The Queen v Thi Ban Le
[2018] NTSC 43
•28 June 2018
CITATION:The Queen v Thi Ban Le [2018] NTSC 43
PARTIES:THE QUEEN
v
THI BAN LE
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising territory jurisdiction
FILE NO:(21562224)
DELIVERED ON: 28 June 2018
HEARING DATES: 5 July 2017, 7 September 2017, 12 September 2017, 16 October 2017, 29 November 2017, 2 May 2018, 22 May 2018, 14 June 2018
JUDGMENT OF: Barr J
CATCHWORDS:
CRIMINAL LAW – Mental impairment – accused charged with unlawfully causing serious harm – accused not fit to stand trial – counsel for accused entered plea of not guilty because of mental impairment – supervision order – nature of supervision order – considerations – accused receiving appropriate treatment for psychosis and schizophrenia – non-custodial supervision order – hypothetical sentencing exercise – offending directly related to schizophrenia – moral culpability lessened by mental impairment – general and specific deterrence less relevant factors – community protection – major review of custodial supervision order after three years
Criminal Code, Part IIA, s 43H, s 43R (1), s 43T (1), s 43XA, s 43XB, s 43Y, 43ZA (1)(b), s 43ZG (1), (2) & (4B)
R v Morton [2010] NTSC 26
REPRESENTATION:
Counsel:
Prosecution: S Ledek
Accused: H Blundell, J Franz
Solicitors:
Prosecution: Office of the Director of Public Prosecutions
Accused: Darwin Family Law
Judgment category classification: B
Judgment ID Number: Bar1805
Number of pages: 13
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Thi Ban Le [2018] NTSC 43
No. (21562224)
BETWEEN:
THE QUEEN
AND:
THI BAN LE
Accused
CORAM: Barr J
REASONS FOR DECISION
(Delivered 28 June 2018)
Introduction
The accused was charged on indictment that, on 17 December 2015, at Lambells Lagoon, in the Northern Territory of Australia, she unlawfully caused serious harm to a male, AN.
On 29 November 2017, prosecuting and defence counsel agreed that the accused was unfit to stand trial. After satisfying myself, by reference to expert psychiatric evidence and submissions from counsel, that there was a proper basis for the agreement between counsel, I made an order dispensing with an investigation into the fitness of the accused to stand trial and recorded a finding that the accused was unfit to stand trial, pursuant to s 43T(1) Criminal Code.
I then determined, pursuant to s 43R(1), that it was not likely that the accused might within 12 months regain the necessary capacity to stand trial. I made an order pursuant to s 43R(3) that a special hearing be held within three months.
I also made an order extending bail on the same terms and conditions contained in a Bail Agreement entered into in June 2016, but removed the reporting condition and the need for a guarantor.
On 29 January 2018, before the special hearing took place, counsel for the parties to the prosecution of the offence confirmed their agreement that the evidence established the defence of mental impairment. Counsel for the accused entered a plea of not guilty because of mental impairment on behalf of the accused. As authorised under s 43XA, the Court accepted the plea and recorded a finding of not guilty of the offence because of mental impairment.
Before I set out the agreed facts, I will discuss the accused’s background and life in Australia.
Accused’s background
The information in [8] – [12] below has been taken from the very comprehensive report of Dr Ranjit Kini, consultant forensic psychiatrist, dated 21 March 2017.
The accused is a woman of Vietnamese origin. She was born in what was North Vietnam on 17 October 1959. At the time of the alleged offending, she was 56 years old.
The accused attended school until the age of about 15, but did not achieve any formal qualifications. Throughout her childhood, she assisted her family in taking care of their farm and buffaloes. She worked as a chef for three years from the age of 19 to 22, but ceased that employment when she married. She gave birth to four children, two sons and two daughters. One of her sons drowned at the age of five, and her surviving children now live in Melbourne.
The accused and her husband left Vietnam to seek refuge in Hong Kong in 1990 or 1991. They then lived in the Philippines, before arriving in Melbourne in 1993. The accused’s husband became addicted to heroin and gambling and this led to significant financial and emotional hardship for the accused and the children. She separated from husband in 1995 and took up employment in the garment industry to support herself and her children.
In Australia, the accused undertook some education as a mature student. She studied an English course in 2001, and then a course in Liberal Arts and Information Technology in 2006 and 2007. By 2010, she had obtained a Certificate in Aged Care and similar certificate qualification in Home and Community Care. This led to her obtaining employment as a carer in an aged care nursing home.
The accused first came to live in Darwin in 2010 and worked on a farm. In 2012, she travelled to Vietnam and re-married. The couple returned to Australia, to Melbourne, but then decided to re-locate to Darwin.
In August 2014, the accused’s husband was killed by a crocodile when he was fishing on the Adelaide River. The accused was close by and experienced significant shock and grief following her husband’s death. When consultant forensic psychiatrist, Dr Ranjit Kini, later obtained a history from the accused in relation to her grief symptoms, he assessed “prolonged and atypical grief”.
The circumstances in which the alleged offending took place were that the accused and the alleged victim farmed vegetables on leased property at Lambells Lagoon, each farming separate lots in close proximity to the other. There was an ongoing dispute between them. The accused believed that AN was responsible for damage to her vegetable crops and had sabotaged her irrigation systems. Police records evidence that the accused had contacted the police on two occasions in December 2015, shortly before the alleged offending, complaining that AN had threatened to kill her if she did not leave the property in three days.
After the alleged offending, the accused suffered an acute episode of psychosis and was admitted to the Joan Ridley Unit at the Royal Darwin Hospital for a period of about four weeks. She was suffering paranoid and persecutory beliefs in relation to AN. She believed that he and three others were poisoning “everyone and everything”. She expressed her belief that he was doing magic without using his hands. She claimed that he was working with 100 or more people. She believed that he would poison her children if she were to move to Melbourne. She had not slept in her house for 10 days because she feared being poisoned. Even when sleeping in her car, she feared that she was being poisoned.
After successful treatment with appropriate medication, the accused returned to the community under a Community Management Order.
After Dr Kini assessed the accused in October 2017, he expressed the opinion that there were “clinical grounds to suspect that at least some of her paranoid and persecutory beliefs relating to AN in the time preceding her alleged ... offence were as a result of mental illness.”[1] In a later report, written in May 2018, Dr Kini wrote:[2]
Ms Le has a diagnosis of schizophrenia. After considering her longitudinal presentation, in my opinion, it is likely she was experiencing psychotic symptoms in 2015 preceding and surrounding her index incident. Her mental health deteriorated gradually, culminating in a florid psychotic episode in July 2017 requiring her to be involuntarily admitted as a psychiatric inpatient…. Ms Le’s psychosis has responded well to antipsychotic treatment. At the time of writing this report, she had residual delusional beliefs surrounding the index incident and limited insight into her mental illness.
Agreed facts
The Crown facts (exhibit P1) were read out by the prosecutor and admitted by defence counsel. I reproduce the facts below:
1.The offender and the victim, Mr AN, were each residing at 50 Connelly Road, Lambell’s Lagoon which was a 90 acre farming community prior to the offending. They each had their own plots of land, or allotments, where they grew vegetables to sell for an income, and lived in caravans or ‘dongas’ separately from one another The land is owned by Mr PD. Approximately six other people lived and worked at the property.
2.The offender and the victim knew each other but were not in any type of relationship.
3.Over a period of time the victim and the offender had a falling out and began arguing about damaged vegetables and damaged irrigation systems, the offender declaring that the complainant was actively attempting to sabotage her crops and livelihood. Verbal arguments often occurred between the two over this issue.
4.That animosity came to a head around midnight on 17 December 2015 when the victim, who had purchased a carton of beer, returned home to his caravan. The offender lay in wait, holding a meat cleaver approximately 30 cm in length.
5.When the victim went to unlock his door, the offender came out of the shadows swinging the meat cleaver yelling “I will chop you. I will kill you.”
6.The victim fell backwards startled, and in a frenzied attack, the offender swung the meat cleaver with her right arm from a raised position striking the victim to his right wrist cutting down to the bone. She inflicted several more wounds as he attempted to scramble away from her including severing his Achilles tendon.
7.The victim struggled to make his way to the demountable buildings near his caravan calling out to Mr D for help. D responded and saw the offender chasing after the victim still swinging the meat cleaver.
8.The victim picked up a plastic chair and tried to fend her off. She broke the chair in places and continued to swing the cleaver. She cut the victim across the face.
9.The victim was then able to push the offender over and in that time escaped to his bathroom inside his caravan and locked himself in.
10.The offender went back to her own lodgings and washed down the cleaver and attempted to wash off the jacket she had been wearing in the shower.
11.D assisted the victim who was bleeding heavily and called police and an ambulance.
12.Police attended and arrested the offender at her home. They secured the scene and seized two cleavers and a jacket amongst other things from the offender’s home.
13.The offender conducted a record of interview with police with the assistance of a Vietnamese interpreter in which she denied the assault and claimed to be asleep at the time. She accused the victim of damaging her crops and telling her she would be evicted. She admitted she knew the Mr N and Mr D well enough for them to recognise her.
14.The victim was taken to the Emergency section of the Royal Darwin Hospital. On 18 December 2015 surgical debridement of his wounds to his left face, left leg and right forearm occurred. He was placed on a course of intravenous antibiotic before undergoing further surgery on 21 December 2015 for open reduction and internal fixation of his right distal ulna and repair of his left tendon Achilles. His right forearm tendon was repaired by plastic surgeons. The victim’s recovery was slowed by the contamination of his wounds. Mr N’s injuries continued to cause complication and further admissions into May of the next year. His injuries amount to serious harm.
15.At no time did the victim give the offender permission to assault him in any way.
After the Court recorded a finding of not guilty of the offence because of mental impairment,[3] and the agreed facts had been read, the Court declared the accused liable to supervision under Division 5, pursuant to s 43XB(a) Criminal Code.
The accused was granted bail on the same terms as had previously applied. The Court ordered a report from a psychiatrist, as provided for in s 43Y(c) & (d) Criminal Code. The principal concern was to obtain advice as to the appropriate regime and conditions for a non-custodial supervision order.
A supervision order was necessary, in my opinion, because Ms Le still had residual delusional beliefs in relation to the circumstances in which she harmed AN. She also believed, wrongly, that she had completely recovered from her mental illness. She was complying with antipsychotic treatment and psychiatric follow-up in somewhat reluctant compliance with a Community Management Order. Her residual psychosis and limited insight into her mental illness made continuing antipsychotic medication necessary to eliminate or minimise the risk which she might pose to herself and to others, and a supervision order was necessary to ensure that she continued to comply with her medication regime.
At the same time, subject to Ms Le’s compliance with her medication regime, I was of the view that supervision should be non-custodial rather than custodial. When she was assessed by Dr Kini on 30 April 2018, her mood was good, and her affect euthymic (stable) and reactive. She spoke coherently and no longer harboured paranoid or persecutory delusional beliefs of the kind she held in July 2017, at the time of her admission to hospital.[4] In simple terms, she was doing well.
Further consideration was adjourned to 2 May 2018, and subsequently to 22 May 2018. Because an interpreter was not available that day, the matter was further adjourned to 14 June 2018.
The hypothetical sentencing exercise
In making a supervision order, the Court had to comply with s 43ZG Criminal Code, which provides relevantly as follows:
43ZG Major review of supervision orders
(1)When the court makes a supervision order, the court must fix a term in accordance with subsection (2), (3) or (4) that is appropriate for the offence concerned and specify the term in the order.
(2)Subject to subsections (3) and (4), the term fixed under subsection (1) is to be equivalent to the period of imprisonment or supervision (or aggregate period of imprisonment and supervision) that would, in the court's opinion, have been the appropriate sentence to impose on the supervised person if he or she had been found guilty of the offence charged.
The hypothetical sentencing exercise under s 43ZG required me to assume that the supervised person had been found guilty of the offence charged, and thus, by necessary implication, that mental impairment was not such as to have affected the making of that assumed finding by providing a defence under s 43C(1) Criminal Code. However, normal sentencing principles required that Ms Le’s schizophrenia should be taken into account.[5]
The maximum penalty provided by law for the offence is 14 years’ imprisonment.
The objective seriousness of Ms Le’s conduct was very high. I had to bear in mind the nature and extent of the harm actually caused to the victim, in particular the severed Achilles tendon, wrist fracture and severed right forearm tendon. The frenzied attack with a meat cleaver was accompanied by a statement of intent to kill, a terrifying threat in the circumstances, particularly when Ms Le then chased the badly wounded victim and inflicted further wounds with the meat cleaver. The consequences would have been far worse if the victim had not managed to escape to the safety of his caravan and lock himself in the bathroom.
In his victim impact statement, AN described his disabilities and impairment. The movement in his right wrist is limited and he cannot lift heavy things with his right arm. He had to undergo further surgery to insert a stronger replacement plate into his wrist after the first plate broke. Because of the injury to his left ankle, his gait has been affected. He “walks funny”. He has undergone counselling for the emotional consequences of the attack on him. He states that he cannot work in full-time employment because he (1) has limited use of his right arm and (2) cannot walk for long distances. Clearly his working capacity has been reduced. However, he complains that he is not sufficiently disabled to qualify for a Disability Pension.
Balanced against the matters in [27] and [28] is the fact that Ms Le is a 58 year old woman (56 years old at the time) who had not previously offended against the criminal law. Moreover, she suffered from and (to a far lesser extent) still suffers a mental illness which caused her to have paranoid and persecutory delusionary beliefs about the victim, and a compromised understanding of her wrongdoing. Her illness in my view lessened the moral culpability of the offending conduct.[6]
Because of Ms Le’s mental illness, her sentencing would not have been an appropriate vehicle for either general or specific deterrence.
The same mental illness, and its behavioural consequences, raised a need for community protection in sentencing. Even though Ms Le would be under supervision for the foreseeable future, I considered that community protection was a relevant consideration in the hypothetical sentencing exercise required by the Criminal Code. However, I was reassured by the fact that Ms Le had been compliant with her reporting conditions for over two years, following the grant of bail on 9 February 2016. She had also adhered to her obligations under the Community Management Order made 2 August 2017, following the acute psychotic episode for which she was hospitalized in July 2017. That Community Management Order had been subsequently renewed.
Under s 43ZG (2) Criminal Code, I was of the opinion that a term of imprisonment of three years would have been the appropriate sentence to have imposed on Ms Le if she had been found guilty of the offence charged.
Pursuant to s 43ZG (1), I fixed a term of three years for the purposes of the supervision order. The term so fixed was backdated by 55 days, and deemed to have commenced on 21 April 2018, pursuant to s 43ZG (4B) Criminal Code.
The formal orders made by me were as follows:
1. Ms Thi Ban Le is subject to a Non-Custodial Supervision Order (“NCSO”) made under s 43ZA of the Criminal Code.
2. For the purposes of the NCSO, the Appropriate Person under the Act is the CEO of the Department of Health (“the CEO”).
3. The NCSO is subject to the conditions that Ms Le is to:
(i)Submit to the treatment and care of the CEO of the Department of Health and her staff, servants and agents, and in particular, the Forensic Mental Health Team (FMHT) (her “treating team”);
(ii)Comply with all reasonable directions of the CEO or her staff from her treating team;
(iii)Receive and take all medications prescribed by her treating team and submit to all blood tests and other medical examinations that may be ordered by her treating team as adjuncts to these medications;
(iv)Participate to the best of her ability in appointments, assessments, therapy, counselling, and positive behaviour and psychoeducational interventions, as advised and applied by the CEO and her treating team;
(v)Not purchase, possess or consume alcohol, any volatile substances or cannabis or other illicit substance and comply with any reasonable directions given to her by the CEO or the Commissioner for Correctional Services to ensure compliance with this condition including random or scheduled testing for alcohol or illicit substances;
(vi)Reside at premises (“Residence”) approved and specified by her treating team;
(vii)Comply with the rules of the Residence and do nothing to result in her eviction;
(viii)Not contact directly or indirectly AN and PD.
4. A period of three years is fixed under s 43ZG (1) commencing 21 April 2018 with the Major Review to commence on 14 January 2021 at 9.00am.
5. The CEO is to file and serve one or more reports for the purpose of s 43ZG by close of business on 11 December 2020.
6. The matter is listed for periodic review on 18 April 2019 at 9.00am.
7. The CEO is to file and serve a report pursuant to section 43ZK of the Criminal Code by close of business on 5 April 2019.
8. The parties have liberty to apply.
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[1]Report 14 November 2017, par 9.4.
[2]Report 1 May 2018, par 6.1.
[3]See [5] above.
[4]Report Dr Kini, 1 May 2018, par 5.12.
[5]See R v Morton [2010] NTSC 26 at [46].
[6]See R v Verdins (2007) 16 VR 269, which contained a restatement, in somewhat revised form, of the guiding principles which the Court of Appeal of Victoria laid down in R v Tsiaras [1996] 1 VR 398.
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