DPP v Che Kien [2000] VSC 376

8. You were both residents at the Victorian Elderly Chinese Hostel at 77 Hurtle Street, Ascot Vale, and had both been residents there for almost five years, you both being original residents of that hostel from the time of its establishment in October 1994.

11. Early last month, on 9 August 2000, a jury found you fit to stand trial on the count of murder, and a second, separate jury found you, on 31 August, guilty of murder.

14. The offence occurred on Wednesday, 24 February 1999, at the Hostel in the room of the deceased, Mrs Lai. She resided in Room 8; you resided nearby in Room 6. Shortly after 5.00 p.m. on 24 February you caused the death of the deceased by stabbing her with a vegetable or fruit knife some 49 times to the head and neck, with concentration of the stab wounds around the eyes. The deceased died quickly from those stab wounds. Her right eyeball was penetrated by a stab wound. The vegetable knife was 7 cm in length.

17. At 7.00 p.m. it was found that you had left the Hostel, and a quick-witted and responsible member of the staff, Ms Tran Boi Tran, followed you along the nearby street, at that stage not knowing that Mrs Lai had been killed. She managed to persuade you to turn round and come back to the hostel and, on the way back, you stated, "I killed Fan in room 8. Do you believe me? It's real." You had, indeed, done so, shortly after 5.00 p.m. when the deceased had returned to her room from the dining room having had her dinner. At 5.30 p.m. you called staff and went to the dining room. At 6.30 p.m. you were seen going to the laundry. You in fact there washed your bloodstained clothes. At 7.00 p.m. it was found you had left the premises and Mrs Tran went after you, as I have said. Later that night, the vegetable knife was found in a drain in a courtyard of the Hostel, you having placed it there before you left the Hostel at 7.00 p.m. Thus although it is plain that you were seriously mentally disturbed at the time of the killing, you also showed a knowledge of your fatal actions by the later actions I have just described, namely the washing of clothes, the placing of the knife and the leaving of the premises. Indeed, early the next morning at the Homicide Office, you readily acknowledged your actions to the police in interview.

20. Your purpose in attacking the deceased was to blind her so that she did not see you being removed from the hostel, which you thought was about to occur. You also had some jealousy of the deceased. Your fear and belief that you were to be removed from the Hostel seriously oppressed you. You had cut your own left wrist a number of times superficially, as the evidence of Dr Helen Parker revealed on an examination of you the next day.

23. You had a history of mental disturbance, which I shall come to in a moment, but the immediate circumstances were these. On that Wednesday morning, you had either dreamt or actually hallucinated that your deceased father visited you at the hostel. You were most distressed by that dream or hallucination, and by your real fear that you were to be removed from the hostel; an unfounded fear, in fact. The manager of the hostel, Mrs Tam, seeing you distressed that morning, and hearing what you said, called your treating general practitioner, Dr Irene Wong. She, Dr Wong, had been treating you since late 1996. Dr Wong attended the hostel just after lunch, examined you in the privacy of your room, having earlier obtained psychiatric advice on the telephone from Dr Roger Chau, the psychiatrist, and administered to you an injection of Haloperidol, an anti-psychotic medication, to calm you. Dr Wong also prescribed Cogentin, to be taken orally for physical side effects. Dr Wong responsibly communicated with the psychiatrist, Dr Chau, who was to attend to examine you the next day, the Thursday, but events, of course, overtook that psychiatric treatment. Dr Wong, indeed, on the night of the Wednesday, rang the hostel to ensure that your health was acceptable and was then informed of the death of the deceased. Indeed, on that day, you had knelt before another doctor, not Dr Wong, pleading not to be removed from the hostel. The manager, Mrs Tam, said that you believed people were talking behind your back and that one of those persons was the deceased.

26. One week before, you had been taken by ambulance to the Royal Melbourne Hospital, after ingesting Temazepam (sleeping tablets) and Chinese ointment used for arthritis. After examination at the Royal Melbourne, you were released back to the Hostel with instructions for follow up treatment. Four years before, the Hostel found that you had secreted knives and choppers under your bed, which you said was to assist you chasing away ghosts and evil spirits. Proper steps were taken, and promptly taken, by the Hostel at that time to remove and secure those implements.

29. I have not attended the Hostel in person, but from my observation of its management and staff - Mrs Tam, whom I have referred to, Ms Tran, whom I have referred to, Mr Sek Hang Pang, a personal care attendant, and other persons connected with the Hostel - and examining the video film and the photographs, I must say that the management and staff of the Hostel impressed me as being competent and responsible and caring. Although this terrible event occurred in the Hostel, it appears to me that the Hostel was acting promptly and responsibly according to what was able to be observed at the time and, in particular, the doctors, including Dr Wong, fulfilled their professional duties properly. One sees in Parliamentary reports and otherwise, and I have seen as a judge, very bad cases of elderly persons' hostels; this hostel impressed me, on the material before me, as being properly and well run.

32. You had had a significant earlier psychiatric history. On 15 June 1995, you were admitted to the Royal Park Hospital with a paranoid delusional disorder. You remained there from 15 to 28 June 1995. That was a significant psychiatric illness. You were treated with Haloperidol at that time, which treatment ceased as an out-patient in October of 1995. In 1996, there was a minor re-emergence of persecutory ideation; you were then treated again with moderate doses of Haloperidol and the ideation rapidly resolved itself. As I say, the week before this terrible event, you had been removed by ambulance to the Royal Melbourne Hospital after ingesting Temazepam and Chinese ointment. I accept the evidence of a distinguished psychiatrist, Dr Donald Bell, that on the day of the killing of Mrs Lai, you were beginning to experience a relapse of the paranoid psychiatric illness from which you suffered significantly in 1995. That is to say, on 24 February 1999 you were suffering from an incipient relapse of the 1995 psychiatric illness. However, both according to Dr Bell's evidence and the verdict of the jury, that incipient relapse was not sufficient for you to be found mentally impaired as defined by law. Plainly, as I have said, you were suffering a serious mental disturbance, as the very nature of your attack upon the deceased tragically demonstrates, but not sufficient to be mentally impaired as defined by law.

35. You have had continuing mental and physical problems since the death of the deceased. On 3 March 1999 you were readmitted to the Rosanna Forensic Centre after a significant episode of self-harm and remained there until 30 April 1999. On 11 August 1999 you were readmitted in a serious confusional state, which, upon medical examination, was exposed to be a physical problem, a urinary tract infection and a perforated bowel, for which you received physical medical intervention at the Austin Hospital, and you were discharged on 10 September 1999. On 27 February this year, you were admitted to St. Vincent's Hospital with a subarachnoid haemorrhage, a serious physical condition, and underwent surgery on 2 March 2000.

38. You are now 82 years of age. You were born on 27 July 1918 in China. You spent your childhood and early years in China, living through the Japanese occupation. In 1949, your family and you fled to Vietnam. You were married at the age of 16 years. Your husband is long deceased. You had two sisters in America, both of whom are deceased. You have no biological children, but have two adopted daughters, who were, and are, supportive of you. You came to Australia in 1978 and, as I say, commenced living in the hostel at Ascot Vale in October 1994 when you were approximately 77 years of age.

41. A victim impact statement has been filed before me of a daughter of the deceased of 13 September 2000, and I have had regard to it. It is a moving and impressive document. The daughter - truly a victim, as are the whole family, daughters and grandchildren, of the deceased - stated there that the consequence of her mother being brutally murdered in a supposedly safe environment has caused her to lose faith completely; and that the incident has had a most traumatic effect, not only on herself, but on all her family, including the grandchildren, who have been profoundly affected in their childhood development. I have regard to that impressive document.

44. Central to the matter of your sentencing is that this was the offence of murder, and that the deceased's life, at the age of 84, was taken from her in cruel circumstances, and that that has afflicted, and will continue to afflict, seriously the lives of her children and grandchildren.

47. Next, your own age, Mrs Kien, now 82, is of significance in the formulation of the proper sentence to be imposed upon you. I have had regard to a number of relevant authorities on the question of the relevance of old age to sentencing and impose sentence guided by the principles there enunciated. The authorities are helpfully, if I may say so, collated by Angel, J. in Braham (1994) 73 A.Crim.R. 353, a decision of the Court of Criminal Appeal of the Northern Territory, and who, although dissenting, stated at 367 that

"(in the) reported cases of sentencing offenders of advanced age, there is a tension between the principle of proportionality and humanitarian considerations in the sentencing of such offenders."

There (a cannabis cultivation case) the accused was 78 years of age at the time of sentence. He was sentenced to three and a half years' imprisonment with a minimum term of one year and nine months, which, on appeal, was, by majority, confirmed. In Bazley (1993) 65 A.Crim.R. 154, a decision of the Court of Criminal Appeal of Victoria, the court stated at 158:

"The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence."

That case (for murder and related offences) involved a 67 year old man, and the question was the fixing of a minimum term. The Court of Appeal fixed a term of 15 years, involving that the accused would be 82 when first eligible for parole - your age at the date of sentence, Mrs Kien. In Holyoak (1995) 82 A.Crim.R. 502, at 507 ( a sexual case) Allen, J. (with whom Handley, J.A. agreed) stated at 507:

"It simply is not the law that it can never be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he may well spend the whole of his remaining life in custody."

There, the accused was 75 years of age at the time of sentence, and a period of 7 years was imposed upon him. In Austin (1996) 87 A.Crim.R., 570 at 572 ( a sexual case) Malcolm, C.J. (in whose judgment the other Justices agreed) quoted with approval a decision of the West Australian Court of Criminal Appeal in Smith (2 June 1994, unreported) as follows, at 572:

"... the significance of old age as a mitigating factor, particularly when combined with ill-health, is that it constitutes a basis on which the court, in the exercise of mercy, may impose a sentence significantly shorter than otherwise might be the case."

Mr Austin was 87 years of age when sentenced for sexual offences committed 30 years earlier, in poor health, with a life expectancy of three to five years. The Court imposed a sentence of seven years upon him, as to which remissions of one third would operate. In R. v. Hunter (1984) 36 S.A.S.R. 101 (a fraud case) King, C.J. at 110 stated:

"A sentencing judge cannot overlook the fact that each year of a sentence represents a substantial proportion of the period of life which is left to him."

There, the accused was 74 years of age; he was, on appeal, sentenced to five years with a minimum of three and a half years by a majority, and again was subject to remissions. There are a number of other authorities which I shall not recite: Schloss [1998] QCA 44; (1998) 100 A.Crim.R. 80 (I note, in particular, the dissent of de Jersey, C.J. with whom, with respect, I agree); R. v. Yates [1985] VicRp 3; (1985) V.R. 41 (I note the dissent of Murphy, J. with whom, with respect, I would agree if I were not bound by authority) - Schloss was 67, Yates 68 - R. v. Thorpe (unreported, Vic. CCA, 2 November 1993) 70 years of age; R. v. Kavanagh (unreported, 7 December 1993, Vic. CCA) 65 years of age. And, most recently, the sentence of Vincent, J. in R. v. Teeken (16 June 2000) where the accused was 79 years of age, and, after a jury trial, was convicted of manslaughter and was sentenced to five years' imprisonment with a minimum term of three years. I note (and, with respect, agree with) the analysis of principle of His Honour at paragraphs 21 to 22 of that judgment.

60. Many of the authorities cited involve significant delay (not a factor here). Putting apart the matter of delay as it affected those cases, I impose sentence guided by the principles stated in those authorities - essentially, that old age is central to but not determinative of the quantum of sentence to be imposed.

63. There is some writing on the matter of elderly homicide. The Australian Institute of Criminology has, in issue paper No. 96, published in October 1998, passed upon the question of Homicide and older people in Australia; and the same Institute, in issue paper No. 115, in May of 1999, upon the issue of Elderly Inmates: Issues for Australia. There is, in particular, some writing in America, notably the Florida Corrections Commission 1999 Annual Report, in which the Lead Analyst was Mr R.A. Bouflon, on elderly inmates. America's population, as is Australia's, is aging, and I consider that the question of general deterrence is not unimportant in elderly homicides, because of the aging population and because more and more coming forward in the courts are cases of elderly persons convicted of serious offences.

66. However, in your case, Mrs Kien, there is also the question of your clear mental disturbance, short of mental impairment in law, formerly called insanity. The principles are most helpfully set out, in particular, in R. v. Tsiaras [1996] VicRp 26; (1996) 1 V.R. 398 at p.400 per curiam. In this case, of the five particulars there set out, I consider that particular one, reduction of the moral culpability of the offender, does apply to you because of your clear mental disturbance. Particular four, specific deterrence, is significantly muted in your case. General deterrence, because of your mental condition, is also muted. And likewise, particular five, that the sentence will weigh upon you, is a matter I take into account. Tsiaras establishes that those principles of sentencing should be sensibly moderated in psychiatric cases, including this type of case, which is short of mental impairment. I have regard also to R. v. Mooney (unreported, 21 June 1978); R. v. Anderson (1981) V.R. 115; and the analysis by D.A. Thomas in (1965) Crim.L.R. 685, "Sentencing the mentally disturbed offender".

69. I have regard to the present situation as set out in the report of the General Manager of the Metropolitan Women's Correctional Centre, Deer Park, of 12 September 2000. You are in single cell accommodation; you are escorted to the medical centre three times a day to receive your medication; you proceed in a wheelchair and access has been provided for that; you receive assistance from a prisoner mentor who escorts you to medical treatment on that daily basis; you are unable to partake in programmes within the facility, and you have meals prepared for you in the prison.

72. I have particular regard to the sympathetic and perceptive report of Dr Bell of today's date, 15 September 2000. Dr Bell, in that report, states that he examined you at the Metropolitan Women's Correctional Centre this Wednesday, that is to say, 13 September 2000. He stated that you repeatedly asked him to beg the judge and barristers to allow you to apply to live in a Government financed flat out of prison, but were aware that, in reality, you would have to remain in prison for a long time, possibly until your death.

"When asked to describe her current living circumstances Mrs Kien stated that she has an individual room of her own in a house shared with eight other people. She has private toilet and bathroom facilities and stated that she has a bed which she finds rather hard, despite which she can sleep reasonably. She stated that she has no table, chairs or television in her room, but a radio has been provided for her, or will be provided for her. She described her day-to-day activities as consisting largely of staying in her room, sleeping much of the time or going for a short walk outside for exercise. She stated that she has little to do with other prisoners because they do not speak her language. She indicated she did not have any conflict with any fellow prisoners and has no cause for complaint about the way she is treated by prison staff. She stated that she has purchased an electric cooker and jug whilst in prison and that she generally cooks enough rice and other food for herself each morning to last the whole day."

"Although undoubtedly unhappy at being in prison, and expressing a manifest desire to be able to live freely in accommodation of her own in the community, Mrs Kien did not express any particular dissatisfaction with her current undoubtedly rather spartan circumstances".

79. Dr Bell in that report reiterated a theme which has been evident throughout this case, namely that you have a very intense fear of being returned to a psychiatric hospital, and it is not proposed that you be returned to a psychiatric hospital, Mrs Kien.

82. Finally Dr Bell concluded that, at present, that is to say, last Wednesday, there is no evidence of a current depressive illness, that is a psychiatric illness as distinct from a state of unhappiness; there is no evidence of persecutory ideation; no evidence of your past paranoid delusional disorder; and no evidence of any significant deterioration in your cognitive state.

85. You have not suffered and do not suffer from dementia or senility.

88. As to your prognosis, Dr Bell states that which is obvious, that you are elderly, that you are at risk of a stroke, that you have continuing physical difficulties which will increase with the years, and that it may be necessary in due course for correctional authorities to make provision for your placement in a secure facility where you have access to appropriate general medical care.

91. I acknowledge the care that is being provided to you by the Deer Park Metropolitan Women's Correctional Centre and I recommend to those authorities that especial care and attention is given to you, Mrs Kien, during your term of imprisonment.

94. I take into account the matters so ably submitted on your behalf by Mr Toohey, who, with Ms Hedberg, has loyally acted for you throughout these proceedings, despite the significant professional difficulties which, by reason of your age and mental condition, that has involved. In particular I take into account your personal, language and cultural isolation, and the likely medical future you have.

97. I take into account, of course, centrally, your age and the fact that you quite possibly will die in prison, a most sad conclusion to your long and otherwise good life.

100. I take into account, further, the circumstance that you were clearly mentally disturbed, although not mentally impaired as defined by law, at the time of the killing of the deceased.

103. I take into account that you have no other convictions and are otherwise of good character.

106. I also take into account the terrible end of life that the 84 year old deceased suffered at your hands and the ongoing distress imposed upon her family by your actions.

109. Bearing in mind the principles which I have stated, Mrs Kien, for the murder of Shau Fan Lai I sentence you to 10 years' imprisonment. I direct that you serve a minimum term of 7 years before you are eligible for parole.

112. I declare pursuant to s.18(4) Sentencing Act 1991 that the time you have already spent in custody since the offence, 570 days, is already served under the sentence I impose. That means, Mrs Kien, that you will be eligible for parole at the age of 87 years and the sentence will expire at the age of 90 years.