Oudomvilay v R - [2006] NSWCCA 275

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Oudomvilay v Regina [2006] NSWCCA 275

FILE NUMBER(S):
2006/652

HEARING DATE(S): 19/06/2006

DECISION DATE: 07/09/2006

PARTIES:
Mimi Oudomvilay (applicant)
Regina (Crown-respondent)

JUDGMENT OF: Giles JA Grove J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1520

LOWER COURT JUDICIAL OFFICER: Payne DCJ

COUNSEL:
T S Corish (applicant)
D C Frearson SC (respondent)

SOLICITORS:
Legal Aid Commission (applicant)
Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW:
application for leave to appeal against sentence
charges of fraudulent misappropriation
fraudulently omit to account by solicitor
whether sufficient weight given to loss of professional standing

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act
Crimes Act

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/652
GILES JA
GROVE J
HIDDEN J
Thursday 7 September 2006

MIMI OUDOMVILAY v REGINA

Judgment

GILES J A: I agree with Hidden J.
GROVE J: I agree with Hidden J.
HIDDEN J: The applicant, Mimi Oudomvilay, pleaded guilty in the District Court to four charges of fraudulently omitting to account and two charges of fraudulent misappropriation, both of them offences under s128A Crimes Act, carrying a maximum sentence of seven years imprisonment. The first three charges were fraudulently omitting to account, the fourth and fifth charges were fraudulent misappropriation, and the sixth was a further charge of fraudulently omitting to account. She asked that a further charge of fraudulently omitting to account be taken into account on a Form One.
She was sentenced as follows:
On the fifth charge (fraudulent misappropriation), imprisonment for three years and nine months with a non-parole period of two years and three months, dating from 11 March 2005;
On the first charge (fraudulently omitting to account), taking into account the offence on the Form One, imprisonment for four and a half years with a non-parole period of one year and nine months, dating from 11 June 2007;
On the second charge (fraudulently omitting to account), imprisonment for a fixed term of three years and four months, dating from the 11 March 2005;
On the third charge (fraudulently omitting to account), imprisonment for a fixed term of three years, dating from 11 March 2005;
On the fourth charge (fraudulent misappropriation), imprisonment for a fixed term of two years and three months, dating from 11 March 2005;
On the sixth charge (fraudulently omitting to account), imprisonment for a fixed term of three years dating from 11 March 2005.
It will be seen that the sentences on all charges but the first were to commence on 11 March 2005. The sentence on the first charge was to commence on the 11 June 2007, at the expiration of the non-parole period fixed in respect of the fifth charge. The overall sentence is imprisonment for six years and nine months with an effective non-parole period of four years, dating from 11 March 2005. The applicant seeks leave to appeal against these sentences.

Facts

The applicant is a woman of Laotian descent, who at…

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 Oudomvilay v R

Details

AGLC: Oudomvilay v R [2006] NSWCCA 275
Case: [2006] NSWCCA 275
Decision Date: 7 September 2006

CaseChat Overview and Summary

The matter before the court was an application by Oudomvilay for leave to appeal against his sentence imposed for charges of fraudulent misappropriation, including the fraudulent omission to account for funds by a solicitor. The primary focus of the appeal was whether the sentencing judge had adequately considered the loss of professional standing as a mitigating factor. The case was heard in the High Court of Australia.

The central legal issues revolved around the principles of sentencing in criminal law, specifically whether the trial judge had erred in failing to sufficiently weigh the loss of professional standing as a mitigating factor in the context of the appellant's career as a solicitor. The court needed to determine whether the appellant's professional disgrace, resulting from his criminal conduct, was appropriately taken into account by the trial judge when determining the appropriate sentence.

The court acknowledged that the loss of professional standing could indeed be a significant mitigating factor in sentencing, particularly for a professional such as a solicitor. However, it found that the trial judge had considered this factor in the context of other mitigating and aggravating circumstances. The court concluded that the trial judge had appropriately balanced all relevant factors, including the loss of professional standing, in arriving at the sentence. Consequently, the court denied the application for leave to appeal.

The High Court dismissed the application for leave to appeal, thereby upholding the original sentence imposed by the trial judge. The court's decision reaffirmed the importance of considering all relevant mitigating factors in sentencing, while also recognising the trial judge's discretion in balancing these factors in the specific circumstances of the case.

Orders