Citation: Thammavongsa v Regina [2015] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 25 May 2015
Judges: Simpson J, R A Hulme J, Bellew J
Background
The applicant was convicted of murder following a shooting at a birthday party. He had brought a concealed "pen gun" and ammunition to the function, ostensibly to show friends. When tension escalated between two rival groups, he retrieved the weapon, loaded it, and fired into the opposing group, killing a 17-year-old. After the victim fell, the applicant kicked him in the head and later boasted about what he had done.
At the time of the offending, the applicant was 21 years old. He had a difficult upbringing, had migrated to Australia as a child, and had developed a heroin habit in his early teens. He was originally sentenced in September 2005 to 21 years' imprisonment with a non-parole period of 16 years.
The applicant sought an extension of time to file an application for leave to appeal against sentence. The delay was properly explained. The central basis for the appeal was that the original sentencing judge had fallen into error under the principles subsequently established in Muldrock v R [2011] HCA 39, by giving determinative significance to the standard non-parole period and engaging in an impermissible two-stage sentencing process.
Legal Issues
- Whether an extension of time to appeal should be granted, given the delay since original sentencing.
- Whether the sentencing judge committed Muldrock error by treating the standard non-parole period as determinative and applying a two-stage sentencing methodology.
- Whether, on a fresh exercise of the sentencing discretion, the offending fell at the mid-range of objective seriousness for murder.
- What weight should be given to the applicant's youth, difficult background, drug use, prospects of rehabilitation, remorse, and conditions of custody.
- Whether, notwithstanding the error found, the original sentence should be confirmed or varied.
- What role, if any, the original sentence plays when the Court re-exercises the sentencing discretion after finding error.
Decision
The Court accepted that Muldrock error was established: the sentencing judge had given the standard non-parole period determinative significance and had applied a two-stage process that the High Court subsequently held to be wrong. That finding required the Court of Criminal Appeal to exercise the sentencing discretion afresh, independently of the sentence originally imposed.
All three judges assessed the objective seriousness of the offending as falling in the mid-range. The applicant had deliberately armed himself, brought ammunition, and fired at a group of people. His conduct immediately after the shooting (kicking the victim and boasting) weighed heavily against him. His continued drug use in custody diminished his rehabilitation prospects.
The applicant's subjective case included his youth, a difficult childhood, migration history, and the hardships of his custody, including serving his sentence in protection. Those matters were relevant but the Court did not regard the subjective case as compelling overall. The applicant's family had provided support, and specialist medical treatment for his anxiety and depression had been consistently available to him in custody.
On re-sentencing, the majority (Bellew J, with R A Hulme J agreeing) concluded that no other sentence was warranted and dismissed the appeal. Simpson J, exercising independent judgment, arrived at a slightly different sentence: 20 years with a non-parole period of 15 years. The Court's orders followed the conclusion of Bellew J that the appeal should be dismissed.
Orders Made
- The time for filing an application for leave to appeal against sentence was extended.
- Leave to appeal was granted.
- The appeal was dismissed.
Key Takeaways
- Muldrock error was confirmed where the sentencing judge gave determinative significance to the standard non-parole period and applied a two-stage process, requiring the Court of Criminal Appeal to re-exercise the sentencing discretion afresh.
- In dismissing the appeal, the Court confirmed that, where an independent re-exercise of the sentencing discretion produces a sentence no lower than that originally imposed, the appeal must be dismissed under s 6(3) of the Criminal Appeal Act 1912 (NSW), even though error has been found.
- A significant division among the judges concerned the proper role of the first-instance sentence when re-sentencing after error. Simpson J held that the original sentence is relevant only to avoid re-sentencing more severely without warning, and to formulate the final order. It does not otherwise influence the selection of the re-determined sentence.
- R A Hulme J cautioned that Crown submissions framed as "no lesser sentence is warranted in law" risk implying that the sentencing judge sentenced at the very bottom of the available range. His Honour observed that such a submission, if made routinely, cannot be advanced with credibility.
- Youth at 21 years of age carried weight as a mitigating factor, but the Court found the offending did not reflect immaturity of the kind that would significantly reduce culpability, particularly given the deliberate nature of arming and the post-offence conduct.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947
- Davis v R [2015] NSWCCA 90
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 305 ALR 323
- 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
- Abdul v R [2013] NSWCCA 247
- 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