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District CourtNew South WalesCase Name: R v XiaoMedium Neutral Citation: [2019] NSWDC 797Hearing Date(s): 16-20 September, 23-27 September, 30 September, 1-4 October, 8-11 October, 14-18 October, 25 October, 12 DecemberDate of Orders:13 December 2019Decision Date: 13 December 2019Jurisdiction: CriminalBefore: Neilson DCJDecision: Sentence 10 years NPP 7 years and 6 monthsCatchwords: CRIME. SENTENCE.?Manslaughter due to gross negligence. Offender a promoter of a Chinese self-healing therapy. Persuades parents of a 6 year old boy suffering diabetes type 1 (insulin dependent) that he can cure the boy of his diabetes if he participates in offender’s 7 day workshop, stops taking insulin, and continues using the therapy after the workshop. Boy dies of ketoacidosis on 6th day of workshop, due to cessation of insulin. Plea of not guilty. Found guilty after a jury trial. No true remorse. No evidence given by offender so Court cannot make any finding about rehabilitation or re-offending. Prior good character. No special circumstances.Cases Cited: McDonald v R (Unreported, NSWCCA 12 December 1995)R v AEM [2002] NSWCCA 58R v GWM [2012] NSWCCA 240R v Harrison (1997) 93 A Crim R 314R v Hill (1981) 3 A Crim R 397R v Radich [1954] NZLR 86Sam v R [2011] NSWCCA 36Category: SentenceParties: (Offender)Hong Chi Xiao?(Crown)ReginaRepresentation: Offender:?Counsel – M. AvenellSolicitors – Toomey Defence Lawyers?Crown:?Counsel – G. Tabuteau and E. CurranSolicitors – ODPPFile Number(s): 2016/00213025Publication Restriction: Nil.SentenceHIS HONOUR: Hong Chi Xiao stands for sentence as a consequence of having been found guilty by a jury, unanimously, of the manslaughter of a boy who, at the time of his death on 27 April 2015, was six years and nine months old. The jury accepted the Crown case that the offender caused the death of the boy by criminal negligence or, as it is probably more properly called, gross negligence.The boy had, on 14 April 2014, been diagnosed as being an insulin dependent diabetic. On that day he was taken by his mother to a general practitioner who immediately referred him to the Westmead Children’s Hospital where he was taken by his mother where the diagnosis of insulin dependent diabetes mellitus was made. The formal maker of the diagnosis was Dr Neville John Howard, a paediatric endocrinologist with extensive training in Australia, Canada and the United States of America.Type 1 diabetesTo understand the nature of the case, it is necessary to understand something about insulin-dependent diabetes mellitus. Evidence was given at the trial by Sister Julie Klimek RN and by Dr Howard as well as two other medical practitioners. At p 201 of the transcript, Ms Klimek said this:“Type 1 diabetes is an autoimmune disease and what that means is that the child’s autoimmune system has attacked and destroyed the beta cells that are responsible for producing insulin. So for the rest of their life, they are unable to produce insulin, so we have to give it either by injection or pump therapy. Type 2 diabetes, on the other hand, they still produce insulin. They still have active beta [cells] but they’re insulin resistant, so their body can be resistant to that insulin. So they normally need to start with diet control. They can by taking a healthy diet and exercise, they can improve the use of their insulin within their bodies. Then they go to oral medication, which also will make the insulin better, and mean eventually if they don’t follow through, they can go on to insulin.”Ms Klimek went on to tell the jury that they had, at the Westmead Children’s Diabetes Clinic, between 790 and 800 children who had diabetes but only 25 of those children suffered from type 2 or non-insulin-dependent diabetes mellitus. The remainder of the children suffered from insulin dependent diabetes.In cross-examination a number of propositions were put by counsel for the offender to Ms Klimek. That cross examination commences at p 226 of the transcript and can be summarised in the following fashion. The boy’s body had stopped making insulin. He had type 1 diabetes which was previously known as insulin-dependent diabetes. His diabetes was a life threatening disease if not managed. However, if managed well such a child could live a normal, healthy life. The boy’s type 1 diabetes was chronic and lifelong. It could not be cured or fixed or recovered from, and his body would no longer ever make insulin. The boy’s type 1 diabetes could only be treated and managed with replacement insulin. The boy needed to have multiple daily injections or a continuous insulin pump installed for the rest of his life. There was no other treatment. The evidence is that still no other treatment is yet known. In the time between the diagnosis of the boy’s diabetes and his death, his blood glucose level needed to be checked many times a day by finger prick tests. That was to ensure that his blood glucose level was within normal limits and, if it were not, for appropriate action to be taken to increase or decrease the insulin being administered to him. The boy’s diet needed to be managed. A balance needed to be kept throughout the day between his food intake, especially carbohydrates, and his insulin intake. If the boy were not given the required insulin injections his blood glucose level would increase and then his cells would require another source of energy. His body would create that energy by breaking down fat tissue. The breaking down of the fat tissue caused ketones to be generated in the bloodstream. The ketones were acids. The level of ketones is called ketosis and, if the level increases to a sufficient height, the condition of ketoacidosis arises. If ketoacidosis occurs without the administration of insulin, death would occur.If the boy’s blood glucose level was more than 15 millimoles per litre, his ketone level needed to be checked. If the boy’s ketone level was greater than .5 millimoles per litre he did not have sufficient insulin and the level of insulin being administered to him needed to be increased. After that was done it was necessary to retest the boy’s blood for the ketone level. If the ketone level remained above .5 millimoles per litre, that was dangerous or injurious to the boy’s health. If unsuccessfully treated that would lead to ketoacidosis. Before the development of ketoacidosis the condition could be described as hypoglycaemia, being an insufficient level of glucose in the blood.The symptoms of, firstly, hypoglycaemia and, later, ketoacidosis included dehydration, increased thirst and increased urination, lethargy, weakness, a fruity smelling breath in most cases, abdominal pain and weight loss. If a patient were suffering from any of those symptoms his or her condition was considered “dangerous”. In such circumstances it was necessary for the child’s carer to call the hospital to obtain advice.Ms Klimek said that it was explained to the child’s carers that ketoacidosis could go on to cause the child to collapse or become unconscious. She also admitted that, if the hospital’s treatment of the child was followed, the child would otherwise have a normal life, apart from suffering from type 1 diabetes.Evidence was given of the education given at the Westmead Children’s Hospital to the carers of children who suffered from type 1 diabetes. That need not be repeated. However, the propositions which I have just outlined from Mr Klimek’s evidence were the subject of that education.The routine that developed was that, after waking each morning, the boy would have a finger prick test to ascertain his blood sugar level. He would then be given the daily injection of long lasting insulin, which was known as Lantus. He was then also given a quick-acting injection of another form of insulin known as Humalog, which was to enable the child to properly digest his breakfast. The child would then have his breakfast. The finger prick test needed to be repeated after breakfast and it was usually done at school during the morning recess. There needed to be a finger prick test carried out before the child had lunch and, before ingesting his lunch, he would have a further injection of Humalog. There needed to be a finger prick test conducted after lunch and that was normally done around 4pm when the boy got home from school. Before dinner there needed to be a further finger prick test. He was then given a further injection of Humalog and then had his dinner. There was a finger prick test performed after dinner and that was usually at the time the child was going to bed.In the event of any emergency, the parents were to phone the hospital for advice as to how to treat the child. There were three monthly check ups, after initial training, with the specialist, Dr Howard, at the Westmead Children’s Hospital. The last such specialist check up was in January 2015 and the doctor was pleased with the care that was being given to the boy by his carers, who were his mother, his father and his maternal grandmother who was living with the family in their residence in western Sydney.It is to be noted, however, that the boy’s mother was born in China and grew up in Shanghai. She met her husband in 2002 in Shanghai and they married in the following year. Her mother then came to Australia to live with her and her husband in western Sydney. Whilst the child’s father was a native-born Australian who grew up in western Sydney, his mother was ethnically Chinese. The child’s maternal grandmother joined the family group in 2013. The child became bilingual, speaking both English and Mandarin.Paida LajinThe offender is a teacher of an alternative method of treatment called “Paida Lajin”. “Paida” means slapping and “lajin” means stretching. In a speech which he made on 21 April 2015, the offender said this:“Why do I pick Paida Lajin? See, this not something I learned at the beginning. From the very beginning what I learned has nothing to do with healing. I learned MBA finance in the United States.., which totally has nothing to do with this, but at the age of 40 I quit from finance. I started my journey in search for all kind of healers. So at the beginning I learned acupressure from a fisherman…That is not a doctor but is an excellent healer, just using the fingers to treat all the people who got paralysed after stroke, so I learned for a month, I, my first patient was also a paralysed gentleman, so I just tried that for three or four days. And he began to walk, one more week he walked home. So it worked like a miracle, very well. Then I began to learn acupuncture and that also works like magic really well, so I learnt for one month, next month I already healed 1,600 people in Tibet where I lived in a monastery. Treating all those patients with the pain problems. Then I went back to Beijing and started my own studio, clinic, to heal all kinds of people but then I realised that this is impossible to heal people. The more you heal people the more people rely on you. You heal 1,000, 10,000 appear and what is more, the more rely on you…In those days I still used both acupuncture and other things, acupressure. Acupuncture and all the other things like bone setting, chiropracty, purely Paida Lajin the result is better, better far beyond my imagination. In the beginning all the pain problems easily removed, then diabetes, hypertension, then followed by any problem you name it, cancer, breast cancer, lung cancer, liver cancer, all this problem, so after practising for a while I decided I should promote this all over the world.”The offender’s autobiographic background can also be found in the record of interview that he gave to the police at answer 64.To understand Paida Lajin better, one can consult a book, extracts from which were exhibit MM at the trial. Exhibit MM is the English version of a book, originally published in Chinese in October 2012. It is headed “Paida and Lajin Self-Healing”. Its author is the offender. On the first page of the book is this:“We are certain that E-Tao self-healing methods will help resolve the dilemma of inaccessibility and jaw-dropping cost of health care worldwide. The most prominent features of these methods are derived from Huang Di Nei Jing (Yellow Emperor’s Canon of Internal Medicine), ‘Bible’ of Chinese medicine for millennia. It advocates ‘regulating the heart foremost, followed by external treatment and dietary therapies, and using medication as the last resort’. We believe that by following these principles, EVERYONE will be able to self-heal.But then comes the question of ‘HOW’, how to regulate the heart, and how to apply external treatment measures? A healing method that is too complex or much restricted in its application scope, has obvious side effects, or does not deliver desired efficacy, will not be widely received among the public.My search for traditional healing methods took me on many journeys in the past few years. Through learning and repeated practice, not only have I found some simple yet effective methods, I have also summed up five criteria, where only by fulfilling these criteria can a healing method be readily embraced by and benefit the vast majority of people. The five criteria are as follows:Effective: Its effectiveness should be beyond doubt superior than that of modern medical practices.Simple: It should be simple enough to be mastered by most people in just one or a few minutes.Safe: It should be safer and more reliable than existing healing practices, and it should be a ‘green’ method with NO risk of poisoning or side effects.Universally applicable: It should be effective on almost all diseases.DIY: It should be a self-help exercise readily accessible to all, for curing physical and mental disorders and enhancing overall health.”On p 4 of the book begins a chapter headed “Overview of E-Tao Self-Healing Methods”. Then there is a subheading “Forget the disease name”. That contains this matter:“Disease names can be very misleading. Here I’ll use two very common ones hypertension and diabetes to exemplify my point.”Concerning the latter diagnosis the book says this:“Another good example is diabetes, whose name is also misleading due to the use of blood sugar indicators. Your doctor tells you that you are diabetic and should take hypoglycaemic drugs, and then tells you if your blood sugar is not under control, it will easily lead to heart problems, even glaucoma (an eye disease) in severe cases. This is the kind of knowledge taught in medical schools all along. Without knowing it, doctors are brainwashed by drug producers to act as salespersons for their drugs.Unfortunately, this has turned the causality upside down. By practising Paida and Lajin we’ve learned that in all diabetics, Sha (toxic waste that comes out during Paida) will appear when the Pericardium and Heart Meridians on the inner elbows are slapped. This signals that they already have heart problems but are unaware. When these people practise Lajin, they will feel pain at the back of the knees and also the root of thighs, which indicates that the Urinary Bladder, Liver, Kidney, and Spleen Meridians are all blocked, ie these organs all have problems. Problems with these organs are the real cause of high blood sugar levels. Further investigation reveals that all diabetics suffer from emotional problems, to varying degrees, such as tension, anxiety, depression and other mental disorders; such emotional turmoil can lead to endocrine disorders. Let alone adults, most teenage students are stressed out before sitting a major exam, thus suffering endocrine disorders or abnormal blood sugar levels.In short, diabetes is caused by endocrine disorders, which is related to the heart, ie a condition due to emotional problems. Some people are overly obsessed with money, power, social status or their children, and these obsessions make them tense and anxious all the time. Naturally, the endocrine system will not function properly. Some people find relaxation and pleasure solely in dining, and may end up eating and drinking too well, too much, burdening the endocrine system. If hypoglycaemic drugs are taken without taking into account the causes, it will only further damage the functions of the heart, kidney, liver, spleen and pancreas.As a matter of fact, doctors and patients themselves are aware of the negative effects of medication. Drug descriptions generally state that they are damaging to the kidney, liver, spleen, heart and other internal organs. Once the internal organs are damaged, the sensory organs and limbs will also be damaged. In effect, the term ‘diabetes’ implies that there is an underlying group of other diseases, and this phenomenon is referred to as ‘complex disease’. According to Chinese medicine, the liver opens at the eyes. Thus, as long as the liver is functioning normally, the eyes will be healthy as well. This has nothing to do with blood sugar levels. Taking drugs or injecting insulin will damage the liver and lead to such eye problems as glaucoma and retinal detachment. Many diabetics take medicine as prescribe and end up with internal organ and eye problems. When the condition worsens, their feet will ulcerate and they could even end up being amputated. Therefore, to cure diabetes, one must not be misled by its name, but should instead identify the actual causes. Diabetics should first be happy and self-assured, and learn to let go; and practise Paida and Lajin to cleanse the Heart, Liver, Kidney, Spleen and Urinary Bladder Meridians. When the internal organs are functioning properly, the blood sugar levels will naturally return to normal.”On p 9 and p 10 of the book is this:“Huang Di Nei Jing states that all diseases are caused by blocked meridians, thus cleansing meridians cures diseases.However, when one gets sick, the primary concern could be to find out exactly which meridians are blocked. Here, I will let you in on a big secret: There are 12 standard meridians in the body, and together with the Ren and Du Meridians along the middle of the front and back torso, these 14 meridians, when blocked, become the root cause of all diseases. That is to say, from minute inflammations of mosquito bites to tumour growth, whether insomnia or constipation, all diseases occur due to one, often several, of these 14 meridians being blocked. Therefore, no matter what diseases that one suffers from, cleansing these 14 meridians will invariably cure all of them. The four general parts (elbows, hands, knees and feet) are specially chosen for Paida to clear the 14 said meridians.The number of meridians cleaned through Paida and Lajin is not one but many; the effect is not only localised but in all known and unknown systems of the body. The activated Qi and blood flow will act as the ‘anti-virus software’; not only does it locate the ‘viruses’, it automatically stimulates the body to produce antibodies against them. More specifically this refers to the automatic endocrine secretions of insulin, stem cells, enkephalin, adrenalin, etc, needed to fight different diseases. Practising paida and lajin is like an all-around mobilisation of software and hardware systems in the entire body, and that is why it is described as ‘carpet bombing’ and ‘complete virus removal’.”Commencing at the foot of p 13 of the book there is a description of the “Phenomena of healing crises”. It is lengthy but, in short, it can be described as the proposition that to heal there must be pain and healing may involve other symptoms. Part of the text is this:“Apart from reactions like pain, numbness, soreness, swelling sensation and itchiness, there may also be crying, red spots, rashes, blisters, dizziness, headaches, coughing, belching, nausea, vomiting, thick phlegm, runny nose, burping, farting, smelly stool and urine, et cetera, which are all signs of the body expelling toxic waste.”This toxic waste is said to be the result of ingesting medicines. In it the offender wrote that diabetics may experience higher blood sugar levels but that was part of the recovery response and indicates that it was part of the self healing process, part of detoxifying the body and the body producing “antibodies”.On p 23 the text says this:“Paida and Lajin are effective in relieving or curing joint pains, acute or chronic, especially in the lower back, hips, legs, knees and shoulders. With persistent practice, one can make significant improvements in such chronic diseases as hypertension, heart diseases, diabetes, kidney disorders, liver problems and insomnia; normally significant improvements are gained in seven days’ intensive practice (as have been repeatedly proven in our workshops worldwide), and one’s condition can be expected to return to normal in a month.Some may wonder if Paida and Lajin can cure all diseases, including cancer. The answer is: they can cure an extremely wide variety of diseases; however this does not mean that it can thoroughly cure just anyone. No treatment in this world carries that promise. A person’s life (and its quality) is in his/her own hands, and the key lies in his/her thinking. That is why doctors often say, ‘we treat diseases, but not fate.’ For people who disbelieve or sneer at the self-healing method, and for those who practise them only when terminally ill, it is just ‘fate’.”On p 64 is the statement that, even with using the most conservative methods of computation, the effective rate of Paida and Lajin resolving various health problems during workshops offered by the offender exceeds 80%. At the top of p 65 is this:“The most prominent effect is in relieving lower back pain, knee pain, frozen shoulder, neck stiffness, deafness, hypertension, diabetes, heart diseases, gynaecological disorders, urinary problems and insomnia.”Commencing at the foot of p 66 the following is stated:“Healing crises are better managed at a workshop. Under normal circumstances, the healing effects of Paida and Lajin may first appear as ‘healing crises’, ie besides all sorts of discomfort such as pain, numbness, soreness and swelling sensation, old injuries and illnesses may surface or worsen leading to nausea, giddiness, chest tightness, coughing, vomiting, insomnia, itchiness, rashes and even loud crying. If these reactions occur at home, people may have no idea how to cope and will be discouraged to continue with Paida and Lajin; by contrast through observation of management by the coaches and acquiring proper knowledge during the workshop, participants will come to appreciate that such reactions are signs of recovery.The toxic side effects of drugs are greatly reduced during workshop attendance because the participants are encouraged to stop their medication. It is obvious that if medication could rid the health problems, people would not have showed up for the workshop. We do not totally disapprove of medication, but it is undeniable that the toxic side effects of drugs can overweigh their healing effects. In the absence of interference from the toxic side effects of drugs, the efficacy of the self-healing methods becomes more pronounced. As is expected, the practise of Paida and Lajin with no medication has led to normalisation of blood pressure and blood sugar levels, better sleep and pain relief among other improvements.”Later on p 67 commences a discussion of a survey carried out by the offender in August 2011 of participants in various workshops held in mainland China. At the foot of p 68 it is stated that of 243 who continued Paida and Lajin after a workshop, 226, that is, 93%, stopped their medication altogether whilst 17 persons continued to take medication. Of the 226 who stopped talking prescribed drugs and continued Paida Lajin, 134, or 59%, reported excellent health, 76 participants, or 34%, enjoyed better health, while the remaining 16, or 7%, reported to have maintained the same health condition as when they were under medication and the stopping of medication caused no adverse effects. There was a further analysis of the data for persons with various illnesses. On p 70 is this:“Of the 14 diabetics (5% of those interviewed) 12 (86%) reported significant self healing effect, and only two cited inconsistent results.”The book contains clear representations that the cessation of medication and the practice of Paida Lajin might cure many types of illnesses, including diabetes.Workshop in IndiaHighly relevant to the current matter is a trip that the offender made to India in March 2015. Exhibit OO is an online posting made on 31 March 2015 on the Paida Lajin official website. The posting is headed “Revelations on My Journey to India” and was endorsed by the offender on 28 March 2015. The posting was in Chinese. Exhibit OO is a certified English translation of the posting. It concerned the offender’s third trip to India to promote Paida Lajin. On this occasion he was invited by Dr C V Krishnaswami, the chairman of the TAG VHS Diabetes Research Centre to give a speech at the centre’s anniversary celebration, which speech was about paida lajin. It was followed by a truncated workshop of five days, rather than seven, due to insufficiency of funds. The posting continues thus:“Even so, this workshop has still created miracles and become a milestone in the medical history, because this is the first time that a formal medical institution has conducted comprehensive systematic experiments, testing and follow-up instigation on the Paida Lajin self-healing method in strict accordance with medical standards.”Shortly thereafter, a statement is made that the practice of Paida Lajin showed good effects on those suffering not only type 2 diabetes but also type 1 diabetes and Parkinson’s disease. Later on p 10 of the exhibit is this:“After I arrived in Hong Kong, the preliminary report of the Indian ‘Stretching and Slapping’ workshop was finally released after more than ten days of preparation by medical experts. The results are: ‘The Stretching and Slapping’ self-healing method can be used to truly prevent diseases, improve health and enhance enthusiasm and energy. It is effective for both type 1 and type 2 diabetes, and even more effective for other chronic diseases like high blood pressure and heart disease. It has the most striking effect on Parkinson’s. Dr C V K was very amazed at such unprecedented results after medication was stopped. In addition, no matter what disease the patient has, the body energy level is doubled after ‘Stretching and Slapping’. As for lower back pain and other types of pain, the doctor has used the same phrase as me: a piece of cake!Remember: the above effects have been achieved all after stopping or reducing medication and insulin. The detailed report will be published in medical journals very soon after being compiled and verified by Indian doctors and medical experts.”After the workshop at the Diabetes Research Centre, the offender travelled to Pondicherry, which he has previously visited. The posting says this:“An 86 year old man told me passionately that many people had started to practise and spread the words since I came here to teach the Stretching and Slapping exercise. He learned the exercise from another friend a year ago and has achieved three great results after putting it into practice: 1, his long term constipation is gone for good. 2, his long-term diabetes is gone. Without taking any medicine or injections, his blood sugar has returned to normal. 3, he used to walk with crutches due to leg pain. Now that the pain is gone he can easily walk up to a few kilometres without relying on crutches.”On p 37 of the translation is the following matter:“The experience camp report was meant to be for people with diabetes, but surprisingly, two people with Parkinson’s disease had achieved excellent results. They used to have severe symptoms including losing the ability to walk or speak. According to the commonly-accepted treatment plans, they could not live without medicines. However, they did nothing but stretching and slapping after stopping the medicines, and could walk much better without hand tremors, and even started to speak! Many type 2 diabetic patients stopped or reduced the medicine and insulin intake during and after the camp, and maintained the normal range of blood sugar level; some type 1 diabetic patients reduced the insulin intake by over 50% and still achieved the same result. This proves what I have repeatedly said: stretching and slapping can cure hundreds of thousands of diseases!”The offender visits AustraliaThe offender came to Australia and went to Melbourne where he held a seminar or talk which was followed by a workshop. He then travelled from Melbourne to New Zealand where the same occurred, that is, a seminar followed by a workshop. He then travelled from New Zealand to Sydney where a seminar was held at the Hurstville Civic Centre on 21 April 2015. This seminar was attended by the parents of the boy who was the victim of the offender’s crime.Hurstville Seminar – 21 April 2015The seminar was recorded on film. There was the display of a series of slides and in front of each slide the offender provided a commentary. This seminar was open to members of the public. Exhibit H is a copy of each slide with the commentary made by the offender in front of the slide beneath it. The fifth slide shows the offender meeting with Dr Krishnaswami at the Chennai TAG-VHS Diabetes Research Centre. The commentary made by the offender was this:“This is the chairman of the diabetes research centre. He is a very famous doctor in India. Last month I just finished the clinical workshop with this diabetes centre. All the people attended the workshop, either diabetes, with two, Parkinson’s what’s the result which I show you later, all of them, I will just say hundred per cent effective not only diabetes 2 but also diabetes 1, so this cooperation section is very simple. We just teach all this participants to do Paida Lajin while the doctors and nurses they did all the testing and checking.”Slide 7 shows the front page of either an Indian newspaper or the newspaper’s online post. The newspaper is The Hindu. It shows a gentleman with grey hair and a grey moustache wearing glasses whose arms are extended and pronated and where there appears to be Paida, or slapping, being administered. In front of that slide the offender said this:“This is just two weeks ago. This is one of the national newspapers in India called The Hindu. So they published the big article about how his Parkinson’s and diabetes got healed over there.”Slide 27 had a heading, “Skeletons and skeletal muscles are the largest endocrine organs of the human body”. There is then a diagram, which I need not explain. While standing in front of it, the offender said this:“See the skeleton up above, so they discovered a new hormone called insulin can be generated, but that is like five, six years ago. They did all this kind of thing in the laboratory but we, a country we didn’t do anything in the laboratory we tried it on millions of people, millions of people, hundreds of millions of people, what’s the result, all the diabetes people stopped taking medication, insulin and they healed. So can I give you an example, in our workshop, the diabetes people were number 1 - stopped all their medication, number 2 - stopped all insulin - number 3 - they would drink sugar water every day. That sounds a little bit scary for the diabetic people, ha, but what I want to prove, what proof is that diabetes has nothing to do with sugar. It’s because you have lot ability to generate your own insulin, a kind of hormone, but if you do Paida Lajin then, the hormones will be generated automatically.”Slide 60 was the top part of a page of the conclusions of the report generated by Dr Krishnaswami of the TAG-VHS Diabetes Research Centre at Chennai. I shall refer to this again later. Relevant parts of the report are exhibit M. The report is undated. However, slide 60 referred to those suffering from diabetes type 2, that is, non-insulin-dependent diabetics. While standing in front of that the offender said:“The diabetes 2 all have great healing effect. Read my lips when I say we have the hidden effect that means no drugs, no insulin, if you take insulin or medication to keep things normal that is not healing that is called drug addiction. So we don’t do drugs so it’s not a medical treatment.”The next slide was the second part of the relevant page of the Indian report and concerns those suffering from diabetes type 1 or insulin-dependent diabetics. While standing in front of that the offender said this:“So even for diabetics 1 it also works. Do you know diabetes 1? That means you are diabetic by genetic, you are born with this, so in your lifetime you rely on insulin.”The last slide in the slideshow was numbered 150. There was then some interaction between the offender and members of the audience. In that the offender said that there was going to be a workshop commencing on the following day, 22 April 2015. It would be a seven day workshop and included in it would be fasting for three days. The offender said that fasting was one of the best ways of detoxifying the body. He went on to say this:“When you do the fasting all the energy that is normally used for digesting the food you intake every day now you use for digesting the garbages in you body, in your stomach, in your kidney, in your small intestine, this they use for digesting those garbages. So the garbages is burnt and turned into energy.”On the following page of the exhibit there was further commentary on detoxification and how it may involve vomiting during the fasting.I shall, in due course, quote the relevant sections of the India report which were shown in slides 60 and 61. However, the evidence is, consistent with common sense, and when one watches the film, patently obvious, that there was insufficient time for anyone attending the seminar to both read these two slides and listen to what was being said in front of them by the offender. The boy’s father gave some evidence about that. At page 743 of the transcript the boy’s father said, on 3 October 2019, this:“Q. Do you remember there was some material put up on the screen?A. I can’t remember exactly what was put up on the screen because it was very quick, the slides were changed very - very quickly.Q. At the end of the presentation what was your take home message, as it were - what did you come away with from what you had seen and heard from Mr Xiao at this presentation?A. Well, the impression we got was that there was - I believe in the presentation he - Mr Xiao showed lots of different examples of how his treatment cured a lot of different people who had different ailments and he came across very confident. So what we took away from that and when I was discussing it with [my wife] was - was that this treatment could be very good way to help [my son].Q. I’m only asking you now about your impression, what you came away with at the end of the seminar. What was your understanding from what you heard of how this could help [the boy]?A. It would be another way to treat - his diabetes - as another alternative way to - help him.”The important point to note is that there was no time to read the extracts of the India report that were shown on the slides and the father was left with the impression that the offender was capable of curing diabetes.It is clear that the boy’s parents believed, based on the information presented by the offender at the seminar that, by participating in the workshop that commenced on 22 April 2015, the boy might be cured of his diabetes and no longer require the administration of insulin.The boy’s desire to stop injectionsThe boy had been complaining to his parents, quite naturally and understandably, that he disliked the finger pricking six times per day and experienced pain when injected. The injection of the long-acting insulin, the Lantus, was done each morning and was the more painful form of injection. That injection was into the boy’s buttocks. The other injections were into the boy’s abdomen in the area around or near his umbilicus. The boy did not want to have the injections and the constant finger pricking. As the evidence points out, there were ten painful episodes each day, six finger pricks and four injections.Other information available to the motherIn addition to what the offender said at the seminar, the boy’s mother had also had access to the Paida Lajin website and had read the “Revelations of My Journey to India” post. She had also had interaction with a lady known as Sophia Wang, whose correct first name is Xuefen. She encouraged the mother to enrol the boy in the Paida Lajin workshop commencing at Hurstville on 22 April 2015.Hurstville workshopThe workshop was held at the Tasly Healthpac Centre at Hurstville. It was conducted primarily in the Mandarin language. Participants could attend on all seven days or on only a restricted number of days. A person attending the seminar had to pay. Payments were accepted by the Tasly Healthpac Centre and 20% of the net proceeds went to the Tasly Healthpac Centre and 80% of the net proceeds were paid to the offender. The cost for the seven day workshop was $1,000. At the beginning of day 1 the mother paid $120 in cash for the boy’s enrolment, which was the first day’s fees. Later that week the mother transferred the balance of the $1,000 to the Tasly Healthpac Centre as well as $1,000 for her own participation.On the first day of the seminar participants were required to sign an application form in which they provided details about themselves. The boy’s mother completed the application form for the deceased. In it she recorded in Mandarin that her son had type 1 diabetes. Included in the form, which is exhibit R, was a disclaimer. In English the disclaimer was this:“People not advised to participate in the program:Those who cannot take care of themselves, those with severe health problems, hospitalised patients, those with infectious diseases and/or skin diseases, those with open wounds, those with mental illness, those had operation within last six months, those who don’t understand or don’t believe in this method. Paida and lajin are promoted as self-healing methods and are not meant for or substitute medical treatment. Please consult a qualified medical practitioner for any health issues.”The disclaimer in Mandarin was somewhat different. It was this:“People who are not recommended to participate in this program:1. People who cannot look after themselves. You are not recommended to attend.2. People who are currently receiving treatment at hospital. You are not recommended to attend.3. People who are having infectious diseases. You are not recommended to attend.4. People who have open wounds. You are not recommended to attend.Responsible Person and coach of this workshop are not from medical professions. People who participate in this workshop should not take experiencing this workshop as to replace medical treatment or as an equivalent to a medical treatment. This practice method comes from Traditional Chinese Medicine which can only be used to improve pre-existing self-healing function of our human body.”Such a disclaimer can hardly affect a six year old child, whether it be in English or Mandarin. Cleary, the offender accepted the boy into the workshop. There is no dispute about that. He knew the boy was but a child. He knew the boy’s age and he knew that he suffered from insulin-dependent diabetes mellitus, diabetes type 1. It is clear from what I have already quoted, repeated throughout the trial, that the offender in his dealings with the boy’s parents held out Paida Lajin as a substitute for medical treatment for the boy’s diabetes.The workshop involved both slapping and stretching each day. Participants performed the slapping on each other and were assisted by the offender’s assistants, Dek Fong Wong, known as Ivy Wong, and her father, Cheong Chai Wong, who was generally known as Mr Wong but sometimes both Ivy Wong and Mr Wong were attributed the surname Huang. The offender himself did not perform any slapping on any of the participants but demonstrated the action of slapping to participants in the workshop and gave instructions. As ought be apparent from what I have already said, both the boy and the boy’s mother participated in the workshop. During the day there were group discussions. There were talks by the offender and there were various exercises. At times there was meditation. At times there was chanting.The withdrawal of insulinOn the first day of the workshop the boy’s mother went to perform a finger prick test on the boy around morning tea time, about 11am. The offender saw this and went and spoke to the mother. This is crucial evidence. The mother said this at p 362:“At the time for him to doing during the lunchtime and the breakfast time is to have another finger prick, so I had to do it, so I take out from the bags the machine and did his finger prick in front of everybody in that room, and when I did the finger prick then Mr Xiao was telling me, ‘What are you doing? Too many finger prick for your son’. I say I follow what the doctor say. He say that is torture for the kids.Q. Who said that?A. ..Mr Xiao. He say, ‘Stop doing the insulin and you will see the result.’”At p 364 the following evidence was given:“Q. Now, when Mr Xiao said those things to you, do you remember the words that he used? How did he say, those things about torture and the tests and so on?A. …He say, ‘Why you do too many finger pricks’. I say follow the doctor’s request. You don’t have to do too may finger prick.Q. You don’t?A. ..You don’t have to do too many finger prick and he say, ‘Stop insulin if you want to see the result.’ That’s just exactly what he say.”She then said that she did not give any insulin to the boy at that lunchtime on 22 April 2015 nor was he given insulin that evening at dinnertime and the witness, when asked why that was not done, said, “Because I’d been told by Mr Xiao, ‘Stop the insulin’. So I listened to him.” On the same page the witness said that the offender mentioned that a few times during the workshop and what was mentioned was the stopping of insulin. Eventually she said it was that direction was given both on the first and second days of the workshop and on another day that she could not specify.Her evidence was that no further insulin was given to the child prior to his death five days later. The defence position at trial was that no such direction was ever given by the offender. The jury clearly accepted the evidence of the child’s mother in that regard. Her evidence in that regard is corroborated in a number of ways. Firstly, she told her husband that evening and her mother that the offender had given that direction and no further insulin injections were to be administered to the child.The father, like the mother, said that no further insulin was administered and, in the limited evidence that was adduced from the grandmother, who was too ill to give oral evidence but whose statements were put into evidence, she did not administer any insulin either. I have no hesitation in accepting that the jury accepted that no insulin was given to the child from lunchtime on 22 April 2015 or at any time prior to his death.Evidence was given at the trial by Ms Sharon Lin. She attended the workshop. The fourth day of the workshop occurred on Anzac Day, 25 April 2015, which was a Saturday. Ms Lin said a number of things. At p 885 of the transcript the following evidence was given:“Q. During the Saturday do you remember Mr Xiao speaking about other topics about medical practices or things medical?A. So Western medicines are toxic, that during doctors’ strike the death rate in the hospital would drop.Q. Do you remember the word “poison” being used?A. Yes, I think I was using poison in my statement [to the police].Q. Well, what was - how was the word used? What was said?A. So Western medicine are poison.”She then said on the following page that the person who made that statement was the offender. She also recalled that on that Saturday the offender said to the mother not to give insulin to the boy. She said on p 887 that the accused said to stop giving insulin because it was “toxic”. She maintained that position in cross-examination. This evidence was given at p 900 of the transcript:“Q. Ms Lin, can I suggest that you’re mistaken in your recollection about Mr Xiao saying to [the mother] to not give any more insulin, and that what you in fact heard was [the mother] saying - I withdraw that. Can I suggest that you’re mistaken in your recollection about Mr Xiao saying not to give any more insulin?A. I can’t agree to it because I do definitely recall it. At the time I was giving the statement I was trying really, really hard to try to recollect to when in the timeframe he actually said that. Looking at this, perhaps, I should have actually said that, no, it’s back in - back in on the Thursday instead of on Saturday. But then again, I signed my statement. I was trying really, really hard to try to pinpoint down to the exact group discussion when that was mentioned.”There was no reason for anyone to disbelieve Ms Lin. The jury could certainly accept that evidence as corroborating the mother’s evidence that she had been told by the offender on a number of occasions to stop administering insulin.Prior to the seminar and during the seminar there were messages passing on “WeChat”, a social medium used by Chinese speakers, between the mother and Sophia Wang who was a lady who practised Paida Lajin and helped organise the Melbourne and Sydney seminars and workshops. On 22 April 2015 at 7.17pm Sophia Wang sent this message to the mother:“Don’t give insulin injection to your little darling any more. We will watch the changes in him in the seven days.”To that the mother replied at 7.39:“Okay. Apart from giving him insulin injection in the morning before we come, I’ve not given him injections at lunchtime or in the evening today. I hope to see the changes on him. After we got home, I told him to properly participate in the slapping and that if he got better he would not need to have the injection in the future. He was especially happy hearing this and said that he was coming the next day too.”The mother had made contact with Sophia Wang due to their sharing the practice of the Buddhist faith and they had participated in pilgrimages to Tibet and to China and Nepal in 2014. It appears that Sophia Wang first introduced the concept of Paida Lajin to the mother and the boy. Ms Sophia Wang gave evidence. She was a thoroughly unimpressive witness. It was hard to know whether she was being deliberately evasive, obtuse or mendacious. However, the fact remains that she did send the WeChat message to the mother, which I have quoted, drawing the mother’s response and pointing out contemporaneously what the mother said happened after being told by the offender not to administer insulin to the boy during the seminar.It was open to the jury to infer that the message was sent by Sophia Wang either at the instigation of the offender or because she believed the offender’s assertions that Western medicine was toxic and, to properly derive benefit from Paida Lajin and to be cured of the need to take insulin, the insulin would have to be stopped. It is clear to me from the evidence that Ms Wang gave that she was a convinced adherent to the principles taught by the offender. Not only did the mother and other carers of the child stop administering insulin but they also reduced, over the period of the workshop, the number of finger prick tests being given to him, which were designed to ascertain what his blood sugar levels might be and as to what his ketone levels might be.The workshop, continuedThe workshop did involve three days of fasting. Those days were Friday 24 April, Saturday 25 April and Sunday 26 April 2015. Those participating in the workshop were only allowed to ingest water or ginger date tea, a drink that was made from a powder. The offender told the mother that the deceased should fast, just like all the adult participants, and that occurred. On the fourth day of the workshop, Saturday 25 April 2015, the boy’s health began to decline. He began to vomit and was weak.In a group discussion the mother described the boy’s declining health. She told the offender and those participating that the boy was vomiting and had high blood sugar levels and high ketone levels. The offender told the mother that the boy’s body was adjusting and that vomiting was part of the self-healing crisis and that bad things were being cleaned from his body. That evidence can be found at pp 398, 664 to 667 of the transcript.On Sunday 26 April 2015, the fifth day of the workshop, the mother told the offender that the boy had vomited a white and very sticky substance. She showed him a photograph of it. The photograph is in evidence. She also told the offender of the boy’s fluctuating blood sugar readings and she inquired why the boy was so weak. The offender replied, “This is some kind of reaction that will happen during the treatment. Vomiting is actually a good sign. So he will pass all those toxic substances by the workshop.” He also said, “You’ve already taken him to see the doctor. Have they treated him? Cured him?” The mother replied, “No. The doctor only treated him, but they can’t help him fully recover.” The offender replied, “Then why would you listen to them? And let them do so?” In other words, what the mother was being told was that she should listen to him and not to the doctors who had given the advice at Westmead Children’s Hospital.The boy’s father did not attend the workshop. However, on the weekend he did take the mother and child to the workshop. On the afternoon of Sunday 26 April 2015 he had a talk with the offender. By the Sunday the boy was vomiting a black substance. With the benefit of hindsight, we know that that black substance was haematemesis, the vomiting of blood. The blood, whether digested or undigested, turned the vomit black. The boy was so weak that he could not walk from his room to the family car, nor from the family car to the room in which the workshop was being conducted. He was pushed in a stroller. As his father said, he was unable to walk.On the afternoon of the Sunday he arrived at the workshop at about 3.30pm. He had a talk to the offender. That was near the sofa at the Tasly Healthpac Centre, where his son was resting. That couch or sofa was not in the actual room where the workshop was being conducted but at the front of the building towards the reception area. The father gave this evidence:“I was standing there in front of [my son] and I can’t remember what Mr Xiao was - he’s come up beside me and he’s standing beside me. I can’t remember exactly which part of the clinic he came from, but he’s standing beside me and I’m saying to him, ‘Look at my son, look at my son’, and I was very concerned about [him] and he said, ‘Read the book. It’s in the book’, and I started getting..very upset about [my son’s]..condition because of the way he was in.”The father then said that the offender repeated the words “Just read the book.” What was happening was in the book. According to the father, the offender walked off and the father perceived that the offender did not appear to have any concern for his son. He also said that the offender made no eye contact with him. At p 759 of the transcript the father said that he could remember the offender saying, “Must continue the process. You cannot stop the process. You must see it through. You cannot stop, otherwise he won’t - [he] won’t receive the full benefits of the treatment.”In re-examination the father was asked whether, on the Saturday or the Sunday when he had his conversation with the offender, there was any mention of insulin. The father’s evidence was this:“’Insulin is no - can’t give him the insulin. Can’t give him the insulin. You can’t stop the treatment. The vomiting is to help get the bad things out of his body. You can’t stop, otherwise you won’t receive the benefits of the treatment.’ At no stage was I told that we could give him insulin - that I could give him insulin personally. I was never told that, that I could, otherwise I would have.”The father does not speak any Chinese language. The father did not converse with Sophia Wang on WeChat. The father does not read Chinese characters so he could not read the “Revelation” posting on the Paida Lajin website. There is no evidence that he read the book to which reference was being made by the offender, a book which the mother had acquired both in Chinese and in English. What the father was saying in re-examination mirrors the type of advice that can be found in the published works of the offender. To me, it had the ring of truth and I believe it had the ring of truth to the jury. There is no reason to disbelieve the father. Clearly, he was very distressed, but I accept that he tried his best to tell both the jury and me the truth.That there was such an interaction between the father and the offender is found in the extracts from a book, which could be described as a diary, kept by the offender. Part of the entry made for 26 April 2016 is this:“[The boy’s] reaction was stronger, he was weak, vomiting, his mother said from last night, he didn’t sleep, he kept on drinking water, and then threw up, he threw out vomits with white, black and yellow colours, even today he was still vomiting. Checked his blood sugar and [ketone] level. The reading went up so high they couldn’t see the reading, this morning, [ketone] down to normal. I repeatedly told her not to worry about the fluctuation of readings for blood sugar levels, and other readings, so that was why they held on till today. But her husband is a foreigner [ie non-Chinese], was very worried. But eventually they held on. In the afternoon when he came in, I encouraged them to be calm, changes in readings were normal, which meant he was healing himself, the healing process was taking place.”The offender’s perception of what was happening was incorrect. The boy was not healing himself. The boy was dying.LUNCHEON ADJOURNMENTOn the sixth day of the workshop, Monday 27 April 2015, the mother of the boy was due to work but obtained the day off from her employer. She took with her to the workshop not only the boy but also the boy’s grandmother and the boy’s younger sister. The reason for taking the grandmother was to assist in looking after the boy and also because it was anticipated that the mother would not be able to attend the final day of the workshop, Tuesday 28 April 2015, and perhaps the boy could stay elsewhere with the grandmother so that the boy could attend the workshop on the following day. It was eventually arranged that the grandmother and the boy and the boy’s younger sister would stay for the night in Hurstville with the offender’s assistant, Ivy Wong, and with Sophia Wang. Those two ladies were sharing a room at the Ritz Hotel in Hurstville and that room was to be shared with the grandmother and the boy and his sister.Again on this day the boy needed to be pushed in a stroller from the family vehicle to the room in the Tasly Healthpac Centre where the workshop was being conducted. At the end of the workshop the mother returned to the family home in western Sydney and the boy and his grandmother went with Ms Wang and Ms Wong to the Ritz Hotel, the boy still being pushed in a stroller.The boy’s deathMost of those staying at the Ritz Hotel, which included the offender and his assistants, Ms Wong and her father, Mr Wong, and Sophia Wang and some participants went to a nearby restaurant at dinnertime. They left the boy and his grandmother alone inside room 1 of the Ritz Hotel. Shortly thereafter the boy began vomiting black vomit and had an apparent seizure. The grandmother screamed for assistance but, in the process, accidentally locked herself out of the room. Things thereafter escalated quickly.The owner of the hotel, Mr Stephen Bowden, heard the grandmother’s calls and went to her assistance. However, he could not ascertain what she was saying because he did not speak Chinese. A key was obtained by a member of the hotel staff and the door to room 1 was opened. Mr Bowden entered the room and saw the boy lying on a bed. He was soon joined by another guest at the hotel, Mr Steven Morris, who made a 000 call at 8.42pm and took instructions from the 000 operator as to the performance of both mouth to mouth resuscitation and cardiopulmonary resuscitation. Mr Bowden was doing the mouth to mouth resuscitation and Mr Morris was doing the chest compressions.After a while Mr Bowden, who was senior in age, had his role taken by Ms Rachael Fitzsimmons, another member of the hotel staff. The police arrived in answer to the 000 call at 8.47pm. The Ambulance Service received the 000 call at 8.43, were despatched at 8.45, reached the scene at 8.50 and made contact with the boy at 8.54. They left the scene, that is, the hotel, at 9.37 and arrived at the St George Hospital a minute later. The emergency department was alerted that there was a serious case being brought to them and the boy was then treated, or attempted to be resuscitated, in the emergency department but his life was pronounced extinct at 9.51pm.It is clear from the observations of both Mr Stephen Bowden, the owner of the Ritz Hotel, and Mr Steven Morris, observations which he conveyed to the 000 operator, and the observations made by the paramedics, one of whom gave evidence, Ms Sally Gould, and from what was said by the emergency department doctor, Dr Douglas Cuthill, that at no time was any sign of life found. In other words, by the time the 000 call was made at 8.42pm the boy had already died.There is no contest that the death of the boy was due to ketoacidosis. Not having insulin, the boy’s body was breaking down fat. That produced ketones. Ketones are acidic. That reduced the pH level of the boy’s blood. That led to heart failure. That led to a loss of blood circulation. That led to infarction of the brain. The only cause of death was ketoacidosis and the direct cause of that was the withdrawal of the boy’s insulin made by the parents on the advice or direction of the offender.The India reportThe Crown case was postulated on the India report which was within the possession of the offender. The India report is exhibit M. There were 26 persons who participated in the Paida Lajin workshop at Chennai in India between 9 and 13 March 2015. Of those, only four were suffering from type 1, insulin-dependent diabetes.The first of those was a 52 year old lady who had been receiving treatment for 33 years. She took insulin twice daily. She also suffered from hypothyroidism and chronic sinusitis. According to her case history, she was able to continue Paida Lajin therapy and the fast, as provided at the workshop, for the first two days. Her blood sugar levels were satisfactory “with minimum medication”. On the evening of the third day her blood sugar level had increased, as had her urine sugar level, and she was producing ketones. She needed to be given intravenous saline and insulin. On the fourth day she needed to be given saline intravenously and small doses of short-acting insulin. She was able to complete the fifth day. According to the case history, at the end of that day she felt very much better. Her energy levels were good. Her need for insulin was reduced to 15 units per day. It is noteworthy that she needed to be given insulin during the workshop and at the end of the workshop her need for insulin had not disappeared but had been reduced.The second type 1 diabetic was a 47 year old male. At the age of 15 he was diagnosed with mature onset diabetes and was treated with oral hypoglycaemic agents for two years but then developed fever, lymphadenopathy and liver and spleen enlargement and was diagnosed with Hodgkin’s disease and then needed to be treated at the Chennai Cancer Hospital. The problem for that man was that the treatment by chemotherapy destroyed the pancreatic beta cells and that caused him to become an insulin dependent diabetic. According to his case history:“During the therapy he was responding rather slowly during the first three days, while on the fourth and fifth day he picked up strength and on the final (the fifth day) he could sing, dance and make a long meaningful emotional speech of gratitude.”He had been able to reduce his need to insulin by 45 - 50%: In other words, he had not been cured; merely the level of insulin which he required to take was reduced.The third case study was a woman aged 27 who, for the preceding 18 years, had been treated at the Diabetes Research Centre. She has also been treated for hypothyroidism and epilepsy. On the second day of the workshop she was found to have ketones in her urine. At the end of the fifth day her weight had fallen to 50.8 kilos from 53.8 kilos. Nevertheless she was energetic, brisk and happy. Previously her insulin levels required 45 units per day but after the five day workshop her need for insulin had been reduced to 23 units per day.The final type 1 diabetic patient was aged 46 years. She had been treated at the Diabetes Research Centre for 25 years. Her patient history continues thus:“At the beginning there were no major symptoms/complaints. Her blood sugars were generally on the higher side. She was included in the workshop with a view to improve her diabetic status. She completed the workshop without any problem. During the beginning she was able(as said) to tolerate pain due to paida but gradually she completed the workshop on all of the days. She too lost some weight and her insulin dosage was changed over to injections of H. Mixtard insulin from injections of Actrapid/Insulatard combination (total 30 units per day).”By the end of the course her need for insulin had been reduced to 25 units per day, a reduction of one-sixth.The relevant conclusion of the India report about type 1 diabetes is this; this also was the subject of slide 61 at the seminar held on 21 April 2015:“Type 1 diabetes (Juvenile Insulin Dependent Diabetes Mellitus) which is the more severe, insulinopaenic form, occurring in children and young adolescents, also recorded improvement in their clinical condition over the five day period of the workshop; however, during the Healing crisis and fasting when their blood sugars went up they needed medical support in the form of calories, fluid and small doses of rapid acting insulin to prevent ketoacidosis; but it was not alarming and all of them recovered and completed the full course with renewed energy and needing approximately half of their original requirement of insulin. A longer period of observation (six months) is underway which may provide more answers.”If more answers were provided they were not put before the jury or before me. It ought to be clear that the conclusion about type 1 diabetes from the India report is that, during the fasting process, what the offender calls the “healing crisis”, there needed to be injected swift-acting insulin to prevent ketoacidosis which was occurring. It also ought to be clear that no one was “cured” of diabetes type 1: rather the need for the amount of the insulin was reduced but for how long that reduction could be maintained is completely unknown.NegligenceThe offender’s negligence was in failing to tell the parents of the child that his method could not cure diabetes type 1, insulin-dependent diabetes, and failing to tell them that, during the healing crisis, during the fasting, injections of insulin would be required to prevent ketoacidosis. He knew that. He had the India report before him. He put it up on the screen but did not leave sufficient time for the parents of the boy to read the report during his lecture at the seminar. His negligent direction or negligent advice caused the parents to believe that, if they stopped giving insulin to the boy and the boy participated in the course, he would be cured of diabetes mellitus which, on the evidence adduced at the trial, is a physical impossibility.Offender’s subsequent conductRelevant to some sentencing issues is what the offender said and did after the boy’s death. There was a police investigation. The offender was interviewed by the police. The record of interview between him and the police made on 28 April 2015 is exhibit NN. In that interview the offender said a number of things which cannot be true. Question 227 is this:Q. “So again just to clarify, did you advise [the boy]…or [his mother],…to not…use medication?A. No.”Commencing at question 508 this was said:“Did [the mother] ever come to you and raise any concerns about [the boy’s] blood test?A. Yeah.Q. When was that?A. I think in the first day, yeah, first.Q. …and what was said in that conversation?A. She just said many times yeah I thought it was yeah.Q. What did she say many times?A. Six, six times test the blood and four time injection, yeah.Q. Did she say anything about this, what his blood sugar levels were? Did she ever talk about them?A. No.”That is clearly contrary to the evidence of the mother. At question 514 this was asked and answered:“Q. Did you ever suggest to [the mother] that [the boy] should stop using insulin?A. No.Q. Did [the mother] ever come to you and ask you about whether [the boy] should start using insulin?A. No.”The first of those negatives is clearly untrue. Commencing at question 526 this was asked and answered:“Q. So she never came to you and asked you or told you that his blood level was high?A. No.Q. And you said before that you never mentioned that he should stop using insulin?A. No. But occasionally I would say, see other people in other parts of the world they stop using insulin or they gradually reduce their dosages.”At question 536 the offender was asked whether anyone ever expressed concerns in relation to the boy being tired all the time and he responded to that in the negative. That is quite contrary to the thrust of the evidence of both the mother and the father. When asked whether he wished to add anything, the offender said this:“I only say I have to make it very clear see. Number 1 I never said I am a doctor…I never gave any treatment and I never claim this is equally or, you know, good as any other medicine you see.”Clearly, the offender led the mother to believe that he, by the use of his method, could cure the boy of diabetes mellitus provided that he went off insulin and participated in his workshop and after the workshop was completed continued practising paida lajin. Of course, the boy never got to finish the course because he died at the end of the sixth day of the seven day workshop.A decision to prosecute the offender for the offence of manslaughter appears to have been made by the police by 6 July 2016, over a year later. It was on that date that a court attendance notice was created. The court attendance notice was filed in the Local Court at Sutherland on 12 July 2016. By that time the offender had left Australia. On 14 July 2016 the Local Court at Sutherland issued a warrant for his arrest on the application of the officer in charge, Detective Sergeant Volpe.In the interim the offender continued to promote Paida Lajin. In evidence is a statement of Detective Sergeant Volpe made on 4 December 2019 to which is annexed a list of workshops conducted by the offender prior to his arrest. The first were seminars in Germany on Tuesday 19 and Thursday 21 May 2015. The first lecture was at Heilbronn and the second was in Hamburg. There was a Paida Lajin seminar and one day workshop in Penang in Malaysia on 9 July 2015 and a seminar at Seremban in Malaysia on 11 July 2015. Workshops were conducted in China in Shanghai commencing on 2 April 2016, at Xi’an on 30 April, in Shenzhen commencing on 14 May 2016, in Chengdu commencing on 28 May 2016, in Beijing commencing on 18 June 2016 and in Hangzhou commencing on 2 July 2016.I regret to say that the list that I have been given is not arranged chronologically. There was a seven day workshop in Taiwan commencing on 1 April 2016, a seven day workshop in Pahang in Malaysia between 8 and 14 April 2016 and another between 5 and 11 August 2016. There was a seven day workshop in Bandung in Indonesia commencing on 20 April 2016. There was a workshop - although so called it may well be only a seminar - at Irvine in California on 8 May 2016, a seminar at Harrisburg in Pennsylvania on 15 May 2016, a workshop in New York between 22 May and 28 May 2016. There was a seminar in Sofia, the capital of Bulgaria, on 3 July 2016 followed by a workshop between 9 and 15 July 2016 at a retreat centre 40 kilometres from Sofia.There was a two day seminar and workshop in the Netherlands on 7 and 8 August 2016, then a seminar on 12 September 2016 in a town near Bogor in Java in Indonesia followed by a workshop in the same place between 15 and 21 September 2016. There was a workshop between 15 and 21 October 2016 in Wiltshire in the United Kingdom. There was a workshop between 29 October and 4 November 2016 in Hong Kong. There were then a series of workshops in mainland China commencing at Shenzhen on 5 November, Xiamen on 13 November, Wenzhou on 19 November, Chengdu also commencing on 19 November, Shanghai commencing on 3 December and Xi’an commencing on 17 December 2016.There were then seminars in Beijing commencing on 1 January 2017, Xiamen on 18 February 2017, Shenzhen on 3 March 2017, Haikou on 18 March 2017 and at Shanghai on 8 April 2017. There was a workshop in Dallas, Texas for two days only, 4 and 5 February 2017, and then another workshop held Pahang in Malaysia commencing on 28 March 2017 and ending on 3 April 2017.The warrant was executed by British police in the United Kingdom on 25 April 2017 and the offender has been in custody since that time. He was extradited by the British authorities to New South Wales, arriving here on 17 August 2017. Bail was refused by the Local Court at Sutherland on that day and a bail application to the Supreme Court was unsuccessful. The bail application was refused by Fullerton J on 4 October 2017.The trial at which I presided was not the only trial in which the offender participated. He was committed for trial in this Court on 24 October 2017. The first trial commenced on 31 October 2018 before Arnott DCJ. There were four accused, the mother, the father, the maternal grandmother and the offender. On 3 December 2018 the offender dismissed his counsel and solicitor. On 6 December his Honour Arnott DCJ granted an application by the offender to be discharged from that trial. That trial concluded on 21 December 2018 when the jury returned verdicts of not guilty of the charges laid against the father, the mother and the grandmother. The present second trial on 12 September 2019. The jury was empanelled on 18 September 2019 and the jury returned a unanimous verdict of guilty on 18 October 2019.Seriousness (1)I am required to find the seriousness of the offender’s criminality. The jury accepted that the offender owed a duty of care to the boy. Curiously, the Crown did not allege that the duty of care arose either in whole or in part from the fact that the offender charged the boy and his mother money for participating in the workshop and receiving his advice. Rather, the Crown, as I said somewhat curiously, put the argument that this was a voluntary rendering of advice, a voluntary action of the offender rather than a commercial transaction.The duty of care, as formulated by the Crown, was not opposed by the offender. The jury accepted that the offender owed that duty of care to the boy, that he breached the duty of care and that his breach of the duty of care was so great or gross that he deserved punishment for the crime of manslaughter. The offender’s advice or action in which he persisted until the boy’s death caused the death of a six year and nine month old child. Any such death has a profound impact on the community.The victim impact statements made by the mother and the father were read yesterday. The impact of the death of a child of tender years on parents is profound. Anyone who heard what was read yesterday could only feel the utmost sympathy for the grieving parents and the young girl deprived of her older sibling. However, in general terms, the effect is on the whole community, just not the parents, just not the sibling, just not the grandparents or other relatives. Such a tragic death affects many others. It affects the children with whom the deceased boy was going to school. It affects the parents of the other children with whom the boy was going to school. It affects those with whom the parents work and socialised.We value human life above all other things. The taking of human life deliberately is murder and is punishable by the maximum penalty known to our law, life imprisonment. The maximum penalty for taking the life of a person by gross negligence is 25 years’ imprisonment. However, there are many forms of manslaughter and, although grave, this form of manslaughter is often not put in the same category as other forms of manslaughter, such as the use of excessive force in self-defence or the use of excessive force in, for example, disciplining a child, or where the Crown is unable to prove the specific intent needed to establish murder, or where the culpability of the offender is reduced to manslaughter because of some personal circumstance. Manslaughter involves the felonious taking of human life. It involves a wide variety of circumstances, calling for a wide variety of penal consequences.Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime: see R v Hill (1981) 3 A Crim R 397 at [402]. The protection of human life and personal safety is a primary objective of our system of criminal justice. The value which the community places upon human life is reflected in the expectations of that system and the community is entitled to have the conduct denounced by a sentence appropriate to the circumstances: see McDonald v R (Unreported, NSWCCA 12 December 1995).There is also a line of authority about manslaughter where the victim is a child. Crimes against young children demand severe punishment. This is the community’s expectation. They require heavy sentences to be imposed. Such dicta may arise from cases involving other forms of manslaughter but the fact that the victim of the crime is a child is always regarded as more serious than if the victim is an adult.The offender is a well-educated and articulate man. He is articulate in English, as the film of the seminar held on 21 April 2015 establishes. On the evidence before me, the offender has a degree in business from the China University of International Business and Economics, which is in Beijing. He went to the United State of America and obtained a Master of Business Administration from the University of Arizona. He then worked on the New York Stock Exchange. He then went to Hong Kong and worked as an investment banker. That was before he took on his search for methods of healing. He has authored not only the book I have cited but other books about his craft of Paida Lajin. He has also written another book about his life in the business community.I must contrast the offender’s ability and gifts to those of the parents. The mother of the child, as I said, is Chinese in origin and clearly was persuaded by the offender to enrol her son in the offender’s workshop. She has only worked part time in Australia, essentially as a sales assistant in a chain of cake shops which also sell coffee. The boy’s father was less well educated than the offender. He works as a retail salesman, in effect. He appeared to be straightforward but unassuming. He obviously deferred in many aspects of their child’s life to his wife. They have not, either of them, the level of sophistication or life experience that the offender has.At the time of the offence now in question, the offender was aged 52 years. He is well travelled. The documents that are before the Court indicating his life before the Hurstville seminar and workshop attest to his travelling the world promoting Paida Lajin in Europe, North America - both Canada and the United States - in Asia, in mainland China, in Hong Kong, in Taiwan, in Malaysia, Singapore and Indonesia. He has also conducted seminars in the past in other places in Australia and in New Zealand. He has also presented Paida Lajin seminars and workshops in southern Africa. By “southern Africa” I do not mean solely South Africa but other areas of South Africa, including the Kingdom of Lesotho, where he is not shy revealing that he treated the king, the deputy prime minister and the archbishop.The significance of the seminars and workshops after that at Hurstville is that the offender continued doing what he had been doing with no obvious restriction as to whether persons suffering from diabetes could attend his workshops or not.There are no similar cases that either my research or that of my Associate or that of Mr Crown or counsel for the Offender could find. The nearest case which might be thought to be somewhat similar is Sam v R [2011] NSWCCA 36. In that case both the mother and father of a deceased child were found guilty of the child’s manslaughter. The father was an osteopath who preferred his treatment of his daughter to the treatment recommended by others. Counsel for the offender submitted that that case is dissimilar to this case in that there the offenders were the parents and that parents had a greater duty of care than this current offender had. However, I point out that the offenders in Sam v R were the parents. They would have the same loss and ongoing mental trauma as the parents of this boy. They might also feel guilt for their crime. That is a form of extra curial punishment. This offender does not have that experience. The offender could be put in a similar position to a teacher or other form of carer for a young child who breached the carer’s duty of care to the child and did so grossly. In my view, the current offender’s criminality is at a higher level than that of the offenders in Sam v R.RemorseThe offender has, as far as I can ascertain, shown no true remorse. The Crown submitted he has shown little insight into his offending behaviour. That may merely reflect his entrenched views as to the value of what he teaches, but that value must be questioned when it brings about the death of a six year and nine month old child. It ought be clear to the offender that he is not capable of curing diabetes mellitus which is insulin-dependent. There is no known cure for that condition. The only way of treating the condition is to give to the body what the body cannot produce, insulin. If the offender needed any proof of the truth of that assertion, he needs only to consider why he is currently in the dock facing sentence.In his letter to me, which is exhibit S12, he said this:“I was so grieved by the tragic accident that in three years I did three memorial services for the boy in traditional Buddhist way, for the boy’s mother is a Buddhist. Lots of animals and aquatics were bought and then set free in the services. For more than two and a half years in prison, I have been continuing my prayer for the boy and his family to be comforted by God.”However, the offender did not give evidence at trial, did not give evidence at the sentencing hearing, has shown no contrition or remorse for the conduct of his offence and conducted a defence based upon the proposition that he never advised the parents of the child to withhold insulin, a proposition which just cannot be accepted and was not accepted by the jury. Actions speak louder than words. The offender’s actions are inconsistent with true victim empathy, inconsistent with true remorse and true contrition.Seriousness (2)There is clearly a dispute about the severity of the offence, perhaps better put as the seriousness of the offence. The Crown submitted that the level of the offender’s knowledge of type 1 diabetes, coupled with his experience from the India workshop and his continued instruction to the deceased’s carers in the face of the deceased’s deteriorating health, place this case well above the midrange of objective seriousness for cases of manslaughter by gross criminal negligence. The offender, through his counsel, submitted that there was significantly lesser objective seriousness and, therefore, moral culpability, than was suggested by the Crown. It was submitted on the offender’s behalf that the circumstances must be considered against not only other cases involving criminal negligence but also other forms of manslaughter, namely, an unlawful and dangerous act, substantial impairment of the actor and excessive self-defence. However, as I have previously indicated, I believe this case to be more serious than that of Sam v R.Personal circumstancesThe personal circumstances of the offender have, to a large extent, already been covered when I considered matters autobiographical and when considering the offender’s background. To be fair to him, I would point out that, on the evidence presented to me by the defence at the sentencing hearing, after graduating from university in China, the offender spent at least two years, or perhaps four years, teaching in remote areas of China, teaching English. One referee, Mr Jin Hong Zhao, said this:“After college, he voluntarily applied for a job as a teacher in rural villages which lie inside the impoverished mountain region of Jiangxi Province, where he worked for two years.”Another referee tells me that, in addition to those two years, he worked in a similar fashion in remote areas of Tibet for a further two years.However, he then went to the United States and embarked upon a career in finance, which I have outlined briefly, and, whilst there, he obviously became an American citizen. The offender’s usual place of abode is in Orange County, California, where he took delight in telling the police that he lived in a large house. The offender gave away this career in finance to pursue his search for a method of healing which he has now been promoting worldwide. Clearly, fees are taken for the seminars sometimes and the workshops always. Whether the offender makes any money out of that I do not know, but it would appear that it was at least paying for his travelling throughout the world promoting Paida Lajin.There is a reference from his first wife, the mother of his elder daughter, who, on what she says, had been a successful businesswoman in Hong Kong when she met the offender in 1992. The offender’s first wife, Ms Li, said, amongst other things, this:“There is a lot of love in him and he wants to help people. Perhaps that is why he changed his career. He often treated people from rural and poor areas free of charge as his goal was never to make money. These great qualities of his are the reasons I fell in love with him. I fell out of love because of other faults but we remain good friends and parents to our daughter.”Ms Li makes the point that she could not perceive the offender intending to cause death and, therefore, she believed the death was caused by negligence. That is exactly what the Crown case was.The offender’s second wife, Siwei Zhou, is also the mother of a 15 year old daughter who is the younger daughter of the offender. I am told that both the offender’s former wives are now residents of the United States, which would account for the irregular method of dating documents and unorthodox spelling. His second wife said this:“As for his character, I have always respected and admired his devotion to his pursuit in Chinese medicine. He gave up everything for Chinese medicine - his job, his family, his life. There was a time when he was barely home because he was always in the mountains, learning from different healers and doctors who weren’t mainstream but who people around the area deeply respected and frequented. Sometimes the conditions were so bad that he didn’t even have a real bed to sleep in. Again, the places he visited and the people who he calls his teachers are by no means working in a nice hospital. These are people who live far away from the city. They live in the countryside of China where most of the time medicinal facilities are not very advanced, so they are the area’s only source of recovering from illnesses. I do not think anyone could easily do what Hong Chi has done in order to study the best of Chinese medicine from acupuncture to acupoint massaging to chiropracting and various other methods.Because of Hong Chi’s experiences studying under such harsh conditions and seeing that most people who did visit his masters were so underprivileged and poor, he was more than willing to help people without charge in the future. He truly wanted to help people, to treat the less fortunate, to help everyone get the chance to live a sickness free life.”However, the lady is speaking of the past. There is no suggestion that in more recent years the offender has been living the life of a hermit on a mountain in distressed circumstances.Mr Zhao, who I have already mentioned, is a former neighbour of the offender who attended the same schools are did the offender. In his letter he said this:“In October 2017, as entrusted by his elderly mother, I flew to Australia to pay him a visit in prison. When I saw him, he said to me: he felt painfully sad for the death of the child, and was deeply sorry for the damage caused to the child’s parents. He said he has been confessing to God every day in prison. Furthermore, as the child’s mother is a Buddhist, Mr Xiao has also done the ‘free captive animals’ ceremony according to the Buddha dharma three times, in the hope to dedicate the results for the benefit of the deceased child. He invited the Buddhist monk, purchased a large number of live animals, fish and shrimps to be set free and asked the monk to do the relevant ceremony.”Despite what the offender said to Mr Zhao, the way that he defended these proceedings is not a way which expressed any sympathy for the parents of the deceased child who gave evidence at the trial. He was entitled to defend the charge but the question of tactics is another matter.The offender is a man of prior good character. There is no suggestion that he committed any criminal offence in this country or in any other country from which the Crown could have obtained records, including the United States and certain European countries. I accept that this crime was the only significant crime that this man has ever committed. Nevertheless, it is still a very serious crime.A fulltime custodial sentenceThe Crown submits that this is certainly a crime calling for a sentence of full time imprisonment. There is no demur to that on the offender’s behalf. After all, he has already spent in custody two years seven months and 18 days, more than two and a half years. The length of that period was caused essentially by the offender withdrawing from the first trial conducted by Arnott DCJ.The futureWhat are the prospects of the same offence occurring again? That I find impossible to say. The offender clearly expressed to people, and one can find in his book, a disdain for Western medicine. Implicit in it is a view of the superiority of his view of traditional Chinese medicine which would no doubt be viewed by those who practise medicine in this country as completely unscientific. I find it impossible to say whether the offender will continue to do as he has done in the past or whether he will certainly change his ways. That depends upon him and he has not given evidence so I find that impossible to ascertain. I do not know whether the offender will commit similar crimes again. That depends on whether he can really learn from the current offence.ConsiderationI would point out that, insofar as the documentary evidence tendered at the sentencing hearing by the offender suggests, he does have contrition and remorse. The authorities are replete with the fact that I am not required to accept it merely because it comes from another person when the offender himself does not give evidence.What looms large in a case of this nature is deterrence. The offender himself must be deterred from acting again in the way that he acted. Other people who come to this country to promote alternative therapies must be acutely aware that, if they do anything of the nature that this offender did, they are liable to pay for it a heavy penalty. In R v Harrison (1997) 93 A Crim R 314 Hunt CJ at CL said at (320):“Except in well-defined circumstances such as youth or the mental incapacity of the offender…public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed.”Similar statements can be found in R v AEM [2002] NSWCCA 58 at [92] and in R v Radich [1954] NZLR 86, which was approved in R v AEM. In Radich the New Zealand Court of Criminal Appeal said this:“…one of the main purposes of punishment, … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment.”A submission has been made on the offender’s behalf about the conditions of his imprisonment. The offender clearly had deteriorating eyesight. From at least 24 February 2019 he was complaining about that to the prison authorities, saying that he was half blind and could not read and write. Justice Health went about its business in an appropriate fashion. The offender was examined on 3 April 2019 at the Prince of Wales Hospital by, inter alia, a professor of ophthalmology. He was found to have dense cataracts on each side and some macular changes were noted. He was reviewed on 6 June 2019 and found to have a detachment of the retina on the right side. A report in evidence from Professor Minas Coroneo said this:“On 13 June 2019 I supervised surgery on the patient’s left eye and we extracted a left cataract and implanted an intraocular lens. The surgery was uneventful with an excellent outcome.On 17 June the patient underwent right eye cataract and vitrectomy surgery. This was performed by Dr Downie at the Sydney Eye Hospital. From the records this surgery was also successful - the retina was attached and cataract surgery was uncomplicated.Both surgeries were uncomplicated, and the patient was discharged on 19 June 2019.”In the report the Professor goes on to point out that the offender’s vision is sufficient to enable him to hold a driver’s licence. At the end of his report he said this:“I am of the opinion that the patient, Hong Chi Xiao, has good functional eyesight, much improved on the vision he had prior to surgery. This level of vision is compatible with living a normal life, including being able to drive a car.”However, the offender also complains of ongoing headache. However, he has had two CT scans performed of his brain. The first was performed on 26 March 2019. A report of it is part of exhibit S13. The only abnormality which it is said to show was persistent mild hypoattenuation in the left cerebellar hemisphere which may be due to prior infarct or potentially secondary to artefact. An addendum made to the report by a specialist says that the ill-defined area of hypoattenuation in the left cerebellum is most likely related to beam hardening artefact. A further CT scan was performed on 31 May 2019 and is reported thus by Dr Nicholas Chen, the radiology registrar at the Randwick Medical Imaging Department:“No parenchymal abnormality identified to explain the patient’s symptoms, especially the previously demonstrated ill-defined hypodensity within the left cerebellar hemisphere is no longer present. This was likely secondary to beam hardening artifact.”In other words, neither CT scan shows any lesion within the brain, in particular any space occupying lesion such as a tumour or aneurysm.An MRI scan has been more recently conducted but the result of that has not been communicated to the offender nor has he been reviewed by a neurologist after the MRI was conducted. However, the fact the MRI report has not been referred to subsequently indicates, in my view, more probably than not, that it does not show any abnormality because, if it did, alarm bells would be ringing in the medical profession and in Justice Health. The fact that the offender has not yet seen a neurologist may be due to the fact that, in between those arrangements being decided upon, the trial at which I presided was conducted and the offender then was awaiting sentence.The state of the offender’s vision has been corrected and does not indicate that there is anything that mitigates against the imposition of what would otherwise be the appropriate sentence, nor does a complaint of headache, which is purely subjective and could be due to many things such as the need to concentrate about a trial and the stress of undergoing a trial and awaiting sentence. All of those things can be distressing and often cause anxiety and depression. Headache is such circumstances is purely understandable and, in my view, there is no evidence to suggest that the offender’s remaining in custody beyond today will make his conditions of custody any more harsh than they would be for any other prisoner.The remaining issue is whether there are special circumstances to vary the statutory ratio between the head sentence and the non-parole period. It was submitted on behalf of the offender that a finding of special circumstances may be made on the bases that this is the offender’s first time in custody (in his mid-50s) and because of his health problems. In R v GWM [2012] NSWCCA 240 the principal judgment was given by Johnson J with whom McClellan CJ at CL and Bellew J concurred. At [90] his Honour commenced to discuss the issue of “special circumstances”. His Honour said this:[103] Given the issues raised on this appeal, it is appropriate to refer to certain decisions of this Court which have touched on these questions. Although a judgment of a two-Judge Bench, the observations of Wood CJ at CL in R v Kaliti, at [10]-[13], are helpful:"[10] In Kama [2000] NSWCCA 23, Spigelman CJ questioned whether the age and lack of antecedents of an offender and the fact that the sentence is one involving a first occasion of custody are, of themselves, special circumstances within the meaning of the legislation.[11] I share that doubt, save to the extent that in an appropriate case, those circumstances may be reasons why, in conjunction with the remaining subjective circumstances, an assessment was justified that the applicant required a longer period than usual subject to a supervised release. Some care does need to be taken to avoid automatically elevating subjective circumstances of this kind, which are properly taken into account when fixing the term of the sentence, into special circumstances when consideration is given to s44(2) of the Act.[12] Neither the age of the applicant, nor the fact of his prior clear record, or the absence of any previous custodial experience, point in that direction in this case, and I am not satisfied that they would here, themselves, constitute special circumstances.[13] Where special help is needed to overcome an alcohol or drug problem, or where some form of psychiatric assistance is needed to deal with the underlying circumstances which generate those problems, and where that help cannot adequately be provided within the corrective system, or where it would require an extended period of release subject to supervision, then it may be accepted that special circumstances do exist."[104] The second member of the Bench, Howie J, agreed with Wood CJ at CL, with additional observations at [21]:"I agree, but I simply want to add that in my view the finding of the personal circumstances which will permit a reduction in the non-parole period must be purposeful. The purpose to be achieved by a reduction of the non-parole period or a lengthening of the parole period must be something other than simply to relieve the offender of the burden of serving a minimum sentence of imprisonment as would be required by the operation of s44. In my view, there is no purpose for which the longer parole period or a lesser non-parole period would serve in this particular case, and, therefore, there are no special circumstances."[105] Statements of Spigelman CJ (Hulme and Adams JJ agreeing) in R v Fidow [2004] NSWCCA 172 are frequently cited in this context. The Chief Justice said at [18]-[20]:"[18] In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s 44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the 'decision' to be that the statutory proportion of one-third be 'less'. 'Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur.[19] The flow of appeals on the issues of special circumstances to the court has not abated, notwithstanding the observations in Simpson at [73]:As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.[20] There is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing 'special' about many cases in which the finding is made. Research by the Judicial Commission of New South Wales of the sentences imposed on 2,801 offenders in the Supreme and District Courts during 2002 suggest that Parliament's intention that the statutory proportion apply unless 'special circumstances' exist that justify departure from it, is not being carried out."[106] After referring to sentencing research, the Chief Justice continued at [22]:"This research makes it necessary for this Court to state the obvious. Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation."[107] More recently, McClellan CJ at CL (RA Hulme and Schmidt JJ agreeing) said in Collier v R [2012] NSWCCA 213 at [35]-[36]:"[35] It was submitted to this Court that the applicant, being almost 50 years of age and facing her first time in custody with good prospects of rehabilitation, should have been given the benefit of a finding of special circumstances.[36] Inherent in this submission appears to be a misunderstanding of the role of special circumstances when sentencing. A finding of special circumstances is appropriate and relevant to a decision by a sentencing judge as to whether to depart from the statutory ratio between the non-parole period and the overall sentence. The authorities are replete with findings by sentencing judges and by this Court of special circumstances. When an offender's history of offending or personal circumstances indicate that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. For my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special."???The mere fact that this is the offender’s first experience of imprisonment is not, in itself, a special circumstance. I have not found that anything about the offender’s medical condition amounts to a special circumstance.The only other matter put forward is age. Age can be relevant but the authorities refer to persons who are very young being found to have special circumstances to shorten their non-parole period, especially because the young can be rehabilitated more easily than the old and because prisons are often described as “universities of crime” and the sooner a young person is removed from such an environment the better. Furthermore, young people in custody are always vulnerable. This offender is not such a young offender. Other offenders who the courts have to consider are those who are much older, two or more decades older, than the current offender who is currently 56 years old. The offender’s age is not, in the circumstance of this case, a special circumstance.I am not persuaded that there are any special circumstances here applicable to vary the statutory ratio between the head sentence and the non-parole period.Before I say anything more does anyone want any further reasons? Ms Avenell?AVENELL: No, your Honour.HIS HONOUR: Ms Curran?CURRAN: No, your Honour.HIS HONOUR: Thank you.One minor remaining issue is when the sentence should commence. As I have already stated, the offender was arrested in the United Kingdom on 25 April 2017 and it is common ground that the sentence should commence on that date.After carefully considering the matter for some time, I have reached the view that the appropriate head sentence is ten years’ imprisonment and the non-parole period will, accordingly, be seven years and six months.Hong Chi Xiao, I sentence you to imprisonment. I set a non-parole period of seven years and six months commencing on 25 April 2017 and expiring on 24 October 2024. I impose a further period of imprisonment of two years and six months to commence upon the expiration of the non-parole period and expiring on 24 April 2027. The total sentence is, therefore, ten years comprising the non-parole period and the balance of the sentence. I do not find special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period**********Amendments06 February 2020 - Edit to RepresentationDISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. ................
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