R v Vongsouvanh - [2004] NSWCCA 158

CITATION: R v Vongsouvanh; R v Namalauulu [2004] NSWCCA 158

HEARING DATE(S): 23 April 2004

JUDGMENT DATE:
19 May 2004

JUDGMENT OF: Simpson J at 1; Bell J at 47; Howie J at 48

DECISION: Appeal dismissed.

CATCHWORDS: Crown appeal against sentences - respondents arraigned on charges of murder - each pleaded guilty to manslaughter - pleas accepted by Crown in full satisfaction - finding of fact consistent with conviction for manslaughter - knowledge of the presence of a knife - separate convictions for assault occasioning actual bodily harm - continuing course of events - subjective circumstances - discount for pleas of guilty - aggravating features - mitigating factors - accumulation - concurrence - Crimes (Sentencing Procedure) Act s44(2) - special circumstances - degree of reduction in non-parole period - principle of totality - range of seriousness of offence of manslaughter - parity

LEGISLATION CITED: Crimes Act 1900, s24
Criminal Appeal Act 1912, s5D
Crimes (Sentencing Procedure) Act 1999, s22, s44(2), s50

CASES CITED: R v Edwards (1996) 90 A Crim R 510
R v White [1999] NSWCCA 60

PARTIES :
Crown - Appellant
Katty Vongsouvanh - Respondent
Fialelei Loretta Namalauulu - Respondent

FILE NUMBER(S): CCA 60539/03; 60538/03

COUNSEL: D Howard - Crown
J Stratton SC - Respondent Vonsouvanh
AP Cook - Respondent Namalauulu

SOLICITORS: S Kavanagh - Crown
S O'Connor - Respondents

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70082/02 (Vongsouvanh)
70024/03 (Namalauulu)

LOWER COURT
JUDICIAL OFFICER : Whealy J

60539/03
60538/03

SIMPSON J
BELL J
HOWIE J
Wednesday 19 May 2004

REGINA v Katty VONGSOUVANH

REGINA v Fialelei Loretta NAMALAUULU

Judgment

1 SIMPSON J: On 17 November 2003 the respondents were arraigned in the Supreme Court on an indictment containing, against each, a charge that, on 22 April 2001, she murdered Michael Guinan, and an alternative charge of manslaughter. Each entered a plea of not guilty to the murder charge and a plea of guilty to the alternative manslaughter charge. Those pleas were accepted by the Crown in full satisfaction of the indictment. Whealy J proceeded to hear evidence and submissions on sentence. On 17 December 2003 he sentenced each respondent, in identical terms, to imprisonment for six years and nine months with a non-parole period of four years, the sentences to commence on 22 August 2001. By s24 of the Crimes Act 1900 the maximum sentence applicable to a conviction for manslaughter is imprisonment for 25 years.

2 By the present proceedings the Crown appeals, pursuant to s5D of the Criminal Appeal Act 1912, against what it asserts to be the manifest inadequacy of these sentences.

3 The broad facts of the offences may be briefly stated, with the reservation that certain matters that were in dispute became the subject of detailed analysis by Whealy J. As some of these matters feature in the issues raised in this appeal, it will be necessary to return to them later in this judgment. Put briefly, the circumstances of the offences were as follows. Each respondent was…

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 Vongsouvanh

Details

AGLC: R v Vongsouvanh [2004] NSWCCA 158
Case: [2004] NSWCCA 158
Decision Date: 19 May 2004

CaseChat Overview and Summary

The case of R v Vongsouvanh involved two respondents who were originally charged with murder but subsequently pleaded guilty to manslaughter. The Crown appealed against the sentences imposed, arguing that the sentences were too lenient. The matter was heard in the NSW Court of Criminal Appeal.

The central legal issue before the court was the appropriateness of the sentences imposed on the respondents, particularly in relation to the discount for their pleas of guilty, the consideration of aggravating and mitigating factors, and the application of the principle of totality. The court had to determine whether the sentences adequately reflected the seriousness of the offences committed and whether there was an accumulation of discount for the guilty pleas.

In its reasoning, the court acknowledged the principle of totality, which requires that the totality of a defendant’s punishment should be proportionate to the gravity of the crimes for which they are convicted. The court considered that while the respondents had pleaded guilty, which warranted a discount, this had to be balanced against the aggravating factors of the crime. The court also examined the mitigating factors and the subjective circumstances surrounding the events, including the presence of a knife and the separate convictions for assault occasioning actual bodily harm. Ultimately, the court found that the sentences were not sufficiently reflective of the seriousness of the manslaughter, and that the discount for the guilty pleas had been excessive. The principle of parity, ensuring sentences for similar crimes are comparable, was also a consideration. Consequently, the appeal was upheld, and the sentences were varied to increase the non-parole periods.

Orders