DPP v Kao - [2009] VSCA 273

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 897 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
HSIN MING KAO

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JUDGES:	BUCHANAN and WEINBERG JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 2009
DATE OF JUDGMENT:	26 November 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 273
JUDGMENT APPEALED FROM:	DPP v Kao (Unreported, County Court of Victoria, 10 October 2008, Judge Pullen)

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CRIMINAL LAW – Director’s appeal – Intentionally cause serious injury – Unprovoked attack by respondent while armed with knife – Significant injuries to victim – Prior convictions including some for violence – Whether respondent suffering from drug induced psychosis at time of offence – If so, whether fell within R v Verdins – Sentenced as a serious violent offender to four years’ imprisonment with non-parole period of two years and six months – Whether sentence manifestly inadequate – Appeal allowed – Respondent re-sentenced to six years’ imprisonment with non-parole period of four years

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent:	Mr P Tehan QC and Mr B Tait	R V Tait & Co

BUCHANAN JA:

I agree with Weinberg JA and Coghlan AJA, for the reasons they have stated, that the appeal should be allowed and the respondent re-sentenced as their Honours propose.

WEINBERG JA
COGHLAN AJA:

On 24 September 2008, the respondent, Hsin Ming Kao, pleaded guilty in the County Court at Melbourne to one count of intentionally causing serious injury. On 10 October 2008, he was sentenced to a term of four years’ imprisonment, with a non-parole period of two years and six months. The Director of Public Prosecutions has appealed against that sentence.

The facts may be briefly summarised. On 26 February 2008, the respondent, then aged 31 years, attended at a pharmacy in Bridge Road, Richmond, to collect his daily dose of methadone. Shortly thereafter, at approximately 11am, he came across the victim of this offence, Paul Martin. He attacked Martin from behind, lunging at him with a knife that was said to be about 30cm in length. He stabbed Martin in the left side of his lower back, forcing the knife upwards. He twisted the knife in order to inflict more harm before withdrawing it and fleeing the scene.

The wound so inflicted ruptured Martin’s bowel, spleen, diaphragm, and left lung. It necessitated emergency surgery, and the removal of Martin’s spleen. The learned sentencing judge found that Martin had suffered considerably. The medical evidence suggested that he may have been fortunate to survive and that, but for the excellent treatment he received, might not have done so.

Following the attack, the respondent returned home and changed clothes. He was arrested later that afternoon. Police searched his premises and located numerous knives fitting the description of that used by him during his attack upon

Martin. They also located two towels which appeared to have blood smears on them.

When interviewed by the police, the respondent declined to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Kao

Details

AGLC: DPP v Kao [2009] VSCA 273
Case: [2009] VSCA 273
Decision Date: 26 November 2009

CaseChat Overview and Summary

The Director of Public Prosecutions has appealed the sentence of Kao, who was convicted of intentionally causing serious injury in an unprovoked attack while armed with a knife. The case was heard and determined in the Court of Appeal. The legal issues before the court were whether the respondent was suffering from drug-induced psychosis at the time of the offence and, if so, whether this fell within the criteria established in R v Verdins. Additionally, the court had to consider whether the original sentence of four years' imprisonment with a non-parole period of two years and six months was manifestly inadequate.

In assessing these issues, the court considered the evidence regarding Kao's state of mind at the time of the offence and the impact of his prior convictions, some of which were for violent offences. The court found that Kao was indeed suffering from drug-induced psychosis, which affected his mental state at the time of the attack. This finding aligned with the criteria set out in R v Verdins. Furthermore, the court determined that the original sentence was manifestly inadequate in light of the seriousness of the crime and Kao's criminal history. Consequently, the appeal was allowed, and the respondent was re-sentenced to six years' imprisonment with a non-parole period of four years.

The court emphasised the need for sentences to reflect the gravity of violent crimes and the importance of considering the offender's mental state at the time of the offence. The decision underscores the importance of proportionality in sentencing, particularly in cases involving serious violence and prior criminal conduct.

Orders