R v Quach

[2002] NSWCCA 173

CITATION:	Regina v Quach [2002] NSWCCA 173
FILE NUMBER(S):	CCA 60567/01
HEARING DATE(S):	13/05/02
JUDGMENT DATE:	15 May 2002
PARTIES :	Regina Trung Quach
JUDGMENT OF:	O'Keefe J at 1; Smart AJ at 49

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0926
LOWER COURT JUDICIAL OFFICER :	Woods ADCJ

COUNSEL :	Mr D G Dalton - Applicant Mr G I O Rowling - Respondent
SOLICITORS:	Rodney Van Houten - Applicant S E O'Connor - DPP - Respondent
CATCHWORDS:	Criminal law - Appeal - Leave to appeal against sentence - Causing grievous bodily harm with intent to murder - Offence objectively serious - Circumstances serious - Error in sentencing - Character disregarded as mitigating factor - Sentence imposed not excessive - Sentence imposed appropriate
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900
CASES CITED:	Ryan v The Queen [2001] HCA 21 Regina v Kanj [2000] NSWCCA 408 Regina v Green [2001] NSWCCA 258 Regina v Glen [1994] NSWCCA unreported 19 December 1994 Regina v Kotevski (1998) NSWCCA unreported 3 April 1998 Regina v Oinonen [1999] NSWCCA 310
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed.

- 13 -IN THE COURT OF

60567/01

O’Keefe J
Smart AJ

15 May 2002

Regina v TRUNG QUACH

Judgment

O’KEEFE J :

INTRODUCTION

1 This is an application by Trung Quach (the Applicant) pursuant to s.5(1)(c) of the Criminal Appeal Act 1912 (the Act) for leave to appeal against a sentence imposed in the District Court on 1 August 2001 following the conviction of the applicant by a jury on a count of having caused grievous bodily harm to his wife with intent to murder her on 25 July 2000.

2 The offence for which the Applicant was convicted carries a maximum penalty of twenty five years imprisonment (s.27 Crimes 1900). His Honour imposed a term of imprisonment of nine years to commence on 22 May 2001 and to expire on 21 May 2010. A non-parole period of five years was fixed to begin on the same date as the sentence and to expire on 21 May 2006. Special circumstances were found by his Honour.

3 At the hearing of this application, counsel for the Applicant relied upon four bases, namely that the sentencing Judge :

(i) had not taken account of the previous good character of the Applicant when fixing the sentence;

(ii) had not dealt with or had regard to the contrition of the Applicant;

(iii) had not dealt with or taken into account a depressive illness from which the Applicant was said to be suffering at the time of committing the offence in question;

(iv) imposed a sentence which was in any event manifestly excessive.

4 The Applicant had no prior convictions and until the attack on his wife, as his Honour said, he appeared to be:

“a normal law-abiding member of the community with a good job and family … hard working … anxious to provide adequately for his family … who after arriving as a refugee and with little material possessions … focussed himself to achieve and perform, pushed himself to achieve and perform. There was no history of violent behaviour and no history of substance abuse by the applicant.”

FACTS

5 The Applicant and his wife, the victim, were both Vietnamese who had come to Australia under difficult circumstances. However, they married in 1988 and two male children were born of the marriage. They were aged 10 or 11 and 6 years respectively at the time of the trial and sentence.

6 The Applicant was born on 29 September 1957 and was thus almost 44 years of age at the time he was sentenced. He is an intelligent man. He had successfully completed a degree in mathematics at Wollongong University in 1984 and had commenced an honours degree in statistics. However, he discontinued this course because of employment opportunities that opened up. He worked as a statistician, then as a computer analyst for a large company, a bank and a major insurance company. He later became a computer consultant and programmer for a number of significant companies and was so employed at the time of the events which led to his conviction and sentence. In the prison he commenced a Masters Degree in Business Administration by correspondence through the University of Southern Queensland.

7 From about 1995 the Applicant began to suspect that his wife was having an extra marital affair. This suspicion was without foundation. The fact was that she was not having such an affair. However, he became increasingly suspicious and by 23 July 2000 claims he was convinced that his wife was seeing another man. He claims to have found the situation of the marriage stressful, the more so since his wife had suggested that their marriage was breaking up. However, notwithstanding this the building of a new home was undertaken. This itself was said to be a source of stress, particularly as the family lived in temporary accommodation. What this accommodation was and whether such accommodation was unsuitable is not clear from the evidence.

8 At around 11 a.m. on 25 July 2000 Mrs Quach was lying on the bed of the matrimonial home when the Applicant came into the room. She thought he was going to talk to her but instead she felt a blow to her head and saw that the Applicant was holding a green bottle in his hand. She was struck several times with this implement, mainly on the head and whilst the attack proceeded the Applicant told his wife that he wanted to kill her because, it seemed, she did not respect him. The applicant’s wife struggled and sought to escape. However, the Applicant gagged her by sticking a rag in her mouth. He then tied her legs and later her hands. As this proceeded the applicant was threatening to kill her and then himself. At this time the two boys were at school.

9 The attack on Mrs Quach led to her losing a good deal of blood. The Applicant washed the walls and the bed clothes and clothing, no doubt in an endeavour to conceal what had happened. He then left his wife tied up in the room. During the course of the day she tried to get to a phone but he intercepted her, pulled the phone from the wall and thereafter put her back in another room, checking on her regularly during the course of the day.

10 Mrs Quach apparently lapsed into unconsciousness at some stage. Whilst she was unconscious the Applicant collected the two children of the marriage from school and brought them home. She recovered consciousness and when she tried to get out of the room she made a noise which attracted the children. When they found her she was covered in blood. Apparently they convinced the Applicant to call an ambulance, but since this did not occur until about 6 p.m. it must have taken some time after their return from school for them to convince him to call for medical help for their mother.

11 When the police and ambulance arrived Mrs Quach had been effectively held prisoner for several hours, had lost a lot of blood. She was found to have sustained a fractured skull and other injuries as a result of the attack on her by the Applicant.

12 The Applicant was arrested later on the night of 25 July 2000, at which time there was evidence that he may have attempted suicide by taking a number of tablets. A suicide note had been written by him.

13 Although the Applicant gave no evidence at the trial his defence was that the attack had been committed under the effect of sane automatism – a proposition which the jury rejected by its verdict. He claimed that he had little, if any, recollection of the events of the day of 25 July 2000 although when he attended at the hospital he was able to give a history of the events of the day.

SENTENCE

14 In imposing the sentence his Honour detailed the events of 25 July 2000, adverted to a pre-sentence report from the Probation and Parole Service and referred to evidence from a Consultant Psychiatrist, Dr Teoh, who had been seeing the applicant from a date shortly after he had been taken into custody.

15 His Honour then considered the seriousness of the offence viewed in the context of the circumstances before and after its commission. He indicated that the offence was very serious because the conviction involved an actual intention to kill. He then balanced the demands of justice and of society on the one hand with the need to deal with the Applicant in his personal situation and imposed the sentence referred to in paragraph 2 above.

CHALLENGES TO THE SENTENCE

As to (i):

16 The first claim on behalf of the Applicant that his Honour did not take into account the good character of the applicant in fixing the sentence is inconsistent with the Remarks on Sentence. Not only did his Honour advert to the matters of good character referred to above, but he specifically examined the weight which should be given to good character in the context of the serious offence and the behaviour of the applicant in relation to his wife, behaviour which he described as “quite outrageous”.

His Honour’s reasoning in relation to good character was challenged. In the course of those reasons he said:

“We must all accept the fact that differences in marriages do occur and it is expected that people will try and resolve any differences without violence. However to go to the stage of wanting to end the marriage by killing someone is quite unacceptable of course and quite frightening to the wider community. There can be no mitigating factors in such an act with that intention. We do accept the realities of marriages breaking up and people separating but we can never accept or tolerate any person killing someone as the solution. And so it is difficult with reference to a person being a man of good character up until now. It is difficult to know what relevance that has where a person has considered the final solution.”

17 In my opinion the foregoing passage is un-exceptional. It does not form a proper or adequate basis for challenge to the sentence imposed. However, it was then argued that the following passage indicated error:

“The fact is that at the start of the assault that morning the prisoner did state and evidence an intention to kill. Such an expression and intention must immediately negate any consideration of mitigating factors because of good character, then to extend the trauma and terror of the assault all day until the late afternoon takes the actions of the prisoner into a further level of callousness.”

18 When read together with and in the context of the rest of the Remarks on Sentence, the passages referred to in paragraphs 16 and 17 above are an expression by his Honour of the difficulties confronting a court which has to consider the appropriate sentence to impose for a serious and terrible crime of the kind of which the Applicant had been convicted, when the convicted person has been of previous good character.

19 There is nothing wrong with a judge discussing the weight which should be given to the previous good character of an offender. This is occasionally described as “otherwise good character.” However a proper reading of the judge’s remarks indicates that he has excluded the applicant’s previous good character as a mitigating factor and therefore has not taken it into consideration in mitigation of the penalty. In this respect, he has erred: (Ryan v The Queen [2001] HCA 21). Giving little weight to the applicant’s previous good character in the light of the savagery of the attack, the intent to murder and the failure to summon medical help for some hours, and then only after being pressed by the children, could be understood. Not taking good character into account at all constitutes error.

20 The sentence imposed by the judge and the non-parole period were very lenient given the objective gravity of the offence and taking into account the subjective features of the applicant. Given that the judge erred in the manner referred to above, a lesser sentence and non-parole period shorter than that imposed by the judge would not have been appropriate.

21 It was further submitted that his Honour should have taken into account the question of retrograde amnesia in fixing the sentence. The Remarks on Sentence advert to this matter. However there is no express acceptance of it. Indeed the context in which it is referred to does not find that it existed as a fact or to the extent claimed. An examination of the transcript of the sentence hearing in which the recollection of the Applicant appears to be uneven and in which he appears to be able to remember some things favourable to himself but not things unfavourable, may be the basis on which his Honour refrained from making an affirmative finding in relation to retrograde amnesia. In the circumstances not doing so does not involve error.

22 In my opinion the ground of appeal (i) fails.

As to (ii)

23 There is no finding by his Honour that the Applicant was genuinely contrite. Whilst it is true that there is no finding that he was not, it is a matter on which a prisoner has an onus, albeit only on the balance of probabilities. Whilst the Applicant used words of contrition to his wife, e.g.:

“He said that he didn’t have enough words to tell me how sorry he is right now, that he was more – he was worry (sic) about my injury…”

and repeated almost the same words in the evidence he gave at the sentence hearing, such evidence was, on its face, somewhat hedged.

24 First, as I have already said, he claimed that the memory of the events was patchy. He remembered some favourable things but said he was quite unable to remember unfavourable things although he was asked about a number of them. Second, although he accepted the statement of the events as made by his wife, he did this on the basis that he “could not question or dispute that”. His approach was to “take (it) as given”. When he was asked directly about admitting what he had done his answer was less than forthcoming.

“Q. Sir, are you still not prepared to admit that you intentionally inflicted the injury on your wife?
A. I have been looking for an answer in search of why, why I did on that day. I must admit through meditation I have been trying to search my self conscience. I want an answer. I want to know why I did. I mean if I had done that with intention I would have accepted it. To this day to tell the truth I cant remember the word that I said to Ashley during those times.” (Italics added.)

25 Third, when asked about pulling the phone from the wall to prevent his wife calling for help, the Applicant’s answer was much the same and he sought to excuse his actions by saying :

“Any actions that were deemed as not compassionate I don’t know.”

26 Fourth, he persisted in his denial of recollection notwithstanding that he had been able to tell psychiatrists at the hospital to which he was admitted on the evening of 25 July, 2000, what had happened. He denied that he could remember having done so.

27 In these circumstances it ought not to be assumed that the judge accepted on the balance of probabilities that the Applicant was truly contrite in relation to what he had done and the absence of an affirmative finding in relation to contrition should not therefore be regarded as a matter overlooked by his Honour. I am certainly not satisfied that it was.

28 The fact that he expressed contrition to his wife and that she said that she forgave him did not detract from the duty of the judge to impose a proper sentence. Her views in relation to the contrition of the Applicant, as opposed to what he said to her, do not seem to have been tested. Furthermore, even the stated acceptance by the victim of her acceptance of her attacker’s contrition does not bind the court, nor does it detract from the need to give proper weight to the principle of general deterrence, Regina v Kanj [2000] NSWCCA 408, a principle that is important in cases of domestic violence (Regina v Green [2001] NSWCCA 258; Regina v Glen [1994] NSWCCA unreported 19 December 1994). Furthermore, the fact that a victim may forgive her attacker is not determinative. Indeed, its weight in relation to general deterrence will be a variable depending on the offence and the circumstances. It is a matter for judgment by the sentencing judge.

29 In my opinion ground (ii) fails.

As to (iii)

30 Neither of the psychiatric reports tendered on behalf of the Applicant expresses a view as to causal relationship between any depressive illness of the Applicant and the offence for which he was convicted. Whilst Dr Teoh noted that the Applicant “has been feeling depressed whilst in prison” and that two days before the attack he felt “anxious and agitated because he suspected that his wife could have been seeing another man” and whilst he also noted that the Applicant said that he ”remembered feeling ‘tormented’, ‘confused’” and that he felt “helpless” with “anxiety symptoms”, Dr Teoh does not express an opinion that such symptoms or depression were in fact the cause of the offence committed. The highest that he puts it is that these factors, together with sleep deprivation and the effects of nicotine and caffeine “could have made him confused and disinhibited.” (emphasis added) .

31 The forensic psychologist whose report was tendered, whilst diagnosing a longstanding major depressive disorder, expressed no opinion as to any causal relation between the disorder diagnosed and the offence committed by the Applicant.

32 The verdict of the jury was inconsistent with insanity, diminished responsibility or sane automatism. In the absence of evidence of causal connection the reference by the judge to the surrounding factors is sufficient to cover the depression called in aid of the Applicant.

33 No specific statement in, or section of, the Reasons for Sentence was pointed to as indicating error in relation to the depressive condition of the Applicant. In my opinion there is no such statement or section and no error has been demonstrated under this heading.

34 In my opinion this basis of the appeal fails.

As to (iv)

35 In support of this basis counsel for the Applicant referred to Regina v Kotevski (1998) NSWCCA unreported 3 April 1998 in which a sentence of 2 years 3 months with an additional term of 9 months had been imposed in respect of a charge of malicious wounding with intent to inflict grievous bodily harm had not been interfered with. This case, it was submitted, indicated the extent of penalty that should have been imposed in the present case and indicated how excessive the sentence that had actually been imposed was. However, Regina v Kotevski (supra) was very different from the present case. First, it was for a different and lesser offence. Second, there had been a plea of guilty. Third, the decision in the appeal was that the sentence imposed was not shown to have been affected by error. That decision should not be seen as providing any indication of the period of the sentence that was appropriate in the present case.

36 Reference was also made to the decision in Regina v Oinonen [1999] NSWCCA 310. That case involved a verdict of manslaughter given by a jury in a case in which the appellant had been tried for murder. An issue was whether an offer of a plea of guilty to manslaughter should be taken into account as the equivalent of a plea of guilty, even though not proffered before the jury. On appeal the court indicated that it could be taken as an indication of remorse and contrition. However, in the present case counsel for the Applicant sought to argue that the only reason that the Applicant did not plead guilty was that he did not remember what had happened and that, as a consequence, his plea of not guilty should in some way be accepted as indicative of remorse or as entitling him to some discount on the sentence. This was said to be because the complainant wife did not have to be cross-examined. However she was, and at some length.

37 The submission based on Regina v Oinonen (supra) is misconceived and fails.

38 Nothing advanced in respect of this basis discloses error on the part of the sentencing judge.

39 This ground of appeal fails.

GENERAL

40 Section 5 of the Criminal Appeal Act 1912 relevantly provides:

“1. A person convicted on indictment may appeal under this Act to the court:
…
(c) with the leave of the court against the sentence passed on the person’s conviction.”

However, this right is conditioned by s.6 of the Act. Section 6(3) provides that:

“On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence … should have been passed shall quash the sentence and pass such other sentence in substitution thereof, and in any other case shall dismiss the appeal.”

41 It is incumbent on the court therefore to form the opinion that some sentence other than that imposed would have been appropriate, before exercising the power conferred by s.5(1)(c).

42 An examination of the statistics based on 19 cases (one of which is the present case) in relation to offences under s.27 of the Crimes Act shows the following:

1. A custodial sentence was imposed in 100% of the cases.

2. A total of 86% of the full term of the sentences imposed fell between 8 and 14 years.

3. Only 16% of the sentences imposed were below 9 years.

4. In 48% of the cases the non-parole periods (or equivalent) fell between 5 and 7 years, with 5 years being the minimum non-parole period fixed.

43 The above statistics show that the sentence imposed by the trial judge fell towards the lower end of the scale notwithstanding the seriousness of the circumstances in which the offence was committed.

44 In my opinion the sentence imposed cannot be said to be manifestly excessive either by reference to the statistics or by reference to the objective seriousness of the offence and its surrounding circumstances even when tempered by reference to the subjective elements particular to the applicant. Nor, in my opinion is the offence as detailed in the evidence such as to warrant a less severe penalty than that imposed by the sentencing judge.

45 Even had there been some substance in the bases of appeal (ii) and (iii), that would not alter my view that, for this grave offence, no less severe penalty than that imposed was warranted in law.

SUMMARY

46 In my opinion, notwithstanding that basis of appeal (i) has been made out, the sentence imposed was not manifestly excessive nor were the circumstances such as to warrant the imposition of a less severe penalty for the serious offence for which the applicant was convicted.

47 In the light of the error demonstrated by the applicant, the seriousness of the offence involved and the penalty imposed, I am of opinion that it would be appropriate to grant leave to appeal, but then to dismiss such appeal.

ORDERS

48 I would propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

: I agree.