R v Thuok and Khay [2002] VSCA 124

10. The appellants were respectively 30 years old and 39 years old at the time of the offending. They were sentenced, the first to a total effective sentence of six years and six months' imprisonment of which four years and six months were to be served before the appellant became eligible for parole; and the second to a total effective sentence of five years and 10 months' imprisonment with a minimum term of three years and six months.

13. Leave to appeal was granted on 14 June last, in each case the initial notice of application being heavily amended. I was the judge who granted leave to appeal but having heard now full argument in relation to the amended grounds of appeal, I find myself not persuaded that there is anything in either of these appeals.

16. As already mentioned, the principal offending occurred on 19 October 1999. Less than a month earlier Pech Choup had left the appellant Thuok after a

relationship of some 13 years during which three children had been born to the couple. Choup left Thuok in Sydney and travelled down to Melbourne. At the time, Choup claimed at the trial, she was only a friend of the victim Phon but the appellant Thuok apparently saw it otherwise and was angry with Phon, it seems, over the separation. Hitherto he and Phon had been friends. The appellants, who also were friends, travelled down to Melbourne together, Thuok from New South Wales and Khay from Queensland, to seek out the victim, and some time after their arrival, at a restaurant attended by the two appellants, a third offender and one Nhim, Thuok was heard to threaten to give Phon trouble if he found him.

20. On 18 October Khay, who also knew Phon, telephoned him and asked to meet with him but the meeting could not be arranged until the following day, when Khay phoned Phon again while he was at a restaurant with two others. Khay, who was well known as a former Cambodian film star and who had previously worked in the same factory in Melbourne with Phon, went to the restaurant where at some stage he told Phon that Thuok was very angry with him.

23. To adapt the words of the trial judge when sentencing, after lunch, according to Phon, Khay invited Phon to go with him, Khay, for a drive. Phon, believing Khay to be a friend, agreed. Khay drove to Nhim's unit in Noble Park and Khay then invited Phon to join him whilst he ostensibly collected some belongings. Unbeknown to Phon, Thuok and the third offender were waiting for Phon inside the unit and Phon was attacked as soon as he entered with Khay.

26. It is worth noting that Khay's evidence at trial was that he simply drove Phon to an address at Phon's request and left him outside, driving off to his sister's place. This was evidence that the jury plainly rejected.

29. As Phon entered the unit, he was struck to the ground with an iron bar. Phon's wrists were tied and secured with "electrical rope", this giving rise to the count of false imprisonment, count 3. When Phon asked what he had done wrong, Thuok told him that he had taken his partner, Pech Choup, the mother of his children.

32. Phon was then placed in a chair, beaten about the body and the head, two teeth being broken and the victim lapsing in and out of consciousness. Thuok produced a knife and stabbed both the victim's legs, with Khay and the third offender standing nearby, watching. This gave rise to count 1, intentionally causing serious injury. The threats that Thuok made more than once during the assault, to kill the victim, were the subject matter of count 4. According to Phon, he continually denied any romantic involvement with Choup.

35. The offenders then moved behind Phon and Thuok, taking the knife, in one sweep sliced the ear off the victim, the ear landing at Phon's feet. This was count 6, the second count of intentionally causing serious injury. Thuok then announced that he had changed his mind and no longer wanted to kill Phon.

38. At this stage there was a general move to clean up the premises, a move which was not altogether successful. Phon was left bleeding in the chair and at this stage, (the Crown alleged) the offenders forcibly removed Phon's jewellery, although, as I have said, the jury acquitted the appellants on the relevant count of armed robbery. Thuok then warned Phon that if he reported the matter to the police he would return and kill Phon and his family. This was the threat to kill, the subject of count 9.

41. Phon was untied and told to wait inside the premises for about 10 minutes while the three offenders made good their escape. Phon did wait for a time but then picked up his ear and staggered outside on to the nature-strip where he fell to the ground, again lapsing in and out of consciousness. Although one of the offenders, possibly Thuok, made one or two telephone calls with a view to getting help for Phon, it was passers-by who called an ambulance as a result of which Phon was taken to hospital. There, he underwent emergency surgery for 10 hours to reattach the severed ear. He was also treated for multiple lacerations to his forehead and upper lip, and deep lacerations to both lower legs and a fracture of the right leg. At the time of admission he was in shock and there were marks on his wrists, consistent with the wrists having been tied. Phon was in hospital for a month.

44. On 12 November Thuok telephoned Pech Choup herself and left a message, which amounted to a threat to kill. This was the subject of count 10 which was charged only against the appellant Thuok.

47. The appellants were both arrested on 14 May 2000 following a planned operation by the police. Thuok made a "no comment" interview, answering "no comment" in relation to all allegations. Khay, in his interview, denied all allegations concerning the assault, admitting, however, an association with the victim and calling him "little brother". He admitted, too, to having been with Phon on 19 October, saying that he gave him a lift but doing no more than driving him to a unit in Springvale. Khay also acknowledged in his interview that he and Thuok were like brothers, claiming a close friendship.

50. Both appellants gave evidence at trial, Thuok admitting a fight with Phon at the unit after he challenged him over having an affair with Choup, but claiming that Phon had lost his ear by falling backwards against the knife that he was holding.

53. At trial the Crown alleged that Thuok was the main instigator, aggressor and attacker but that Khay was an active participant, acting either in concert or aiding and abetting Thuok, after luring Phon to the unit in the first place.

56. The judge said in her sentencing remarks, addressing the appellant Khay:

"I am satisfied beyond reasonable doubt that the jury verdict is predicated upon an acceptance of the Crown case that you did knowingly lure Bunthel Phon to the flat and thereafter positively participated in the crimes for which you have been found guilty. It was never suggested by the Crown that you held the knife or uttered the threats. However, it is quite clear from the evidence of Bunthel Phon, which the jury must have accepted in order to find you guilty of these offences, that you actively participated in these offences, by your presence, by helping to tie up and physically restrain Bunthel Phon. By ensuring or helping to ensure that your victim was totally intimidated and overwhelmed by the presence and cooperation of his assailants. The fact that you did not appear to have the same motive as your co-offender, is irrelevant. Indeed, there appears to be little rationale for your criminal conduct, other than to give effect to the vengeance of Pun Thuok. You clearly had a choice whether to participate in this criminal enterprise."

60. Quite plainly, whatever the cause of Thuok's anger with Phon, and whether real or imagined as to the existence preceding the attack of a relationship between Phon and Choup (which they both denied at trial), the attack on the victim in which the appellants were found to have participated was savage and vicious and merited condign punishment. Both appellants now claim that the sentences imposed were manifestly excessive but to my mind it is plain that there is nothing in that submission.

63. The maximum penalties were as follows: causing serious injury intentionally, 20 years' imprisonment; false imprisonment, 10 years' imprisonment; and for threat to kill, 10 years' imprisonment. The appellant Thuok was sentenced as follows: on count 1, the first count of intentionally cause serious injury, to three years' imprisonment; on count 3, false imprisonment, to 18 months' imprisonment; on count 4, threat to kill, 12 months' imprisonment; on count 6, intentionally cause serious injury, four years and six months' imprisonment; and count 9, threat to kill, 12 months' imprisonment, and on the separately charged count 10, another threat to kill on 12 November, to eight months' imprisonment. It was ordered that one year of the sentence imposed on count 1, six months of the sentence imposed on count 3, four months of that imposed on count 4 and two months of that imposed on count 10 be served cumulatively each upon the other and upon the base sentence imposed on count 6 of four years and six months. The total effective sentence was thus of six years and six months' imprisonment and the minimum term was fixed at four years and six months.

66. Mr Khay was sentenced as follows: on count 1, to two years and six months' imprisonment; on count 3, to 18 months' imprisonment; on count 4, to 12 months' imprisonment; on count 6, to four years' imprisonment; and on count 9, to 12 months' imprisonment. It was ordered that one year of the sentence imposed on count 1, six months of the sentence imposed on count 3 and four months of the sentence imposed on count 4 be served cumulatively each upon the other and upon the sentence imposed on count 6, that is of four years. In the result, the total effective sentence, so far as Mr Khay was concerned, was one of five years and 10 months' imprisonment of which three years and six months was ordered to be served before the prisoner became eligible for parole.

69. Nothing has been said by counsel on behalf of either appellant to persuade me that any of these sentences was manifestly excessive, either separately or when considered in the light of the orders made for cumulation. On behalf of the appellant Thuok, Mr Tehan attacked the orders for cumulation only, while Mr Croucher (for the applicant Khay) made submissions in particular in relation to counts 4 and 9 and the total effective sentence. He also made a submission that there should have been less or no cumulation in relation to Counts 3 and 4. But, as I have indicated, I am unpersuaded: the attack on Mr Phon was savage and vicious and the punishment was well merited. The personal circumstances of the offenders were not such, in my view, as to disclose such error as was alleged in the ground of manifest excess. I do not rehearse the personal circumstances of the two appellants, they are fully set out in the sentencing remarks and I need not repeat them for present purposes.

72. In his argument this morning, Mr Tehan emphasised a number of factors which he said made the sentences imposed manifestly excessive, including, as he put it, that the appellant was motivated by feelings of passion and betrayal. He argued that his client had sought the meeting with Phon simply to find out what was going on or perhaps to remonstrate, but obviously that does nothing to excuse, or even to explain, the brutality of the physical attacks made on the victim when Phon attended at the unit. Mr Croucher could not and did not rely upon any such feelings of passion and betrayal so far as his client was concerned; so he sought to emphasize the different roles played by each and to argue for less or no cumulation and for a lower total effective sentence. The argument was equally unpersuasive. So far as concerns both the appellants therefore the ground of manifest excess was not, in my opinion, made out.

75. In addition, however, Mr Tehan argued for Mr Thuok that the learned judge erred in failing to place any or any sufficient weight upon the hardship to the appellant and his children by a period of lengthy imprisonment and the fact that the appellant's children and family were (at least in the main) resident in New South Wales. These matters were put before the judge and were referred to in her sentencing remarks and there is no reason to suppose that they were not brought to account and given the weight they deserved. The three children of the appellant are being cared for either by their mother or by the extended family, which is supportive, and despite a somewhat belated submission by Mr Tehan that the circumstances in this regard were exceptional, it seems to me clear that there are no exceptional circumstances in any relevant sense. If there is hardship, as he claimed, in the appellant's incarceration in Victoria while the children, for the most part, are in New South Wales, that might, of course, lead to an application for transfer under the Prisoners (Interstate Transfer) Act 1983; but, even if there must be some uncertainty attending the outcome of such an application, the fact that the appellant is incarcerated in Victoria, not in New South Wales, does not, in my view, establish sentencing error in this instance.

78. The only other ground argued on behalf of Mr Thuok was that of disparity. Mr Tehan explained, however, that this ground was to be pursued only if Mr Khay's appeal succeeded. For his client he accepted that the disparity displayed between the sentences imposed upon his client and those imposed upon Mr Khay were appropriate. He no longer contended to the contrary. But if Mr Khay's appeal were to succeed and the sentences imposed upon him reduced, Mr Tehan said that he would wish to argue that the sentences imposed upon his client should be correspondingly reduced in order to maintain the disparity that they now display. As in my opinion Mr Khay's appeal should be dismissed there is no need for me to consider further the ground of disparity taken on behalf of Mr Thuok.

81. I turn then to the grounds argued by Mr Croucher for Mr Khay in addition to that of manifest excess with which I have already dealt.

84. According to the consolidated grounds of appeal against sentence, the next ground taken was that the judge erred in finding that the appellant should be sentenced as an offender acting in concert with Thuok and not as an aider and abetter. In my opinion, no error was established in this regard. The Crown case was that Mr Khay lured Mr Phon to the unit in the first place, and the judge so found. I see no error in that, nor was error alleged. Thereafter, Mr Khay was present, despite his claim to the contrary, when the offences (save that in count 10) were committed. According to Mr Phon, Mr Khay made no protest and did not intervene on his behalf. Whether it should be said then that he was acting in concert or aiding and abetting seems to me to be of no practical consequence for the purposes of sentencing in this case. For that reason I see nothing in ground 2.

87. Ground 4 is that the sentencing judge failed to accord procedural fairness to the appellant in failing to indicate that she would not accept the matters put about his character, personal history and antecedents without evidence being called of them and in failing to give the appellant an opportunity to call such evidence. In elaborating upon this ground, Mr Croucher took us in detail to what was said in her Honour's sentencing remarks[1], in particular, commencing, "After reflecting upon your counsel's submission" and ending "any notions of common decency". But in my opinion, in arguing ground 4 counsel was mistaken about the purport and effect of the judge's remarks. Her Honour did not, as I read those remarks, reject the matters that were being put; she merely made certain points in criticism but then put that criticism aside because, as she said, "In any event ... there are other aspects to the circumstances of your offending conduct, which are far more significant in determining an appropriate sentencing disposition". Her Honour was plainly of the view that the seriousness of the offending was the more telling consideration and that was not, in my opinion, error.

90. Good character is, of course, relevant to sentencing but in this instance the seriousness of the offending was by far the more important consideration. Mr Croucher referred us to what was said by McHugh, J. in Ryan's case[2] and, in particular, at paragraphs 22-25. But it must be remembered that in that passage his Honour concluded by saying that "the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances". That was what the judge plainly recognised in this case. She did not, in my opinion, dismiss the matters put by way of good character as irrelevant; in particular, she did not reject the essence of the matters put for want of more formal proof. On that basis I reject ground 4.

93. It seems to me that ground 3 should be rejected also. I do not read the sentencing remarks as did Mr Croucher. Her Honour did not, in my view, decline to take into account, when fixing sentence, the applicant's exemplary previous character and service to the community as alleged in ground 3. Much of what I have already said bears upon that aspect. It is a matter of interpreting the judge's sentencing remarks and, as I have said, I do not interpret them as did counsel.

96. Ground 5 was that the judge erred in declining to take into account when passing sentence the hardships suffered by the appellant as a youth and young man. This is a reference to the hardship which, it was asserted from the Bar table, had been suffered by the appellant in the course of the notorious Pol Pot regime in Cambodia. On this aspect, however, I think that Mr Gyorffy had the answer. He submitted that no link was established between those hardships and the commission of these crimes. The appellant, it was pointed out, was a man of previous good character who had held responsible positions in the community and there is no reason therefore to suppose that his past experiences, and in particular those during the Pol Pot regime, had played any part or made any contribution to what had occurred when these offences were committed. In the absence of any link between the experiences in Cambodia and the offending, it is, I think, difficult to cavil at her Honour's approach to the matter. Her Honour did, as I have said, take into account what was said in favour of the good character of the appellant, referring to "the image painted by his counsel" as reflecting a person of high civic responsibility, proven leadership capability and community respect from a celebrity status. All were described as "positive features in terms of the prospects for rehabilitation" and so they were taken into account. The part played by the hardship experienced during the Pol Pot regime had to be seen in context.

99. Ground 6 was that the sentencing judge erred in imposing a sentence which was not sufficiently disparate as to individual sentences and head sentence from those imposed on the co-offender Thuok. Parity is always a difficult matter if only because there are nearly always significant differences in the personal circumstances of each offender and usually, as in this case, some differences in the roles played. Below, in the course of the plea, counsel for each of the appellants claimed that there should be disparity but that that disparity should go in favour of his client. As already explained, Mr Tehan no longer argues along those lines; he is content with the disparity displayed by the sentences imposed below. Mr Croucher, however, is not. But in that respect it is sufficient to say that Mr Khay was a willing participant in these offences and the part he played merited condign punishment and that the lesser role he played was duly reflected, in my opinion, in the lesser punishment imposed. Again, I think that Mr Gyorffy was correct when he submitted that the sentencing remarks disclose that the judge "went to great lengths to tailor an appropriate sentence which differentiated in a permissible way between the two appellants". As was pointed out by the President in the course of argument, if one compares the total effective sentences one finds that the appellant Thuok was sentenced to six years and six months' imprisonment of which the non-parole period (of four years and six months) was 70 per cent, while Mr Khay was sentenced to five years and 10 months' imprisonment of which the minimum term (of three years and six months) was 60 per cent. In short, there were differences and in my opinion they were sufficient to give full effect to the relevant considerations. Ground 6 was not made out.

102. 33 That leaves only, so far as Mr Khay is concerned, ground 7. It claims that the sentencing judge erred "in concluding that criminal culpability is not reduced by previous exemplary character". In my opinion, that is not to identify error. Good character is relevant to sentencing but it does not reduce criminal culpability; it goes, rather, to punishment than to culpability, and in this case, as the sentencing judge said:

"I regard your criminal culpability as being only marginally less than that of Mr Thuok, by reason only that your participation does not appear to have been precipitated by any ulterior motive and presumably would not have occurred, other than at the invitation of Mr Thuok, and/or upon your own initiative to actively support your co-offender".

In my opinion no sentencing is asserted in ground 7.

107. It is for these reasons that I think that both appeals should be dismissed.

112. For the reasons given by Phillips, J.A. I agree that the two appeals, one by Pun Thuok and the other one by Prasith Khay, should be dismissed.

117. I also agree that the appeals should be dismissed.

122. The formal order of the court is that the appeal of Pun Thuok and the appeal of Prasith Khay are dismissed.

[2] [2001] HCA 21; (2001) 179 A.L.R. 193.