Regina v Mao Vann - [2004] NSWSC 988

CITATION: Regina v Mao Vann [2004] NSWSC 988

HEARING DATE(S): 1 June 2004

JUDGMENT DATE:
28 October 2004

JUDGMENT OF: Dunford J

DECISION: Sentenced to imprisonment for 19 years with non-parole period of 14 years and 3 months

CATCHWORDS: Criminal Law - Sentencing - murder - guilty plea - offender fires rifle at victim in foyer of cinema complex - other persons in area - additional charge of possess loaded firearm in public place taken into account

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1995
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, no 1 of 2002 (2002) 56 NSWLR 146
R v Falls [2004] NSWCCA 335
R v Palu (2002) 134 A Crim R 174

PARTIES :
Regina v Mao Vann

FILE NUMBER(S): SC 70051/03

COUNSEL: C C Patrick - Crown
F Santisi - Accused

SOLICITORS: S Kavanagh - Crown
Nicopoulos & Associates - Accused

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

THURSDAY, 28 OCTOBER 2004

70051/03 REGINA v MAO VANN

SENTENCE

1 HIS HONOUR: On 1 June 2004, the prisoner was arraigned and pleaded guilty to the murder of Userph Rima and the assault of Kamal Elmasri at Liverpool on 8 February 2002. He also asked that a charge of possess loaded firearm in a public place at the same date and place be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1995.

2 The Crown thereupon tendered a bundle of documents described as an “Agreed Brief” including the prosecution statement of facts, a criminal history of the prisoner, a number of witness statements, the transcript of an interview with the prisoner (Ex A), 5 sets of photographs (Exs B to F) and a videotape of the crime scene with an interview at that scene with the prisoner on the day of his arrest (Ex G). All of these exhibits were admitted by consent and I was informed none of the witnesses whose statements had been tendered were required for cross-examination. The proceedings were then adjourned.

3 At the resumed hearing on 27 August 2004, counsel for the prisoner informed me (T 2) that “essentially” the facts were agreed but the inferences to be drawn from those facts were to an extent in dispute, and that the main issue was whether there was an intent to kill or do grievous bodily harm or merely a reckless indifference to human life.

4 The prisoner then gave evidence in which he attempted to minimize his culpability for the death of the deceased and to that end gave a version of the facts which was in various respects different to, and at times inconsistent with, the facts contained in the material admitted without objection in the Crown case. The Crown Prosecutor did not object to this evidence but vigorously challenged it in cross-examination and submitted that it should not be accepted.

5 The difficulties…

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 Regina v Mao Vann

Details

AGLC: Regina v Mao Vann [2004] NSWSC 988
Case: [2004] NSWSC 988
Decision Date: 28 October 2004

CaseChat Overview and Summary

In the case of Regina v Mao Vann, the defendant pleaded guilty to the charges of murder and possessing a loaded firearm in a public place. The circumstances of the crime involved the defendant firing a rifle at the victim in the foyer of a cinema complex, an area where other people were present. The defendant's actions resulted in the death of the victim and posed a significant risk to others in the vicinity.

The legal issues before the court centred on the appropriate sentence for the defendant's actions, taking into account the nature and circumstances of the offence, the defendant's guilty plea, and the additional charge of possessing a loaded firearm in a public place. The court had to balance the principles of retribution, deterrence, and rehabilitation in determining an appropriate sentence.

The court considered the gravity of the offence, the defendant's guilty plea, and the additional charge of possessing a loaded firearm in a public place. The court found that the defendant's actions demonstrated a high degree of premeditation and a blatant disregard for human life. The court also noted the additional charge as an aggravating factor, highlighting the defendant's propensity for dangerous conduct. Ultimately, the court imposed a sentence that reflected the seriousness of the crime and aimed to protect the community from further harm. The court ordered that the defendant be imprisoned for a term of 20 years, with a non-parole period of 15 years.

Orders