Citation: Regina v Vongsouvanh and Namalauulu [2003] NSWSC 1203
Court: Supreme Court of New South Wales
Date: 17 December 2003
Judge(s): Whealy J
Background
Two women were charged with the murder of a man stabbed to death in Cabramatta on 22 April 2001. The killing occurred during a street confrontation involving the two offenders and a third woman, Chantelle Hayes, whose separate trial had not yet commenced. The deceased became involved after approaching the group near a block of flats where they had gathered to seek out a drug dealer.
Both offenders pleaded not guilty to murder but guilty to the alternative charge of manslaughter, on the basis of an unlawful and dangerous act. The Crown accepted those pleas in full satisfaction of the indictments. The agreed basis for the pleas was that the Crown could not prove beyond reasonable doubt which of the three participants had wielded the knife that caused the fatal stab wounds.
The sentencing proceedings ran across five hearing days, with the court required to make its own findings of fact about the precise circumstances of the killing before imposing sentence.
Legal Issues
- What were the factual circumstances of the killing, including the extent of each offender's participation and their awareness that a knife was being used?
- What sentence was appropriate for manslaughter by unlawful and dangerous act, having regard to objective seriousness, subjective circumstances, and the discount for the guilty plea?
- Whether special circumstances existed to justify a non-parole period shorter than the statutory default proportion.
Decision
Whealy J made findings of fact that fell between the two alternatives put by the Crown. His Honour found that both offenders became aware during the attack that a knife was being used, and that they continued to participate for a brief period after that realisation, even though the Crown could not prove either of them held the knife. That continued participation, the court found, contributed to the circumstances leading to the death.
The court assessed the objective seriousness of the offence as significant. Three women had attacked a single, apparently defenceless man, and a knife had been used to stab him multiple times. The attack was described as cowardly and vicious. General deterrence was identified as an important sentencing consideration in this context.
On the subjective side, both offenders were relatively young women with difficult backgrounds, histories of drug use, and limited prior criminal records. The court accepted that their rehabilitation prospects were reasonable, and identified special circumstances justifying a non-parole period shorter than the standard statutory proportion. A pre-discount head sentence of eight years was reduced by 15 percent to reflect the guilty pleas.
The resulting sentence for each offender was six years and nine months imprisonment, backdated to the date of their arrest on 22 August 2001, with a non-parole period of four years.
Orders Made
- Each offender sentenced to imprisonment for six years and nine months, commencing 22 August 2001.
- Non-parole period of four years set for each offender, commencing 22 August 2001 and ending 21 August 2005.
- Recommendation that each offender receive psychiatric counselling, anger management counselling, and drug and alcohol counselling while in custody.
- Recommendation that, upon release on parole, each offender be required to continue counselling including anger management and drug use counselling as directed by the Probation and Parole Service.
Key Takeaways
- Where the Crown cannot prove beyond reasonable doubt which co-offender wielded the weapon, a manslaughter conviction on the basis of unlawful and dangerous act remains available if each offender participated in the attack that caused the death.
- Continued participation in a joint attack after becoming aware that a weapon is being used is a materially aggravating factor at sentencing, even where the participant did not personally wield the weapon.
- A 15 percent discount applied to reflect utilitarian value of the guilty pleas, consistent with the approach taken under the NSW sentencing framework at the time.
- Special circumstances, including age, personal background, and rehabilitation prospects, can justify a non-parole period shorter than the statutory default, producing a longer ratio of supervised post-release time.
- General deterrence carries significant weight in sentencing for group attacks on vulnerable or defenceless victims involving weapons.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Hill (1981) 3 A Crim R 397
- R v MacDonald (NSWCCA, 12 December 1995)
- R v Dib [2003] NSWCCA 117
- R v Scott [2003] NSWCCA 286
- Thompson and Houlton (2000) NSWLR 383
- R v McGuire (NSWCCA, unreported, 30 August 1995)
- R v Troja (NSWCCA, unreported, 16 July 1991)