Regina v Thammavongsa - [2005] NSWSC 915

CITATION:
Regina v Thammavongsa [2005] NSWSC 915

HEARING DATE(S): 30-31/5/05
1-2/6/05
6-9/6/05
15/6/05
17/6/05
20/6/05
2/9/05

JUDGMENT DATE :

13 September 2005

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF:
Kirby J

DECISION:
Imprisonment for a total term of 21 years commencing on 14 July 2003 and ending on 13 July 2024. A non parole period of 16 years ending on 13 July 2019. Eligible to apply for parole on 13 July 2019.

CATCHWORDS:
Criminal Practice & Procedure - sentence - murder - firing pen gun at a party - affected by alcohol and drugs - excessive self defence rejected by jury - standard non parole period - youth - protection.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Way (2004) 60 NSWLR 168
R v Pellew (2004) 150 A Crim R 575

PARTIES:
Regina
Meng Thammavongsa

FILE NUMBER(S):
SC 2003/0164

COUNSEL:
Ms M M Cunneen (Crown)
Ms C Davenport SC (Acc)

SOLICITORS:
Ms R McMurtrie - DPP (Crown)
Ms J Collings - LAC (Acc)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Tuesday 13 September 2005

2003/0164 REGINA v MENG THAMMAVONGSA
JUDGMENT ON SENTENCE

1 KIRBY J: Meng Thammavongsa was charged with having murdered Khang Vinh Tien on 12 July 2003 at Cecil Hills. He pleaded not guilty of murder, but guilty of manslaughter. He agreed that he shot Khang Vinh Tien, but claimed that he did so in self defence. At the same time, he acknowledged that his response was excessive. The Crown, however, declined to accept that plea. The trial proceeded. The jury then returned a verdict of guilty of murder.

2 It remains for me to pass sentence. I must first determine the facts relevant to the sentencing discretion. They must be determined in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Thammavongsa, it is enough that they should be proved on the balance of probabilities.

3 In July 2003, three school friends turned 18 within a few days of each other. They decided to have a joint party. They hired the community hall at Cecil Hills. They made arrangements with the police to enable liquor to be brought to the premises. They each invited guests. One of the young men was the cousin of Meng Thammavongsa. And so it was that Mr Thammavongsa was invited to the party.

4 On the night of the party, Mr Thammavongsa went with his cousin to the community hall quite early. He helped set up the hall. He took with him both alcohol and drugs. He had a bottle of whisky, some beer and several ecstasy tablets. Mr Thammavongsa also had with him, a firearm and a number of bullets. The firearm was an unusual weapon, known as a "pen gun". It is called a pen gun because it physically resembles a fountain pen and is not much…

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 Thammavongsa

Details

AGLC: Regina v Thammavongsa [2005] NSWSC 915
Case: [2005] NSWSC 915
Decision Date: 13 September 2005

CaseChat Overview and Summary

Regina v Thammavongsa is a case involving the defendant, Thammavongsa, who was found guilty of murder. The dispute arose from an incident at a party where the defendant fired a pen gun at another person, resulting in their death. The case was heard in a higher court, where the defendant's sentence was the primary focus. The court needed to determine the appropriate punishment for the defendant, taking into account the circumstances surrounding the incident and the defendant's age.

The legal issues before the court involved assessing the severity of the offence, the defendant's state of mind at the time of the incident, and the appropriate sentence for a young person convicted of murder. The court had to consider whether the defendant's actions were an excessive response to self-defence, a factor that the jury had already rejected. Additionally, the court had to determine the standard non-parole period for the offence, taking into account the defendant's age and the mitigating factors present in the case.

In delivering the judgment, the court acknowledged the defendant's intoxication and drug use at the time of the incident but ultimately concluded that these factors did not negate his criminal responsibility. The court rejected the argument that the defendant's actions constituted excessive self-defence, as the jury had already found against this claim. The court also considered the defendant's age and background, imposing a sentence that aimed to balance punishment with rehabilitation. The court determined an appropriate standard non-parole period, recognising the defendant's youth and potential for rehabilitation.

The court ordered that the defendant be sentenced to a term of imprisonment, with a specified non-parole period. This decision reflects the court's consideration of the defendant's age, the nature of the offence, and the mitigating factors present in the case. The sentence aims to ensure that the defendant receives appropriate punishment while also providing an opportunity for rehabilitation. The specific details of the sentence, including the length of imprisonment and the non-parole period, were determined based on the court's assessment of the case's unique circumstances.

Orders