Regina v CHOUH, OUM, SREY, YIN, CHEA, BS and LEOUNG - [2007] NSWDC 253 - NSWDC 2007 case summary — Zoe

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Regina v CHOUH, OUM, SREY, YIN, CHEA, BS and LEOUNG

[2007] NSWDC 253

District Court of NSW|2007-11-02

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Source facts

Court

District Court of NSW

Decision date

2007-11-02

Source

Original judgment source is linked above.

Judgment (92 paragraphs)

[1]

Background history . One would expect that the mass relocation and war merely exacerbated what was clearly a neglectful and abusive childhood. This is further evidenced by the fact that Ms Yin could not report any positive memories from her upbringing. Offence. It appears from Ms Yin's background that the advantageous of this offence almost outweighed the disadvantages and that she was living away from her children anyway and still struggled to provide for them. It is evident that Ms Yin was groomed into this offence from the perspective of being told it would allay her financial problems. She expressed regret for her conduct stating that she feels guilty for her actions. Psychometric testing . She achieved a very poor result placing her within the extreme low to border line range of ability outperforming the bottom two per cent of the normative sample for her age. Ms Yin presents with low cognitive ability which is commensurate with her very limited education and her generally poor functioning in the community. Further, she also showed very limited knowledge of the court system and other westernised lifestyle patterns and behaviour. Summary and Opinion. Ms Yin reports a significant history of early maladjustment marked by parental abuse, neglect, poverty and a lack of educational opportunity. Her history highlights continued and she was evidently groomed into the commission of this offence given the impact of her poor relationships, low IQ and unsophisticated functioning. Ms Yin reports relatively comfortable conditions since her incarceration compared to her life in Cambodia. However, she is clearly experiencing distress secondary to her separation from her family. This will make her adjustment to long term incarceration problematic. Her language will negatively affect her ability to adjust to a longer term custodial order.

[2]

[21]

67 Ms Oum has been seen by Ms Collins and Ms Armstrong. Ms Collins obtained her background history. She also went on to say as follows: Relationship history. Ms Oum lived in relative poverty despite some security of tenure. She explained that her children can no longer attend school because of her limited finances and her husband reported only makes enough money to feed them. Offence. She advised that this money would alleviate her financial worries and allow her family to live comfortably. She expressed regret of her conduct stating that she did not consider the ramifications of her actions. Ms Oum stated that the financial gain was the motivating factor for the commission of this offence. Psychometric testing. She achieved a score that places her within the extremely low to borderline range of ability at performing the bottom one per cent of the normative sample for her age; it is most likely that this score slightly under represents Ms Oum's true ability level given that she has no education and as such has not been exposed to any abstract task previously. Nevertheless, she impresses as a woman with low intellectual functioning but one who can function at a basic level in her normal community. 68 The classification of Ms Oum after psychometric testing places her in a similar situation to Ms Yin and Mr Chouh. Ms Armstrong reported as follows: Ms Oum reports having episodes of fainting from and undiagnosed cause and as the psychologist report suggests, this may be related to elevated anxiety and stress. Ms Oum has not complained of any elements of her imprisonment other than worrying about her children's welfare. She presents as operating from a point of anxiety in most of her functioning but this would be consistent with someone who has had an early history of exposure to war and personal trauma in childhood. Ms Oum must be considered to be at risk of depression, increased anxiety, social isolation and disadvantage by not speaking the language of the country in which she is imprisoned. She will be unlikely to avail herself of clinical support of counselling programs partly due to the language barrier and possibly also due to her focus consistently being concern for her children's situation rather than her own.

[44]

93 Since spending time in custody Mr Chea has expressed remorse and contrition with respect to the offence. In the sentence proceedings he stated that, "since my arrest I understand these offences will affect the Australian community causing trouble to them, causing breakdown in families". 94 A clinical neuro-psychologist's report was prepared and is dated 1 August 2007. It states amongst other things that, his primal level of intellectual functioning was estimated to be in the low average to border-line range. There appears to be evidence of a slight decline in some areas of Mr Chea's intellectual functioning from his premorbid estimate which were identified in his very poor basic non verbal reasoning skills, visuo-spatial problem solving and visual recognition. His verbal memory also appears to be mildly impaired relative to his premorbid estimate. It is difficult however to comment on whether he has sustained significant impairment in his frontal executive functions. It seems that his very poor visual organisation and planning abilities reflect an acquired deficit in these cognitive abilities. Mr Chea has evidence of acquired impairment in his intellectual functions, verbal memory and frontal executive skills. Mr Chea had limited capabilities prior to his cerebral hypoxic brain injury and the further decline in his functional ability following his brain injury will have a particularly adverse affect on his life whilst in custody and in his ability to understand the proceedings of the court. I do not however feel that his life situation would change very much on his return to Cambodia as he would be back in his familiar environment and this would prompt his ability to utilise previously well stored knowledge to get by. If however he was to go back under changed circumstances it is likely he would experience major problems in adapting, surviving and supporting his family. He would have been extremely vulnerable to exploitation and susceptible to any offers of money to relieve his family's poverty. Furthermore, given his limited intellectual abilities it would seem he would not at the time have thought through any consequences or the possible legal implications of his actions.

[57]

107 I now read from extracts from Ms Collins' report which was prepared on 12 February 2007. Background History. Ms Leoung is the middle of three children born to her parents in Phon Pham. She described a good childhood up to the time of her parents separation when she was eight years old. She told me that her childhood declined at that time explaining that she had to work and could not continue on at school. Ms Leoung reports that she only completed two years of formal education up to eight years of age. She explained that she commenced school but she had to leave when her parents divorced and she was required to work. Ms Leoung states that she did not want to leave school at such a young age and regrets not having any formal education. Ms Leoung reports that she had consistently maintained work. From age eight she worked cleaning and waitressing and then from fifteen she worked in a lottery office selling tickets. Ms Leoung told me she has maintained a market stall selling costume jewellery for the last four to five years. Ms Leoung advised that she and her husband have been renting a property for the last few years and living independently. Relationship History. She described her relationship as positive and she denied any discordance or substance abuse issues. She told me that her husband is very distressed by her incarceration and by their daughter being in care. Ms Leoung reports that she is upset that she has been separated from her daughter, however she did state that she believes her daughter is well looked after in foster care. She said that her daughter appears to be relatively happy during the weekly visits that she has with her. Ms Leoung has been advised that her daughter may remain in Australia following her release from gaol and she was concerned that she may not be able to return to Cambodia with her. She did not report any significant mental or physical health problems or any substance abuse history. Ms Leoung told me that the offence was motivated by a need for money. She said that a man approached her and advised that she could be given an opportunity to travel overseas if she completed her task. However she reports that this man would tell her what the task entailed until she agreed to participate. Ms Leoung states that once she agreed she was advised that she had to bring something with her but she was never told what the items were. She was concerned that they were likely illicit substances. Ms Leoung reports that she could not refuse to participate at that time because her airplane ticket and documentation had been prepared and she had to pay $4,000 back for these which she could not do. Ms Leoung told me that she is angry that she showed poor judgment by becoming involved with this offence and she believes importing drugs to be wrong. Clinical Presentation at Interview. No disturbance in thought or language was apparent. Ms Leoung reported some reduction to her mood which she states results from concerns that her daughter will not be able to return to Cambodia with her upon her release. She described good appetite, sleep and energy patterns. Ms Leoung reports a degree of distress further to the possible long term separation from her daughter. This is evidently a worry for her and one that will increase commensurate with her approaching release date. She appears to be hopeful that this possibility may not eventuate given the early stage in these proceedings. I do not believe that Ms Leoung's functioning will necessarily improve given the long term implications associated with a formal separation from her daughter upon her release. Psychometric Testing. She achieved a score that places her within the extremely low to border-line range of ability, outperforming the bottom one percent of the normative sample for her age. Ms Leoung's limited education would have affected her ability to complete these tasks which she struggled to understand. These tasks likely had limited real world meaning to her. Family Assessment. As part of the assessment Ms Leoung was observed having a weekly visit with her daughter, who is currently in foster care, for a total of two hours. In discussion with DoCS it was stated that her daughter is settling into foster care. Although the DoCS report suggests a tenuous attachment between mother and child, my observation is not entirely consistent with this. It does seem a bond exists between mother and child although it is inevitable that such a bond will be distorted given the unusual situation the mother and child find themselves in. Recommendations. Ms Leoung does not report any particular difficulties directly related to her incarceration. She is maintaining work and eating and functioning to a sufficient level. However, she is limited in many of the vocational opportunities she can assess due to her non English speaking background. In terms of Ms Leoung's relationship with her daughter, a lengthy separation will further destabilise their bond given the already unstable attachment between mother and daughter. Further, her daughter will develop an increasing cultural detachment commensurate with a lengthy absence from her family and cultural background. When considering the ongoing distress Ms Leoung is currently experiencing and likely to continue to experience, she will not be able to access consistent clinical intervention to assist her through this process whilst in gaol, again due to her limited English skills.

[75]

123 BS was assessed by Ms Collins and Ms Armstrong. The histories obtained were confirmed by BS in evidence. I will deal firstly with the report by Emma Collins dated 10 January 2007. History. She described a conventional childhood, stating that her parents had enough money to support the family. She said that her childhood was not greatly affected by the political difficulties in Cambodia, however, she did state that she spent a few years of her early childhood being cared for away from her family during the Pol Pot regime. She advised that this was normal at that time because of the war and restrictions upon children attending school. She denied any learning difficulties, achieving reasonable grades and denied any disciplinary issues. She said that her parents retired to their home village in 1999 and she lives with her siblings on a family owned block of land. She has one floor of the property, which she maintains with her husband and children. Nonetheless, BS described financial hardship in attempting to care for her family and put her children through school. She told me that she and her husband have struggled to provide adequately for their family in spite of maintaining consistent work. Relationship History. On my last visit with her BS told me that she has been advised that her son may remain in DoCS' care until he is eighteen years of age. She was extremely distressed. She said that she wants her son to return home with her once she has completed her sentence period. BS states that her two other children remain with her husband. Medical and Clinical History. When I saw BS for the second session she had just found her 20-month-old son had been diagnosed as HIV positive. She was extremely devastated by the news and she is yet to be tested herself. Offence. BS said that she did not think through the repercussions. Psychometric Testing. BS gained a score that places her within the extremely low to borderline range, outperforming the bottom two per cent of the normative sample for her age. This result probably under represents her true ability level because she gave up on some of the harder tasks easily and she appeared nervous when completing the test. It is likely that BS's cognitive functioning is not higher than low average given her reported limited educational attainment. She impresses with low intellectual resources. Family Assessment. BS was observed on two occasions when having a weekly visit with her twenty-month-old son. In discussions with DoCS it was reported that Vichith had taken a considerable time to settle into his current foster care placement, although he is also described as having attached to his carer well at the present time. On the two visits I observed BS actively sought out her son, playing with him and attempting to maintain his attention for most of the time. He appeared quite emotionless at times. It is likely that his emotional response to his mother is likely to be quite severely affected by the separation. The concern is that over time and given his age, alienation from his family of original, including his family in Cambodia, will occur and circumstances will become quite difficult for him. As time continues there will become further problems in the mother son relationship as this is a crucial period up to age five in the bonding and attachment system of a child. Vichith was quiet expressionless and unemotional towards his mother initially but this lessened as the visits progressed. There was no verbal interaction between them for the majority of the visits. However, that is considered to be quite culturally common in South East Asian families. In my opinion the separation of Vichith from his mother is having a significant impact upon his emotional and general adjustment. It is perhaps more concerning that he makes no attempt to talk at this present time. The crucial attachment time for children is around the two to five year age period. He will probably experience problems with regards to language and cultural identity. His foster carer is not Cambodian and specific isolation from his family.

Regina v CHOUH, OUM, SREY, YIN, CHEA, BS and LEOUNG

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