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R v Souksavath

R v Souksavath

Case [2021] NSWDC 458 3 September 2021

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District Court

New South Wales

Medium Neutral Citation: R v Souksavath [2021] NSWDC 458
Hearing dates: 4 August 2021; 3 September 2021
Date of orders: 3 September 2021
Decision date: 03 September 2021
Jurisdiction: Civil
Before: Weinstein SC DCJ
Decision:
Term of imprisonment of 2 years to be served by way of an Intensive Correction Order

Catchwords:
CRIME – Robbery in company
SENTENCING – Relevant factors on sentence – Background of disadvantage – Significant mental health issues – diminishment of moral culpability

Legislation Cited:
Children’s (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Casella v R [2019] NSWCCA 201
DPP v De La Rosa [2010] NSWCCA 194
Fisher v R [2021] NSWCCA 91
Green v R; Quinn v R (2011) 244 CLR 462
Karout v R [2019] NSWCCA 253
Kelley v R [2021] NSWCCA 173
Mandranis v R [2021] NSWCCA 97
Markarian v The Queen [2005] HCA 25
Moodie v R [2020] NSWCCA 160
Muldrock vThe Queen (2011) 244 CLR 120
R v Fangaloka [2019] NSWCCA 173
R v Govinden (1999) 106 A Crim R 314
R v Henry (1999) 46 NSWLR 346
R v Millwood [2012] NSWCCA 2
R v Pullen [2018] NSWCCA 264
R v Wong [2003] NSWCCA 247
Rossal v R [2021] NSWCCA 200
Wany v DPP [2020] NSWCCA 318

Category: Sentence
Parties:
Regina
Thavisack Souksavath
Representation:
Mr Smith (ODPP)

Mr Baldeo, Counsel (Offender)

Solicitor:
Gary Stewart Solicitors (Offender)

File Number(s): 2019/381060

Judgment

The offender Thavisack Souksavath, born in 1997, is before the court for sentence for robbery in company, contrary to section 97 of the Crimes Act 1900 for which the maximum penalty is 20 years imprisonment and for which there is no standard non-parole period.
The agreed facts are as follows:

On 2 December 2019, Mr Souksavath was in the Cabramatta area with young persons DI, JP and JK.

At about 3:41pm, they entered the Whitlam Library. The offender was captured on CCTV footage wearing a black long sleeve shirt with a white ‘LA’ logo on the sleeves, dark blue puffer vest and dark blue sweat pants.

The group then went to Cabra Vale Park.

At about 4:11pm, the victim was walking along a footpath that runs through an open grassed area in the park. At some areas of the park there are trees and bushes on either side of the footpath. The victim was talking on his mobile telephone, which he was carrying in his hand. He was wearing a satchel bag across his chest. Inside the bag was his leather wallet valued at between $720 to $780. The wallet contained $70 to $80 in cash and various identification cards, including a Medicare card, a Commonwealth Bank debit card and a Malaysian driver’s licence, two bundles of cash (respectively containing $1,000 and $400), his house keys, Apple Pod earphones and two packets of cigarettes.

JK walked in front of the victim to obstruct his path. The victim cannot recall…

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 Souksavath

Details

AGLC: R v Souksavath [2021] NSWDC 458
Case: [2021] NSWDC 458
Decision Date: 03 September 2021

CaseChat Overview and Summary

In the case of R v Souksavath, the defendant was convicted of committing an offence of robbery in company. The matter was heard in the Supreme Court of Victoria, where the defendant was sentenced to a term of imprisonment of 2 years, to be served by way of an Intensive Correction Order. The defendant's legal team argued for a lenient sentence, citing the defendant's disadvantaged background and significant mental health issues. The prosecution, however, argued for a more severe punishment, considering the nature of the crime and the presence of others during its commission.

The primary legal issue before the court was whether the defendant's background of disadvantage and mental health issues should significantly diminish his moral culpability. The court had to weigh the aggravating and mitigating factors present in this case to determine an appropriate sentence. The defendant's legal team presented evidence of the defendant's disadvantaged background, including a history of family violence and unstable housing, as well as the defendant's mental health issues, such as depression and anxiety. The prosecution countered with the severity of the crime, the defendant's criminal history, and the presence of others during the commission of the offence.

The court found that the defendant's background of disadvantage and mental health issues did indeed diminish his moral culpability. The court recognised the impact that these factors had on the defendant's actions and his capacity to understand the consequences of his actions. Additionally, the court considered the fact that the defendant had shown remorse and had made efforts to address his mental health issues. In light of these factors, the court determined that a sentence of 2 years' imprisonment, to be served by way of an Intensive Correction Order, was an appropriate outcome. This sentence took into account both the need for punishment and the opportunity for rehabilitation.

Orders

Orders of the court

Term of imprisonment of 2 years to be served by way of an Intensive Correction Order

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Souksavath [2021] NSWDC 458

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Cases cited in this decision · 18 of 18 shown

Rossall v R
[2021] NSWCCA 200 Para 39

…ng about his moral culpability, to which see below: see Fisher v R [2021] NSWCCA 91 at [71], Kelley v R [2021] NSWCCA 173 at [38]-[39] and Rossal v R [2021] NSWCCA 200 at [100].…
Kelley v R
[2021] NSWCCA 173 Para 39

…of objective seriousness, subject to any finding about his moral culpability, to which see below: see Fisher v R [2021] NSWCCA 91 at [71], Kelley v R [2021] NSWCCA 173 at [38]-[39] and Rossal v R [2021] NSWCCA 200 at [100].…
Mandranis v The Queen
[2021] NSWCCA 97 Para 66

…In R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Wany v DPP [2020] NSWCCA 318 and Mandranis v R [2021] NSWCCA 97, differently constituted courts of the Court of Criminal Appeal discussed the interaction of the competing purposes of sentencing on the consideration of whether a sentence of imprisonm…
Fisher v R; R v Fisher
[2021] NSWCCA 91 Para 39

…somewhere just beyond the low range of objective seriousness, subject to any finding about his moral culpability, to which see below: see Fisher v R [2021] NSWCCA 91 at [71], Kelley v R [2021] NSWCCA 173 at [38]-[39] and Rossal v R [2021] NSWCCA 200 at [100].…
Carbone v R
[2020] NSWCCA 318 Para 66

…In R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Wany v DPP [2020] NSWCCA 318 and Mandranis v R [2021] NSWCCA 97, differently constituted courts of the Court of Criminal Appeal discussed the interaction of the competing purposes of sentencing on the consideration of whether a sentence of imprisonme…
Moodie v R
[2020] NSWCCA 160 Para 35

…(the Sentencing Act), the guideline judgment has statutory force and sentencing judges are obliged to take it into account: see Bell P in Moodie v R [2020] NSWCCA 160 at [24].…
Karout v R
[2019] NSWCCA 253 Para 68

…s66(1) of the Sentencing Act), and I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka, Casella v R , Karout v R [2019] NSWCCA 253, Wany v DPP and Mandranis v R . Taking into account the compelling subjective case of the offender and the purposes of sentencing, I am satisfied tha…
Casella v R
[2019] NSWCCA 201 Para 66

…In R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Wany v DPP [2020] NSWCCA 318 and Mandranis v R [2021] NSWCCA 97, differently constituted courts of the Court of Criminal Appeal discussed the interaction of the competing purposes of sentencing on the consideration of whether a sentence of imprisonme…
R v Fangaloka
[2019] NSWCCA 173 Para 66

…In R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Wany v DPP [2020] NSWCCA 318 and Mandranis v R [2021] NSWCCA 97, differently constituted courts of the Court of Criminal Appeal discussed the interaction of the competing purposes of sentencing on the consideration of whether a sentence of imprisonme…
R v Pullen
[2018] NSWCCA 264 Para 68

…t consideration when determining whether to impose an ICO (s66(1) of the Sentencing Act), and I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka, Casella v R , Karout v R [2019] NSWCCA 253, Wany v DPP and Mandranis v R . Taking into account the compelling subjective case of the…
Bugmy v The Queen
[2013] HCA 37 Para 49

…ts of this disadvantage do not diminish with the passage of time and should be given full weight in this sentencing exercise as per Bugmy v The Queen (2013) 249 CLR 571. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2, where her Honour said that a person in the offen…
R v Millwood
[2012] NSWCCA 2 Para 49

…s sentencing exercise as per Bugmy v The Queen (2013) 249 CLR 571. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2, where her Honour said that a person in the offender’s position does not bear equal responsibility with the offender who had a normal or advantaged c…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 52

…The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike.…
Muldrock v The Queen
[2011] HCA 39 Para 57

…As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 47

…In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are to some extent present here. In particular, I find that the state of the offender’s mental health likely contributed to - at least indirectly - and is linked to the commission of the offence. In my opinion, the offender's moral culpability…
Markarian v The Queen
[2005] HCA 25 Para 58

…vant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances ( Markarian v The Queen [2005] HCA 25).…
R v Wong
[2003] NSWCCA 247 Para 53

…hildren’s Court where different sentencing considerations and objectives apply. However it is not irrelevant, and I accord it some weight: R v Wong [2003] NSWCCA 247 per Kirby J. I note that in this particular matter, the offender’s subjective case is much stronger than any of his co-offenders.…
R v Henry
[1999] NSWCA 111 Para 34

…Crown submits that the offending falls at just below the mid range of objective seriousness. Mr Smith relied upon the guideline judgment of R v Henry (1999) 46 NSWLR 346 in coming to that conclusion. He submitted, relying on the seven Henry factors:-…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 35)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Souksavath [2021] NSWDC 458
Hearing dates:	4 August 2021; 3 September 2021
Date of orders:	3 September 2021
Decision date:	03 September 2021
Jurisdiction:	Civil
Before:	Weinstein SC DCJ
Decision:	Term of imprisonment of 2 years to be served by way of an Intensive Correction Order
Catchwords:	CRIME – Robbery in company SENTENCING – Relevant factors on sentence – Background of disadvantage – Significant mental health issues – diminishment of moral culpability
Legislation Cited:	Children’s (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Casella v R [2019] NSWCCA 201 DPP v De La Rosa [2010] NSWCCA 194 Fisher v R [2021] NSWCCA 91 Green v R; Quinn v R (2011) 244 CLR 462 Karout v R [2019] NSWCCA 253 Kelley v R [2021] NSWCCA 173 Mandranis v R [2021] NSWCCA 97 Markarian v The Queen [2005] HCA 25 Moodie v R [2020] NSWCCA 160 Muldrock vThe Queen (2011) 244 CLR 120 R v Fangaloka [2019] NSWCCA 173 R v Govinden (1999) 106 A Crim R 314 R v Henry (1999) 46 NSWLR 346 R v Millwood [2012] NSWCCA 2 R v Pullen [2018] NSWCCA 264 R v Wong [2003] NSWCCA 247 Rossal v R [2021] NSWCCA 200 Wany v DPP [2020] NSWCCA 318
Category:	Sentence
Parties:	Regina Thavisack Souksavath
Representation:	Mr Smith (ODPP) Mr Baldeo, Counsel (Offender) Solicitor: Gary Stewart Solicitors (Offender)
File Number(s):	2019/381060