Kien v R [2012] ACTCA 25

Court of Appeal (ACT)|2012-05-24|Before: Lander JJ

1. Sapha Kien, the appellant, left Vietnam and came to Australia in 1988 when he was 19. He eventually located himself in the ACT. He married his wife about twenty years ago, apparently in Vietnam. They had four children.

2. The marriage became unstable and about four years ago he and his wife separated.

3. The relationship deteriorated further and his wife obtained a domestic violence Protection Order under Domestic Violence and Protection Orders Act 2001 (ACT)

4. Mr Kien contravened that Order on two occasions in 2007 and 2009. On 18 February 2010, he went to the family home and an argument developed with his wife. The argument developed into a physical fight and Mr Kien took a chair from his wife (with which she was threatening to throw at or strike him) and struck her with it so forcefully that it broke into pieces. He then placed his hands around her throat, choking her until she was unconscious and causing her to fall to the ground. While she was on the ground, Mr Kien got up and retrieved a scarf (or towel) from her bedroom. He then wrapped and tied it around her neck, using both hands to pull the ends of the material down toward the floor.

5. As a result, Mr Kien was charged with a number of offences, including attempted murder of his wife. He was committed for trial to the Supreme Court. At the trial, he pleaded not guilty to the charge of attempted murder but guilty to the charge of intentionally inflicting grievous bodily harm on his wife. After the trial had commenced, a fresh indictment was presented by the Crown to which Mr Kien pleaded guilty. The counts on the indictment to which he pleaded guilty were:

• intentionally inflicting actual bodily harm on his wife, an offence under s 23 of the Crimes Act 1900 (ACT), for which the maximum penalty is five years imprisonment;

• choking his wife so as to render her unconscious, an offence under s 27(3)(a) of the Crimes Act, for which the maximum penalty is ten years imprisonment.

6. At the time of the offences, Mr Kien was subject to a Good Behaviour Order which had been made when a sentence of four months imprisonment had been imposed for the most recent contravention of the Protection Order. Convictions for the other offences required the sentencing court to consider, under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), whether to reimpose the suspended sentence or re-sentence him.

7. He appeared before Nield AJ for sentence and, on 29 June 2011, his Honour sentenced him to a total of four years and seven months imprisonment, with a non-parole period of three years and one month, as follows:

For the offence of contravening the Protection Order on 21 October 2009, imprisonment for four months from 18 February 2010 to 17 June 2010;

For the offence of intentionally inflicting actual bodily harm, imprisonment for two years and three months from 18 March 2010 to 17 June 2012;

For the offence of choking to render unconscious, imprisonment for three years and nine months from 18 December 2010 to 17 September 2014.

8. On 23 August 2011, Mr Kien, then acting for himself, filed a Notice of Appeal against the sentences imposed on the sole ground that they were manifestly excessive.

9. The learned sentencing Judge made the following findings (at [19]-[28]) as to the facts of the offences, none of which were challenged on the appeal:

At about 11 pm on 17 February 2010 the offender went to the family home. An argument developed between him and his wife. Ms Tram [Mr Kien's wife] asked the offender to leave the home but he did not do so. Ms Tram asked her third child to assist her in having the offender leave the home. As it happened, the offender and the child left the home together and they went to the offender's home, where they stayed overnight.

On the morning of 18 February the offender took his child to his child's school. As it happened, at about the same time Ms Tram took her youngest child to the child's school, leaving her two eldest children at the home. After she had returned to the home, Ms Tram saw the offender come inside the home and she asked him to leave but he did not do so. An argument developed between Ms Tram and the offender, during which she pinched him with a pair of tweezers, then she raised a chair as if to throw it at him or to strike him with it, and then, after the chair was taken from her, she picked up the telephone handset to call police.

On Ms Tram raising the chair and looking as if she would throw it at him or strike him with it, the offender struggled with Ms Tram over the chair, eventually taking the chair from her and suffering injury to the fingers of his right hand. The injuries to the offender's right hand can be seen in the photographs numbered 26, 31, 32 and 33 in Exhibit G. Then, after taking the chair from her, the offender took the telephone handset from Ms Tram and dropped it onto the floor.

When she bent down to pick up the telephone handset, the offender picked up the chair and struck Ms Tram with it at least three times, breaking the chair into its component pieces. The pieces of the broken chair can be seen in the photographs numbered 124, 126, 127, 133, 135, 136, 137, 138 and 139 in Exhibit B.

With Ms Tram lying on the floor of her bedroom, the offender went into the en-suite bathroom attached to the bedroom to wash the blood from his hands. On the offender leaving the bedroom, Ms Tram got to her feet and, notwithstanding bleeding profusely from her wounds, ran out from the bedroom towards the front door of the home, but the offender chased her and he caught her near to the front door.

On catching her near to the front door, the offender placed his hands about Ms Tram's neck and he choked her, rendering her unconscious and causing her to fall to the ground. The place near to the front door where the offender caught Ms Tram and chocked her can be seen in photographs numbered 62, 63, 64, 78 and 101 in Exhibit C.

After choking her into unconsciousness, the offender left Ms Tram lying on the floor near to the front door and he went into Ms Tram's bedroom, from where he obtained a pink scarf or towel and then he returned to Ms Tram, lying, as she was, on the floor, and he tied the scarf or towel around her neck, knotting the ends of it together.

Fortunately for his mother, the eldest child of the offender and Ms Tram, having heard the commotion, went out of his bedroom to see what had happened. He saw his mother lying on her back on the floor surrounded by blood with a scarf or towel tied around her neck and knotted and he saw his father sitting on the floor next to his mother. He went up to his mother and untied the knot of the scarf or towel which was around her neck. Then he went to his first brother's room and told his brother to telephone for police and ambulance then he returned to his mother and father.

The second child of Ms Tram and the offender telephoned 000 to request police and ambulance and he relayed instructions to his older brother as to what he had to do to their mother pending the arrival of the ambulance.

At about 9.40 am on 18 February 2010 police arrived at the home of Ms Tram. After ascertaining that Ms Tram had a pulse, police spoke to the offender. Then an ambulance arrived at the home and Ms Tram was treated by paramedics and then taken in the ambulance, driven by one of the police officers, to the Canberra Hospital, whilst the paramedics attended to the treatment of Ms Tram.

10. Ms Tram suffered injuries to the soft tissue of her head and face with a possible hairline fracture and injuries to her arms and hands. Fortunately, there were no other

11. Mr Kien was interviewed by police. He admitted hitting his wife with the chair, chasing her through the house and knocking her to the floor. He said he placed a pink towel around her neck, but said he did not tie it "very tight". He initially admitted that in so doing, he was trying to kill his wife; however, he later said he stopped attacking her because he no longer wished to kill her.

12. Mr Kien was born in 1969 in a village in Vietnam at the Cambodian border. He has an older brother and a younger brother and sister. Both his parents are now dead.

13. He did not attend school in Vietnam and left there in 1986 to avoid military conscription as that would have required him to fight against Cambodian people which he was not prepared to do.

14. He and his wife fled the country, spending two years in a refugee camp in Thailand before being granted refugee status and coming to Australia with their new-born son. Three other children were born to them in Australia. They settled in Canberra and continued to live here.

15. Mr Kien studied English at the Canberra Institute of Technology and gained employment with Australia Post. An injury in a motor vehicle collision ended that employment and, after two or three years unemployment, he started driving taxis, which he continued to do until he was arrested following the incident for which he was charged.

16. Mr Kien and his wife own the matrimonial home, subject to a mortgage. After the marital breakdown, his wife and children continued to live there.

17. Mr Kien drinks alcohol but not to excess and does not use illicit drugs. He enjoys good physical health and has recovered from the injuries he suffered in the motor

vehicle collision, though with a residual back disability and chronic gastric illness.

18. A psychiatric assessment was conducted which recorded that he did not suffer from any mental illness or mental impairment and had never had any significant mental health issues in the past. He was assessed as fit to plead.

19. Mr Kien has a minor traffic offence recorded in his name in 2007. The only other offences are the two contraventions of Protection Orders; those Orders, made in the Magistrates Court, prohibited him from being at or near the matrimonial home. At the sentencing hearing the police Statements of Fact for the breaches were tendered, showing that the victim of each of the contravention offences was Mr Kien's wife. In the first, he had attended the house, causing the victim fear and alarm. In the second, he again attended and made abusive statements to her.

20. In respect of the second contravention, a sentence of four months imprisonment was imposed, immediately suspended, and a Good Behaviour Order was made. The current offence constituted a breach of that Order.

21. Mr Kien filed his own Notice of Appeal, which listed the grounds of appeal as "severity, excessive, impartial."

22. By the time the appeal came on for hearing, Mr Kien was represented. The issues in the Appellant's submissions were then said to be:

(a) Whether the learned sentencing judge erred in finding that the Appellant's offences were unprovoked; [and]

(b) Whether the sentence imposed by the learned sentencing judge was manifestly excessive.

23. The Appellant's submission was that the offences, while unjustifiable and inexcusable, were not unprovoked. The submission clearly was not suggesting that there was some kind of defence to the charges, but merely as the expression is generally understood and may mitigate the severity of the sentence: R v Okutgen (1982) 8 A Crim R 262 at 264.

24. The problem with this submission is that the actions of the victim were all responsive to those of Mr Kien. He came to the matrimonial home, where he was clearly not welcome. That a Protection Order was not then in existence is hardly to the point.

25. He was asked to leave; he did not do so, but began to argue with his wife. She then, in order to try and get him to leave as she had asked him to do, engaged in the actions reported above. While the picking up of the chair was clearly not helpful, she did not hit Mr Kien with it and that did not justify Mr Kien taking the actions he then did. Even were there to be some justification for him reacting to the pinching with the tweezers or the raising of the chair, his response was so disproportionate that his wife's actions cannot be seen, in all the circumstances, to be provocative and did not moderate his culpability at all.

27. In R v Campbell [2010] ACTCA 20 (approved in R v TW (2011) 6 ACTLR 18 at 27; [60]), this Court set out (at [32]-[35]) what is required when appealing against the manifest inadequacy or manifest excess of a sentence:

In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):
1. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
2. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 234 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

28. Counsel, however, referred to two decisions, suggesting that they were such as to show the manifest excess of the sentence imposed on Mr Kien.

29. The decision of R v Bell [2005] ACTSC 123 was a case where the offender had pleaded guilty to one count of assault occasioning actual bodily harm. It was, therefore, not even the same offence as any for which Mr Kien was to be sentenced. It was, also, a single offence, though also of domestic violence.

30. The other case was also of a different offence. In R v Bell [2005] NSWCCA 81, the offender pleaded guilty to a count of attempting to strangle the victim with intent to murder her, an offence which carried a maximum penalty of twenty-five years imprisonment.

31. It is clear that a single instance of a different penalty even for a common offence is not usually a legitimate basis for a successful appeal against sentence. As Cosgrove J said in George v The Queen [1986] TASSC 19; [1986] Tas R 49 at 60, "[o]ne cannot, of course, ever

place one case against another, and arrive at a mathematically 'in line' sentence."

32. A fortiori, reference to a different offence, even though, in one case, the maximum penalty is the same, is no guide to the appropriate sentence.

33. No other factors were referred to suggestive of any manifest excess in the sentence imposed.

34. The offences were serious and inflicted severe facial injuries on the victim. They were committed in the context of continuing contact with the victim which she clearly did not welcome; indeed, the previous Protection Orders show that she actually discouraged it.

35. The assaults continued for some time and cannot be said to be mitigated by any provocation offered by the victim.

36. While heavy sentences, they were proportionate to the criminality. There was a quite significant concurrency to the sentences, both to recognise some common elements of criminality and to meet the principle of totality, which requires a sentence to avoid being so severe that it is crushing.

37. Having regard to all these matters, the sentences individually and in totality were not manifestly excessive. There is no substance in this ground of appeal.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Craig Lynch & Associates

Solicitor for the Respondent: ACT Director of Public Prosecutions

Domestic Violence and Protection Orders Act 2001(ACT)s 29

Violence and Protection Orders Act 2001

Violence and Protection Orders Act 2008

(Sentence Administration) Act 2005

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