In the Matter of An Application for Bail BY Sapha Kien
[2010] ACTSC 113
IN THE MATTER OF AN APPLICATION FOR BAIL BY SAPHA KIEN
[2010] ACTSC 113 (17 SEPTEMBER 2010)
BAIL - applicant charged with attempted murder – section 9C Bail Act 1992 (ACT) presumption against bail.
BAIL REVIEW – review of refusal of bail by Chief Magistrate - section 43 of Bail Act 1992 (ACT) change in circumstances or availability of fresh evidence - pleas of guilty, length of time the defendant will spend in custody before commencement of trial and strength of Crown case not considered to be a sufficient change in circumstances or fresh evidence – application for bail dismissed.
Crimes Act 1900 (ACT) ss 12, 19, 27(3)
Bail Act 1992 (ACT) ss 9C, 43
Legislation Act 2001 (ACT) s189
In the matter of an application for bail by Timothy Allen [2009] ACTSC 64,
In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145
EX TEMPORE JUDGEMENT
No. SCC 175 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 17 September 2010
IN THE SUPREME COURT OF THE )
) No. SCC 175 of 2010
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF AN APPLICATION FOR BAIL BY SAPHA KIEN
ORDER
Judge: Refshauge
Date: 3 September 2010
Place: Canberra
THE COURT ORDERS THAT:
Mr Sapha Kien’s application for bail is dismissed.
Sapha Kien has applied for bail. He has been charged with intentionally inflicting grievous bodily harm on the complainant, an offence under s 19 of the Crimes Act 1900 (ACT) which carries a maximum penalty of 15 years imprisonment, and further, that he choked the complainant, so as to render her unconscious, an offence under s 27(3) of the Crimes Act 1900 (ACT) which carries a maximum penalty of 10 years imprisonment. To those charges he has pleaded guilty and is yet to be sentenced. He has also been charged with attempted murder, an offence under s 12 of the Crimes Act 1900 (ACT) which carries a maximum of imprisonment for life to which he has pleaded not guilty.
He applies for bail, having been arrested on 18 February 2010, and having been in custody since that time. He applied for bail to the Chief Magistrate on 5 March 2010 and bail was refused.
The Bail Act 1992 (ACT) applies to this application and, in particular, s 9C provides that in relation to certain offences, a court must not grant bail unless satisfied that special or exceptional circumstances exist favouring the grant of bail. One of those offences is murder, and includes attempted murder, by virtue of s 189 of the Legislation Act 2001 (ACT).
Before embarking on the hearing of the application, I must be satisfied, in terms of s 43 of the Bail Act 1992 (ACT), that there is a significant change of circumstances relevant to the granting of bail, or the availability of fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application in relation to bail.
The change in circumstances that is said to justify embarking on a review of the bail decision is that the applicant has now pleaded guilty to the two charges of choking, so as to render the complainant unconscious, and intentionally inflicting grievous bodily harm. He has pleaded not guilty to the charge of attempted murder, and that now has a provisional trial date of 9 May 2011. All matters have now been committed to this court.
The next question, then, is whether there has been fresh evidence or a change in circumstances, as required in the Bail Act 1992 (ACT).
There is really no fresh evidence of the kind that is contemplated in the Bail Act 1992 (ACT). There is a change in circumstances which includes two matters that are relevant to the question of bail, the first is the time that will elapse before the applicant will face his trial and these matters will be concluded, and the strength of the Crown case.
As to delay, the period of time that he will be in custody up to the commencement of the trial is approximately 15 months. As has been pointed out to me in a number of cases, periods of 15 months and even a little longer have been held by this court not to amount to inordinate delay such as to justify bail of themselves. I refer to the decision In the matter of an application for bail by Timothy Allen [2009] ACTSC 64, and In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145. In those cases also, there was some reference to interstate cases which reinforce that view.
The second aspect of this matter is the question of whether that delay would amount to such a period for which the accused would be likely to be in custody, sentenced to imprisonment, there being then a special and exceptional circumstance, since he would be, prior to sentencing, ultimately spending longer in custody.
Mr Hiscox, who appeared for the Crown, has referred to a number of cases of recklessly inflicting grievous bodily harm. That is a different offence, it is a less severe offence than the charge of intentionally inflicting grievous bodily harm in that it carries a maximum period of only 10 years imprisonment. The sentences that he referred to ranged from six years with a non-parole period, although, including other charges as well of four and a half years, down to periods of 12 months with six months immediate full‑time custody.
It is clear, therefore, that there is a possibility of a sentence that is less than the 15 months that is likely to be spent in custody by the applicant, but I note, first of all, that those were sentences imposed on a less serious offence and it has to be taken into account that there are two offences here, although they occurred at the one time, they were quite different offences. One was the choking by the wrapping of material around the throat of the victim, and the other was bashing her over the head with a chair, which might not necessarily require the sentencing court to impose concurrent sentences. I cannot leave out of account, also, the fact that he has been charged with attempted murder, and that is a very serious offence indeed; along murder itself, the most serious offence in the criminal calendar.
Mr Perkins, who appeared for the defendant, suggested that the case was a weak case. It is true that attempted murder is not always an easy case to prove. Reliance is placed upon admissions, in this case, that were made by the applicant. In the record of interview I note that he said from question 57 in the Record of Interview with police as follows:
Q57: Did you place anything around her neck?
A57: Yes.
Q58: What did you place around her neck?
A58: A towel.
Q59: What colour is the towel?
A59: Pink.
Q60: Pink. What were you doing?
A60: I tried to kill her.
Q61: You tried to kill her?
A61: Yes.
Q62: Why?
A62: Because I can’t stand any more. She tried to kill me too.
Q63: How did you try and kill her?
A63: Mm.
Q64: How did you try and kill her?
A64: I just ...(indistinct)...
Q65:So for the purposes of the conversation you put something around her neck and you showed me that you tightened it.
A65: Mm, but not, not very tight, just like let her, then I stopped.
Q66: Could you see her when you had the towel around her neck?
A66: Yes.
Mr Perkins pointed out that later on it appears he moderated his approach and this was in the context of some further questions:
Q67: Were her eyes open or closed?
A67: Yeah, open.
Q68: Did her eyes close at all?
A68: No.
Q69: So when you said you tried to kill her what happened then?
A69: M’mm.
Q70: Why did you stop?
A70: I stopped because I don’t want to kill her after that.
Q71: Did you think she was already dead?
A71: No, no, she’s still - - -
Q72: How did you know she was alive?
A72: Because she’s still breathing.
It is true that he does say that he changed his mind about killing her, but it appears from the context that a jury could come to the view that that was a later change in his attitude, rather than that at the time when he was putting things around her neck he was not intending to kill her.
I do not consider that it is such a weak case that I should discount the possibility that at trial he may be found guilty of that serious offence, in which case, the likelihood of a sentence of imprisonment that exceeds 15 months is quite on the cards.
It seems to me that in those circumstances, although there has been an early plea to those charges, or a relatively early plea to those charges, to which pleas of guilty have been admitted, and although he has a limited prior criminal history (though I note that in relation to that limited prior history they are breaches of protection orders against the same complainant) that that will not necessarily lead a court to impose a more severe sentence because of the prior history depriving the applicant of appropriate leniency.
It seems to me that it is not at all clear that there is fresh evidence or a change in circumstances that would justify a grant of bail. Even if the matters that were relied on by Mr Perkins did so justify bail, it does not seem to me that they are special and exceptional circumstances to overcome the requirement in s 9C that that be available.
I should mention one other matter that was referred to, and that is the applicant’s ethnicity. He is, as I understand it, a man who comes from Cambodia and it had said in the affidavit in support of his application:
Although he has some useful English speaking skills, he finds it often challenging and confronting residing in a correctional facility where no one else can speak his native tongue.
It is true that when he was interviewed he managed to speak and produce some quite lengthy answers that were quite meaningful, and I give as examples answer 142, answer 131, answer 94 in the Record of Interview and so on. Nevertheless, I note also that at the commencement of the interview he was asked in question 14 whether he would like to communicate with a lawyer and he said:
A14:Yeah, when um, when I go like interview I have to - I need interpreter.
Q15: You need an interpreter?
A15: Yeah.
Q16: Okay. We spoke to you - - -
A16: But I know I need something. I need - - -
Q17:Okay. Your understanding is pretty good at the moment. I don’t have any concerns about your level of interpretation, I can understand you quite clearly.
A17: No, but some words I have to need an interpreter.
Q18:Some words you might need an interpreter. You want to try and contact a lawyer?”
Nevertheless, as I have said, he seemed to understand the questions and it is a matter for the trial judge, ultimately, to determine the effect of that on the admissibility of the record of interview.
Certainly, he has been employed as a taxi driver and, indeed, in the bail application it was said that he wanted to return to work as a taxi driver. I am not sure whether some or all in the community would regard taxi drivers as necessarily having good English, although they do have to interact with the community in quite a significant way.
It is perhaps a hardship for him, but it is not as if he had no means of communication, and he clearly has an ability to speak English. In those circumstances, I do not consider that either of itself or in addition to the other matters that his limited capacity with English would amount to special and exceptional circumstance.
Accordingly, the application is dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 17 September 2010
Counsel for the Prosecution: Mr J Hiscox
Solicitor for the Prosecution: Director of Public Prosecutions (ACT)
Counsel for the Defendant: Mr D Perkins
Solicitor for the Defendant: Darryl Perkins Solicitors
Date of hearing: 3 September 2010
Date of judgment: 17 September 2010
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