R v Pham
[2008] VSC 120
•21 April 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1652 of 2008
| THE QUEEN |
| v |
| CUONG HUY PHAM |
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JUDGE: | COGHLAN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 APRIL 2008 | |
DATE OF JUDGMENT: | 21 APRIL 2008 | |
CASE MAY BE CITED AS: | R v PHAM | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 120 | |
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Criminal Law – One count of murder - Mental Impairment – s. 21(4) Crimes (Mental Impairment and Unfitness to be Tried) Act1997 – Trial by judge – Directed verdict of not guilty by reason of mental impairment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.J.C. Silbert SC | Ms A. Cannon Solicitor for Office of Public Prosecutions |
| For the Applicant | Mr P.J. Morrissey | Slades and Parsons |
HIS HONOUR:
Today, 21 April 2008, Cuong Pham pleaded not guilty to the murder of Zorka Sipovac. The matter proceeded before me as a hearing pursuant to s.21(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”). This provision allows the trial judge to determine whether a person charged with an indictable offence was suffering from mental impairment at the time the conduct constituting the offence occurred.
A prerequisite to the judge’s role in hearing such a case without a jury is the agreement of the prosecution and defence that the proposed evidence establishes the defence of mental impairment.[1]
[1]See s.21(4) of the Act.
Mental impairment is defined in s.20(1) of the Act in these terms:
20 Defence of mental impairment
(1)The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—
(a)he or she did not know the nature and quality of the conduct; or
(b)he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
Sub-section (2) of s.20 provides:
(2)If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
As it is the second limb of the definition of mental impairment that the Court is concerned with in this case, if the trial judge is satisfied on the balance of probabilities that the person charged with the offence was suffering from mental impairment at the relevant time, a verdict of not guilty because of mental impairment may be recorded. If the trial judge is not so satisfied, an order that the charge be heard by a jury must be made.
The facts surrounding this incident have been deposed to by the informant, Detective Sergeant Michael Engel and are contained in the depositional material and they may be briefly stated. They are a précis of the summary read by the Chief Crown Prosecutor who appeared for the Crown.[2]
[2]The summary was tendered as Exhibit 1.
The accused was born on 7 September 1974 in Vietnam. He migrated to Australia in 1993. When he arrived in Australia he lived with his cousin Loan Pham and Loan Pham’s aunt in Springvale.
The accused became involved in the illicit drug trade around Springvale. He became addicted to heroin and later formed an addiction to methylamphetamine (“ice”). He was still addicted to that drug at the time of these events.
In 2002 the accused commenced a relationship with Ngoc Huynh. They have two children. In August 2006 the accused’s drug use led to the end of that relationship. The accused came back to live in Springvale with his cousin, Loan and her husband.
After Loan expressed concern about his drug use the accused sought medical help and was taking part in a methadone program at the time of these events.
On Friday 24 August 2007 between 7.27 pm and 10.02 pm the accused made three telephone calls to “000”. The general tenor of those calls was that he was scared, that there were youths in motor vehicles near his address who were causing trouble, and concerns for the welfare of his sister.
Police who attended the area found nothing out of the ordinary.
The accused went to the Springvale Police Station at about 7.55 pm where he told a police officer that he believed that someone high up in the government was trying to hurt his sister.
He left the police station at 9.55 pm and made the third telephone call shortly afterwards at 10.02 pm.
In response to that call, police attended near his home address at 11.31 pm. These police did not have his unit number and could not see anybody in the vicinity. One of the officers spoke to the accused by telephone, who said that he was at the 7 Eleven store in Springvale Road.
The police went to the unit where the accused’s cousin and her husband were living and to the 7 Eleven store. They did not find the accused and were not able to contact him again on his mobile phone. Loan, the accused’s cousin, expressed concern about his behaviour and as to the appropriateness of the accused continuing to live with her and her husband.
The accused was next seen when he arrived at Dandenong Police Station at 9.49 am on Saturday 25 August 2007. The accused told Constable Wheeler that he had killed a lady the previous night and handed Constable Wheeler an envelope which was addressed to Mrs Sipovac at her address.
He was spoken to by other police. He told Sergeant Green that he had broken into a house at 143 Hansworth Street, Mulgrave. He said that he had armed himself with a knife, found Mrs Sipovac in her bedroom and stabbed her a number of times and cut her throat. He said that the clothing he was wearing came from the house.
Other police took the accused to 143 Hansworth Street. One of the officers searched the house and found Mrs Sipovac in the front bedroom of the house. The accused was then arrested and returned to Dandenong Police Station where his car, which was in a public car park, was seized.
When 143 Hansworth Street, Mulgrave was searched by the police, the following items were found:
(i)a screwdriver which appeared to have been used to force the rear sliding door;
(ii)a number of pieces of paper were found on the kitchen table with the name and address of the accused on them;
(iii)two knives and a quantity of written material in a mixture of English and an Asian language were found on the kitchen bench;
(iv) clothing previously worn by the accused was found in the kitchen.
On 25 August 2007 after having been found fit for interview by a Forensic Medical Officer the accused was interviewed by Senior Detective Constables Matthew Deboer and Miro Majstorovic.
In that interview, the accused admitted killing Mrs Sipovac by stabbing her and cutting her throat. He told the police that prior to breaking into her house he was being followed by the mafia and was scared. He offered no explanation for the killing of Mrs Sipovac.
It is important that something be said about the victim Mrs Zorka Sipovac. She was a gentle and caring woman who had devoted her life to her family; her children, eleven grandchildren and one great grandchild. Mrs Sipovac was born in Yugoslavia on 27 January 1927. She was 80 years of age. Her husband Maksim had died in 1985. Mr and Mrs Sipovac had four sons Andelko and Nedeljko (twins) born in 1954, Dragomir born in 1957 and Nick born in 1968.
In 1970 the family had migrated to Australia and the family lived at 143 Hansworth Street, Mulgrave since 1973. Mrs Sipovac had lived there alone since 1988 but had regular visits and supports from her family.
After she suffered a stroke in 2002 Mrs Sipovac, after a period of incapacity, could only move about with the use of a walking frame. She had the support of a District Nurse.
Mrs Sipovac was highly respected in the Serbian community. She will be greatly missed by her family and the community. The community regrets her death, particularly in these circumstances.
I received material from Mr Sipovac’s son, Nick and her granddaughter Gordana which demonstrated the great loss which as occurred to her family. That material was moving and demonstrates the true consequences that flow in relation to matters of this kind.
The question which then arose was: what was the accused’s mental state at the time he killed Mrs Sipovac?
His treating psychiatrist has been Dr Mark Ryan, who gave evidence before me in accordance with a detailed report he had prepared. Dr Ryan has been the accused’s treating psychiatrist since October 2007. A report from Dr Lester Walton, a very experienced forensic psychiatrist, was tendered. Dr Walton had prepared that report at the request of the solicitors for the accused.
Both psychiatrists were of the opinion that Mr Pham was fit to stand trial. They also agreed that Mr Pham suffered from a mental illness, now confirmed to be chronic paranoid schizophrenia accompanied by a history of substance abuse and substance dependence. Both doctors were of the opinion that at the time of this episode, Mr Pham was floridly psychotic. It followed that they both accepted that at the of the episode he was unable to reason with a moderate degree of sense and composure about whether his behaviour (as perceived by reasonable people) was wrong.
The secondary question which arose was whether or not any psychosis was drug induced which might lead to the conclusion that the Act did not apply to the accused. Both Dr Ryan and Dr Walton considered that possibility. They have both concluded that this was not a drug induced psychosis. They have come to that conclusion particularly based upon what has happened to the accused in custody. His condition has remained such that it goes beyond the condition brought about by the consumption of drugs.
The prognosis for Mr Pham is such that he will require ongoing treatment for a long period of time and his detention in the Thomas Embling Hospital will be necessary.
I am therefore satisfied that the evidence establishes that the defence of mental impairment has been made out and direct that a verdict of not guilty because of mental impairment be recorded. That finding is pursuant to s.21(4)(a) of the Act. The ground of mental impairment is that, pursuant to s.20(1)(b) of the Act, Mr Pham, at the time he killed Mrs Sipovac, did not know that the conduct was wrong (that is, he could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong.).
I have been provided with a certificate pursuant to s. 47 of the Act over the signature of Professor Paul E. Mullen. The essential parts of that certificate are expressed in the following terms:
Given Mr Pham’s clinical condition, the appropriate treatment should be provided through inpatient services at the Thomas Embling Hospital at Yarra Bend Road, Fairfield. Mr Pham is already a patient at the Atherton Unit at the hospital, and the facilities and resources necessary to provide such inpatient treatment and services are available should Mr Pham be placed on a Custodial Supervision Order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
It next follows that I declare that Mr Pham is liable for supervision under Part 5 of the Act. I make a supervision order committing Mr Pham into custody in the Thomas Embling Hospital. I fix the nominal period of the order as 25 years.
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