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Thammavongsa v R

Thammavongsa v R

Case [2015] NSWCCA 107 25 May 2015

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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 dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases 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 120
Category: Principal judgment
Parties: Meng Thammavongsa - Applicant
Regina – Respondent
Representation:
Counsel:
Mr C Bruce SC - Applicant
Ms N Williams - Respondent
Solicitors:
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:

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 Thammavongsa v R

Details

AGLC: Thammavongsa v R [2015] NSWCCA 107
Case: [2015] NSWCCA 107
Decision Date: 25 May 2015

CaseChat Overview and Summary

The applicant, Thammavongsa, applied for an extension of time to bring an application for leave to appeal against his sentence, following a murder conviction. The application was heard in the High Court of Australia. The central issue was whether the delay in bringing the application was properly explained and whether a significant error in sentencing warranted the grant of an extension of time and leave to appeal.

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