved into a flat in Essendon. You stabbed both of them to death at that flat on 6 May 2004.

2 In May 2004, you were working on a casual basis in the kitchen of an Albert Park restaurant. You were staying with a housemate at a flat in South Yarra. Because the sister of your housemate was, some weeks later, expected to arrive in Melbourne, you were looking for other accommodation. You saw an advertisement for a vacant room at the flat of Yuqing Li and Ying Zhao in Essendon. You answered the advertisement. You visited the flat. You were shown around the flat. You agreed to take the vacant room.

3 On 6 May, in the City of Melbourne, you bought two expensive kitchen knives. It is not clear to me why you did so. You gave to the police conflicting accounts as to why you bought them and as to what you intended to do with them when you took them with you when you visited the flat later that day. The purchase of the knives came a couple of weeks after you had had a curious conversation with a fellow worker from the restaurant. In that conversation, you said, out of the blue, that you intended to kill a couple of people. Your colleague thought that you were joking and said so. You replied to him that you were serious. Other fellow workers at the restaurant saw you often in the days leading up to 6 May. To them you appeared to be acting normally, and not strangely. At most, you appeared to be somewhat disappointed after being told that there was to be a reduction in the number of hours that you could work. Both after and before 6 May, and that includes long before as well as just before 6 May, you usually appeared to act normally. Only later was it possible for outsiders to appreciate that, beyond the apparently happy exterior, there was significant inner turmoil.

4 When you went to the Essendon flat on 6 May 2004, Yuqing Li let you in. For an hour or more you chatted with him. You then made a surprise attack on him with the knives. I am not able to say what the catalyst for your doing so was. You later told the police that you had personal issues and that the attack had nothing to do with Yuqing Li or Ying Zhao. As far as that explanation goes, it seems not to be inaccurate. It is scarcely illuminating. You later told the police that they were a nice couple. Everything points to that being so. After stabbing Yuqing Li to death, you remained in the flat until Ying Zhao let herself into the flat. Again you took up the knives and you attacked her. You stabbed her multiple times just as you had stabbed her husband. At one stage, you cut your own hands in a more than minor way that later was to lead to your needing hospital attention. There was ample blood on you and elsewhere. You took steps to clean up. You changed into some unstained clothes of Yuqing Li. When you departed from the Essendon flat to return to your South Yarra flat, you left behind the knives and the clothes that you had been wearing when you killed your victims.

5 In the ensuing days, you carried out a number of further actions which I will but summarise. From an objective standpoint, some were strange, even bizarre. Others were not strange but were rather suggestive of your being in control of the situation. You went back to the Essendon flat the following day. I cannot attach a satisfying reason for your having done so. As well as at least one visit to the flat, you visited a nearby convenience store to buy some food and to seek some bandages. You discarded into a rubbish bin the clothes that you had taken from the flat. You arranged to have the necessary operation for the cuts to your hands. You devised a plausible lie to explain how you had come to cut your hands. You collected some outstanding pay from the restaurant. You paid future tuition fees. It was as if you could continue with your life as if nothing had occurred at the Essendon flat. Then the news of the deaths was made public. Your position changed. You took steps to flee the country. You arranged to purchase an airline ticket to enable you to leave Australia. You were arrested as you were in the process of leaving. When spoken to by police after your arrest, you told the police that you had committed the crimes and that you were very sorry. You told the police that you had mental issues, and that you felt deeply depressed and suicidal.

6 You later gave accounts of the stabbings and of your background to four professional witnesses who gave evidence at your trial. They were four well-qualified professionals, three psychiatrists and a professor of forensic psychology. When you were in custody you wrote extensively in a manner that was clearly fiction, but that, at times, reflected your personal experiences. Those writings have their bizarre aspects. Some of the matters as to which you spoke to those four professionals were also bizarre. There was, and there was seen to be, ample scope for scepticism as to the genuineness of many of the claims. That was reflected in the different conclusions at which the four professionals arrived.

7 There was only one issue left to the jury. That was whether at the time that you stabbed your two victims to death, you were mentally impaired according to the relevant statutory criteria. The jury had the benefit of hearing as to that question from the four professionals. The jury also had before it significant other evidence, some of which I have earlier summarised. From the professionals, the jury learned not only of their opinions based on their expertise and experience, but much of your background, which I must briefly summarise.

8 You were born in Indonesia in March 1982, as the younger of two sons to parents of Chinese ancestry who have chosen to reside in Indonesia. Your father and mother are well qualified, your father as a cardiologist, your mother as a pharmacist. They came to Australia with you for about eight years, when you were aged three to eleven. You had your primary schooling here. That appears to have been a happy time. You had problems re-integrating on your return to Indonesia. There were a series of bad experiences in your teenage years. There were periods of struggling at school, as well as periods of achievement. You returned to Australia to study and work when you were twenty years of age. You were later to describe periods of anxiety, of hallucinations and of disagreement with your parents. There were also periods of particularly obsessional behaviour. You also described occasions of attempted suicide and of involvement in a frightening religious riot. There were several indications of there being a potential for your developing serious mental problems. The seriousness of that potential appears not to have been appreciated by your parents. You chose to mask your inner problems with an appearance of conviviality. Both with educational and work pursuits, in Indonesia and in Australia, you have had periods of success and of failure. There appears to have been more of failure. Much of what you described to the professionals as to your background was supported by accounts provided to the professionals by your parents.

9 The jury was faced with a major dilemma. On the one hand, there were the two opinions that you were suffering, as at the time of the stabbings, from paranoid schizophrenia, which illness had the effect of preventing you from appreciating the nature or wrongness of what you were doing. On the other hand, the jury had the two conflicting expert opinions to the effect that, while you were suffering from major mental health problems, those problems were not such as to warrant your being found to be relevantly mentally impaired. The jury returned a verdict of guilty on both counts. It was a verdict that was clearly open on all the evidence.

10 The seriousness of the two murders can scarcely be overemphasised. You killed two people in a frenzied way in their own home. There was not the slightest provocation. As I have noted, there were some indications of planning. There was other contra-indicative evidence. There was not enough evidence for me to be satisfied beyond reasonable doubt that the murders were planned.

11 On the hearing of the sentencing plea, extracts from two victim impact statements were read in open court. One was from the mother of Yuqing Li. The other was from the brother of Ying Zhao. They have each eloquently expressed the deep pain that they and other members of their families have suffered as a consequence of the untimely death of their loved ones. Mr Perry appropriately expressed to the families of the two deceased the shame and regret felt by you and your family.

12 Dr Bell was one of the three psychiatrists who gave evidence at your trial. I believe that the jury accepted substantially his conclusion as to your mental state as at the time of the stabbings. His view was that you were, and are, a very troubled man, with significant mental health problems. His diagnosis, overly simplified, was that you suffered from a de-personalisation disorder in addition to longstanding depression. He treated the condition as serious even though his view was that the statutory requirements for mental impairment were not met. Fortunately for you, and for the community, because of the medication regime that you have adhered to after it was worked out for you by Dr Senadipathy, you have been in a relatively stable situation now for well over twelve months. That provides a substantial degree of reassurance for the future, provided that you recognize the necessity for you to continue to take the right medication, probably for the rest of your life.

13 I must and do declare you to be, and to be sentenced as, a serious violent offender. I must and do treat the protection of the community as the principal purpose of sentencing you. Because I accept that you did suffer from a serious mental condition as at the time of the murders, with there being a casual link between the condition and the murders, the role of general deterrence, while it remains a relevant sentencing consideration, is to be sensibly moderated.

14 I must detail a number of mitigating factors that operate in your favour. At 24, you are still a young man. You have no prior convictions. There is no indication of violence in your background. You co-operated with the police. You have expressed remorse for your crimes from the time of the police interviews. I accept that the remorse is genuine. Although you did not plead guilty, at the trial you confined the issue to that of mental impairment. Your parents have remained supportive, and have indicated that they will continue to be so. I would guardedly assess the prospects of rehabilitation as good. The reservation relates to the great importance attaching to your continuing to accept the need to take the right medication. You are likely to potentially represent a considerable danger to the community if you failed to take it.

15 I declare the number of days of pre-sentence detention to be 863 as at today. There being no objection, I have signed orders as to retention of your blood sample and destruction of certain items. On each of the counts of murder, I impose a sentence of a term of imprisonment of 18 years. I direct that 7 of the 18 years imposed on count 2 be served cumulatively on the 18 years imposed on count 1. The effective term is 25 years. I fix a non-parole term of 20 years.