R v Sikounnabouth

[2019] ACTSC 119

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Sikounnabouth

Citation:

[2019] ACTSC 119

Hearing Date:

9 May 2019

DecisionDate:

9 May 2019

Before:

Elkaim J

Decision:

See [17]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – aggravated burglary – accessory after the fact to murder – pleas of guilty

Legislation: 

Crimes (Sentencing) Act 2002 (ACT) ss 6, 7, 10, 33, 66

Criminal Code 2002 (ACT) ss 45A, 310, 312, 717

Cases cited:

R v Sikounnabouth [2018] ACTSC 296

Parties:

The Queen (Crown)

Phouthakone Sikounnabouth (Offender)

Representation:

Counsel

Mr A Williamson (Crown)

Mr J Sabharwal (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal on London (Offender)

File Number:

SCC 243 of 2018

ELKAIM J:

1. On 22 February 2019, the offender entered a plea of guilty to the following three charges in an indictment dated 21 February 2019:

(a)Aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT), by virtue of s 45A. The maximum penalty is 20 years’ imprisonment and, or a fine of $300,000.

(b)Aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT), by virtue of s 45A. The maximum penalty is 25 years’ imprisonment and, or a fine of $375,000.

(c)Accessory after the fact to murder, contrary to s 717 of the Criminal Code 2002 (ACT). The maximum penalty is 20 years’ imprisonment and, or a fine of $300,000.

1. The offender has not spent any time in custody in respect of the current offences, however I note that he is currently a sentenced prisoner after being sentenced on unrelated offences by Loukas-Karlsson J in October 2018 (R v Sikounnabouth [2018] ACTSC 296).

1. His head sentence will expire on 21 January 2020. The non-parole period, which expires on 21 July 2019, will need to be reset pursuant to section 66 of the Crimes (Sentencing) Act 2005 (ACT).

1. The pleas of guilty, while not made at the earliest opportunity, nevertheless are of significant utilitarian value. I assess the appropriate discount at approximately 20%.

1. The facts of the offences are set out in considerable detail in the Statement of Facts, forming part of Exhibit A. It can immediately be seen that they involve the pernicious world of drug dealing where the pursuit of drugs and the monies attached to their trafficking extinguish all vestiges of decency and respect for the well-being of other persons.

1. In very brief summary the first charge in the indictment relates to the offender and two other men entering a flat where the occupants were attacked. The offender was armed with a metal bat. The other two had a gun and a machete. While it is accepted that the offender did not cause great harm with the metal bat there is no doubt that significant harm was caused by the other co-offenders.

1. Three months later, now dealing with the second charge, the two co-offenders were driven to the same location by this offender. The co-offenders were intent on silencing the occupants of the flat because they anticipated that they were to be arrested for the earlier home invasion. The Crown however accepts that the offender was not aware of any intent to murder one of the occupants.

1. Mr Eden Waugh was murdered. He was callously shot with a shot gun aimed through a door. His parents read victim impact statements to the Court. Whatever drug deals their son may have been involved in this does not diminish their loss. Their son was very close to them and they will live with his loss for the rest of their lives. Mr Waugh said this:

I realise that Eden was not without faults but he was such a caring, kind hearted and talented young man and he did not deserve to die, especially in such a violent cold hearted and cowardly manner.

1. Having shot the deceased the co-offenders stepped over his dying body to commit further offences within the flat. The offender, sitting in the car, did not actually commit any of these offences but he bears the responsibility that is derived from s 45A of the Criminal Code 2002 (ACT).

1. The third offence, an accessory after the fact, involves the offender driving the co-offenders from the scene and lying to the police in the course of their investigations. It is accepted that the investigations were not unduly hampered by his dishonesty. The Crown submitted that the first offence was the most objectively serious. I agree. The second offence is also objectively serious, perhaps to a slightly lesser extent because the offender was not present in the flat. I also agree with the Crown’s assessment of the third offence as being somewhere between minor to medium in the range of objective seriousness. No competing assessment was suggested by the offender in respect of any of the offences.

1. When Loukas-Karlsson J sentenced the offender in October last year her Honour set out the offender’s subjective circumstances and also gave a concise analysis of a psychologist’s report which has been tendered in the offender’s case.

1. The offender was born in Laos in 1995. He is therefore now 23 years of age. He is a young man. He has lived in Australia since 2007. He completed Year 11 but has not been regularly employed although seems to have helped in a family business from time to time. His real problem has been with drugs. By age 20 he was a daily user of a range of illicit substances. He reached the stage where his memory was rendered ineffective as a result of his drug taking. His psychological problems are a consequence of taking drugs and unless he changes his habits his life is doomed.

1. The offender has written to me (Exhibit 1). He says that he has realised where he has gone wrong, that he realises that drugs have led him to the “wrong side of the tracks” and that he is “prepared to face the consequences, whatever they may be” of his actions. He ends by asking “the court to have mercy upon me”. The Crown submitted I should have little regard to the letter because the statements it contains have not been tested. Strictly speaking this is correct but I nevertheless regard the letter as at least an acknowledgement by the offender of the wrongs he has committed and the causes for him doing so.

1. The Crown pointed out another aggravating feature of the offending, namely that the offender was on conditional liberty when the crimes took place. The Crown urged me to avoid significant amounts of concurrency in the sentences but of course recognises, as stressed on behalf of the offender, that principles of totality apply and there must be a degree of concurrency.

1. The offender’s youth means he must be given some opportunity for rehabilitation and the sentences must not crush him. Nevertheless he faces a long prison term during which his entire future will depend on him casting drugs aside and preparing himself to enter society with a view to contributing to it rather than destroying it.

1. Sentencing also requires consideration of the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 33 is relevant as is s 10. The latter section says a person should not be sent to prison except as a last resort. There is no alternative in this case nor has any been suggested.

1. I make the following orders:

(a)In relation to the offence of aggravated burglary (CC2018/10244), the offender is sentenced to 7 years’ imprisonment (reduced from 9 years), commencing on 1 September 2019 and ending on 31 August 2026.

(b)In relation to the offence of aggravated robbery (CC2018/10248), the offender is sentenced to 5 years’ imprisonment (reduced from 6 years), commencing on 1 September 2024 and ending on 31 August 2029.

(c)In relation to the offence of being an accessory after the fact to murder (XO2019/31477), the offender is sentenced to 4 years’ imprisonment (reduced from 5 years), commencing on 1 September 2027 and ending on 31 August 2031.

(d)The total sentence is 12 years’ imprisonment.

(e)I set a non-parole period of 7 years and 3 months, commencing on 1 September 2019 and ending on 30 November 2026.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 9 May 2019