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Court of Criminal Appeal 19 May 2004

R v Vongsouvanh; R v Namalauulu

[2004] NSWCCA 158

Assault & violenceHomicide
CROWN APPEAL AGAINST SENTENCES EACH PLEADED GUILTY TO MANSLAUGHTER KNOWLEDGE OF THE PRESENCE OF A KNIFE CONTINUING COURSE OF EVENTS SUBJECTIVE CIRCUMSTANCES DISCOUNT FOR PLEAS OF GUILTY

Citation: R v Vongsouvanh; R v Namalauulu [2004] NSWCCA 158
Court: New South Wales Court of Criminal Appeal
Date: 19 May 2004
Judge(s): Simpson J (primary judgment); Bell J and Howie J (agreeing)

Background

Two respondents were charged with the murder of Michael Guinan, who was stabbed to death on 22 April 2001 near an apartment block in Cabramatta. Both respondents had been in the area seeking drugs. An altercation broke out between the deceased and a third woman, and the respondents intervened by restraining the deceased. A knife was produced and the deceased was stabbed multiple times before the women fled. He died shortly after.

Each respondent was arraigned on murder, but pleaded guilty to the alternative charge of manslaughter. The Crown accepted those pleas in full satisfaction of the indictment. Both respondents were also separately convicted of assault occasioning actual bodily harm against a different victim later that same evening.

Whealy J in the Supreme Court sentenced each respondent identically: six years and nine months imprisonment with a four-year non-parole period, commencing 22 August 2001. The Crown appealed under s 5D of the Criminal Appeal Act 1912, arguing the sentences were manifestly inadequate.

  • Whether the sentences imposed for manslaughter were manifestly inadequate in all the circumstances
  • Whether Whealy J erred in the factual finding that the respondents lacked knowledge of the knife before it was used
  • Whether the discount applied for guilty pleas was excessive
  • Whether the finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, and the resulting reduction in the non-parole period, was unjustifiably generous
  • Whether the degree of concurrence between the manslaughter sentences and the earlier assault sentences produced an inadequate overall sentence
  • Whether the principle of totality and parity between co-offenders were properly applied

Decision

The Court of Criminal Appeal dismissed the Crown appeal. Simpson J, with whom Bell J and Howie J agreed, found that the Crown had not established any error in the sentencing discretion exercised by Whealy J.

On the factual finding regarding knowledge of the knife, the sentencing judge had found that neither respondent knew a knife was present before it was deployed. The Court accepted this was a finding open on the evidence, and it was consistent with a conviction for manslaughter rather than murder. That finding appropriately reduced the overall gravity of the offending as assessed at sentence.

Regarding the discount for guilty pleas, the Court acknowledged that 25 per cent might be considered on the high side given the stage at which the pleas were entered, but found the discount fell within the range open to the sentencing judge. No error was established. Similarly, while the reduction in the non-parole period arising from the finding of special circumstances was described as "generous in its extent," the Court found it did not reach the level of error warranting appellate intervention.

On the question of accumulation and concurrence, the Court found that Whealy J had struck an appropriate balance. The manslaughter and assault offences, while separate, arose out of a continuing course of events on the same evening. Partial accumulation and partial concurrence was a legitimate approach, and the effective accumulation of the head sentence was six years and three months, not merely the shorter non-parole overlap the Crown had emphasised.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A sentencing judge's factual finding that respondents lacked knowledge of a knife was open on the evidence and properly reduced the assessed gravity of the manslaughter, even where the deceased died from stab wounds inflicted during a joint assault.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a guilty plea discount of approximately 25 per cent, while potentially at the higher end, remains within the available discretionary range and does not of itself constitute error.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, reducing the non-parole period below the standard ratio, may be upheld even if described as "generous," provided the sentencing judge's reasoning discloses no identifiable error.
  • Where two separate offences arise out of a continuing course of events on the same occasion, partial concurrence and partial accumulation of sentences is a legitimate sentencing approach, consistent with the principle of totality.
  • The Crown bears the burden on a s 5D appeal of demonstrating that the sentence is manifestly inadequate; it is not sufficient to show that another judge might have imposed a heavier sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter: 25 years)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeals against sentence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44(2), 50

Cases:
- R v Edwards (1996) 90 A Crim R 510
- R v White [1999] NSWCCA 60