Regina v Vongsouvanh and Namalauulu

[2003] NSWSC 1203

CITATION:	Regina v Vongsouvanh and Namalauulu [2003] NSWSC 1203
HEARING DATE(S):	17/11/03, 18/11/03, 19/11/03, 03/12/03, 04/12/03
JUDGMENT DATE:	17 December 2003
JUDGMENT OF:	Whealy J at 1
DECISION:	Sentence both offenders to a term of 6 years and 9 months imprisonment. The sentence is to commence on 22 August 2001. I set a non-parle period of 4 years commencing on 22 August 2001 and ending on 21 August 2005. The offender will be eligible to be released to parole on that day, namely 21 August 2005. In the case of each offender, I recommend that, while in custody, she receive appropriate counselling including psychiatric counselling, anger management counselling and counselling in relation to the control of drug and alcohol abuse. I further recommend that, upon release pursuant to any parole order, the probation and parole service consider, as part of any supervision programme relating to each offender, that she be required to accept the directions of the probation and parole service in relation to receiving continuing counselling generally but extending to and including anger management. Further, that she be counselled and directed as to her use of illicit drugs during any period of parole.
CATCHWORDS:	Manslaughter Plea
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Hill (1981) 3 A Crim R 397 at 402 R v MacDonald (NSWCCA 12 December 1995) R v Dib (2003 NSWCCA 117 R v Scott (2003) NSWCCA 286 per Howie J at para 28 Thompson and Houlton (2000) NSWLR 383 R v McGuire (NSWCCA unreported 30 August 1995) R v Troja (NSWCCA unreported 16 July 1991)
PARTIES :	Regina v Katty Vongsouvanh Regina v Fialelei Loretta Namalauulu
FILE NUMBER(S):	SC 70082/02; 70024/03
COUNSEL:	Mr P. Barrett - Crown Mr J. Stratton SC - Offender Vongsouvanh Mr A. Lucas - Offender Namalauulu
SOLICITORS:	DDP - Crown

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

WHEALY J

WEDNESDAY 17 December 2003

70082/02 - REGINA v Katty VONGSOUVANH

70024/03 - REGINA v Fialelei Loretta NAMALAUULU

SENTENCE

1 HIS HONOUR: The joint trial of Katty Vongsouvanh and Loretta Namulauulu (“the offenders”) commenced before me on 17 November 2003. On that day each offender was arraigned on an indictment that charged that, on 22 April 2001 at Cabramatta in the State of New South Wales she did murder Michael Paul Guinan (“the deceased”). Each offender pleaded not guilty to murder but guilty to the alternative charge that she did unlawfully kill the deceased. Thereupon, the Crown accepted the plea in each case in full satisfaction of the indictment. Evidence and submissions on sentence were taken on 17, 18, 19 November and again on 3 and 4 December 2003. The matters were then stood over until today for sentence.

2 The maximum penalty for the crime of manslaughter is imprisonment for 25 years (s 24 Crimes Act 1900 NSW). Although the basis of manslaughter is agreed between the parties, that being on the grounds of an unlawful and dangerous act, at the outset it is necessary for me to state the facts that I have found in relation to the offence.

3 Mr Stratton SC appeared for the offender Vongsouvanh. Mr Lucas of counsel appeared for the offender Namulauulu. Each counsel agreed on his client’s behalf that the basis on which the Court might approach the sentencing process was, as had been suggested by the Crown, that the offenders committed or were parties to an unlawful and dangerous act that caused or contributed to the death of the deceased. It was agreed between the parties that the offenders were participants, with a co-offender, Chantelle Hayes, in an attack, by the three of them, upon the deceased in which a knife was used to stab him a number of times causing his death. This attack carried with it, in an objective sense, an appreciable risk of serious injury.

4 The pleas by the offenders were given and accepted on the basis that the Crown could not establish, beyond reasonable doubt, the identity of the person who wielded the knife. That is to say, the Crown accepted that, so far as these two co-offenders were concerned, it could not prove beyond reasonable doubt that either of them was the person who stabbed the deceased. The Crown does not accept of course, that the same situation necessarily pertains to the co-offender Chantelle Hayes, whose trial has not yet commenced.

5 While there is thus a common position between the Crown and each of the present two offenders in relation to the basis upon which they come to be sentenced for the offence of manslaughter, there is, regrettably, not complete agreement about the circumstances of the stabbing of the deceased and the involvement of each of the present offenders in it. This absence of complete agreement requires the Court to make findings of fact in relation to the circumstances. It is fair to say that the Crown has advocated one of two alternative positions as being the ultimate finding that the Court would make. These positions were stated as follows: -

1. The present offenders continued to participate in the attack upon the deceased after the knife was produced and used to stab him, though the offenders did not advert to the possibility that really serious harm or death might be caused.
2. Alternatively, the offenders participated in the attack upon the deceased and although not aware of the use, by one of them, of the knife, their actions contributed to his death by preventing him from defending himself or escaping.

6 The Crown has stated its preference for the first of these alternatives. Not surprisingly, counsel for each offender has suggested that the Court would be satisfied beyond reasonable doubt only as to the second.

7 I turn now to determine the facts. There are a number of matters that are not in dispute.

8 The co-offenders, along with Chantelle Hayes, met in Cabramatta at the Railway Station in the early evening of 22 April 2001. The offender Vongsouvanh gave evidence that her intention in going to Cabramatta on that occasion was to obtain cocaine and heroin. She in fact obtained cocaine early in the evening and was looking for heroin while in the company of the other women. She said that she had not planned to meet with the other two women but had run into them simply by chance. After a while, Hayes took the other two women around to a block of flats in Bridge Street, Cabramatta where a heroin dealer was believed to live. Hayes buzzed the intercom of the flat in the building in an attempt to contact the dealer but there was no response. She buzzed the flat a few more times and at that stage a man walked up the driveway towards the flats. This was Michael Guinan, the deceased. Hayes spoke to the deceased to tell him that the dealer was not there at that moment.

9 It seems the group were waiting to see if the dealer would turn up. The offender Vongsouvanh said that she and Namalauulu decided to use the cocaine she had, even though at that stage they had not been able to obtain heroin. She explained that she liked to take the heroin straight after the cocaine because she used the latter drug “to bring her down”.

10 Ms Vongsouvanh said they had two sets of syringes and equipment for the administration of the drug. She decided to share her cocaine with Ms Namalauulu and they each injected separately. They were in the vicinity of the garage doors beneath the block of apartments in Bridge Street while they did this. Chantelle Hayes was standing somewhere near them. Ms Vongsouvanh said after the cocaine had been used, she and Namulauulu threw the remnants of the equipment away.

11 At about the time Ms Vongsouvanh was mixing up the drug and administering it, she heard Hayes say “Give me back my gear, give it back to me”.

12 After injecting, she turned around and saw that Ms Hayes and the deceased were scuffling and pushing one another. She said she jumped in to help Chantelle and took hold of the deceased. She said there was a lot of pushing and shoving. By now the three women were involved in this fight. She said she did not remember it clearly but during the struggle, she noticed a lot of blood. She insisted that she did not know the deceased had been stabbed but she knew he was hurt. This was because of the amount of blood she saw on and around him. She denied that she had seen any of her friends with a knife at any stage that night. She denied also that she and Ms Namulauulu had been holding the deceased, one on each side of him, holding his wrists so that he could not move while the third woman stabbed him. Her recollection was that the last she saw was that the deceased was standing, obviously injured, when she ran away with the other women. She said she did not think this man was going to die when she ran away from the flats.

13 In cross-examination, Ms Vongsouvanh conceded that during this fight and during the pushing and shoving, she could have been holding on to the arm of the deceased in the vicinity of his wrist; and that this possibility related to the actions also of one of the other girls. She agreed that she had no doubt that the deceased had been badly hurt; and that there was blood “everywhere” at the time she saw it. She agreed that it was light enough for her to see the blood; and light enough in the area near the garage for her to prepare the mixture for the injection of cocaine and for its actual administration.

14 Ms Vongsouvanh agreed that she had been doing her best, during the struggle, to restrain, that is, to hold on to the deceased.

15 In fact, after they had run away, the women came back up to the Cabramatta Railway Station where they continued to look for somebody from whom they could buy heroin. Later that evening there was another incident when the two co-offenders punched and kicked another man in the vicinity of the railway station. His name was Sayadi. On this occasion, the police were called by the closed circuit television operators, as the incident had been seen and recorded by them. In fact, the police arrested the co-offenders in relation to the incident involving Mr Sayadi. They were charged and in fact later convicted of assault occasioning actual bodily harm.

16 I return now to the scene in Bridge Street and to the events immediately after the deceased had been stabbed. There had been an eyewitness who saw at least the major part of the struggle. This was Mr Gu Shin Yee a resident of Unit 9, No 7 Bridge Street, Cabramatta. At the very end of the struggle, he saw the deceased fall slowly to the ground in front of the right side of the two garage doors. He says he saw one of the women kneel over him and appear to search him and then he saw the same woman take his right shoe off and take something from the shoe. She said “Hurry, hurry up” and then “Go, go”. Mr Yee said that the three women ran out towards Bridge Street.

17 He then described the deceased standing up and holding his stomach area as he did so. The deceased was calling out for help and walking unsteadily towards Bridge Street. Mr Yee went to his lounge room and called an ambulance, which arrived about five minutes later. The ambulance officers found the deceased with a very weak pulse and little response to stimuli. He was taken to hospital and later he was pronounced dead.

18 There was a post-mortem carried out by Dr Peter Ellis. He provided his report on 13 June 2001. Dr Ellis described in detail four stab wounds and a fifth possible stab wound. His finding was that death was due to the effects of blood loss following multiple stab wounds in the chest and upper abdomen, causing injuries to the left lung, liver and spleen as well as superficial soft tissue injury.

19 As I have said, Mr Yee lived in the block of flats next to the building where the deceased received his injuries. The area where this happened was on the driveway in front of two garage doors beneath the adjacent block of flats. The view of this area that Mr Yee was able to see is shown in the photograph, Exhibit “B”. Mr Yee said that he heard a noise coming from the adjacent block of flats and he went to the balcony door and then walked out onto the balcony itself. The scene he described, was in effect this: the deceased had his back to the garage doors. Two of the women were standing on either side of him and the third woman was in front of the deceased facing him. Mr Yee described the struggle and the movement of the group from in front of one garage door and then across to the second door. The two women continued to restrain the deceased. They were holding his arms at about wrist level so that his arms could not be raised above his waist. At that point, the third lady, he said, was holding a knife. This was a silver knife, about 15-20 centimetres long in the blade. She was holding the knife in her right hand above her shoulder with the blade protruding out of her hand below the little finger. He described the deceased struggling to free himself, but being restrained by the two women on either side of him. He did not see the actual blow or blows with the knife. It happened very quickly but the man fell down while the women were still grabbing his hands. It was while he was on the ground that the third lady, that is the one with the knife, tried to search his pockets and clothing and later took off his right shoe.

20 In cross-examination he described this third lady as having an Australian accent. She seemed very angry. She had a “solid to fat build” and had a sloppy joe with a hood at the back of it. She had a round face and wavy hair. She was a much bigger build than the other two women. This description, it must be said, fits Chantelle Hayes’ appearance on the evening (see Exhibit ”D“) rather than the appearance of either of the present offenders.

21 During cross-examination and re-examination, Mr Yee agreed that he had given a statement to the police about the matter on 23 April 2001. in that statement he had said: -

“I cannot say I saw the male get stabbed although it is possible it happened when he was struggling to get away from the females.
When this happened, it was very quick and the females were holding on to him very close so it was hard to say exactly what they were doing to him, particularly the third female.”

22 The offender Namulauulu did not give evidence before me. However, there are two points to be noted. First, document 16, Exhibit “A” is a record of interview conducted between the police and Ms Namulauulu. This was in connection with the assault on Mr Sayadi. Questions 48 through to 57 provide support for the proposition that Ms Namulauulu agreed that she had ingested cocaine on 22 April 2001. Secondly, document 6, Exhibit “A” is a second record of interview between the police and Ms Namulauulu on 4 May 2001. During this interview, there was identified an injury which had been visible on the side of her left arm when she arrived at the police station on 23 April 2001. It is clear from her answers in relation to the Sayadi assault that she received no injury during that later encounter in the evening. The point is that it is highly probable that Ms Namulauulu received a knife wound during the struggle in the garage area at or about the time the deceased was stabbed. This proposition, as Mr Lucas correctly identified, lends some positive support to the proposition that Ms Namulauulu was not the knife wielder. She, of course, did not claim during the record of interview that the injury had been received during the struggle earlier in the evening. But it is open to me to find, on the probabilities, that in fact it did occur at that time.

23 For present purposes, however, the critical question to be resolved is whether I should accept beyond reasonable doubt that the stabbing occurred in the precise circumstances described by Mr Yee. If I were to accept that the two co-offenders held onto the deceased’s lower arms and wrists so as to prevent him from defending himself in a situation where, to the knowledge of the offenders, a knife was produced and then used to stab him four or five times while thus restrained, there would be a very high level of criminality involved indeed. I have come to the conclusion, however, that I cannot be satisfied beyond reasonable doubt as to this aspect of Mr Yee’s description. My reasons are these. First, the period of observation available to Mr Yee was a very brief one. It was unlikely to have exceeded about three minutes. Secondly, there can be no doubt, as Exhibit “B” plainly demonstrates, that Mr Yee’s view from his balcony was somewhat restricted particularly in relation to the area in front of the far garage door. Thirdly, the manner in which Mr Yee described the two women as holding the wrists of the deceased necessarily meant that it would have been difficult for him to see the hands of these women, allegedly restraining the deceased in the particular position described. Fourthly, the objective evidence about the injuries to the deceased’s arms does not support the proposition that he had been restrained in the manner described. He did have one bruise to the forearm, but it was the smallest of the bruises to his forearm measuring 3.5 by 3cms. There were other bruises on his arms. They, however, were all to the upper arms and they were all larger areas of bruising.

24 On the other hand, I consider that the area was lit well enough so as to enable Mr Yee to get a reasonable picture of what he described. There must have been light in the area for Ms Vongsouvanh to have plainly seen the blood on the deceased. Although the area may have been dimly lit, I am satisfied that there was, notwithstanding Mr Yee’s evidence at committal, lighting there on that occasion. After all, both co-offenders were able to mix the cocaine and administer it and it is probable that there was some degree of lighting to enable this to be done. The Crown does make a forceful argument that there were no cuts on the hands of the deceased, save for one small incision. This tends to support the Crown argument that he was unable to defend himself with his hands when he was stabbed. On balance, however, I do not think this matter erases the doubts I have regarding Mr Yee’s evidence. I do not suggest that he was other than a credible witness, but, given the brief period of time and the rather frightening nature of what was happening in the area near his units, it would not be at all surprising if his evidence were, in some respects, unreliable.

25 I do accept, however, his evidence that it was the third woman who had the knife. I accept that he was unable to see the blow or blows administered by this woman to the deceased. I accept also that some attempt was made to search the deceased’s body and footwear after he had first fallen to the ground.

26 On the other hand, it needs to be said that I do not accept Ms Vongsouvanh’s evidence in its entirety. In particular, I am satisfied beyond reasonable doubt that both she and Ms Namalauulu, towards the end of the struggle, would have been aware that the third woman had produced a knife. While it is true that they were involved in pushing and shoving and struggling with the deceased, I am quite satisfied beyond reasonable doubt that, at the very end, they would have been aware that a knife was being used and that the considerable amount of blood plainly visible was caused by knife stabs. The deceased was stabbed four, possibly five times by the third woman. It defies credibility and commonsense to suggest that the other two were not aware that this frenzied bout of wounding was done with a knife, plainly visible to each of them. I am satisfied, however, that neither Ms Vongsouvanh nor Ms Namulauulu was the wielder of the knife. There is no evidence to suppose that, prior to the struggle, either woman knew that Chantelle Hayes had a knife or was likely to produce it during the course of an argument. Once it was produced, however, there can be no doubt that each woman was then aware that it was being used to stab Mr Guinan.

27 I am also satisfied that both women knew, when they ran away in what I would describe as a most cowardly fashion, that the deceased had been very seriously injured and was in a very bad way.

28 As a consequence of these findings, an assessment of the objective criminality of each offender, in my view, falls somewhere between the two alternatives postulated by the Crown. On the findings I have made, I am satisfied beyond reasonable doubt that the two offenders continued to participate in the attack upon Michael Guinan after the knife had been produced but necessarily only for a very short period of time. That is to say, the stabbing occurred very quickly and their awareness of the presence of the knife and the wounding of the deceased happened within that very short period of time. I am satisfied beyond reasonable doubt that each of the offenders contributed to the death of the deceased by preventing him from defending himself or escaping but I am not satisfied beyond reasonable doubt that their method of restraining him was in the structured manner suggested by Mr Yee. Rather, there was a haphazard pulling, shoving, grabbing and holding during the course of which a knife was produced and used very rapidly. Although the physical actions employed by each of the co-offenders against the deceased did not and could not in fact have caused his death, the level of their criminality, in my view, is to be assessed at a serious level.

29 I should add for completeness, that the evidence adduced by the Crown falls short of establishing beyond reasonable doubt that the attack on the deceased occurred in the course of a robbery. The conversation overheard by Mr Yee, and the general circumstances, suggested that the third woman was trying to recover property of her own from the deceased, although it must be said, the matter is not entirely clear.

Vongsouvanh

30 I turn now to consider the offender Vongsouvanh’s criminal history. It does her little credit. It is a history of many largely drug related offences. The offender who is now 28 years of age has the following matters recorded.

31 In October 1993, the offender received a fine for possession of heroin. In May 1994, at Fairfield Local Court, she was fined in relation to an assault charge and for failing to appear. She was also sentenced to 14 days imprisonment for possession of a prohibited drug. Throughout 1994, there are seven other offences for possessing, self-administering and supplying prohibited drugs. There are five further offences of the same kind in 1995 and 1996. For all of these offences, the offender had been sentenced to fixed terms ranging from 14 days to four months. The offender was also convicted on a charge of escape from lawful custody in 1994.

32 In 1997, the offender was convicted of more drug offences along with larceny, failure to appear, attempted break and enter, and assault occasioning actual bodily harm. For these offences she was sentenced to terms ranging from one to 14 months.

33 In 1998, the offender was convicted of a number of drug possession offences along with entering enclosed lands without lawful excuse, goods in custody and resist or hinder police. For these offences, she received a number of substantial fines. On 1 March 1999, the offender was sentenced to six months for assault occasioning actual bodily harm. The offender was also sentenced to a minimum term of nine months for drug supply on this date. In 2000 there was a fine for entering enclosed lands.

34 In 2001, the offender was fined for self administering prohibited drugs and for goods in custody. On 24 January 2002, the offender was sentenced to 15 months imprisonment with a non-parole period of 10 months for assault occasioning actual bodily harm which, as a consequence of the backdating of the sentence, ended on 22 February 2002. This sentence related to the assault upon Mr Sayadi.

Namulauulu

35 I turn now to consider the offender Namulauulu’s criminal history. She is presently 24 years of age. Her record is a much briefer one than that of her co-offender, Vongsouvanh. The offender received fines in 1995 and 1996 at the Lidcombe and Bidura Children’s Court for offensive language. On 1 March 2002, the offender was placed on a good behaviour bond for 12 months following a conviction for assault. The offence occurred on 22 February 2001. On 24 January 2002, the offender was sentenced to 15 months imprisonment for assault occasioning actual bodily harm, with a non-parole period of 10 months to expire on 22 February 2002. Again, this related to the Sayadi incident.

The Subjective Case for each Offender

36 Katty Vongsouvangh was born in Laos on 29 August 1975. She emigrated when she was two and a half years of age and grew up in the Macquarie Fields area. Initially her schooling was quite successful. But things changed for her when she went to Liverpool Girls’ High. She gave evidence that she was not happy at this school and her schoolwork deteriorated. Her mother died in 1990 after having been ill for some two or three years before her death. This was an emotionally trying time for the offender and she started using drugs at about the age of 15. It is fair to say that her life has been on a downward spiral since that time. This is revealed both in her criminal history and her continued addiction to drugs. Her present partner Manuel is from Fiji, although he is also currently in custody. He recently received a sentence with a non-parole period of 6 years to expire in 2008. This related to a robbery offence. He also has had a drug problem, specifically heroin but he has detoxified from that drug since being in prison. From the union of these two people there is a two and a half year old daughter who is, by all accounts, a happy and healthy child. She is currently in the care of Manuel’s parents who are plainly doing a good job of looking after her.

37 The offender is now on a methadone program in prison and has made some positive steps forward during her time in custody. For example she has obtained a forklift driver’s licence and has a number of certificates for satisfactorily completed courses in prison.

38 The offender has some prospects of employment with Qantas in the catering area when she is released from prison. She has expressed the wish to be reunited with her daughter. She currently sees her daughter on a regular basis and clearly there is an element of hardship involved for both mother and daughter as a result of their separation.

39 Ms Vongsouvangh gave evidence before me and indicated that she was deeply sorry for what had happened. She expressed this remorse directly to members of the family of the deceased who were present in court.

40 Loretta Namalauulu was born on 27 May 1979. Her parents were born in Samoa although she was born in New Zealand. Her family came to Australia in 1995. There is quite an extended family. The children were raised in a strict Christian family environment. Joseph Taula, her father, is a Pastor of the Assemblies of God Church at Smithfield. This is a Samoan Church. The offender has had a somewhat unhappy and restricted upbringing. She rebelled against authority at an early age and was treated quite harshly by her father. In fact, in 1994 New Zealand Welfare took steps which involved her being placed with her uncle. Her rebellious activities continued when she came to Sydney with her family and she ran away from home. She stayed away from home in fact, until she was 18. Her son, Taylor, was born when she was 18. After that time, she returned with the baby to reside with her parents.

41 It seems that the offender’s life spiralled further out of control from about the age of 20. She commenced smoking marijuana and drinking alcohol each day. Then she moved on to heroin, lost her job and lived a nomadic existence. In fact it seems she was spending up to $200 on heroin each day. Her life centred around the Cabramatta Railway Station and around people involved in the drug trade.

42 Since being in custody, Ms Namalauulu has withdrawn from heroin. She was initially on a methadone program but five months ago, of her own volition, she ceased using methadone. She has certainly expressed determination to take herself away from drugs altogether. Whether she can do so of course remains to be seen when she is released from custody.

43 Her child is being looked after by her parents. They have indicated that they are prepared to support her upon her release and if necessary move away from the Cabramatta area. She has obtained a forklift driver’s licence successfully while in custody. She expressed remorse to the psychologist Mr Gorrell and has also expressed remorse to her father for her role in the death of the deceased.

Victim Impact Statement

44 It is necessary now to consider the relevant factors in relation to the appropriate sentence to be imposed upon the offenders in relation to the charge to which they have pleaded guilty.

45 However, it is necessary to first mention that pursuant to s 28 (3) of the Crimes (Sentencing Procedure) Act 1999 I have received a victim impact statement from both the mother and sister of the deceased. The statement from Mrs Guinan speaks movingly of the widespread impact her son’s death has had on her extended family. The statement from Patricia Guinan is very sad indeed. The Court extends to those persons its sympathy. It is hoped that Mrs Guinan and her daughter may find that it has helped to express themselves through these statements. I have come to the conclusion that I do not consider that it is appropriate to have regard to the statements in the determination of the sentence to be imposed. (See s 28 (4) B of the Crimes (Sentencing Procedure) Act 1999; Previtera (1997) 94 A Crim R 76; Bollen (1998) 99 A Crim R 510). The material was tendered on the basis that it ought not to impact on the sentence to be imposed; and it would be contrary to principle to use it in that way.

The Sentence to be Imposed

46 I turn now to consider the relevant factors to be taken into account in the selection of an appropriate sentence to be imposed on each offender. The starting point is recognition that the offence of manslaughter is a particularly serious crime since it involves the taking of a human life, the protection of which is the primary objective of the criminal justice system. (Hill (1981) 3 A Crim R 397 at 402; R v MacDonald (NSWCCA 12 December 1995)). Secondly it is necessary to have regard to the purposes of sentencing as set out in s 3A Crimes (Sentencing Procedure) Act 1999. Thirdly it is necessary to consider the matters set out in s 21A of the same Act, both as to aggravating and mitigating factors.

47 There are a number of aggravating factors. First the offence involved the actual use of violence. Secondly, it involved the use of a knife, although the present offenders did not use the knife during their participation in the attack. Thirdly, each offender has a record of previous convictions. This however, is a matter which, in my view should not increase the sentence for either offender. Fourthly, each offender showed callous disregard and indifference to the victim of the attack who was left badly injured and bleeding without, so far as they were concerned, any assistance or help. Fifthly, the offence was committed in company although I think that this aspect of the crime is, in each case, covered by the particular circumstances agreed as the basis of the unlawful and dangerous act causing death.

48 There are however a number of mitigating factors. I am satisfied that the offence was not part of a planned criminal activity; rather it was something that happened on the spur of the moment. Secondly, I consider that I must accept that each offender has, at least in recent times, expressed remorse and contrition for the commission of the offence. This finding needs to be tempered, however, by the realisation that the conduct of each offender at the time of and shortly after the offence demonstrated no remorse or contrition whatsoever. Notwithstanding this observation, I have come to the conclusion that the long period in custody spent by each offender has, together with cessation from the use of drugs, brought home to each the realisation of the seriousness of their criminal actions which led in part, to the quite unnecessary and tragic death of the unfortunate deceased.

49 So far as Ms Vongsouvangh is concerned, despite her extensive criminal history, I think it may be concluded, albeit with some considerable degree of hesitancy and caution, that there are prospects for her rehabilitation. There is, of course, every reason to hope that there is a realistic prospect of rehabilitation in her case. She has an apparently young child who is being cared for by loving parents-in-law. Yet, it must be acknowledged that she and her partner face significant difficulties in refashioning their lives after release from custody. There can be no doubt whatsoever that Ms Vongsouvangh would benefit from an extended period of counselling in relation to her attitude to drugs and alcohol when she is released form custody.

50 In some respects, I consider that Ms Namalauulu has better prospects of rehabilitation. She too has a loving family and a son who needs her care. Her relatively brief criminal record, her youth and the fact that she has been able to withdraw from methadone while in custody give cautious hope that rehabilitation is practically achievable in her case. She too would plainly benefit from a period of parole supervision with conditions requiring general counselling and the continuance of treatment for continued drug avoidance. Whether she will achieve success, as Mr Gorrell pointed out in his report, is a matter that will lie essentially in her hands. It will not be easy for her.

51 This brings me now to the question of the plea made by each offender. Their situations are generally the same with pleas having been made at the commencement of trial. As I said during argument, it is clearly the situation that these pleas and their acceptance by the Crown have resulted in a not inconsiderable utilitarian benefit. Moreover, each offender has, by the plea attempted to assist and facilitate the course of justice. Further, each offender is entitled to a discount for the plea of guilty as is reflected in s 22 of the Crimes (Sentencing and Procedure) Act 1999. The only question at issue is the amount of discount.

52 There are a number of points to be made. First, I am unable to accept the submission that the plea in each case had been entered at the earliest reasonable opportunity. The charge of murder always carries with it the alternative of manslaughter. Each offender was first arraigned some considerable time ago. Yet a plea of guilty to manslaughter was not offered on that occasion, and indeed not until 17 November 2003, many months after arraignment. Of course, the fact that a plea is made on the first day of trial does not mean that the discount is necessarily to be placed at the bottom end of the range. In stating this proposition, I accept that, as a practical matter, especially where the Legal Aid Commission is concerned, it may often be the case that counsel is not briefed until after arraignment. The accused, in those circumstances, may not have the benefit of a full and frank discussion with counsel who is retained to appear on his or her behalf until a time approaching the commencement of the hearing. But even so, practical considerations of that kind do not mean that the court is obliged to treat a plea at trial as one made at the earliest reasonable opportunity so as to warrant a discount at the very top of the range. Apart from any other considerations, it would be unfair to an offender who in fact pleads at arraignment or who has indicated even at an earlier stage that a plea is to be entered. Circumstances will vary considerably and the sentencing court needs to be responsive to the specific situation that may arise. Persons in those special categories however, are, generally speaking, entitled to a greater discount than those who plead at trial, especially in the case of a murder charge. Thirdly, it is necessary to recognise that even where a plea is offered at the first reasonable opportunity, this does not mean that automatically a full discount for the plea should be given. (R v Dib (2003) NSW CCA 117; R v Scott (2003) NSW CCA 286 per Howie J at para 28 with whom Tobias JA and Shaw J agreed). Fourthly, it needs to be emphasised once again that the range of discounts referred to in the guideline judgment of Thompson and Houlton (2000) NSWLR 383 is no more than a guideline. It creates no presumption of, or entitlement to, a particular specific discount in a given situation.

53 Nevertheless, each offender is entitled to a discount for a plea of guilty on the bases I have indicated above. In my view, in the circumstances of this case, a discount of 15 per cent is appropriate in relation to the plea made by each offender.

54 Mr Stratton SC placed before me a number of decisions in which sentences have been imposed in the case of manslaughter. Senior Counsel endeavoured to select those cases where a knife was involved. I have had regard to those cases although it is necessary to bear in mind that, in the case of manslaughter especially, neither a consideration of statistical information nor an examination of results in other decided cases illuminates in any decisive manner the decision to be reached in a particular case. Sentences for manslaughter vary greatly because of variations in the circumstances of the individual instances of the offence (R v McGuire (NSW CCA Unreported 30 August 1995); R v Troja (NSW CCA Unreported 16 July 1991).

55 There are three further matters requiring comment. First, counsel for each offender has drawn attention to the fact that each has been in custody since 23 April 2001. The assault on Mr Sayadi resulted in the imposition on each offender of a backdated sentence of imprisonment. The non-parole period in each case was ten months to expire on 22 February 2002. Each offender has remained in custody since 22 February 2002, bail refused, in relation to the present offence involving the deceased.

56 There is no doubt that the offences committed against Mr Guinan and Mr Sayadi occurred within a very short time frame of each other. They occurred in the same general area and revolved around each offender’s involvement in drug related activities. In those circumstances, Mr Stratton SC argued that the totality principle required, in the present matter, the imposition of a sentence that was at least partially concurrent with the sentence imposed for the Sayadi assault. In fact, Mr Lucas went so far as to argue that the sentence in the present case should be entirely concurrent and backdated to 23 April 2001.

57 I am unable to agree with Mr Lucas’ submission. I consider however, that the totality principle does require recognition and practical application in circumstances where the two offences occurred generally around the same time and in the same general set of circumstances. Had it been the case that a court had dealt with each offender for both the assault charge and the manslaughter offence, the imposition of an appropriate sentence in each case would have required, in my view, sentences that were in part concurrent and in part cumulative. In determining the extent of accumulation, the sentencing process must however recognise, notwithstanding that the offences were committed, as I have said, during the same period and arising out of the same or similar circumstances, that they were in fact two individual crimes.

58 In my view, the totality principle may be appropriately recognised in each case, by back-dating the sentence to be imposed to 22 August 2001.

59 The second matter relates to a consideration of the parity principle. No submissions were made to me by either counsel, or for that matter the Crown, as to the application of these principles. Mr Stratton SC did however, remark during the course of his submissions that the sentences to be imposed in relation to each offender should be largely the same. With that observation, I agree. There are, of course, some differences between each of the offenders. Ms Namalauulu is younger, perhaps has better prospects of rehabilitation and does not have anywhere near as extensive a criminal record as Ms Vongsouvanh. Nevertheless, there is not a marked discrepancy between their subjective circumstances. Moreover, on the facts I have found, the level of criminality to be attributed to each of them in respect to the attack upon the deceased is virtually identical. I consider this to be the decisive factor on this point. For these reasons, I consider that the sentence to be imposed on each woman should be the same.

60 The third matter is that I am satisfied that special circumstances exist in the case of each offender so as to warrant a variation of the statutory proportion between head sentence and non-parole period. Each offender would plainly benefit from a lengthy period of parole supervision with conditions requiring general counselling and the continuance of treatment for continued drug and alcohol avoidance. There is also the fact that each young woman is separated from her natural child.

61 What then is an appropriate sentence to impose in the case of each offender? The sentence to be imposed must acknowledge the principles I have set out earlier in these remarks in relation to the denunciatory role of sentencing particularly in the case of manslaughter. It is important, in my view, that those principles not be devalued or downgraded in any way. Moreover, there is a particular need in the present matters that the penalty imposed be such as to act as a deterrent not only to each individual offender but towards other persons. I say again, as I have said in other cases, that the sentence to be imposed must make it absolutely clear that acts of violence in the streets of Sydney and its suburbs are to be deplored and denounced by the sentencing process. Here, during the course of such a violent attack there occurred the tragic and quite unnecessary death of a human being. Although each offender comes to be sentenced essentially for her involvement in the unlawful and dangerous act committed on the deceased but not for the knife stabs themselves which actually killed the deceased, nevertheless, these young women, after they joined in the attack, became aware that a knife was being wielded by the third woman. Their continued participation, albeit for a brief period of time, had its role to play in the circumstances which led to this most unfortunate killing. As I say, the sentence to be imposed must act as a deterrent to others who are minded to join in cowardly and vicious attacks upon defenceless individuals.

62 It will be apparent from all I have already said that I have come to the conclusion, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in the present matter. In my view, an appropriate sentence to reflect the various considerations I have outlined is, prior to discount for plea, a sentence of eight years imprisonment. After allowing a 15% discount for the plea, the resulting head sentence is a term of imprisonment of six years and nine months. In setting a non-parole period in the case of each offender I will take into account the special circumstances that I have found to exist. The sentences will be backdated in each case to 22 August 2001.

Katty Vongsouvangh, I sentence you to a term of six years and nine months imprisonment. The sentence is to commence on 22 August 2001. I set a non-parole period of four years commencing on 22 August 2001 and ending on 21 August 2005. The offender will be eligible to be released to parole on that day, namely 21 August 2005.

63 Loretta Namalauulu, I sentence you to a term of six years and nine months imprisonment. The sentence is to commence on 22 August 2001. I set a non-parole period of four years commencing on 22 August 2001 and ending on 21 August 2005. The offender will be eligible to be released to parole on that day, namely 21 August 2005.

64 In the case of each offender, I recommend that, while in custody, she receive appropriate counselling including psychiatric counselling, anger management counselling and counselling in relation to the control of drug and alcohol abuse.

65 I further recommend that, upon release pursuant to any parole order, the probation and parole service consider, as part of any supervision programme relating to each offender, that she be required to accept the directions of the probation and parole service in relation to receiving continuing counselling generally but extending to and including anger management. Further, that she be counselled and directed as to her use of illicit drugs during any period of parole.

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Last Modified: 12/22/2003