STATE OF TASMANIA v TOBIAS PICK 6 DECEMBER 2022
COMMENTS ON PASSING SENTENCE PEARCE J
Tobias Pick, you plead guilty to manslaughter. The crime was committed on 26 December 2020. Jingai Zhang was a Chinese born Australian resident then aged 49. Ms Zhang was married but, unknown to her husband, she was a sex worker. You are a German national. At the time you were aged 27 and travelling in Australia on a working holiday.
You had engaged Ms Zhang’s services once before, a week or two earlier, at the premises she used in Wellington Street. In the course of consensual sexual intercourse she asked that you apply pressure to her neck the intention of which was to cause asphyxia to heighten sexual stimulation. You had not engaged in such a practice before and when you declined she applied pressure to her own neck.
On the day of the crime, after having argued with your girlfriend, you left, apparently not intending to return to her. You again engaged Ms Zhang’s services. You met her at about 7 pm at the same place. Before having sex with her you noticed that she had cash which turned out to be $2,400 and you took it without her knowledge. In the course of the sexual intercourse which followed she again asked you to apply pressure to her neck and this time you agreed. You did so with your hands and by pulling tightly on the cloth of a dress placed around her neck to act as a ligature. The pressure you applied was so significant and lasted for so long that it caused her death by strangulation; that is, it so disrupted the supply of oxygen to her brain that she died. It is not disputed by the prosecution that the intended purpose of the pressure you applied was confined to sexual stimulation.
The pressure you applied must have been significant. The prosecution accepts that Ms Zhang consented to the application of some form of pressure to her neck, but consent does not excuse or justify acts which result in death or injury likely to cause death. Her consent could not justify strangling her so hard or for so long that she was deprived of oxygen enough to cause her death. The examination conducted by the chief forensic pathologist, Dr Ritchey, disclosed that Ms Zhang had blood around her mouth and eyes, upper facial purple congestion, fine pinpoint petechial haemorrhages on the skin surrounding her eye and petechiae on her eyelids and the surface of her eyes. Petechiae are caused by haemorrhage of small blood vessels. There was bruising on the tip of her tongue. She had both external and internal injuries to her neck. There was bruising and scratches on the front of her neck, both sides of her neck and under the surfaces of the chin. Internally there was bruising of the strap muscles on the right side of her neck. I have seen photographs of the external injuries. In Dr Ritchey’s opinion Ms Zhang was likely struggling and in pain before her death. Dr Ritchey is unable to say how long it would have taken for death to occur, but indicates that force would likely have been applied for at least 60 seconds, potentially longer, and would have continued after death had occurred. Notwithstanding these matters, the State does not dispute your contention that, because Ms Zhang was facing away from you when the pressure was applied, you did not notice that she had stopped breathing until it was too late.
After Ms Zhang’s death you left without calling for help. You took the cash with you thereby stealing it. In addition, you also stole one of her mobile phones which you later threw in the river. You were identified from a message found on a different phone and arrested two days later in your van parked in a location about 30 kilometres from Launceston, alone and in possession of the stolen money.
When interviewed by the police you fully admitted what had occurred. You said that when you realised she was unconscious you were not sure that she was dead, and ran away because you were scared and panicked. You told the police that you wished that you could change what you had done but it was a terrible mistake.
Because the prosecution has accepted your plea of guilty to manslaughter, and indicted you for that crime, you are not to be sentenced on the basis that you intended to kill Ms Zhang, or that you knew what you doing was likely to kill her or that what you did was an unlawful act which you knew was likely to kill her. Most people would appreciate that there was a real chance that death would result from the combination of circumstances I have described. However the prosecution must also accept that according to your actual state of knowledge, intelligence and capacity at the time, it is not the case that you even ought to have known that what you did was likely to cause Ms Zhang’s death. You are to be sentenced on the basis that Ms Zhang’s s death was unintended and without malicious intent, but your acts were ones which were commonly known to be likely to cause death or bodily harm, were criminally negligent or inherently dangerous.
As may be expected, Ms Zhang’s death has had a profound impact on her husband and family both here and in China. I heard a moving victim impact statement from her husband. Your conduct after her death added to the seriousness of your crime. Her body was discovered later that evening by an acquaintance of hers. Your abandonment of a person who you knew to be at least injured and unconscious as a result of your actions, and who was in fact dead, compounded the indignity to which Ms Zhang was subjected. The theft of her money and phone in those circumstances not only exhibited dishonesty involving a high degree of moral culpability but increased the emotional and psychological impact of her death. The phone contained many family photographs which are permanently lost. However you are not to be sentenced for a crime you did not commit and no sentence can make up for the loss of her life.
You are now aged 29. I am informed that you have no prior convictions. I have references from friends and family in Germany which attest to the fondness with which you are regarded and your otherwise good character. I have no reason to think that you pose any real risk of future violence or that you will re-offend. Every indication is to the contrary. You held stable skilled employment of various forms before travelling. Because of your isolated circumstances prison has been more difficult for you than most. You are likely to be deported following your release. Your plea of guilty is in your favour. It indicates an acceptance of criminal responsibility and some remorse. I am satisfied that you are now sorry for what you did although your acts immediately following Ms Zhang’s death and before your arrest did nothing to reduce the impact of your crime. You have been in custody since you were arrested on 28 December 2020 so the sentence I am about to impose will commence on that day. I will allow the earliest opportunity for parole.
Tobias Pick, you are convicted on the indictment of manslaughter and on complaint 35805/2020 for stealing. I impose one sentence. You are sentenced to imprisonment for five years from 28 December 2020. I order that you not be eligible for parole until you have served half of that term.