R v Ta Southammavong and Vilasone Sihavong

[2002] NSWSC 854

CITATION:	R v Ta Southammavong and Vilasone Sihavong [2002] NSWSC 854
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	SC 70085/01; 70213/01
HEARING DATE(S):	3,4,5,8,9,10,11,12,15,16,17,18,19,22,23,24,26,29, 30 April, 1,2,3,6,7,8,9,10,13,14 May 2002
JUDGMENT DATE:	19 September 2002
PARTIES :	Regina Ta Southammavong Vilasone Sihavong
JUDGMENT OF:	Buddin J

COUNSEL :	D Frearson (Crown) W Terracini SC (Offender Southammavong) J O'Loughlin (Offender Sihavong)
SOLICITORS:	SE O'Connor (Crown) Watsons (Offender Southammavong) Mark Klees & Associates (Offender Sihavong)
CATCHWORDS:	Sentence - Southammavong - found guilty of murder - intent to kill formed spontaneously - weapons taken to scene of crime - no apparent explanation for offences - not in worst category of offence - determinate sentence appropriate - further offence of malicious wounding with intent to inflict grievous bodily harm - partly cumulative sentence. Sentence - Sihavong - found not guilty of murder - guilty of malicious wounding with intent to inflict grievous bodily harm (x2) - partly cumulative sentence - finding of "special circumstances".
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704
DECISION:	In respect of Ta Southammavong - count 5 - malicious would with intent to do grievous bodily harm -sentenced to eight years' imprisonment to date from 13 June 2000 and to expire on 12 June 2008. In respect of count 1 - murder - sentenced to nineteen years' imprisonment with a non-parole period of fourteen years. Head sentence and non-parole period will each commence on 13 June 2002 and to be served partly concurrently with and partly cumulatively upon the sentence imposed in respect count 5. Head sentence will expire on 12 June 2021 and non-parole period will expire on 12 June 2016. In respect of Vilasone Sihavong - count 5 - maliciously wound with intent to grievous bodily harm -sentenced to eight years' imprisonment to commence on 8 June 2000 and expire on 7 June 2008. in respect count 3 - maliciously wound with intent to do grievous bodily harm - sentenced to eleven years' imprisonment with a non-parole period of six and a half years. Head sentence and non-parole period will each commence on 8 June 2003 and to be served partly concurrently and partly cumulatively upon the sentence imposed in count 5. Head sentence will expire on 7 June 2014 and non-parole period will expire on 7 December 2009.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BUDDIN J

Thursday 19 September 2002

REGINA v TA SOUTHAMMAVONG
REGINA v VILASONE SIHAVONG

SENTENCE

1 HIS HONOUR: On 8 April 2002 an indictment in the following terms was presented against the offenders alleging that each of them:

1 On 7 June, 2000 at Claymore in the State of New South Wales, did murder Sai Ya Vanthy.

2 on 7 June, 2000 at Claymore in the State of New South Wales, did wound Kongsavanh Phommek with intent to murder him.
in the alternative to count two:
3 on 7 June, 2000 at Claymore in the State of New South Wales, did maliciously wound Kongsavanh Phommek with intent to do him grievous bodily harm.

4 on 7 June, 2000 at Claymore in the State of New South Wales, did wound Souphaphane Pathammavong with intent to murder him.
in the alternative to count 4:
5 on 7 June, 2000 at Claymore in the State of New South Wales, did maliciously wound Souphaphane Pathammavong with intent to do him grievous bodily harm.

2 Each of the offenders pleaded not guilty to all counts.

3 On 14 May 2002 the jury returned with verdicts. The offender Southammavong was found guilty of counts 1 and 5 and not guilty of counts 2 – 4 inclusive. The offender Sihavong was found guilty of counts 3 and 5 and not guilty of counts 1, 2 and 4. Following the verdicts I convicted each of the offenders in respect of those counts of which they had been found guilty.

4 The various participants in the incident which culminated in the fatal shooting of the deceased and the shooting of both Kongsavanh Phommek (known throughout these proceedings as Bobby) and Souphaphane Pathammavong (known as Tao) were well known to each other.

5 The deceased and Bobby Phommek lived at 29 McCubbin Way, Claymore. It was outside those premises that the various crimes of which the offenders have been convicted were committed on 7 June 2000. Tao Pathammavong, who lived in Brisbane, had been staying with them for about a week at the time of the incident. They were all friends.

6 It appears that the offenders had known each other since childhood although they were more in the nature of acquaintances than friends. Each of them was friendly with the deceased who was known as La. They had each also known Bobby Phommek for many years and were on apparently friendly terms with him. Each of them also knew Tao Pathammavong but neither of them had known him for very long. It seems that their knowledge of him arose only through their association with Bobby Phommek and the deceased.

7 The Crown was unable to point to any motive for the commission of these offences although there was evidence of some unexplained tension between some of the participants earlier on in the evening that preceded the incident which gave rise to these offences. It is clear that by the time of the confrontation which led to the death of La that the tension had escalated into personal antagonism and open conflict. I am unable however upon the evidence to determine what it was that precipitated the fatal confrontation.

8 It is to a consideration of the events of 6 and 7 June 2000 that I now turn.

9 At some stage during the evening in question Bobby Phommek, Tao Pathammavong, the deceased and Julie By (Bobby’s girlfriend) were at home having dinner. A friend of Bobby’s, named Jugkree Sithisen (known as Dong) was also present when the offenders arrived. There was another unidentified Asian male with them. (It may be noted that Sithisen was unable to identify the offender Sihavong as having arrived with the offender Southammavong). It is not clear at what time this event occurred although it may have been at around midnight. Indeed times given by all the main witnesses were almost uniformly imprecise, if not inaccurate, in many respects.

10 Although one cannot be certain as to what then transpired it can nevertheless be readily inferred that the atmosphere was tense. Mr Sithisen said that it was “like they were having an argument…All I could see was that they were not happy with each other”. Mr Pathammavong said that the offender Sihavong kicked over a chair and then said that he wanted to speak to Bobby. The deceased intervened and suggested that they go outside and talk.

11 Shortly thereafter, the two offenders together with the unidentified Asian male and the deceased left the premises in a vehicle driven by the offender Southammavong. They were then seen to depart by Phommek, Pathammavong and Sithisen. This latter group also left the premises at the same time as the other group. They left in a vehicle driven by Bobby Phommek in order to drive Mr Sithisen home.

12 The offender Southammavong did not give evidence at the trial. However in a lengthy ERISP conducted with him by the police he admitted having been at the premises at about that time. He said however that he had been alone and that he had come to see Bobby. He maintained that he had been there for only a couple of minutes. He was unable to satisfactorily explain the purpose for his visit.

13 When Phommek and Pathammavong returned at least an hour later from having dropped off Mr Sithisen they saw that the offenders, together with the deceased, were once again at the premises in the offender Southammavong’s vehicle. Some conversation then took place between the parties outside the premises. Phommek and Pathammavong went inside and about ten minutes later the deceased also returned to the house. Once inside, the deceased told Bobby Phommek that the offender Sihavong was apparently upset with Bobby because Sihavong still liked Bobby’s girlfriend. There was some evidence to suggest that there in fact had been a brief romantic encounter between the offender Sihavong and Julie By. Some time later the deceased received a phone call from the offenders in which they said that they wanted to come and see him and his friends.

14 When the offenders arrived, the deceased and his two companions were waiting for them outside the premises. There was an immediate confrontation between the parties following what was an apparently heated exchange of words between at least one of the offenders and the man Pathammavong. At that point the offender Southammavong produced a gun and pointed it at Pathammavong. The deceased then stepped in between them and told the offender Southammavong that Pathammavong did not “know anything.” He said that if he (Southammavong) wished to shoot Pathammavong he should shoot him (the deceased) first. The offender Southammavong and the deceased were at that stage facing each other at a distance of about half a metre. The offender Southammavong thereupon pointed the gun at the deceased’s head and shot him in the forehead. He then fired another shot into his lower abdomen.

15 At about the same time the offender Sihavong and Phommek walked a few metres away from where that incident had occurred. Bobby Phommek gave evidence that he endeavoured to placate the offender Sihavong by talking to him. He noticed the offender Sihavong spit on the driveway. Thereafter he himself was shot. At the time he was shot the offender Sihavong was standing directly in front of him at a distance of about a metre.

16 At the time the deceased La was shot, Tao Pathammavong was standing directly behind him. After the deceased fell to the ground each of the offenders then shot Pathammavong. He was shot a number of times. The two offenders then ran from the scene.

17 Although each of the witnesses resiled, to some extent in cross-examination, from their initial assertions that they had actually seen the offender Sihavong firing at them, it was nevertheless abundantly clear from the totality of the evidence that they were entitled to conclude that he had indeed shot them. In fact they were cross-examined in such a way as to establish that they had each indeed arrived at such a conclusion. As one of them said rhetorically in response to a question, who else could have shot him.

18 The deceased and each of the other two victims were transferred to Liverpool Hospital where the deceased died later that same day. Dr Dianne Little performed an autopsy upon him. She concluded that he had died from a gunshot wound to the head. She said that he had sustained a frontal skull fracture. The entry wound was on the bridge of the nose between the eyes. The projectile had passed through the nasal bones and had lodged in the medial left occipital lobe which is at the back of the brain. The bullet was surgically removed. She examined the entry wound and described it as having a stellate appearance. From this evidence she was able to conclude that the muzzle of the gun that had fired the fatal shot had been almost up against the skin at the time. She also reported that the entry point, in respect of a second wound to the deceased, was on the right groin and that the projectile had then passed through the pelvis before exiting the right buttock.

19 Bobby Phommek suffered a puncture wound to his left thigh. The exit wound was on his left buttock. He discharged himself from hospital against medical advice the day following his admission. Tao Pathammavong sustained three gunshot wounds. One bullet (a .32 calibre) had been removed from him on 7 June 2000. Another bullet (a .45 calibre) had been removed from him on 14 June 2000. He was not discharged from hospital until 20 June 2000. His injuries were considerably more serious than those sustained by Bobby Phommek. One bullet had entered and exited the lumbar region without causing any internal organ injury. Another bullet entered the lower left area of the abdomen and had caused damage to both the small bowel and the large bowel. A third bullet entered the left thigh and ended up in the right thigh bone which was fractured.

20 A substantial attack was made upon the credit and reliability of each of the two principal Crown witness. In particular an attack was made upon the witness Bobby Phommek who admitted having initially lied to the police about the identity of his assailants. He gave evidence that he had decided to nominate the offenders, whom he said were the real culprits, only after he had become aware that Tao Pathammavong had already done so. He said however that he had nominated the offenders as being the shooters to his brother, Jimmy and to a friend, Vilacone Inthachanh shortly after the incident but at a time well before he had told the police. Nevertheless the jury clearly enough accepted the evidence, or the relevant parts of it, of Phommek and Pathammavong. At a bare minimum they must have accepted the critical aspects of the evidence of at least one of them. They were perfectly entitled to rely, in particular, upon the evidence of Tao Pathammavong.

21 Moreover there was a considerable degree of consistency, both in its broad outline and more particularly in relation to the sequence of events, between what each of the two principal witnesses described as having unfolded that evening. There was also some support, for parts of their evidence, in other evidence called in the Crown case. The evidence of Dr Little confirmed that the deceased had been shot at close range. Mr Sithisen’s evidence gave support to their version of the events which had occurred earlier in the evening. It also contradicted what the offender Southammavong had said upon that subject matter in his ERISP.

22 Evidence from a ballistics expert demonstrated that at least two, (but probably only two), different firearms had been used. Moreover the medical evidence, in relation to the removal of two different calibre bullets from Pathammavong, is also consistent with the evidence of Phommek and Pathammavong that each of the offenders had discharged a firearm at him (Pathammavong).

23 It is also of some significance that each of the offenders conceded that he had been at the premises on the night in question although not in each other’s company. The principal response to the Crown case advanced on behalf of each of the offenders was that they were not present at the time of the shootings and that they therefore were not responsible for the crimes with which they had been charged. The concession that each was there at some stage of the evening provides some support, albeit of a limited kind, for the Crown case. There was evidence that DNA which was consistent with that of the offender Southammavong was located upon a cigarette butt found at the scene. It was entirely possible of course that the cigarette had been smoked on the occasion earlier in the night when the offender Southammavong admitted to having been at the scene.

24 The position so far as the offender Sihavong was concerned was a little different. There was evidence that DNA consistent with his was found upon sputum at the scene. He gave evidence that he had probably spat whilst waiting for the deceased outside the premises at approximately 7.30 pm in the evening before the incident. The Crown case was that the sputum had been placed there at the time of the incident which occurred at about 5 am. The sputum was clearly depicted upon a video of the crime scene which was taken somewhere between 6.50 am and 7.15 am. It was clearly open to the jury, in view of evidence which was given by other witnesses in the Crown case and in view of the appearance of the sputum itself, to accept the Crown’s submission and to reject the offender’s version as to when it was placed there.

25 The offender Sihavong gave evidence in his own case. He was clearly a most unsatisfactory witness in a number of respects. He gave evidence concerning his movements during the night in question. It included a period of time between approximately 3 am and 4.15 am when he said that he had been in a particular hotel. The Crown called evidence which destroyed that part of the alibi because it demonstrated that the hotel had closed at no later than 12.30 am on that morning.

26 In relation to each count the Crown nominated the person whom, it contended, was actually responsible for the particular shooting. In relation to count 1 it was the offender Southammavong. In relation to counts 2 and 3 it was the offender Sihavong. In relation to counts 4 and 5 it was the offender Southammavong insofar as the Crown pointed to a specific wound as being the injury upon which it was relying. However the evidence in relation to counts 4 and 5, which I accept, particularly in light of the ballistics and medical evidence, was that each offender fired shots into the man Pathammavong. In those circumstances it was hardly surprising that the jury found that the requisite agreement existed. Nor was it surprising that each of the offenders was convicted of the count thought by the jury to be appropriate in the circumstances, namely count 5. The verdicts of not guilty in relation to counts 2 and 4 respectively are clearly explicable upon the basis that the jury was not satisfied that the Crown had proved its case to the requisite standard insofar as the element of wounding with intent to kill was concerned. In relation to counts 1 and 3 the jury convicted the actual shooter but was not prepared to find to the requisite standard that there was a joint criminal enterprise, to which the other offender had agreed to be a party, which related to the specific crime alleged. So understood, the verdicts are not only reconcilable but perfectly understandable.

27 It is trite to say that murder is regarded as the most serious offence in the criminal calendar. The starting point for a consideration of the appropriate penalty is the taking of a human life. The factual circumstances which I have related reveal a very significant degree of objective seriousness. It is difficult to disagree with the Crown’s characterisation of the murder of Sai Ya Vanthy as being, in the final analysis, in the nature of an execution committed at point blank range. Mr Terracini SC does not argue to the contrary and nor does he submit that I should do other than find that the offender Southammavong committed the offence with an intention to kill.

28 There was however considerable debate about the extent to which each of the offences in question were premeditated. The Crown submits that there was a degree of premeditation on the part of each offender but only in the sense that each arrived at the scene with a loaded firearm anticipating that there may be some form of confrontation. The real possibility that the weapons may have been used in some such fashion must have been in the contemplation of each of them, even if their possible use was not the subject of any agreement between them nor even desired. Counsel for the offenders did not take issue with this submission. Nevertheless it is not possible upon the evidence to determine the circumstances in which or when the offenders came to be armed. Accordingly I am not prepared to find to the requisite standard that the offender Southammavong formed an intention to kill the deceased at any time other than immediately before he actually discharged the gun at his head.

29 The Crown did not submit that the murder of the deceased falls within the worst category of case. I accept that the present offence, serious as it is, does not warrant a sentence of imprisonment for life as provided for in s 61 of the Crimes (Sentencing Procedure) Act 1999. That being so, s 21 of that Act which provides for the imposition of a “sentence of imprisonment for a specified term” in circumstances such as the present, has application. Accordingly I propose to impose a determinate sentence upon the offender Southammavong.

30 The offender Southammavong also stands for sentence in relation to his conviction upon count 5 which, pursuant to s 33 of the Crimes Act, attracts a maximum penalty of imprisonment for 25 years. This offence was committed pursuant to a joint enterprise but again I am not prepared to find to the requisite standard that the agreement or the intention to commit the offence was formed at any time other than immediately prior to the shots being fired at the man Pathammavong.

31 I must, in assessing the offender Southammavong’s overall criminality, have regard to well-established and fundamental sentencing principles which include the need to reflect the community’s interest in retribution, denunciation, deterrence and public protection as well as the rehabilitation of an offender. It is common ground that the general sentencing principles enunciated in s 21A of the Crimes (Sentencing Procedure) Act 1999 do not have direct application to these proceedings because that section did not commence operation until 15 April 2002, which is a date after which these proceedings commenced. See s 21A(5) of the Crimes (Sentencing Procedure) Act 1999.

32 It is also necessary to impose sentences which reflect the offender’s overall criminality. I must also observe the requirements of Pearce v The Queen (1998) 194 CLR 610 and proceed to impose an appropriate sentence in respect of each offence. I accept the Crown submission that given that I am sentencing for two separate serious offences, albeit committed almost simultaneously, that it would be inappropriate in all the circumstances of this case to impose sentences which are wholly concurrent. In my view an appropriate approach, consistent with established principle, is to impose sentences which are partly cumulative. I must also have regard to the principles of totality. In the final analysis however what is critical is that I impose sentences which, in their overall effect, are just and appropriate in all the circumstances.

33 The offender Sihavong of course stands in a different position by reason of the fact that he was acquitted of the count of murder. He was convicted of the lesser offences of malicious wounding with the intention of doing grievous bodily harm. Nevertheless he still stands for sentence in respect of two serious offences, one of which was committed pursuant to a joint enterprise. So far as the requisite intention for the commission of each of these offences is concerned, I again accept that it was formed more or less spontaneously, that is, immediately prior to the commission of the actual offences themselves. I am also again prepared to accept that the agreement, so far as the conviction in relation to count 5 is concerned, was formed just prior to if not indeed at the time of the commission of the offence.

34 A measure of the seriousness with which the community views the offences of which the offender Sihavong was convicted, is apparent from the maximum penalty which is provided by the legislature. Although the shootings occurred within seconds of each other I am nevertheless of the view that it is appropriate to impose sentences upon the offender Sihavong which are also partly cumulative.

35 I now turn to consider what subjective features exist in the case of each offender which might mitigate the otherwise appropriate sentences.

36 The offender Southammavong was born on 8 May 1977 and is accordingly now aged 25. He was 23 at the time of these offences. He has been in custody since his arrest on 8 June 2000 for all but a period of five days when he was on bail. It is agreed between the parties that his sentences should commence on 13 June 2000. He has a criminal record but it pales into insignificance when compared with the current offences. He was fined $100 for stealing in 1995 and $500 in 1998 for the offence of having goods in custody. He was ordered to perform 200 hours community service in 1999 for assault occasioning actual bodily harm and in the same year was placed on a recognisance for possessing a prohibited weapon without a permit.

37 A letter which was tendered on his behalf from Brother Lynch of the Chaplaincy Service of Parklea Correctional Centre indicates that his conduct whilst in custody has been exemplary. He has spent his time productively by undertaking courses and by working conscientiously in the print shop. This, together with his comparative youth, provides some basis for optimism in relation to his prospects for rehabilitation.

38 The offender Southammavong did not give evidence during the sentence proceedings. I have been informed about his background in a pre-sentence report from the Probation and Parole Service and in a report prepared on his behalf by Ms Barrier, a clinical psychologist. The offender Southammavong told her that he was born in Thailand of Laotian parents. Not long after his birth the family returned to Laos where he spent his formative years. That country at the time was said to be politically unstable and was described as being “war torn”. His parents separated when he was quite young and he has not had any contact with his natural father since. For a period of three years he was looked after by friends of the family. He did not attend school during this period and was obliged to tend his adoptive family’s buffaloes in return for food and lodging. When he was 11 he rejoined his mother who was by then again living in Thailand where she had remarried. He said that he was thereafter subjected to physical abuse by his stepfather.

39 When the offender Southammavong was 13, his family came to Australia as refugees. They settled in Sydney in the suburb of Eaglevale. The offender was unable to speak English when he arrived in this country but is now quite proficient in the English language. He attended Eaglevale High School and sat for his Higher School Certificate in 1996 at which be obtained a lowly TER score of 25. At some stage between the ages of 16 and 18 he moved out of home. It appears that his family now lives in Adelaide. He has little contact with them and it is clear that the relationship between the offender and his mother and stepfather is strained .

40 At one stage the offender Southammavong entertained hopes of joining the armed services. He was devastated when his application was rejected on two separate occasions apparently because his command of English was thought not to be of a sufficiently high standard. He is said to have been embittered by that rejection and became “associated with those who were involved in criminal activities and became accepting of criminal behaviour.” There is little evidence to suggest that he has been employed in any meaningful way apart from a short period when he worked in a restaurant.

41 The offender Southammavong informed Ms Barrier that he maintained his innocence notwithstanding his conviction by the jury. He did however express sadness at the death of Sai Ya Vanthy whom he said he loved like a brother. Mr Terracini informed me from the bar table that his client instructed him to advise me that he was sorry about the “accident” which had befallen the deceased. The offender Southammavong said to the Probation officer that he also regarded Bobby Phommek as a friend. He was described in the pre-sentence report as having “a history of impulsive behaviour and…as [being] ‘hot tempered’”. I am nevertheless prepared to weigh in his favour the evidence as to his deprived background and his age.

42 Nor did the offender Sihavong give evidence during the sentence proceedings. Information about his background is provided in a pre-sentence report prepared by the Probation and Parole Service. I also heard evidence from his step-sister who remains supportive of him and has been visiting him in gaol. He was born on 7 August 1980 in Laos and travelled to Malaysia before emigrating to Australia. The family spent a number of years in refugee camps in Thailand where life was difficult and violence was rife. He is one of six children and the family was granted Australian citizenship in 1991. His father is dead and his mother remarried although that relationship has now ended. The offender Sihavong left school at the age of 13, having completed only three years of education. He was said, by his step sister, to have had learning difficulties. He began using illicit drugs at that time. Although he is said to have had a close relationship with, and the support of, his family he left the home environment at an early age and effectively from then on adopted the itinerant lifestyle of a “street kid.” He has apparently never really worked in gainful employment and agreed with the Probation and Parole officer that he obtained money “through his criminal activity.” As that officer observes, he “has chosen a lifestyle within a sub cultural group away from the support of his family.” Nevertheless I am informed that upon his release from custody he would like to go to New Zealand where his mother lives. She is prepared to have him live with her as he endeavours in due course to make a fresh start in life.

43 The offender Sihavong has been in continuous custody since his arrest on 8 June 2000 and accordingly the sentences which I shall impose upon him will commence on that date. He is currently aged 22 although he was only 19 at the time of the offences. He too has a criminal record. Again it may be said to be of relatively minor significance when placed against the matters in respect of which he has now been convicted. When he was 17 he was sentenced to a control order for 4 months in the Children’s Court for various dishonesty offences. In 1998 he was sentenced in Fairfield Local Court to a term of 6 months’ periodic detention for further offences of dishonesty. In the same year he was sentenced in Parramatta Local Court to 6 months’ imprisonment for yet further offences of dishonesty and for breaching the order for periodic detention. He too continues to maintain his innocence.

44 It was submitted on behalf of the offender Sihavong that I should make a finding of “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. See generally R v Simpson (2001) 53 NSWLR 704. I am prepared to make such a finding particularly bearing in mind his age at the time of these offences, his significantly disadvantaged background, the fact that he is serving his first substantial full-time custodial sentence and the fact that the sentences to be imposed are partly cumulative in nature. It may be noted that the Crown did not oppose the making of such a finding. Notwithstanding the fact that no similar submission was made on behalf of the offender Southammavong I will nevertheless impose a sentence in respect of the conviction for murder which slightly departs from the normal proportion which the non-parole period bears to the head sentence but only to accommodate the fact that the sentences to be imposed are partly cumulative in nature.

45 Neither of the offenders is entitled, in view of the stance that they have taken, to any leniency that is to be afforded to persons who express remorse for their offences. They are of course not to be punished in any way for having adopted the course which they have taken.

46 In accordance with the normal practice I have received and read the contents of a psychological report prepared by Ms Vickey Annakis which details the impact which the death of Sai Ya Vanthy has had upon his family. I am mindful of the approach which is to be taken in respect of such material. See R v Previtera (1997) 94 A Crim R 76. Nevertheless it is appropriate that I express, on behalf of the community, the profound sympathy which is felt for the grief which has been and no doubt will continue to be experienced by Sai Ya Vanthy’s friends and family.

47 I have had regard to the schedule of cases, said to bear some comparability to the present case, which has been provided by the Crown. They have proved to be of some assistance in enabling me to arrive at what I consider to be the appropriate range for offences of this kind.

48 It is common ground between the parties that the appropriate range of head sentence for the offence of murder in this case is between 15 or 16 years and 20 years. It is also agreed that the appropriate range for the s 33 offences is between 7 years and 12 years although there is disagreement as to where within the appropriate range each offender fits. The parties are also agreed that there is no basis for any differentiation as to the penalty to be imposed upon the respective offenders so far as the s 33 offence, of which they were both convicted, is concerned.

49 The carrying of loaded firearms in a public place has, in this case, had tragic consequences. A young man died at the hands of the offender Southammavong and two others suffered gunshot wounds as a result of his conduct and that of the offender Sihavong. Nor did either offender desist after having shot their first victim. Each of them then proceeded to shoot the man Pathammavong. These crimes occurred because the offenders acted in wanton and reckless disregard for the personal safety of other citizens. Their conduct was completely without justification. The community deserves to be protected from such activities and consequently salutary penalties must be imposed upon them.

Orders

50 In respect of count 5 on the indictment I sentence Ta Southammavong to a fixed term of eight years’ imprisonment to date from 13 June 2000 and to expire on 12 June 2008. Pursuant to s 45 of the Crimes (Sentencing Procedure) Act 1999 I decline to set a non-parole period in respect of that sentence by reason of the length and structure of the sentence which I am about to impose in respect of count 1. In respect of count 1 on the indictment I sentence Ta Southammavong to nineteen years’ imprisonment with a non-parole period of fourteen years. The head sentence and the non-parole period will each commence on 13 June 2002 and thus are to be served partly concurrently with and partly cumulatively upon the sentence imposed in respect of count 5. The head sentence will expire on 12 June 2021 and the non-parole period will expire on 12 June 2016 at which time he will be eligible for consideration for release to parole. The effective overall sentence is thus one of twenty-one years’ imprisonment with a non-parole period of sixteen years.

51 In respect of count 5 on the indictment I sentence Vilasone Sihavong to a fixed term of eight years’ imprisonment to commence on 8 June 2000 and to expire on 7 June 2008. Pursuant to s 45 of the Crimes (Sentencing Procedure) Act 1999 I decline to set a non-parole period in respect of that sentence by reason of the length and structure of the sentence which I am about to impose in respect of count 3. In respect of count 3 on the indictment I sentence Vilasone Sihavong to eleven years’ imprisonment with a non-parole period of six and a half years. The head sentence and the non-parole period will each commence on 8 June 2003 and thus are to be served partly concurrently with and partly cumulatively upon the sentence imposed in respect of count 5. The head sentence will expire on 7 June 2014 and the non-parole period will expire on 7 December 2009 at which time he will be eligible for consideration for release to parole. The effective overall sentence is thus one of fourteen years’ imprisonment with a non-parole period of nine and a half years.

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Last Modified: 12/02/2002