R v Vongsouvanh; R v Namalauulu

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70082/02 (Vongsouvanh) FILE NUMBER(S) : 70024/03 (Namalauulu) LOWER COURT Whealy J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60539/03 60538/03

SIMPSON J BELL J HOWIE J

Wednesday 19 May 2004 REGINA v Katty VONGSOUVANH REGINA v Fialelei Loretta NAMALAUULU Judgment 1 SIMPSON J: On 17 November 2003 the respondents were arraigned in the Supreme Court on an indictment containing, against each, a charge that, on 22 April 2001, she murdered Michael Guinan, and an alternative charge of manslaughter. Each entered a plea of not guilty to the murder charge and a plea of guilty to the alternative manslaughter charge. Those pleas were accepted by the Crown in full satisfaction of the indictment. Whealy J proceeded to hear evidence and submissions on sentence. On 17 December 2003 he sentenced each respondent, in identical terms, to imprisonment for six years and nine months with a non-parole period of four years, the sentences to commence on 22 August 2001. By s24 of the Crimes Act 1900 the maximum sentence applicable to a conviction for manslaughter is imprisonment for 25 years. 2 By the present proceedings the Crown appeals, pursuant to s5D of the Criminal Appeal Act 1912, against what it asserts to be the manifest inadequacy of these sentences.

the facts 3 The broad facts of the offences may be briefly stated, with the reservation that certain matters that were in dispute became the subject of detailed analysis by Whealy J. As some of these matters feature in the issues raised in this appeal, it will be necessary to return to them later in this judgment. Put briefly, the circumstances of the offences were as follows. Each respondent was addicted to drugs. During the early evening of 22 April 2001 they, and another woman, CH, met (by chance) at or near Cabramatta Railway Station. The respondents were in Cabramatta with the intention of obtaining cocaine and heroin. At some point during the evening either or both of them obtained cocaine, but persisted in their attempts also to obtain heroin. For this purpose, with CH, they went to an apartment block in Bridge Street where they sought to contact a man they believed to be a dealer. Their attempts to contact him were unsuccessful. They nevertheless decided to wait for his return in the vicinity of the garage beneath the apartments. At this point the victim, Michael Guinan, arrived at the scene and joined the women. The respondents decided to use the cocaine they had already obtained. As they were doing this, an altercation erupted between CH and Mr Guinan. The respondents took CH's part, and, to assist her, held Mr Guinan by the arms and restrained him. All three women became involved in a fight with Mr Guinan. A knife was produced and Mr Guinan was stabbed a number of times. He was quickly and seriously injured and fell to the ground. There was a good deal of blood in evidence. CH knelt over him, appeared to search him, and removed his right shoe from which she appeared to take some object. All three women ran off. Mr Guinan stood up, and, holding his stomach, walked towards Bridge Street, calling for help. A neighbour, Mr Yee, who had witnessed the events from his adjacent apartment, called an ambulance. Mr Guinan was taken to hospital but died. 4 The women returned to Cabramatta Railway Station, where they continued their quest for heroin. Later that evening, they came across another male, Mr Maher Sayadi, whom they kicked and punched. As a result, they were identified on closed circuit television, and were arrested and charged in relation to the assault on Mr Sayadi. Subsequently, each respondent was convicted of an offence of assault occasioning actual bodily harm. (The events concerning Mr Sayadi are not, strictly, material to the offences involving Mr Guinan. They arise, however, in the context of certain matters raised on behalf of the Crown in support of its appeal, and are thus included in the narrative.)

subjective circumstances 5 Ms Vongsouvanh was born in Laos on 29 August 1974. She was twenty-six years of age at the time of the offence, twenty-eight years at sentencing. She had a lengthy criminal record, predominantly of drug offences, but also including offences of dishonesty and assault. On 24 January 2002 she was sentenced to imprisonment for eighteen months with a non-parole period of ten months for assault occasioning actual bodily harm. This offence was the assault upon Mr Sayadi. Ms Vongsouvanh migrated to Australia at the age of two and a half. Initially she did well at school but this changed when she transferred to a different high school where she was not happy. Her mother died in 1990 after two or three years of suffering from multiple sclerosis. This greatly distressed Ms Vongsouvanh and precipitated her into the use of drugs, at about the age of fifteen. Her relationship with her father, who had previously exhibited violence towards her, deteriorated following her mother's death, and further deteriorated when he establish a relationship with, and then married, his first wife's sister. Ms Vongsouvanh's partner, Manuel, is Fijian but is in custody, serving a sentence for robbery, with a non-parole period of six years which will expire in 2008. He also was addicted to heroin. The couple have a daughter who was, at the time of the offence, about five months old, about three years of age at the time of sentencing. She was in the care of her father's parents, who, at sentencing were bringing the child on regular visits to Ms Vongsouvanh in prison. Dr Westmore, a psychiatrist who provided a report to the sentencing court, considered that she was very attached to the child, and that that would make incarceration particularly difficult for her to bear. 6 Ms Vongsouvanh was arrested late on 22 April 2001 and charged with the assault on Mr Sayadi. She remained in custody on that charge until the date of sentencing (24 January 2002) on which date she was also charged with the murder of Mr Guinan. As, pursuant to s50 of the Crimes (Sentencing Procedure) Act 1999, she was entitled to be released at the end of the non-parole period, her custody since that date has been attributable solely to the present offence. During the period of incarceration, and prior to sentencing by Whealy J, she undertook a methadone program and took other positive steps towards rehabilitation. She obtained a forklift driver's licence and satisfactorily completed some courses. She has worked continuously whilst in custody. She has some prospects of employment on her release. She expressed remorse towards Mr Guinan's family. Although he does not appear to have said so expressly, it may reasonably be inferred that Whealy J accepted her expression of remorse as genuine. 7 Ms Namalauulu was born in New Zealand, of Samoan parents, on 23 July 1979. She was twenty-one years of age at the time of the offence. Her criminal history is considerably less serious than that of her co-offender. Relevantly, she was convicted of assault in early 2002, in respect of which she was subjected to a good behaviour bond. On 24 January 2002 she was sentenced to imprisonment for fifteen months with a non-parole period of ten months for the assault upon Mr Sayadi. The non-parole period expired on 22 February 2002. Thereafter, she remained in custody. Since 22 February 2002, she, too, has been in custody solely by reason of the present offence. 8 Her family, consisting of her parents, herself, and six younger siblings, came to Australia in 1995. For reasons of which she was not aware, she was in the custody of and brought up by, her paternal grandfather until she was about seven. This experience was far more positive for her than the family life she experienced on her return to her immediate family. Her father, Jacob Taula, who gave evidence, was a Pastor at the Assemblies of God Church, a Samoan Church. Her upbringing was strict and somewhat unhappy, and led to rebellion at an early age. While the family was still in New Zealand, welfare authorities took steps which resulted in Ms Namalauulu being placed with her uncle. When the family moved to Sydney her rebellious activities continued and she ran away from home and stayed away until she was eighteen. At that time she bore a son and returned with the child to reside with her parents. She began using marihuana and alcohol on a daily basis at about the age of twenty and progressed to heroin. She lost her job and lived a nomadic existence. 9 Her son was about five years of age at the time of sentencing, and in the care of her parents. They visit her on a monthly basis. Her relationship with her parents had markedly improved whilst she was in prison. 10 Since being incarcerated she has withdrawn from heroin. She undertook a methadone program but has also given that up, and has expressed a determination to remain free of drugs. She also has obtained a forklift driver's licence while in custody. She also has expressed remorse for her involvement in the death of Mr Guinan. 11 A psychological report that was before the sentencing judge stressed Ms Namalauulu's determination, on her release, to remain drug-free and live a law abiding life, caring for her son, but the report equally stressed the difficulties that this would present, and the consequent need for counselling, supervision, and drug rehabilitation in the community.

the proceedings on sentence 12 The respondents entered their pleas of guilty to the manslaughter charges on the day fixed for the commencement of their trial on the charges of murder. Evidence was put before the court in the form of statements of witnesses who would have been called had a trial eventuated. Some oral evidence was called. In particular, the eye-witness (and neighbour), Mr Yee, gave evidence of what he had observed. Ms Vongsouvanh gave evidence in her case in mitigation. Ms Namalauulu did not. Her father, Pastor Jacob Taula, gave evidence on her behalf. Ms Mereoni Cakau gave brief evidence on behalf of Ms Vongsouvanh. Also before his Honour in relation to Ms Namalauulu was a psychological report and, in relation to Ms Vongsouvanh, a psychiatric report. 13 It was common ground that the pleas of guilty to manslaughter had been offered and accepted on the basis that the death of Mr Guinan had been caused by the unlawful and dangerous acts of each of the respondents.

the remarks on sentence 14 The principal factual issue in the proceedings concerned the knowledge each respondent had of the presence of the knife, and, more specifically, when she came into that knowledge. Whealy J was satisfied that neither respondent was the person in possession of the knife. He was not satisfied beyond reasonable doubt that either respondent knew that CH had the knife, or was likely to produce it in the event of an argument, at any time prior to the commencement of the struggle. He was, however, satisfied that, once the knife was produced, both respondents knew that it was being used to stab Mr Guinan, and that, with that knowledge, they continued to participate. He added, however, that this could only have been for a very short period of time. He was therefore satisfied beyond reasonable doubt that each respondent contributed to Mr Guinan's death by preventing him from defending himself or escaping, but again tempered this finding by adding that the contribution by each respondent was haphazard and in the context of rapidly moving events. This finding has to be seen in the light of an earlier finding, made when his Honour was considering the evidence of Mr Yee. His Honour said: "If I were to accept that the two co-offenders held on to the deceased's lower arm and wrists so as to prevent him from defending himself in a situation where, to the knowledge of the offenders, a knife was produced and then used to stab him four or five times while thus restrained, there would be a very high level of criminality involved indeed." 15 He expressly declined to make such a finding. He was, however, satisfied beyond reasonable doubt that each respondent knew, when she ran from the scene, that Mr Guinan had been very seriously injured. 16 Having reached those factual conclusions, he characterised the criminality of each respondent as "at a very serious level". 17 Having found the facts and reviewed the subjective circumstances, Whealy J dealt with a number of necessary matters. First, he identified the features aggravating the offences. These were the actual use of violence; the use of a knife (although not by the respondents); the respondents' records of previous convictions (which, he held, were not such as to warrant an increase in the sentences); the "callous disregard and indifference to the victim" by the respondents in leaving him badly injured and bleeding and, so far as they were concerned, without assistance; that the offence was committed in company (although, in his Honour's view, that overlapped with the basis for the acceptance of the plea of guilty to manslaughter, that being the commission of an unlawful and dangerous act by each respondent). 18 His Honour then turned to the mitigating factors: these were that the offence was not part of a planned criminal activity, but rather was spontaneous; the expressed remorse and contrition by each offender, accepted as genuine (although neither remorse nor contrition arose at or immediately after the commission of the offences); and the prospects, in each case, of rehabilitation, held to be better in the case of Ms Namalauulu than Ms Vongsouvanh. 19 His Honour recognised that each respondent was, pursuant to s22 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), entitled to a discount on sentence as a result of her plea of guilty. He did not accept that the pleas were entered at the earliest reasonable opportunity, neither respondent having offered to plead guilty to manslaughter before 17 November 2003, many months after arraignment. His Honour balanced this against his recognition that comprehensive legal advice may not have been available to the respondents at an earlier time. 20 Having weighed up all of those considerations, his Honour determined that each respondent's sentence should be discounted by 15% in recognition of her plea of guilty. 21 His Honour then turned to a consideration of the commencement dates of the sentences. As will be clear from what has been written above, each respondent was arrested on the evening of 22 April and has remained in custody since that date. Each was arrested by reason of the assault on Mr Sayadi and was sentenced in relation to that charge on 24 January 2002. Each was sentenced to a term which included a non-parole period of ten months which expired on 22 February 2002, but remained in custody, attributable to the murder/manslaughter charge until sentencing on 17 December 2003. His Honour noted that it had been urged upon him that the sentences in relation to the present charge ought to be made partially or wholly concurrent with the sentences on the assault charges. That was because of the relative proximity in time of the two offences. 22 His Honour accepted that the principle of totality, in circumstances where the two separate offences had been committed generally at the same time and in generally similar circumstances, required partial concurrence of the sentences. He therefore determined that each sentence should commence on 22 August 2001. This meant that the sentences were accumulated by four months, and made concurrent by six months, on the non-parole period on the assault charges. 23 The next matter considered by his Honour was the question of parity. He noted that no submissions had been made by any of the legal representatives to the effect that there should be some differentiation between the sentences imposed on the two respondents. He noted some points of distinction between the two but did not regard those as warranting any distinction in the length of the sentences imposed. This was principally, if not entirely, because of what he regarded as the "virtually identical" level of criminality attributable to each respondent. 24 The final matter considered by his Honour concerned the question of special circumstances pursuant to s44(2) of the Sentencing Procedure Act. Considering that each respondent would plainly benefit from a lengthy period of parole supervision, counselling and drug and alcohol avoidance treatment, his Honour determined that special circumstances, warranting departure from the ratio specified in that sub-section, existed. In reaching that conclusion, his Honour also adverted to the separation of each of the respondents from her natural child. 25 Having considered all of these matters, allowing the 15% discount for the pleas of guilty, his Honour imposed the sentences outlined above, that is, in each case, a head sentence of imprisonment for six years and nine months and a non-parole period of four years, commencing on 22 August 2001.

the Crown appeal 26 The nub of the argument put by the Crown in support of its appeal is that the sentences are manifestly inadequate. In order to support that argument the Crown sought to rely on a series of propositions. The first of these was that the sentencing judge: "… assessed the objective seriousness of the offence at an inappropriately low level given the facts as found by him." 27 The Crown then argued that: "Both respondents engaged in preventing the deceased from defending himself or escaping from the attack, as a result of which attack he died. … …they did continue to prevent the deceased from defending himself or escaping even after they became aware of the use of the knife …"

The difficulty faced by the Crown in pursuing that proposition lies in reconciling the facts asserted with the Crown's acceptance of the pleas of guilty, particularly on the specified basis that the respondents were guilty of manslaughter by reason of their unlawful and dangerous acts. To accept that the respondents acted as the Crown now contends they acted - that is, that they restrained Mr Guinan, preventing him from defending himself or escaping, after they became aware that CH had produced and was using the knife - would be to accept that they were guilty of murder because that would necessarily have denoted an intention either to kill, or, at the very least, to cause grievous bodily harm. By the Crown's acceptance of the plea, his Honour was constrained in his fact finding. As it happened, he was not satisfied beyond reasonable doubt that Mr Yee's account of the events was an accurate one. Had he been so satisfied, his sentencing exercise would have presented even more difficulties than it did. That is because, on Mr Yee's account, the respondents must have been guilty of murder. 28 What the Crown, in reality, seeks to do on this appeal, is to establish that the respondents' offences of manslaughter were at the very upper echelons of instances of that crime. But the only way it could do so, on the facts as they exist, involves establishing a set of facts, which, by its acceptance of the pleas, the Crown expressly eschewed. In my opinion, examination of the findings of fact demonstrates that the sentencing judge was acutely aware of the difficulty of the sentencing task with which he was faced. He had, in fact, been presented with evidence, and with a Crown case on the facts, consistent with murder and barely reconcilable with manslaughter, at least on the stated agreed basis. His Honour was fully aware that, in sentencing the respondents for manslaughter, he could not do so on the basis of factual findings that established murder. That, no doubt, explains his Honour's findings that the respondents continued to participate in the attack even after the knife had been produced, but necessarily only for a very short time; that the stabbing occurred very quickly and their awareness of the presence of the knife and the wounding of Mr Guinan happened within that very short period of time; and that what they did involved: "... a haphazard pulling, shoving, grabbing and holding during the course of which a knife was produced and used very rapidly."

It also explains the distinction drawn by his Honour in the passage earlier quoted ([14]). 29 Given the Crown's acceptance of the pleas of guilty to manslaughter, the manner in which the Crown case was presented, and the sentencing judge's findings of fact, I discern no error in the characterisation of the respondents' level of criminality as serious. 30 On the facts found by his Honour, and within the constraints resulting from the pleas of guilty to manslaughter, the actions of the respondents had to be seen as the continuation, over a very short period of time, of actions commenced before either of them was aware of the presence of the knife; which of themselves could not have caused death, or serious injury; which, while they may have been unlawful, could hardly have been seen as dangerous; and which had the consequence, although not the intention, of contributing to the injury to, and death of, Mr Guinan. 31 So characterised, the criminality was, as described by his Honour, serious, but not at the top of the range of seriousness of offences of manslaughter. I would therefore reject this argument advanced by the Crown. 32 The Crown also submitted that the sentences, on their face, failed to recognise the sentencing objectives of both specific and general deterrence and of denunciation. 33 It was not argued that his Honour failed to advert to those matters: he made specific reference to them at [61]. The Crown sought, by reference to the length of the sentences, to have an inference drawn that those matters, although acknowledged, were given no, or insufficient, weight. 34 Another matter relied upon by the Crown was the finding in relation to contrition and remorse which, the Crown argued, was given undue weight. Specifically, the Crown argued that the factual dispute on the sentencing proceeding concerning the knowledge of each respondent as to the presence of the knife, and, particularly to Ms Vongsouvanh's denial, in the sentencing proceedings themselves, of any such knowledge, diminished the evidence of contrition. Neither had ever, so it was asserted, made any expression of remorse or contrition going to the "critical factor" of her knowledge of the use of the knife. 35 It is impossible to be precise as to the weight placed by his Honour on his findings of remorse and contrition. It is to be remembered that, in this context, he made specific reference to the plainly un-contrite conduct of each respondent in the immediate aftermath of the offence; his finding as to contrition was specifically related to the long period spent in custody by each respondent, together with her withdrawal from drugs, and the consequent realisation of the seriousness of her criminal actions. 36 In the light of the evidence of Ms Vongsouvanh and of Ms Namalauulu's father, and the psychiatric and psychological reports, it was plainly open to his Honour to make the finding, in each case, that he did. I see nothing in the remarks on sentence that would permit a conclusion that he gave undue emphasis to that factor. 37 In support of its general proposition that the sentences were manifestly inadequate, the Crown provided a table containing short summaries of a series of cases previously decided by this Court, and suggested that reference to those cases would establish that the sentences imposed upon the respondents were below the bottom of the range legitimately available. 38 It has long been recognised, by this Court, and frequently stated, that, of all offences, manslaughter presents some the widest ranges of factual circumstances and levels of criminality. This renders reliance on statistical data unhelpful and even dangerous. The summaries do not persuade me that these sentences were outside the range of a proper sentencing discretion. 39 The final specific matter raised by the Crown in relation to the length of the sentences was directed specifically to that imposed upon Ms Vongsouvanh. This was a submission that, having regard to her "significantly worse criminal history" than that of Ms Namalauulu, and her less promising prospects of rehabilitation, that she at least should have been subjected to a lengthier sentence. 40 I would reject this attempt to differentiate between the two respondents. His Honour paid particular attention to the question of parity between them and found that their criminality was virtually identical. Ms Vongsouvanh's criminal history was not such as to warrant the imposition on her of a lengthier sentence than on her co-offender in respect of a virtually identical crime. Nor were her prospects of rehabilitation so significantly less than those of Ms Namalauulu as to warrant differentiation in the sentence. I would reject this submission. 41 The Crown then argued that a number of other matters denoted specific error in the structure of the sentences. The first of these concerned the finding of special circumstances under s44(2) of the Sentencing Procedure Act. In particular, the Crown focussed upon the observation that each respondent was separated from her natural child. The Crown attacked this finding, arguing that undue weight was given to it; and that, in the case of Ms Vongsouvanh, it may have been doubly taken into account in both assessment of the head sentence and in relation to the question of special circumstances. Hardship to third parties, the Crown pointed out, does not justify a reduction of the sentence (or a finding of special circumstances) other than in exceptional cases: R v Edwards (1996) 90 A Crim R 510; R v White [1999] NSWCCA 60. I do not understand the reference by his Honour to the separation of the respondents from their children, in the context of his consideration of special circumstances, as being based upon hardship to the children. True it is, that at an earlier point in the remarks, when considering the subjective case advanced on behalf of Ms Vongsouvanh, his Honour noted that: "... clearly there is an element of hardship involved for both mother and daughter as a result of their separation"

but this was not repeated when his Honour turned his attention to the questions involved in determining the ratio between the non-parole period and the head sentence. In my opinion his Honour's reference to the separation of each respondent from her child should be interpreted as a reference to additional hardship involved, by reason of that separation, in each respondent's serving her sentence of imprisonment. I confess to considering this to be of, at most, peripheral relevance to the question of special circumstances: but, it seems to me, his Honour gave it only marginal weight. The principal basis for the finding of special circumstances, in each case, was the conventional reason concerning each respondent's need for supervision, counselling and support on her release. 42 Also attacked by the Crown was the degree of the reduction in the non-parole period which resulted from the finding of special circumstances, taking the non-parole period to 59% of the total sentence, or an effective reduction of one year in the non-parole period that would have been imposed had there been no such finding. 43 When the non-parole period is looked at only in the context of the sentences imposed for manslaughter, it may reasonably be said that the reduction was generous in its extent. But the fact of the accumulation of the sentences must also be borne in mind, meaning that each respondent will serve a minimum of four years and four months in custody in respect of both offences. Whilst another judge may have applied less of a reduction to the non-parole period, I am not satisfied that the exercise of discretion in this respect has been shown to have been erroneous. 44 The final specific matter raised by the Crown concerned the degree of concurrency of the manslaughter sentences with the assault sentences. This, the Crown argued, resulted in a manifestly inadequate overall sentence. The Crown argued that the effective accumulation upon the non-parole period for the assault offence attributable to the manslaughter sentence is three years and six months, and that is inadequate for so serious a manslaughter. That submission is deceptive. It is only the non-parole period on the manslaughter sentence that, when accumulated upon the assault sentences, is of three years and six months. The effective accumulation of the head sentence is of six years and three months. 45 What his Honour had to do was to strike a balance between recognising that two quite separate offences had been committed by each respondent, each of which should result in the imposition of a sentence recognising its gravity; and the circumstances in which the two offences were committed, not as part of a single course of conduct, but certainly as part of a continuing course of events with significant common features. This his Honour did by the partial accumulation and partial concurrence of the sentences. That some concurrence was legitimate was acknowledged by the experienced Crown prosecutor. It appeared in the sentencing hearing. 46 In my opinion, the Crown has failed to make good its attack upon the sentences imposed. I would dismiss the Crown appeal. 47 BELL J: I agree with Simpson J 48 HOWIE J: I agree with Simpson J.

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