R v Hua Chin Luong
[2001] VSC 124
•30 April 2001
| SUPREME COURT OF VICTORIA | Not Restricted | |
| CRIMINAL DIVISION | ||
No. 1480 of 2000
| THE QUEEN |
| v |
| HUA CHIN LUONG |
---
JUDGE: | Kellam J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 16 and 17 October 2000; 10 January, 12 February, 20 and 29 March 2001 |
DATE OF SENTENCE: | 30 April 2001 |
CASE MAY BE CITED AS: | R v Hua Chin Luong |
MEDIUM NEUTRAL CITATION: | [2001] VSC 124 Revised 18 May 2001 |
---
Criminal Law – Sentencing – Intentionally cause serious injury – Relevance of offender's psychiatric condition – Sentencing Act 1991, s.93.
---
APPEARANCES: | Counsel | Solicitors |
For the Prosecution | Mr C.J. Ryan | Office of Public Prosecutions |
| For the Accused | Mr A.R. Lewis | Access Lawyers |
| For the Applicant for a Compensation order pursuant to s.86 of the Sentencing Act 1991. | Mr J. Conquest | Secombs |
HIS HONOUR:
You, Hua Chin Luong, have pleaded guilty before me to one count of intentionally causing serious injury, one count of reckless conduct endangering a person, and one count of arson. The count of intentionally causing serious injury has a maximum penalty of 20 years' imprisonment. The count of reckless conduct endangering a person carries a maximum penalty of five years' imprisonment. Arson has a maximum penalty of ten years' imprisonment.
Each of these offences occurred on 7 August 1999. For some period of time prior to that date you had been the organiser of a money lending scheme known as an "hui." An hui is a savings and credit arrangement which is in common usage in the Asian community in Australia. The hui system operates with a minimum of 12 players, each of whom agrees to contribute regularly shares of an agreed amount at meetings held on a fortnightly or monthly basis over a period of one to two years.
The participants take turns in borrowing the total pool. This somewhat complicated arrangement requires no further explanation here, but I accept that an hui operates on trust and that any breach in trust results in communal ostracism of the person responsible for such a breach. The organiser of an hui is responsible to each participant and is responsible for ensuring that the hui remains solvent. I accept that you, the organiser of the hui in this case, had a burden of responsibility which you regarded very seriously and which would result in a loss of face in your community if not fully discharged.
The hui which you organised involved some 46 shares available to participants at a cost of $500 per share. One participant in the hui which you organised was Loan Do. She was the wife of your principal victim, Loc Nguyen.
In the days leading up to 7 August 1999 a dispute had arisen between you and Ms Do about the hui. Ms Do had two shares in the hui which she had purchased for $500 each and had taken out her entitlement to two loans from the fund of the hui.
You held a belief that she had received more than her entitlement. It is not clear from the material before me whether you believed she was entitled to only one share and that she had taken two loans, or whether she was entitled to two shares and had taken three loans. What is clear is that you held a view that Ms Do had received more than that to which she was entitled.
In the course of a telephone conversation between you and Ms Do, an arrangement was made for her to attend at your business premises, a shop situated in Lightwood Road, Noble Park on Saturday 7 August 1999. On that date, Mr Nguyen drove with his wife, Ms Do to your premises in a Mercedes motor car which was owned by Mr Nguyen's brother. Upon arrival at your premises, Mr Nguyen angle-parked the Mercedes in Lightwood Road, outside your shop. Mr Nguyen and Ms Do then entered the premises and a discussion ensued between them and you. In the course of that discussion Mr Nguyen said that it was not possible to resolve the dispute between you and Ms Do without your wife and daughter-in-law, who were responsible for collecting the contributions to the hui, being present.
Mr Nguyen asked you to show him the book that you kept for recording the transactions in the hui. You told him that you did not have such a book. Thereafter you became angry and abusive.
Upon your doing so, Mr Nguyen left your shop and returned to the Mercedes car which was parked outside. Shortly thereafter his wife, Ms Do left, and also returned to the car. Subsequent to that, you came out of your shop with a tin of petrol which you threw at the windscreen of the Mercedes, causing petrol to be splashed over it. You then picked up the tin of petrol and went to the driver's side window and poured petrol over Mr Nguyen and then set him alight with a cigarette lighter. It is this event which forms the factual background to Count 1.
In the course of the commission of the crime, the subject of Count 1, Ms Do, who was seated in the passenger seat of the car, suffered burns. The circumstances under which these injuries occurred, form the basis of the factual background to Count 2.
The Mercedes motor car was destroyed in the fire and that damage and the circumstances under which it occurred, form the factual background to Count 3.
In the course of these events taking place, your clothes became alight and you suffered serious injuries which resulted in you being admitted to the Alfred Hospital between 7 August 1999 and 28 October 1999.
Your victim, Mr Nguyen, also suffered serious injuries indeed. Mr Nguyen, upon admission to the Alfred Hospital was found to be suffering from 30 per cent partial thickness burns to the right side of the face and neck, left hand, right hand, abdomen, right leg and 50 per cent of the left leg.
In addition he was found to be suffering from internal burns consequent upon inhalation. The nature of the injuries in question are depicted graphically in the photographs which were taken of Mr Nguyen on 15 September 1999 and which are annexed to the depositions.
The injuries suffered by Ms Do were minor burns to both her hands and left cheek, which did not necessitate in-patient hospital care.
The pain and suffering which your crime has caused Mr Nguyen is of a high order. He was at first an in-patient between 7 August and 13 October 1999. Upon admission to the Alfred Hospital, he required intubation and ventilatory support. He required naso-gastric feeding and multiple blood transfusions. He had four separate plastic surgery procedures undertaken during his first period of hospitalisation. Subsequently he was re-admitted between 6 November 1999 and 19 November 1999, suffering from pneumonia and he was again admitted between 1 December 1999 and 6 December 1999 and between 8 December 1999 and 5 January 2000 in relation to complications associated with his severe injuries.
He remains severely scarred and must avoid exposure to excessive heat and to sunlight. Prior to the crime he was employed as a baker. He has been unable to return to that work since the date of the crime although he may be able to work in the future, if suitable employment can be found for him.
The victim impact statement filed by Mr Nguyen describes in detail the financial, physical and psychological consequences of your attack upon him. The crime of intentionally causing serious injury is a most serious crime, as the maximum penalty imposed by Parliament reflects. The injuries sustained by Mr Nguyen are severe indeed and will have a significant affect upon him for the rest of his life. The infliction of such injuries by dousing your victim with petrol and then setting him alight is an act of such callousness that the circumstances of this crime must be regarded as grave indeed.
There are, however, a number of matters of mitigation. The first is that you have pleaded guilty to the counts on the presentment. I am required by the law to have regard to have that fact and I do so in your favour. By your plea you have relieved the community of the cost of a trial. More importantly, in my view, your victims, and particularly Mr Nguyen, do not now have to incur the trauma, the stress and the unhappiness of reliving their terrible and frightening experience at your hands in the course of giving evidence against you in a trial.
I accept that your attack upon your victims was not the subject of any detailed planning, and that it occurred in consequence of your considerable anger with Mr Nguyen and Ms Do over your perception that Ms Do had exceeded her entitlement from the hui and that the resultant deficiency would cause you loss of face.
You told Dr Lester Walton, a psychiatrist who examined you for the purposes of your plea in September 2000 that, and I quote: "I can't remember all of it, I was angry. That person kept scalding me. I got so upset, I pick up the petrol and pour it to burn it and myself as well." In response to questions from Dr Walton as to why you set the motor vehicle alight, you said: "I want to burn everything. I was so upset, I just want to burn everything."
While I accept that your crime was conducted in anger and without premeditation, it is apparent that sufficient time elapsed between the argument and your obtaining the petrol and the container and the commission of these crimes for you to have reflected upon the likely frightful consequences, had you seen fit to do so. You said to Dr Walton, "If I want to burn him, I would burn him easily. I just want to burn the car and myself. I didn't want to kill him, I was furious. I didn't know what I was doing, except I want to burn myself." As Dr Walton commented in his report, you gave Dr Walton a contradictory account in terms of whether you intended any damage to the motor vehicle or to the victim. Your plea, of course, recognises, as indeed the facts establish, that you did intend to cause serious injury to your victim, Mr Nguyen, and that you intended to cause damage to the motor car.
Dr Walton was told by you that at the time of the incident you were motivated towards suicide by way of self-immolation. Dr Walton formed the view that your suicide attempt was genuine and determined. Although your son Peter Luong gave evidence in the course of your plea that he saw you pour petrol upon yourself, which evidence is in my view highly equivocal, there is otherwise little, if any, evidence to support the proposition that these events took place as part of a desire by you to commit suicide by self-immolation.
Rather, what the established facts demonstrate in my mind is that you were so incapable of controlling your rage that in the course of your execution of your intention to cause serious injury to Mr Nguyen and to burn the motor car, you were indifferent as to what consequences might befall you.
As is clear from the material before me, those consequences were substantial. Although I do not have the benefit as I did with Mr Nguyen, of having photographs of your injuries, it is apparent from the hospital file tendered before me that you sustained burns to 50 per cent of your body, some of which burns were full thickness.
Like your victim, you were admitted to the Alfred Hospital for a substantial period, and you were an in-patient in that hospital from the date of the offence until your discharge on 28 October 1999.
This might take me somewhat longer. I think it might be more convenient if you be seated Mr Luong and if, Madam Interpreter, you be seated also.
I have been told something of your personal history and your circumstances. You are aged 55 years having been born on 4 May 1945. You were born in Cambodia. You are the sixth child in a family of 14 siblings. In the 1970's and because of food shortages in Cambodia, your parents and nine siblings died of acute malnutrition and unknown disease. You have provided a history that your mother and four of your siblings were killed in the civil war which engulfed Cambodia during those harrowing times.
In 1972 you and your remaining four siblings left Cambodia for Vietnam. In 1975 you married a Vietnamese woman and in the ensuing four years, you had three children. At that time you assisted your wife in a business selling material at a local market.
However the years after the fall of South Vietnam in 1975 were years of uncertainty and persecution for you because of your Chinese ethnic minority and in 1978 you and others attempted to leave Vietnam on a small fishing boat. This attempt failed and you were captured and imprisoned for a period of seven months. During your time of imprisonment you were compelled to undertake hard labour, digging irrigation canals seven days a week, ten hours a day. You were assaulted and tortured repeatedly during this period of time. It appears that your term of imprisonment came to an end after your wife paid a large sum of money to the local authority in exchange for your release.
In November 1978 and whilst you were in custody, your daughter, Li Sui, died of Malaria. Subsequently your oldest child, a son, named Si Linh was abducted without a trace. Six months later, your third child, Si Minh died.
In 1980 and unable to sustain the ongoing harassment by the local authorities, you decided to leave Vietnam and undertake the dangerous voyage through Phnom Penh to the Thai border. I accept that this journey was one of great fear, sorrow and deprivation for you.
You were admitted to a refugee camp in Thailand and shortly thereafter, your wife gave birth to another child, Peter Luong. You were permitted entry to Australia in 1982 and subsequently another child, Jenny Luong was born in Australia.
Soon after your arrival in Australia, you obtained full-time employment with a local manufacturer, and you remained employed until 1989 when you opened your own clothing business in Springvale. About this time you became involved in the hui system of borrowing from friends and relatives with a fixed repayment and low interest arrangement.
Residence in Australia did not, however, bring a peaceful family life to you. In 1991 you received news of the whereabouts of your son, Si Linh, who had been abducted in 1979, and you then travelled to Vietnam, where you became reunited with him. Regrettably, the joy of this reunion was short-lived, your son having adopted, no doubt largely out of necessity, the lifestyle of a petty thief, which lifestyle he was unable to alter upon arrival in Australia. You are now estranged from him.
Your daughter Jenny, who had been born in Australia, became a heroin addict, and this caused you much grief. Shortly before the incident which brings you before this court, your daughter Jenny had told you that she would like to return to Vietnam to participate in a heroin withdrawal program. You agreed, on the condition that your daughter travel with her mother to Vietnam. Jenny agreed to this at that time but then apparently disappeared. This caused you grave unhappiness, and I accept that you were depressed, withdrawn and socially isolated in the days leading up to the commission of your offence.
You have no prior convictions and I sentence you as a person of previously good character. Evidence was led before me on your behalf. Mr Hess, a lecturer at RMIT University, who has been employed as a senior social worker and director of the Cambodian Community Welfare Centre, gave evidence before me about the horrific privations which you had described to him in the course of your life in Cambodia and in Vietnam during the 1970s and the early 1980s. He told me of the grief and the loss of face you suffered because of the failure of your relationship with your son after you brought him to Australia, and of the fact that your daughter Jenny became involved as a heroin addict.
Your son Peter Luong, as I have said, gave evidence before me. He said that he had seen you change since the incident and that he had seen you crying, which he said was uncommon for you. Mr Farad Melham gave evidence that he had dealt with you in the clothing trade between approximately 1994 and 1999, and that he had always found you to be most trustworthy and honest in business.
Mr Broderick came from South Australia to give evidence before me to the effect that he had sponsored a number of Cambodian and Vietnamese families in Australia, one of which was your family. He gave evidence that you were an extremely hard working man and that he found you to be honourable in the extreme.
Your brother-in-law, Mr Thanh Phuoc Hinh, also gave evidence before me, and in particular gave evidence about your honesty, hard work, and the difficulties that your relationship with your children had caused you.
Irene Athanasidis, a real estate agent, gave evidence that she had had business dealings with you and that she had found you to be reliable and trustworthy.
In addition to the above persons who gave evidence before me about your personal life, I heard evidence from Dr Christopher Wong, a psychologist, who saw you at the request of your solicitors on 22 May 2000 for the purposes of making a psychological assessment. A report of Dr Wong, dated 23 May 2000, was tendered before me. Dr Wong speaks Vietnamese and his interview with you in the course of his psychological assessment was undertaken in that language.
Dr Wong obtained a detailed history from you, particularly in relation to the privation suffered by you in the years leading up to your immigration to Australia. He formed the opinion that at the time of his examination you were suffering from a high level of anxiety and that your level of depression was particularly noteworthy.
At that time he believed you were under an extreme risk of suicide. He also concluded that the symptoms of your post-traumatic disorder were consistent with the nature and severity of the trauma you had experienced in Cambodia and Vietnam. He considered that at the time of his examination in May 2000, your condition required antidepressant medication to prevent it from further deteriorating.
In addition to making arrangements for you to be the subject of a psychological assessment by Dr Wong, your instructing solicitors arranged for you to be seen by a consultant psychiatrist, Dr Walton. Dr Walton gave evidence before me on the first day of your plea and a report dated 20 September 2000 was tendered before me. Dr Walton concluded at the time of his examination, that you have over recent years suffered from a chronic post-traumatic stress disorder in parallel with a major depressive disorder. He considered at that time that you were in a state of suicidal despair and he noted that you had received no psychiatric treatment. He considered that you required the urgent introduction of antidepressant medication. He expressed the opinion that it would be appropriate for you to undergo psychiatric hospitalisation by way of a hospital order pursuant to the provisions of the Sentencing Act.
In consequence of the opinions expressed by both Dr Wong and Dr Walton, your counsel Mr Lewis on the occasion of your plea on 17 October 2000 submitted that the appropriate sentencing disposition was for a hospital order to be made pursuant to the provisions of Part 5 of the Sentencing Act 1991.
In consequence of that submission and because of the opinion of both Dr Wong and Dr Walton that you appeared to be mentally ill and may have required treatment for your illness and by reason of the opinion of Dr Walton that such treatment could be obtained by admission to and detention in an approved Mental Health Service, I decided that it was appropriate for me to arrange to have you assessed by the Thomas Embling Hospital.
The purpose of the assessment was to consider and establish whether or not the authorised psychiatrist or his nominee considered it appropriate for you to be admitted and if in consequence it was appropriate for me to give consideration to the making of a hospital order pursuant to s.93 of the Sentencing Act as was submitted by your counsel.
Regrettably what followed became a convoluted and lengthy process through no fault of any person. In consequence of the evidence put before me and of the submission made to me on 17 October 2000 by Mr Lewis, I ordered, pursuant to s.96 of the Sentencing Act that a pre-sentence psychiatric report be obtained from the authorised psychiatrist, Dr Bell.
My Associate contacted Dr Bell by telephone and a copy of the transcript of the plea, together with the medical reports which were tendered and a copy of the Crown summary were provided to him. The matter was then adjourned to a date to be fixed.
Early in December 2000, my Associate was advised that you had been admitted to the Thomas Embling Hospital and were under the care of Dr Henrietta Bullard, a consultant psychiatrist attached to the Thomas Embling Hospital. I requested through my Associate that Dr Bullard provide a report as soon as possible. A report dated 12 December 2000 was faxed to my Associate on 13 December 2000 and a copy of that document was made available to the prosecution and to your counsel shortly thereafter.
Arrangements were then made for the plea to recommence on 10 January 2001. Regrettably on that occasion, Dr Walton was unable to attend and as your counsel, Mr Lewis, wished to call him to give evidence, in response to the report of Dr Bullard, the matter was further adjourned to 12 February 2001. On that day Dr Bullard gave evidence and was cross-examined. Regrettably, however, Dr Walton was unable to attend to give evidence that day because of illness and the matter was further adjourned to a date to be fixed, so that Dr Walton could give evidence on your behalf. The date fixed for further plea in the end result was 20 March 2001. The plea was unable to proceed on that date because you were unwell and accordingly, it was further adjourned to 29 March 2001 when Dr Walton was called to give further evidence on your behalf.
In the meantime, the authorised psychiatrist, Dr Bell, provided a further report dated 19 March 2001.
There is a clear difference of psychiatric opinion between Dr Walton and Dr Bullard. Dr Bullard did not consider that you were suffering from a depressive illness, nor did she believe that you had any symptoms of post-traumatic stress disorder at the time of her examinations of you. Dr Walton, having considered the report of Dr Bullard and having re-examined you, maintained his opinion that you suffered from depression and from post-traumatic stress disorder.
The history of your admissions to the Thomas Embling Hospital over the period since your original plea, is as follows:
You were admitted to an acute ward of the Thomas Embling Hospital on 12 December 2000, after you had been examined in the Melbourne Assessment Prison by Professor Mullin. At that time Professor Mullin noted that you were suffering from feelings of hopelessness, guilt and worthlessness, severe sleep disturbance and that you were threatening to commit suicide. You came under the care of Dr Bullard. You were prescribed antidepressant medication by the Medical Officer at the Melbourne Assessment Prison, which medication was continued at the Thomas Embling Hospital after your admission.
You were discharged from the Thomas Embling Hospital back to the Melbourne Assessment Prison on 19 December 2000. Subsequently on 5 March 2001 you were readmitted to the Thomas Embling Hospital under the care of Dr Bell, the authorised psychiatrist appointed under the Mental Health Act of the Victorian Institute of Forensic Mental Health. Dr Bell in his report provided to the court, and dated 19 March 2001, stated that he had reviewed all the psychiatric reports which had been put before the court. He had, of course, the opportunity to consider the material which had been built up on the Thomas Embling Hospital file and he had examined you with the assistance of a professional interpreter on 7 March and 19 March 2001.
As to the differing opinions of Dr Bullard and Dr Walton, he stated as follows:
"In essense, there is some divergence of view between Dr Bullard and the defence expert witnesses in that Dr Bullard concludes there was no evidence that Mr Luong was suffering from a depressive illness and did not describe symptoms of post-traumatic stress disorder. She did, however, give I believe an appropriate account of his personality style, which is helpful in understanding his offending. I have, however, come also to the conclusion that Mr Luong, whilst not showing any evidence of a major depressive or psychotic illness, does indeed have symptoms suggestive of post-traumatic stress disorder, referrable to traumatic experiences whilst he was living in Cambodia."
Dr Bell concluded that there was a degree of internal consistency about the account given by you of your suffering in Vietnam and Cambodia. He noted that you described longstanding symptoms that could be reasonably categorised as re‑experiencing phenomena; for example, nightmares of dismembered hands, decapitated heads, your dead siblings, and similar things. He said that you were a sad and traumatised man, with a history of symptoms suggestive of post-traumatic stress disorder. He said that you readily acknowledged that you had a volatile temper over the years, the origins of which are to a significant extent derived from your personality style, but to some extent are aggravated by the symptoms of post-traumatic stress disorder.
Dr Bell concluded that your psychological difficulties are longstanding and not of a nature that would normally be managed in an in-patient setting and would certainly not qualify you for prolonged hospital in-patient care if you were in mainstream psychiatric services. He said that the main aims of your admission in November 2000 and in March of 2001 were firstly to exclude any other major mental disorder; and secondly, to provide you with psychological intervention.
He said that upon your return to the prison system you would continue to receive psychiatric care and treatment, as appropriate, through prison based psychiatric services. He said there was no indication for a disposition by means of a hospital order, or security hospital order under the Sentencing Act 1991. He said that you would continue to receive anti-depressant medication, and that those medications could be readily administered within the context of prison once you were discharged from the Thomas Embling Hospital. In the end result, and although Dr Walton is of the opinion that you should be the subject of a hospital order, I am satisfied that the opinion of Dr Bell is otherwise generally consistent with that of Dr Walton and is soundly based.
Dr Bell had an opportunity as the authorised psychiatrist to consider your circumstances in an in-patient setting. I accept his opinion that you have suffered and continue to suffer symptoms of post-traumatic stress disorder which relate to the dreadful experiences had by you in Vietnam and Cambodia, and furthermore that you suffer from depression, but which does not extend to a diagnosis of a major depressive syndrome.
I further accept Dr Bell's statement that there is no current evidence of major mood disturbance, nor of a psychotic illness. Accordingly, the principal thrust of the plea made on your behalf that you should be the subject of a hospital order pursuant to s.93 of the Sentencing Act cannot be maintained, because the authorised psychiatrist appointed under the Mental Health Act does not propose to certify that you should be admitted to a mental health service for the purposes of such an order.
Notwithstanding that there is no basis upon which I may make a hospital order, your counsel Mr Lewis submits that your psychiatric condition is nevertheless most relevant to the issue of sentencing. In particular he submits that your psychiatric illness is such that you are not an appropriate vehicle for the issue of general deterrence to play any significant part in your sentence.
He relies upon the principles set out in the R v. Tsiaras [1996] 1 V.R. 398.
However, as Acting Chief Justice Winneke said in R v. Yaldiz (1998) 2 V.R. 376 at 383:
"It is not appropriate to simply fasten onto the words, 'recognised psychiatric disorder', and then without reference to the symptoms and consequences of that disorder to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused."
The evidence before me establishes that you have suffered from symptoms of post-traumatic stress disorder referable to traumatic experiences whilst you were living in Cambodia and Vietnam.
You reported to Dr Bell symptoms which he concluded were minor depressive symptoms, fluctuating over the years, such as feelings of sadness and difficulty with sleep and appetite. Dr Bell did not conclude that these symptoms amounted to a major depressive syndrome. Dr Bell examined you on 7 March 2001 and on 19 March 2001 and on those occasions, said there was no evidence of major mood disturbance, nor of a psychotic illness.
It should be noted that Dr Walton examined you on 19 September 2000 and on 7 February 2001. On the first occasion of his examination, you were not in receipt of any psychiatric treatment. You were, of course, in receipt of active psychiatric treatment by the time he re-examined you on a second occasion at the Melbourne Assessment Prison.
On the occasion of the first examination, Dr Walton concluded that you were suffering from a major depressive disorder at that time. There was, however, no evidence of psychotic disturbance on either occasion of examination by Dr Walton.
When you were re-examined by Dr Walton on 7 February 2001 he observed that there had been improvement in your psychiatric symptoms with the psychiatric treatment and in particular the medication you were receiving.
Although I accordingly accept the evidence of Dr Bell and Dr Walton that you have suffered from post-traumatic stress disorder for a considerable period of time and that you have been depressed to a significant degree in recent times, there is little or no evidence that these conditions have interfered with your thought processes or have promoted delusional behaviour.
In my view, the psychiatric evidence put before me is not such that it can be said that it is appropriate to substantially reduce or eliminate general deterrence as an appropriate purpose of punishment in your case. The issue of general deterrence remains important in this case. Those who see fit to attempt to resolve disputes by violence must know that the courts and the community regard such behaviour as intolerable.
That said, however, I accept that there are other matters which arise in your particular circumstances, which are relevant to mitigation of your sentence.
I accept that your psychiatric condition may well require long-term pharmaco-therapy and that there is a possibility of necessity for future psychiatric intervention both of which factors may have a consequence upon where you serve much of your prison sentence.
I accept that your limited command of English and your age and previous life experience may make your term of imprisonment more isolated for you than for others and that furthermore your psychological condition may mean that your sentence will weigh more heavily upon you, than upon a person in good psychological health.
Although there is no evidence before me that you suffer from overwhelming remorse, I accept that the personal consequences of your own injuries are such that special deterrence is no longer an issue of high importance.
Nevertheless it is apparent to me that in the circumstances of the crime before me, there is no alternative, other than to impose a term of imprisonment upon you.
Accordingly I convict you and sentence you on Count 1 to six years' imprisonment. On Count 2 I convict you and sentence you to six months' imprisonment. On Count 3 I convict you and sentence you to three months' imprisonment. I order that you not be eligible for parole before you have served four years of such sentence.
I declare pursuant to s.18 of the Sentencing Act that the time you have already spent in custody is 196 days.
The prosecution has made application for the taking of a forensic sample, pursuant to s.464ZF of the Crimes Act 1958. Notwithstanding your consent to such procedure, I must be satisfied that in all the circumstances, that the making of the order is justified and I must also give reasons for my decision.
I propose to make the order sought for the taking of a sample of saliva pursuant to s.464ZF of the Act. I am satisfied that such an order is justified in all the circumstances, taking into account the seriousness of your crime and its violent nature and in addition, your consent to such an order. Furthermore I consider it in the public interest that such an order should be made.
I direct that a copy of the order and a copy of these reasons be served upon you within 28 days of today's date.
I am required to inform you Mr Luong, that a member of the Police Force may use reasonable force to enable the procedure of the taking of such a forensic sample to be conducted.
I grant a certificate under s.17 of the Appeal Costs Act 1998 in relation to the costs incurred on your behalf in respect of the hearing of the plea fixed for 20 March 2001 which was adjourned by reason of your illness and through no fault of yours or those advising you.
I turn now to the issue of applications made for orders for compensation against you. The first such application involves an application by R.A.C.V. Insurance for an order compensating it for the destruction of the Mercedes motor car in consequence of your conviction of the arson, the subject of Count 3. I was informed by your counsel that you do not oppose the making of such an order and I accordingly order pursuant to s.86(1) of the Sentencing Act that you pay R.A.C.V. Insurance the sum of $18,568 in compensation.
The second claim for compensation is made by your victim, Loc Hua Paul Nguyen in consequence of your conviction upon Count 1. That application was made pursuant to s.86(1) of the Sentencing Act, as it was at the time of the making of the application. However, s.86(1) of the Sentencing Act was amended by s.21 of the Victims of Crimes Assistance Amendment Act 2000 which came into effect on 1 January 2001.
The transitional provisions inserted by that amending Act in s.123 of the Sentencing Act provide that the amendments apply to an application under s.86 of that Act for compensation for pain and suffering made before the commencement of the amendments, but heard or determined after that commencement, irrespective of when the offence was committed, or the finding of guilt made or the conviction recorded.
In the course of the preparation of this sentence I found that the amendments in question had come into effect in the above terms between the date of the application and the date of this sentence and accordingly last week, I requested my Associate to be in touch with the parties, seeking whether they sought to make any further submissions in consequence of such amendments. My Associate was advised this morning by the solicitors for Mr Nguyen that they did not wish to make any further submissions.
Accordingly the only application made by Mr Nguyen for compensation is for an order for compensation for pain and suffering. As I have said in the course of giving reasons for your sentence, the pain and suffering caused to Mr Nguyen by your crime, is of a high order He has extensive scarring which will remain with him for the rest of his life. He has suffered significant pain, grief, distress and trauma in consequence of his injuries and as his victim impact statement makes clear, his emotional response including loss of self-esteem, is of a significant order.
It should be noted that both under s.86(2) of the Sentencing Act and under s.85H of the Amended Act, the court may, in determining the amount and method of payment of a compensation order, take into account, as far as practicable the financial circumstances of the offender and the nature of the burden that its payment will impose.
An order for compensation pursuant to the provisions of the Sentencing Act before its amendment in January of this year, presented a number of difficulties, most of which were referred to by Cummins J in Gregory and Stawenga v. Gregory [2000] V.S.C. 190. In the course of that decision, His Honour expressed concern that the vagueness of the legislation provided little guidance for those who are obliged to interpret it, and as to how one might balance the principles of rehabilitation with the fulfilment of the rights of the victim. His Honour referred to the difficulty of awarding compensation in accordance with the means to pay. The amendments which came into effect on 1 January this year, appear to have done little to assist in this regard. The evidence before me in relation to the financial circumstances of the offender and the nature of the burden payment of an order for compensation will impose upon him, is limited. The submission of Mr Lewis on your behalf in relation to this matter, was put on the basis that although Mr Lewis did not resist such an order, you were a person of very limited means.
There was evidence that Mr Peter Luong sold the business operated by you to an Aunty Katrina, for $15,000. (See pp.44, 45 of the transcript.) However there is no evidence before me that you have substantial means. A court is not, however, prevented from making a compensation order, by reason of inability to establish the financial means of the offender.
I accept that notwithstanding the many difficulties created by the legislation, the Act does intend that any award, being an award of compensation and not of punishment, proceeds according to common law criteria, subject of course, to the provision of the Act dealing with impecuniosity of the offender as being a relevant factor.
Doing the best that I can in the unsatisfactory circumstances of the evidence before me, I conclude that an appropriate compensation order is in the sum of $100,000. There is not an evidentiary basis upon which I might make orders as to payment by instalments and I accordingly decline to do so. On the evidence before me, it appears highly speculative as to whether such an order will be capable of enforcement at all, leave aside by payment of instalments.
Are there any issues I should deal with before I order the removal of the prisoner?
MR RYAN:Only Your Honour did make a disposal order.
HIS HONOUR: I signed that on the previous occasion.
MR RYAN:Thank you, Your Honour.
HIS HONOUR: And that was dated the date that the order was made. Nothing else?
MR LEWIS:Your Honour just one small thing. In relation to the DNA sample, could I ask that that be done by way of a saliva sample, Your Honour?
HIS HONOUR: That is the order that I have made. I made the order specifically dealing with saliva, I have not made an order as to blood.
MR LEWIS:Thank you, Your Honour.
HIS HONOUR: And the signed order will reflect that.
MR LEWIS:Thank you, Your Honour.
HIS HONOUR: Yes, remove the prisoner. Mr Lewis would you express my appreciation to the interpreter, I think that was an onerous task for her.
MR LEWIS:I shall, sir.
---
0
0
0