Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Thammavongsa v Regina [2015] NSWCCA 107 Hearing dates: 21 April 2015 Date of orders: 25 May 2015 Decision date: 25 May 2015 Before: Simpson J at [1]
RA Hulme J at [14]
Bellew J at [26]Decision: The time for filing an application for leave to appeal against sentence is extended.
Catchwords: CRIMINAL LAW – procedure - application for extension of time in which to bring an application for leave to appeal against sentence – where delay properly explained – where error made out – extension of time granted
CRIMINAL LAW - offences – murder – sentence -– applicant sentenced before the decision in Muldrock – where sentencing judge gave determinative significance to the standard non-parole period and engaged in a two stage process of sentencing – Muldrock error made out – court required to exercise sentencing discretion afresh
CRIMINAL LAW – offences – murder – sentence – applicant took a “pen gun” to a function purportedly for the purpose of showing his friends – applicant also took ammunition – tension arose between two rival groups – applicant retrieved pen gun, loaded it and fired it at the opposing group, killing one person - whether offending properly assessed as falling in the mid-range of objective seriousness – where applicant 21 years of age at the time of offending – relevance of youth on sentence – whether offending exhibited immaturity – prospects of rehabilitation affected by continued drug use – remorse – where applicant sentenced at first instance to imprisonment for 21 years with a non-parole period of 16 - no other sentence warranted in law - extension of time granted – leave to appeal granted – appeal dismissedLegislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912Cases Cited: Abdul v R [2013] NSWCCA 247
Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 349
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 305 ALR 323
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Davis v R [2015] NSWCCA 90
HJ v R [2014] NSWCCA 21
JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947
Kentwell v R [2013] NSWCCA 266
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120Category: Principal judgment Parties: Meng Thammavongsa - Applicant
Regina – RespondentRepresentation: Counsel:
Solicitors:
Mr C Bruce SC - Applicant
Ms N Williams - Respondent
SE O’Connor, Legal Aid NSW – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent
File Number(s): 2003/6090 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Criminal
- Citation:
- [2005] NSWSC 915
- Date of Decision:
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- AGLC
- Thammavongsa v R [2015] NSWCCA 107
- Case
- [2015] NSWCCA 107
- Decision Date
CaseChat Overview and Summary
The court considered the applicant's explanation for the delay, which included factors such as his initial lack of legal representation and the complexity of the legal issues involved. The court found that the delay was properly explained and proceeded to consider whether the sentencing judge had made an error in determining the sentence. The court identified that the sentencing judge had given determinative significance to the standard non-parole period and engaged in a two-stage sentencing process, which was inconsistent with the decision in Muldrock. The court concluded that this constituted a significant error in sentencing.
Given the error identified, the court exercised its discretion to grant an extension of time and leave to appeal. The court also found that no other sentence was warranted in law, considering the circumstances of the offence, the applicant's age at the time of the offence, and other relevant factors. The appeal was ultimately dismissed.
The final orders of the court were to grant the applicant an extension of time to bring his application for leave to appeal and to grant leave to appeal. However, the appeal itself was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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