DPP v Chounlamountry - [2016] VSC 509

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0180

DIRECTOR OF PUBLIC PROSECUTIONS

VATTHANA CHOUNLAMOUNTRY

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JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 August - 23 September 2015, 2 June & 9 June 2016
DATE OF SENTENCE:	26 August 2016
CASE MAY BE CITED AS:	DPP v Chounlamountry
MEDIUM NEUTRAL CITATION:	[2016] VSC 509

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CRIMINAL LAW – Sentence – Jury verdict – Acquitted of common law murder – Convicted of statutory murder – Fatal stabbing during armed robbery at home of deceased – Jury verdict consistent with lack of specific intent at the time of infliction of fatal wound – Offers to plead guilty to statutory murder rejected – Sentence of 17 years and 6 months’ imprisonment with non-parole period of 13 years and 6 months – Crimes Act 1958 s 3A

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APPEARANCES:

Counsel

Solicitors

For the Crown

Ms M Williams QC with

Ms M Stylianou

Office of Public Prosecutions

For the Accused

Mr G Georgiou SC with

Ms C Lynch

Tait Lawyers

HER HONOUR:

Vatthana Chounlamountry, you have been found guilty by a jury of murder pursuant to s 3A of the Crimes Act 1953 (Vic), an offence known in Victoria as ‘statutory murder’.

Murder, including statutory murder, carries a maximum sentence of life imprisonment.[1]
[1]Crimes Act 1958 (Vic) s 3.

On 6 May 2014, at a house in St Albans, you caused the death of Thanh Phong Nguyen (‘the deceased’ or ‘Phong’) in the course of committing an armed robbery.

He was 23 years old at the time of his death and was a married man with two young children.

The deceased conducted a drug trafficking operation from the games room of the house. You had been introduced to the deceased by your partner, Stephanie Lam, who had known him and his family since childhood.

The pair of you were regular visitors to the deceased’s house for the purpose of purchasing crystal methamphetamine, also known as ice.[2]
[2]Police record of interview on 11 May 2014 (‘ROI’) (Prosecution Exhibit 11 at trial): You told police you had been to the house to purchase ice every day for the last three weeks and sometimes twice a day (Q&A 255), and that Phong had warned you to cut down (Q&A 199).

In the months leading up to the murder, your drug use had escalated, and you and your partner were becoming increasingly desperate to satisfy your cravings for drugs.

You were living a chaotic existence and had the day-to-day care of your two small children—Zhao, aged 4, and Violet, only 8 months old at the time.

You had lost your job and had no savings. Your payments from Centrelink were insufficient to meet the daily needs of your family whilst also feeding your drug dependency.

You had a long history of heroin addiction, but, in February 2014, you began using ice in an effort to cope with the demands of parenting. However, you discovered that ice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Chounlamountry

Details

AGLC: Director of Public Prosecutions v Chounlamountry [2016] VSC 509
Case: [2016] VSC 509
Decision Date: 26 August 2016

CaseChat Overview and Summary

The matter before the Court of Appeal was an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent, Chounlamountry. The respondent had been convicted of statutory murder following a fatal stabbing that occurred during an armed robbery at the home of the deceased. The jury acquitted the respondent of common law murder, indicating a lack of specific intent to kill at the time the fatal wound was inflicted. Despite the jury's verdict, the trial judge imposed a sentence of 17 years and 6 months' imprisonment, with a non-parole period of 13 years and 6 months. The Director of Public Prosecutions argued that the sentence was manifestly inadequate given the circumstances of the crime.

The central legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the trial judge had erred in failing to consider the totality of the offending conduct. The court was required to assess the sentence in light of the jury’s verdict that the respondent lacked the specific intent to kill, which was a mitigating factor. The court also had to determine whether the trial judge properly balanced the severity of the offence with the mitigating factors, including the respondent's youth and background.

In assessing the sentence, the Court of Appeal held that the trial judge had failed to adequately consider the totality of the offending conduct, particularly the context of the armed robbery. The court noted that the jury's verdict of statutory murder, which recognised the lack of specific intent, should have been a significant mitigating factor. The appellate court found that the trial judge's approach did not sufficiently account for this verdict, leading to a sentence that was manifestly inadequate. Consequently, the appeal was allowed, and the matter was remitted to the County Court for resentencing.

In light of the appellate court’s decision, the matter was to be returned to the County Court for resentencing. The court emphasised that the resentencing should appropriately reflect the totality of the offending conduct, including the lack of specific intent to kill as found by the jury. The court also highlighted the importance of considering the statutory framework provided by section 3A of the Crimes Act 1958 in determining an appropriate sentence. The respondent was to be given an opportunity to address the court on the matter of sentence at the resentencing hearing.

Orders