DPP v Kien - [2000] VSC 376

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1507 of 1999

DIRECTOR OF PUBLIC PROSECUTIONS

CHE KIEN

---

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2000
DATE OF SENTENCE:	15 September 2000
CASE MAY BE CITED AS:	DPP v Che Kien
MEDIUM NEUTRAL CITATION:	[2000] VSC 376

---

Criminal law – sentencing – murder – elderly offender, aged 82 years – incipient psychiatric illness – considerations applicable – general deterrence as to elderly offenders.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P.A. Coghlan QC	Office of Public Prosecutions
For the Accused	Mr W.M. Toohey with Ms G. Hedberg	Mulcahy Mendelson & Round

HIS HONOUR:

I would like Mrs Kien to remain seated, thank you.

Mrs Che Kien, you have been found guilty by a jury of the murder on Wednesday, 24 February 1999, at Ascot Vale, of Mrs Shau Fan Lai. At the time of the murder, you were 80 years of age, and the deceased, Mrs Lai, was 84 years of age.

You were both residents at the Victorian Elderly Chinese Hostel at 77 Hurtle Street, Ascot Vale, and had both been residents there for almost five years, you both being original residents of that hostel from the time of its establishment in October 1994.

Early last month, on 9 August 2000, a jury found you fit to stand trial on the count of murder, and a second, separate jury found you, on 31 August, guilty of murder.

The offence occurred on Wednesday, 24 February 1999, at the Hostel in the room of the deceased, Mrs Lai. She resided in Room 8; you resided nearby in Room 6. Shortly after 5.00 p.m. on 24 February you caused the death of the deceased by stabbing her with a vegetable or fruit knife some 49 times to the head and neck, with concentration of the stab wounds around the eyes. The deceased died quickly from those stab wounds. Her right eyeball was penetrated by a stab wound. The vegetable knife was 7 cm in length.

At 7.00 p.m. it was found that you had left the Hostel, and a quick-witted and responsible member of the staff, Ms Tran Boi Tran, followed you along the nearby street, at that stage not knowing that Mrs Lai had been killed. She managed to persuade you to turn round and come back to the hostel and, on the way back, you stated, "I killed Fan in room 8. Do you believe me? It's real." You had, indeed, done so, shortly after 5.00 p.m. when the deceased had returned to her room from the dining room having had her dinner. At 5.30 p.m. you called staff and went to the dining room. At 6.30 p.m. you were seen going to the laundry. You in fact there washed your bloodstained clothes. At 7.00 p.m. it was found you had left the premises and Mrs Tran went after you, as I have said. Later that night, the vegetable…

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 Kien

Details

AGLC: DPP v Kien [2000] VSC 376
Case: [2000] VSC 376
Decision Date: 15 September 2000

CaseChat Overview and Summary

The case of DPP v Kien involved an elderly offender, aged 82 years, convicted of murder. The dispute centred on the appropriate sentencing for the defendant, who suffered from incipient psychiatric illness. The case was heard in a higher court, which had jurisdiction to review and potentially revise the sentence imposed by the lower court. The defendant's legal team argued that his age, coupled with his psychiatric condition, warranted a lesser sentence than what was originally handed down.

The court was required to determine the appropriate weight to give to the defendant's age and psychiatric condition in the sentencing process. The central legal issue was whether these factors should lead to a reduced sentence, and if so, how much reduction was appropriate. The court also had to consider the principle of general deterrence in sentencing elderly offenders and balance this with the individual circumstances of the defendant.

In its judgment, the court recognised the defendant's age and incipient psychiatric illness as significant mitigating factors. The court acknowledged that elderly offenders often present unique considerations in sentencing, and these factors could warrant a lesser sentence. However, the court also emphasised the need to maintain the integrity of the criminal justice system and ensure that sentences reflect the seriousness of the offence. Ultimately, the court determined that while the defendant's age and psychiatric condition were mitigating factors, they did not warrant a substantial reduction in sentence. The court imposed a sentence that reflected both the mitigating factors and the need for general deterrence.

The final orders of the court included a revision of the original sentence to reflect the considerations outlined above. The defendant was to serve a reduced term of imprisonment, taking into account his age and psychiatric condition, while still ensuring that the sentence maintained the principles of general deterrence and proportionality.

Orders