R v Ho

[2004] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v HO

Reasons for Sentence of His Honour Judge Lunn

24 September 2004

CRIMINAL LAW

Previously found not guilty of sacrilege, attempted arson and damaging property by reason of mental incompetence - limiting term fixed of 3 years - release ordered on licence on conditions.

R v HO
[2004] SADC 130

Judge Lunn
Criminal

REASONS FOR SENTENCE

1. Tam Quang Ho was charged on Information in this Court with one count of Sacrilege contrary to s167(a) of the Criminal Law Consolidation Act (“the Act”), one count of Attempted Arson contrary to ss85(1) and 270A of the Act and one count of Damaging Property contrary to s85(3) of the Act. Each of the counts alleged property damage, or potential damage, exceeding $30,000.

2. On 1 April 2004 another Judge conducted an investigation under Part 8A of the Act into the mental competence of Ho to commit each of the offences charged. After considering a number of medical reports, that Judge, with the consent of all counsel, found that Ho was mentally incompetent to have committed the offences in each of the three counts. By consent, the Court found that the objective elements of each of the offences was established beyond reasonable doubt. The Judge then found Ho not guilty of each of the three counts by reason of mental incompetence and made an order under s269O of the Act that Ho be liable to supervision. That Judge then retired and the matter came to me to fix a limiting term and to order any release on licence under Division 4 of Part 8A.

3. On 26 June 2003, Ho entered the United Vietnamese Buddhist Temple at Pennington.  He was in a mentally confused state, but he was not then under the influence of drugs.  Inside the Temple he pushed over and damaged a large statue of Buddha and broke various vases and glassware and damaged other property.  He lit four fires which damaged carpets and doors in the building, but they were extinguished before they did any major damage.  Police apprehended Ho in the Temple while he was still lighting fires.  He has been in custody ever since on these matters.

4. Under ss269Q and 269T(2) of the Act I have various psychiatric reports from Dr Raeside, Dr Czechowicz, Dr Begg and Dr Nambiar, whose contents I have taken into account.

5. I have a report of 21 May 2004 under s269R of the Act from the Abbots in charge of the Temple and Ho’s sister. The cost of replacing the property damaged through the offences was $315,000. However, the Temple was grossly under insured and it was necessary for Buddhist Societies from other parts of the world to contribute $245,000 to enable the damage to be made good. This reparation did not derive in any way from Ho and presumably much of the donations would have gone to other worthwhile causes if they had not been needed to make good the damage here. The Abbots in charge of the Temple regarded Ho’s sacrilegious acts as very hurtful to the Buddhist community in Adelaide, but they have forgiven Ho. The Buddhist community want some form of retribution against Ho.

6. Ho is 36 years of age and single.  He came to Australia at the age of 17 as a refugee from Vietnam.  He had an unstable childhood and horrific experiences in Vietnam, including a bashing from police which is likely to have resulted in moderate long‑term brain damage.  Prior to the offences he had suffered for some years from chronic paranoid schizophrenia with a personality trait disorder and poly drug abuse which had not been diagnosed or treated.  He had been a regular user of heroin and cannabis which probably exacerbated his mental condition.  He has responded well to psychiatric treatment while in custody and is now mentally well enough to be released into the community provided appropriate accommodation can be found for him.

7. The offence of sacrilege is serious and carries a maximum penalty of life imprisonment. It was agreed that a single limiting term should be imposed in respect of all offences under s269O(2) of the Act.

8. Under s269O(2) of the Act a limiting term is to be fixed that would be the equivalent of the period of imprisonment that would have been appropriate if Ho had been convicted of the offences. No discount on the sentence is to be granted for any equivalent of a plea of guilty: R v Mitchell (1999) 108 A Crim R 85. I take into account Ho’s remorse and contrition and that his previous offending had been relatively minor. A limiting term cannot be backdated.

9. A limiting term is fixed under s269O(2) of the Act of three years.

10. Detailed minutes of order have been presented relating to the terms upon which Ho is to be released on licence. In imposing these terms I have regard to s269S of the Act. I have imposed a condition that Ho should obey all lawful directions of his Community Corrections Officer as to his associates as it is important that he should not mix with people who might seek to influence him again to use illicit drugs.