Kien v The Queen

[2012] ACTCA 25

SAPHA KIEN v THE QUEEN
[2012] ACTCA 25 (24 May 2012)

APPEAL – In general and right of appeal – Appeal from single Judge of the Supreme Court – Appeal against sentence – Appeal dismissed.

APPEAL – Sentence – Whether sentencing Judge erred in finding offences not provoked –Provocation as mitigating factor – Provocation not available – Appeal ground dismissed.

APPEAL – Sentence – Manifest excess – Single instance of different penalty not usually a legitimate basis for establishing manifest excess – Reference to different offences with same maximum penalty no guide to appropriate range – Sentence proportionate to criminality – Appeal ground dismissed.

CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Intentionally inflicting actual bodily harm – Choking so as to render unconscious – Domestic violence.

Domestic Violence and Protection Orders Act 2001 (ACT), s 29 (repealed)
Domestic Violence and Protection Orders Act 2008 (ACT), s 43
Crimes Act 1900 (ACT), ss 23, 27(3)(a)
Crimes (Sentence Administration) Act 2005 (ACT), ss 110

R v Okutgen (1982) 8 A Crim R 262
R v Campbell [2010] ACTCA 20
R v TW (2011) 6 ACTLR 18

R v Bell [2005] ACTSC 123
R v Bell [2005] NSWCCA 81
George v The Queen [1986] Tas R 49

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 43 of 2011
No. SCC 175A of 2010

Judges:        Refshauge, Burns and Lander JJ
Court of Appeal of the Australian Capital Territory
Date:           24 May 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 43 of 2011
  )          
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 175A of 2010
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

SAPHA KIEN

Appellant

v

THE QUEEN

Respondent

ORDER

Judges:  Refshauge, Burns and Lander JJ
Date:  24 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 43 of 2011
  )          
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 175A of 2010
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

SAPHA KIEN

Appellant

v

THE QUEEN

Respondent

Judges:  Refshauge, Burns and Lander JJ
Date:  24 May 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. Sapha Kien, the appellant, left Vietnam and came to Australia in 1988 when he was 19.  He eventually located himself in the ACT.  He married his wife about twenty years ago, apparently in Vietnam.  They had four children.

1. The marriage became unstable and about four years ago he and his wife separated.

1. The relationship deteriorated further and his wife obtained a domestic violence Protection Order under Domestic Violence and Protection Orders Act 2001 (ACT)

   
   

   s 29 (repealed, see: Domestic Violence and Protection Orders Act 2008 (ACT), s 43).

1. Mr Kien contravened that Order on two occasions in 2007 and 2009.  On 18 February 2010, he went to the family home…