R v Phanekham (No 3) - [2014] NSWSC 508

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Phanekham (No 3) [2014] NSWSC 508
Hearing dates: 10 April 2014
Decision date: 02 May 2014
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
For the offence of manslaughter, the offender is convicted and sentenced to a term of imprisonment comprising a non-parole period of six years commencing on 20 June 2012 and a balance of term of two years commencing on 20 June 2018.

Catchwords: CRIMINAL LAW - sentence - offender acquitted of murder but found guilty of manslaughter - fact finding on sentence - whether manslaughter by unlawful and dangerous act or excessive self defence - role of intoxication - victim impact - prior criminal record - psychiatric condition - prospects of rehabilitation - discount for offer of plea prior to trial - remorse - whether special circumstances.
Legislation Cited: Crimes Act 1900 (NSW), s 23, s 24, s 61, s 114, s 428C, s 558
Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 No 2 (NSW), sch 3 item 4
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4
Crimes (High Risk Offenders) Act 2006 (NSW), s 5A, s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 12, s 21A, s 21A(5AA), s 44, s 54A
Cases Cited: - Berrier v R [2009] NSWCCA 40
- Butters v R [2010] NSWCCA 1
- Cheung v R [2001] HCA 67; 209 CLR 1
- Griffiths v R (1977) 137 CLR 293
- MAH v R [2006] NSWCCA 226
- R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep)
- R v Isaacs (1997) 41 NSWLR 374
- R v Tuuta [2014] NSWCCA 40
Category: Sentence
Parties: Crown (Prosecutor)
Viengsavanh Phanekham (Accused)
Representation: G.M..O'Rourke (Crown)
P.D. Young SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Breton Legal (Accused)

File Number(s): 2012/193773

Judgment

On 20 November 2013 the offender, Viengsavanh Phanekham, was arraigned on an indictment that charged him with the murder of Mark William Puffett at Ambarvale on 20 June 2012. Mr Phanekham pleaded not guilty. The trial proceeded.

On the afternoon of 29 November 2013 the jury returned with a verdict of not guilty to murder, but guilty to manslaughter. The proceedings were adjourned to 28 February 2014 for submissions on sentence. Both parties requested that and another date be vacated. Submissions on sentence were presented on 10 April 2014.

The maximum penalty for the offence of manslaughter is imprisonment for twenty-five years (Crimes Act 1900 (NSW), s 24). There is no standard non-parole period for the purposes of s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act") for manslaughter.

Background

As at 20 June 2012 the victim's de facto partner, Ms Calleja, her son aged 17, and her two youngest children lived at a house in Martha Way, Ambarvale. The victim, Mr Puffett, was the father of her two youngest children. He had previously lived in…

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 Phanekham (No 3)

Details

AGLC: R v Phanekham (No 3) [2014] NSWSC 508
Case: [2014] NSWSC 508
Decision Date: 02 May 2014

CaseChat Overview and Summary

The case before the court was an appeal against sentence by Phanekham, who was acquitted of murder but found guilty of manslaughter following a fatal stabbing incident. The court had to determine the appropriate sentence, considering various factors such as the nature of the manslaughter, the role of intoxication, the impact on the victim, and the offender’s background and prospects for rehabilitation. The court also had to decide whether the manslaughter was by unlawful and dangerous act or excessive self-defence, and whether there were special circumstances warranting a discount for an early plea or remorse.

The legal issues before the court included the appropriate weight to be given to intoxication, the extent of the offender's remorse, and the relevance of prior criminal history and psychiatric conditions. The court examined whether the manslaughter was the result of an unlawful and dangerous act or an instance of excessive self-defence, which would affect the quantum of the sentence. The court also considered whether there were any special circumstances to warrant a discount for the offender's early plea or demonstrated remorse.

The court found that the manslaughter was not an unlawful and dangerous act, but rather an instance of excessive self-defence. The court took into account the offender's intoxication and the impact on his capacity to form intent. The court considered the victim impact statements, the offender's prior criminal record, and his psychiatric condition, concluding that these factors did not warrant a significant enhancement of the sentence. The court acknowledged the offender's remorse and his prospects of rehabilitation, which led to a discount for his early plea and expression of remorse. Ultimately, the court determined that special circumstances did not apply, and sentenced Phanekham to a term of imprisonment with a non-parole period.

The court ordered that Phanekham be detained in custody and serve a sentence of imprisonment, with a non-parole period, reflecting the considerations discussed.

Orders