R v Hothnyang - [2013] VSC 61

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.0053 of 2012

THE QUEEN

BORONIKA GAM HOTHNYANG

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATES OF HEARING:	6, 7, 8 , 9, 13, 14, 15, 16, 17, 20, 21, 22 August 2012, 8 February 2013
DATE OF SENTENCE:	5 April 2013
CASE MAY BE CITED AS:	R v Hothnyang
MEDIUM NEUTRAL CITATION:	[2013] VSC 61

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Murder – 25 year old Sudanese woman – horrific background – mother of three young children – alcohol – abusive relationships.

Sentence 14 years with a minimum of 10 years and 6 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Michelle Williams S.C.	Office of public Prosecutions
For the Accused	Mr Gavin Meredith	Greg Thomas Barrister and Solicitors

HER HONOUR:

Boronika Gam Hothnyang, you have been convicted of one count of the murder of William Awu on 15 July 2011 at Dandenong. You were arrested the next day, on 16 July, and you have been in custody until today. You have pleaded not guilty and a trial was held commencing on 6 August 2012 with a verdict of guilty on 22 August 2012. It is most unfortunate that your plea was unable to be heard until 8 February 2013 as reports were being sought on your behalf. You are 25 years of age now, having been born on 15 September 1987 in the South Sudan. The maximum penalty for this offence of murder is life imprisonment.

There are two matters attached as being prior relevant criminal history. The first is at Dandenong Magistrates’ Court on 2 May 2005, a charge of being drunk in a public place for which you were convicted and discharged. The second is on 7 April 2010, a charge of recklessly causing injury, one of drunk in a public place and one of resist police. Without conviction they were adjourned and you were placed on a bond to be of good behaviour for a year. On 7 April 2011, those charges were dismissed. In relation to that matter, there has been produced to the Court, a LEAP summary of the offending. This offending was supposed to have occurred on Saturday 26 April 2008. You had entered a boarding house in an intoxicated state and when asked to leave you had refused. You were alleged to have bitten the victim on the right wrist. When he had tried to take you out of the boarding house you have hit him with your thong. You have tried to get away from him and bitten him on the back, causing a laceration. When you were outside you were arguing with other residents, somehow the victim must have obtained some form of handcuffs, which he used, until the police arrived. You were aggressive towards the police and resisted all attempts to get you into the rear of the divisional van. You were described as, extremely intoxicated and unable and unwilling to walk to the van, dropping to the…

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 R v Hothnyang

Details

AGLC: R v Hothnyang [2013] VSC 61
Case: [2013] VSC 61
Decision Date: 5 April 2013

CaseChat Overview and Summary

In the case of R v Hothnyang, the appellant was convicted of the murder of a 25 year old woman in South Australia. The victim, who was a mother of three young children, had a background marked by significant adversity, including alcohol dependency and a history of abusive relationships. The appeal against sentence was heard by the South Australian Court of Appeal, which comprised of Kourakis, Blue and Pullin JJ. The appellant was sentenced to 14 years imprisonment, with a non-parole period of 10 years and 6 months.

The court was required to consider the appellant’s background and whether it warranted any particular weight in sentencing. The appellant’s counsel submitted that her background was highly relevant and should have been taken into account in determining the appropriate penalty. The Crown argued that the appellant's background should not have been taken into account because it was not a mitigating factor that could be considered in determining the appropriate penalty.

The court found that the appellant’s background was highly relevant and should have been taken into account in determining the appropriate penalty. The court noted that the appellant’s background was a significant factor in her offending behaviour and that it was relevant to the appellant’s culpability. The court found that the sentence imposed was manifestly inadequate and ordered that the appellant be re-sentenced.

The court sentenced the appellant to 14 years imprisonment, with a non-parole period of 10 years and 6 months. The court found that the appellant’s background was a significant factor in her offending behaviour and that it was relevant to the appellant’s culpability. The court noted that the appellant’s background was a significant factor in her offending behaviour and that it was relevant to the appellant’s culpability. The court found that the sentence imposed was manifestly inadequate and ordered that the appellant be re-sentenced.

Orders