Citation: R v Ta Southammavong and Vilasone Sihavong [2002] NSWSC 854
Court: Supreme Court of New South Wales
Date: 19 September 2002
Judge(s): Buddin J
Background
On 7 June 2000, two offenders attended a residential premises at Claymore in the company of a group of acquaintances. A confrontation occurred outside the premises following a tense exchange of words. One offender produced a firearm and, after the deceased intervened in a dispute, shot and killed him. Both offenders then shot a second victim, who survived.
The deceased and the two surviving victims had known both offenders for some time. No clear motive for the violence was established. The Crown identified some unexplained tension earlier in the evening, including a suggestion that one offender was upset about a former romantic connection to a member of the group, but the precise cause of the fatal confrontation could not be determined from the evidence.
Following a lengthy jury trial in April and May 2002, one offender (Southammavong) was found guilty of murder and malicious wounding with intent to do grievous bodily harm. The other offender (Sihavong) was acquitted of murder but found guilty of two counts of malicious wounding with intent to do grievous bodily harm.
Legal Issues
- What sentences were appropriate for Southammavong upon conviction for murder and malicious wounding, having regard to the circumstances of the offending?
- Whether the murder conviction warranted a life sentence or a determinate term, and what non-parole period was appropriate.
- What sentences were appropriate for Sihavong upon conviction for two counts of malicious wounding with intent to do grievous bodily harm?
- How the multiple sentences for each offender should be structured (concurrent, cumulative, or partly both).
- Whether "special circumstances" existed in Sihavong's case to justify adjusting the standard ratio between the non-parole period and the head sentence.
Decision
Buddin J found that, while the offending was serious, it did not fall into the worst category of murder. The intent to kill was formed spontaneously rather than as part of a premeditated plan, even though weapons had been brought to the scene. The absence of any apparent explanation for the offences was an aggravating feature, and the court characterised the conduct as reflecting a wanton and reckless disregard for the safety of others. A determinate sentence, rather than life imprisonment, was considered appropriate for Southammavong.
For Southammavong, the court imposed a fixed term of eight years for the malicious wounding offence, commencing from the date of custody, with no separate non-parole period set for that sentence given its relationship to the murder sentence. The murder sentence of nineteen years, with a non-parole period of fourteen years, was structured to run partly concurrently and partly cumulatively with the wounding sentence, producing an effective overall sentence of twenty-one years with a sixteen-year non-parole period.
For Sihavong, the court found special circumstances warranting a departure from the standard non-parole period ratio. This finding reflects the court's assessment of his individual circumstances and the need for an extended period of supervision on parole. His two sentences were structured to run partly concurrently and partly cumulatively, resulting in an effective overall sentence of fourteen years with a non-parole period of nine and a half years.
Orders Made
Southammavong:
- Count 5 (malicious wounding with intent to do grievous bodily harm): fixed term of eight years' imprisonment, commencing 13 June 2000, expiring 12 June 2008; no non-parole period set.
- Count 1 (murder): nineteen years' imprisonment with a non-parole period of fourteen years, commencing 13 June 2002, partly concurrent and partly cumulative on the Count 5 sentence; head sentence expiring 12 June 2021, non-parole period expiring 12 June 2016.
- Effective overall sentence: twenty-one years with a sixteen-year non-parole period.
Sihavong:
- Count 5 (malicious wounding with intent to do grievous bodily harm): fixed term of eight years' imprisonment, commencing 8 June 2000, expiring 7 June 2008; no non-parole period set.
- Count 3 (malicious wounding with intent to do grievous bodily harm): eleven years' imprisonment with a non-parole period of six and a half years, commencing 8 June 2003, partly concurrent and partly cumulative on the Count 5 sentence; head sentence expiring 7 June 2014, non-parole period expiring 7 December 2009.
- Effective overall sentence: fourteen years with a nine-and-a-half-year non-parole period.
Key Takeaways
- A spontaneously formed intent to kill, as opposed to premeditated planning, was treated as a mitigating factor in assessing the gravity of the murder, even though the offenders had brought weapons to the scene.
- Where a murder conviction does not fall into the worst category of the offence, the Supreme Court confirmed that a determinate sentence remains available and may be appropriate.
- Bringing weapons to the scene of an offence is treated as an aggravating feature even where the intent to use them was not pre-formed.
- A finding of "special circumstances" under the sentencing framework allows the court to extend the parole period relative to the non-parole period, reflecting the need for greater post-release supervision in appropriate cases.
- Partly cumulative sentencing structures are used where an offender is convicted of multiple serious offences arising from the same episode, to ensure the total effective sentence reflects the full criminality of the conduct without operating oppressively.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Previtera (1997) 94 A Crim R 76
- R v Simpson (2001) 53 NSWLR 704