Director of Public Prosecutions v Kong
[2016] VSC 154
•29 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0025
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VANNA KONG |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 September 2015 and 1 February 2016 |
DATE OF SENTENCE: | 29 April 2016 |
CASE MAY BE CITED AS: | DPP v Kong |
MEDIUM NEUTRAL CITATION: | [2016] VSC 154 |
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CRIMINAL LAW – Sentencing – Causing serious injury intentionally – Prolonged assault on ex-partner – Offended whilst on parole for similar offending – Guilty plea – No genuine remorse – Post-traumatic stress-disorder, pathological jealousy and alcohol abuse – Total effective sentence of 7 years’ imprisonment with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Solicitor for Public Prosecutions |
| For the Accused | Mr T Danos | Tony Danos Lawyers |
HER HONOUR:
Vanna Kong, you have pleaded guilty to one charge of causing serious injury intentionally. The victim of your offending was your ex-partner, D.
You met D through mutual friends, around August or September 2013, and began a relationship shortly after that. D was married at the time. You were 54 and she was 29 years old. During your short relationship, you would follow D to work and drive past her house. You told her that although you loved her, you would kill her if she cheated on you. D ended the relationship in early December 2013, after you rang her husband and told him about your relationship.
On 19 December 2013, the night of the attack, you and D were both invited to dinner at the house of some mutual friends. D arrived there before you, and left the house shortly after you arrived. D went to her car, which was parked in the street. You came out to her car, and stopped her from leaving. The two of you argued verbally for about an hour. D told you she wanted to end the relationship. You told her that you still loved her, and had nothing in your life but her.
Around 9.30pm, D went back inside to get her handbag. She returned to her car, with the intention of leaving. As she sat in the driver’s seat, you opened her car door and stood next to it, staring at her. You grabbed her face, and pushed it back into the seat. You slapped her face twice, then punched her face, causing her to start bleeding. She became confused and blacked out for a short time. You continued to punch her all over her head with a closed fist.
You pushed her down towards the passenger seat, while twisting and squeezing her neck. She tried to scream for help, but you covered her face with your palm, silencing her. This restricted her breathing. As you continued to hit her, you said, “I will be in prison again. If I can’t have you, no-one can”, and “We can die together”. D was terrified that you might kill her.
D tried to get out of the car. As she did, you pulled her out and squeezed her neck from behind. That caused her to choke on the blood in her mouth. You blocked her mouth and nose, so she couldn’t breathe. She collapsed onto the ground. You sat on top of her, grabbing her by the hair and banging her head against the cement a number of times. She feared for her life, trapped, in pain, and unable to protect herself. You kicked her repeatedly, as she tried to sit up and call for help. At this stage, she could not see and was struggling to breathe, as you tried to block her nose and mouth.
Eventually, D managed to scream for help, and one of her friends came out of the house to see what was happening. He pushed you away. A neighbour also came outside to offer assistance. D could barely speak and felt half unconscious. You said, “Please forgive me. Give me another chance.”
Police and ambulance were called by neighbours who heard D’s screams. You were still at the scene when they arrived. You were arrested and taken to Dandenong Police Station. You gave a “no-comment” interview.
D was taken to Dandenong Hospital, where she stayed for three days. Her injuries included abrasions, bruising, swelling and tenderness to her face, neck, chest, abdomen, arms and hands. She was unable to open one of her eyes, due to the amount of swelling. In early 2014, she had physiotherapy for injuries to her neck and back. She still suffers from muscle pain to her neck, shoulders, back and face.
D was also referred to a clinical psychologist, who diagnosed her as suffering from post-traumatic stress disorder, with depression and stress symptoms. She has had ongoing counselling to deal with those problems, and still needs such treatment. In her victim impact statement, D said that apart from the physical injuries, your actions have caused her to be angry, stressed, fearful, and on guard. She has trouble sleeping, and has nightmares about you. She has panic attacks, when she hears sudden noises, or sees something unexpected. She also cannot work as fast as she used to, because of her ongoing pain.
The maximum penalty for this offence is 20 years’ imprisonment.
Your attack was not pre‑planned, and there was no weapon involved. However, this was not an incident involving only a couple of swift blows; your attack was prolonged, and took place over a period of between three and five minutes. During that period, you repeatedly struck and kicked a defenceless woman, restricted her ability to breathe, and caused her to fear for her life. You only stopped your attack when someone pushed you away from her.
It is an aggravating feature that you committed this offence while on parole for another offence (one which also involved violence against a domestic partner).
You were committed for trial on 25 March 2015 on multiple charges, which included attempted murder and intentionally causing serious injury. The matter proceeded by way of hand-up brief, so D was not required to give evidence at the committal. This court was informed on 8 May 2015 that the matter had resolved, and you would plead guilty to the current charge. This is an early plea.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea of guilty, and its utilitarian value. Your plea has facilitated the course of justice. The community has been spared the time and cost of a trial against you. D has been spared what would undoubtedly have been a traumatic trial for her.
Aside from any remorse that is inherent in your plea, I do not accept that you are genuinely remorseful for your actions. You gave your psychologist, Jeffrey Cummins, an account of the offending that substantially downplayed both its seriousness and your culpability. While the prosecutor was reading out the plea opening, you were vigorously shaking your head in disagreement with what he was saying. The letter written to the court on your behalf by a fellow prisoner was primarily concerned with yourself and your family (and did not mention the victim, or acknowledge any harm you caused her). I have seen no evidence that you have genuinely accepted responsibility for what you did to D, or regret its consequences for her (as opposed to its consequences for you and your family).
You were born in February 1959 in Cambodia, the eldest of seven siblings.
Your schooling in Cambodia was disrupted, because of the Khmer Rouge regime. When you were 17, you witnessed your father being tortured and killed by the Khmer Rouge. Later, your family fled to a refugee camp in Thailand, where you remained for a number of years.
You came to Australia with your family in 1973, aged 24.
You returned to Cambodia in 1998, for four years. You were a popular singer in Cambodia, and later found occasional work as a singer in Australia. You have also previously worked as a kitchen hand, factory worker and courier driver. However, you have had long periods of unemployment, including at the time of this offence.
Your first marriage, in 1979, lasted for two years and produced one son. Your second marriage, in 1982, lasted for six years and produced three daughters and a son. In 1995, you re-partnered, and had two more sons.
You continue to enjoy the support of two of your sons, and two of your brothers, but appear to be largely estranged from the rest of your children and siblings. Your mother (to whom you are still close) is now in her mid 70s, and no longer in good health.
In 1985, you underwent an operation, for a back injury you suffered after falling out of a coconut tree in Cambodia in 1979. You were hospitalised for three months, and had to learn to walk again.
You have been taking various pain medications, as well as medication for anxiety and depression, for much of your adult life.
You do not have a history of using illicit drugs. However, you do have a history of alcohol abuse, which is highly relevant to the current offending.
In the early 1990s, following the death of your grandmother and the end of a de-facto relationship, you undertook some training as a Buddhist monk at the Springvale Buddhist Temple. You have been involved with the temple, and undertaken voluntary community work through them, since that time.
Two Buddhist monks gave character evidence on your behalf, describing you as a kind and gentle man. However, it is clear that they were unaware of the various offences you have committed in the past, or of the true nature of the current offending. While I do not doubt the sincerity of their beliefs, I would give little weight to their assessment of your character.
This is not the first time you have engaged in violence.
In 1985, you received a community based order for inflicting grievous bodily harm, in the course of a fight with a friend. You received a similar sentence in 1990, for assault with a weapon; on that occasion, you attacked someone with a screwdriver, in the course of a road rage incident. In 1996, you were dealt with for assaulting and resisting police following a driving incident; no conviction was recorded, and you were placed on an adjourned bond.
Without knowing more about these historic offences, I am not able to conclude (as your counsel urged me to) that the sentences indicate that these offences must have been less serious than they otherwise would appear to be. It is equally as possible that you received sympathetic penalties for those offences, because of your relative youth at the time, and your background as a Cambodian refugee.
That said, I note that those offences occurred when you were in your 20s and 30s, and you did not appear before the courts again until 2008.
In March 2008, you were convicted in the District Court of New South Wales, of a charge of taking a person with intent to obtain advantage occasioning actual bodily harm. The victim in that case was your de-facto partner. While she was in Cambodia, attending her sister’s funeral, you became very jealous; you started accusing her of seeing another man. The day after she returned, you repeated those accusations, while shaking a knife at her; this was not the first time you had grabbed a knife in the course of a verbal argument with her. She obtained an interim apprehended violence order against you. Over the next week, and in breach of that order, you telephoned her numerous times, telling her you loved her and wanted her to take you back. She repeatedly told you she did not want you to call, or come to her house.
A few days later, she returned home after taking her children to school. You confronted her inside the house, brandishing a knife and threatening her with it. You forced her to get into her car and drive you around, so you could talk to her. At one stage, she jumped out of the car and tried to escape, but you chased her and forced her back into the car. You stabbed her once in the leg, before taking over driving the car. You drove to a bushland area, where you declared your love for her and your desire to live with her. You threatened to kill yourself if the police came. She tried to calm you down, and eventually the situation was diffused.
For that offending, you were sentenced by Judge Keleman to seven years’ imprisonment, with a non-parole period of four years. You were released on parole on 10 January 2012. On 23 April 2012, your parole was transferred to Victoria. As a result of your current offending, the Adult Parole Board cancelled your parole on 2 January 2014. You have been in custody since 3 January 2014, and are still serving that sentence.
In sentencing you, Judge Keleman had regard to two psychiatric reports from Professor Eisenbruch (a psychiatrist with particular expertise in Cambodian mental health), two psychiatric reports from Dr Watson-Munro, and a report from your general practitioner. His Honour was satisfied that at the time of that offending, you were suffering from post-traumatic stress disorder and depression; on that basis, he moderated your sentence in relation to both general and specific deterrence. He also took into account evidence that you would find prison more onerous, due to your mental health and physical problems, and your cultural and religious beliefs.
You were assessed for the purposes of sentencing for the current offence by a psychologist, Jeffrey Cummins, in August 2015. The interview was via video-link, with the assistance of an interpreter. In his first report, dated 16 September 2015, Mr Cummins noted that it was difficult to assess you, because you frequently provided contradictory or inconsistent information.
When your plea first came on for hearing, in September 2015, I noted a number of omissions from, and deficiencies in, Mr Cummins’ initial report. Your plea was adjourned part-heard, to enable Mr Cummins to prepare a further report and give oral evidence. Mr Cummins subsequently obtained copies of the various reports which Judge Keleman had considered, as well as your New South Wales prison file. He also interviewed one of your sons and two of your brothers, to try to get more details of your history. He provided a supplementary report, dated 29 January 2016, and gave oral evidence at the further plea hearing on 1 February 2016.
I accept that you suffer from major depression, both as a result of your childhood experiences, and because of the ongoing pain from your back injury. However, depression does not appear to have played any particular role in the current offending.
In his initial report, Mr Cummins noted that you had told him that feelings of pathological jealousy played a role in your offending, and alcohol had also had a disinhibiting effect on your behaviour. Mr Cummins expressed the opinion that it was “probable” that there was “some nexus” between your various mental health problems and your current offending, but did not elaborate. I said that, without further explanation, that opinion would carry little weight in terms of Verdins considerations.
In his later report, Mr Cummins clarified that, in referring to your “mental health problems”, he was speaking of a possible alcohol dependence problem, post-traumatic stress-disorder, and pathological or obsessive jealousy. In oral evidence, asked whether he could say what specific role any of those may have played in your offending, he said they probably did, but it would be very difficult to separate them out from each other. He also conceded that the mix of alcohol and jealousy alone could explain your behaviour.
Nonetheless, Mr Cummins said that you are not someone who is out of touch with reality, and you knew that what you were doing to D was wrong.
I accept, based on the evidence of Mr Cummins (which is supported by the diagnosis of Dr Watson-Munro) that you are suffering from post-traumatic stress disorder, as a result of your childhood experiences in Cambodia. However, it is far from clear what, if any, specific contribution that condition may have made to your offending.
Mr Cummins said that you are not usually a violent explosive person, and post‑traumatic stress disorder alone does not generally make you violent. Rather, your offending in NSW, and in this case, was directly related to relationship breakdowns.
Mr Cummins’ opinion is that you suffer from what he describes as pathological or obsessional jealousy. This is not simply a jealous personality trait, but is serious enough to meet the diagnostic criteria in DSM-5.[1] Mr Cummins based that assessment on a variety of symptoms, including obsessional thinking: about the relationship; about believing you need to be involved in an intimate relationship to maintain psychological integrity; and about your partner cheating. He did link the condition to your post-traumatic stress disorder, suggesting that you may have ongoing unresolved attachment issues, and low self-esteem, as a result of that disorder.
[1]As an “Other Specified Obsessive-Compulsive and Related Disorder”.
Mr Cummins believes that your PTSD and pathological jealousy require treatment by medication, psychotherapy, and participation in courses such as anger management programs. He also said you require treatment for your alcohol dependence.
It is unclear to what extent you have been offered, or have undertaken, treatment in the past for your various mental health issues. You told Mr Cummins you had never received treatment for them. However, it appears from Judge Keleman’s sentencing remarks that you did receive some counselling over a three month period before the 2008 sentencing, both from Professor Eisenbruch and Dr Thel Thong (a Buddhist psychotherapist).
Mr Cummins himself said it would seem unlikely you had never participated in an anger management program or course. Given the amount of time you have already spent in prison in NSW and Victoria, it seems highly improbable to me that you would not have had any opportunity to participate in courses designed to address anger management, alcohol abuse, and healthy relationships. However, I readily accept that you may not have chosen to participate in such programs, given that you do not seem to accept that you have any problems that need addressing.
It appears that, to a large extent, you still blame the victim in the NSW offending, and D, for your current predicament.
Mr Cummins acknowledged that you have not coped well with the break-up of other relationships, not only with D and the victim in the NSW case. This presents a real concern that you may re-offend. Your prospects of rehabilitation are heavily dependent on your acknowledging and addressing your issues with anger management, alcohol dependency, and relationships with women. I accept that those issues are unlikely to be resolved without also treating your PTSD.
It would be in your interests, as well as the community’s interests, for you to participate in whatever programs are offered to you in custody, in order to address your issues. It would also be highly desirable for you to engage in appropriate psychotherapy, although I acknowledge that its availability in a prison setting may be very limited. Even if you do undertake such treatment in prison, it would be ideal for you to have ongoing support and treatment within the community, to try to reduce the likelihood of further offending. For that reason, I have set a shorter period before you will become eligible for parole than I might otherwise have done. However, whether or not the Adult Parole Board will grant you parole at that time may be heavily influenced by whether or not you have acknowledged that you do have problems that need addressing, and have taken genuine steps to address them while you are in custody.
Even allowing for some moderation to your sentence due to your mental health problems, there is still a need for both specific and general deterrence in this case.
The circumstances of this type of offending are far too common, and the courts must send a message that a violent response towards a partner who is seeking to end a relationship is unacceptable. People must also be deterred from committing further offences while on parole.
There is also a need for denunciation and just punishment.
Although you have chosen to use an interpreter in court, you have studied English, and spoken and written in English for several decades. While you are by no means as fluent as a native speaker, it is not suggested that you will be isolated in prison by reason of your language skills.
Notwithstanding the rather dire predictions apparently made in the reports that were before Judge Keleman, there is no evidence that you have found prison in NSW or Victoria unduly onerous on account of cultural or linguistic problems.
Because you were on parole when you committed the current offence, the sentence which I impose must be served cumulatively on your current NSW sentence.[2]
[2]Sentencing Act 1991 s 16(3B). It was not suggested that there were exceptional circumstances that would justify a departure from total accumulation.
I am also required to apply the principle of totality, in fixing both the head sentence and the non-parole period. In a case such as this, that principle requires that when the offender is to serve multiple sentences, the sentencing judge must ensure that the total sentence remains just and appropriate for the whole of the offending. However, there is some dispute as to just what it is that the totality principle requires me to have regard to.
In McCartney v The Queen[3] and Waugh v The Queen,[4] the Court of Appeal held that the court is confined to considering only the combined parole sentence and the sentence for the later offence(s).
[3][2012] VSCA 268.
[4][2013] VSCA 36.
That approach was rejected by Kaye and Lasry AJJA in Koumis v The Queen.[5] Their Honours held that it was appropriate to have regard to the whole of the sentence imposed for the previous offending and the sentence for the later offence(s). As part of that exercise, it was necessary to consider the nature and criminality involved in the prior offending. The remaining member of the court, Neave JA, was attracted to that position, but felt obliged to follow McCartney and Waugh, unless and until they were overturned by a bench of five.
[5][2013] VSCA 47.
The Court of Appeal has not been called upon to resolve the dispute by a five member bench. However, in a more recent decision in DPP v Oksuz,[6] Redlich JA seemed to endorse the views of Kaye and Lasry AJJA, albeit with an additional gloss. His Honour held that whether a period in custody preceding an offender’s release on parole is to be taken into account will depend on the length of time that has elapsed between release on parole and the subsequent re-incarceration for the offending committed on parole. The shorter that period of time, the greater the weight that could be given to the pre-parole period in custody.[7]
[6][2015] VSCA 316.
[7]At [134].
As Neave JA observed in Kounis, in many cases the different approaches will not necessarily lead to a different result.[8] In the present case, in setting both the head sentence and non-parole period, I have had regard to both approaches to the principle of totality.
[8]Kounis at [5].
I am not satisfied that anything less than a term of imprisonment is justified here.
Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of causing serious injury intentionally, I sentence you to 7 years’ imprisonment.
I fix a period of 4 years before you become eligible for parole. Whether or not you will be granted parole at that time will depend, in part, on the extent to which you have acknowledged, and taken genuine steps to address, the various problems which have led to the current offending.
I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 9 years’ imprisonment, with a minimum non-parole period of 6 years and 6 months.
There is no pre-sentence detention for this offence.
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