Regina v Thammavongsa

CATCHWORDS : Criminal Practice & Procedure - sentence - murder - firing pen gun at a party - affected by alcohol and drugs - excessive self defence rejected by jury - standard non parole period - youth - protection.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

R v Way (2004) 60 NSWLR 168 CASES CITED : R v Pellew (2004) 150 A Crim R 575

Ms M M Cunneen (Crown) COUNSEL : Ms C Davenport SC (Acc)

Ms R McMurtrie - DPP (Crown) SOLICITORS : Ms J Collings - LAC (Acc)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT ON SENTENCE 1 KIRBY J: Meng Thammavongsa was charged with having murdered Khang Vinh Tien on 12 July 2003 at Cecil Hills. He pleaded not guilty of murder, but guilty of manslaughter. He agreed that he shot Khang Vinh Tien, but claimed that he did so in self defence. At the same time, he acknowledged that his response was excessive. The Crown, however, declined to accept that plea. The trial proceeded. The jury then returned a verdict of guilty of murder. 2 It remains for me to pass sentence. I must first determine the facts relevant to the sentencing discretion. They must be determined in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Thammavongsa, it is enough that they should be proved on the balance of probabilities.

The incident. 3 In July 2003, three school friends turned 18 within a few days of each other. They decided to have a joint party. They hired the community hall at Cecil Hills. They made arrangements with the police to enable liquor to be brought to the premises. They each invited guests. One of the young men was the cousin of Meng Thammavongsa. And so it was that Mr Thammavongsa was invited to the party. 4 On the night of the party, Mr Thammavongsa went with his cousin to the community hall quite early. He helped set up the hall. He took with him both alcohol and drugs. He had a bottle of whisky, some beer and several ecstasy tablets. Mr Thammavongsa also had with him, a firearm and a number of bullets. The firearm was an unusual weapon, known as a "pen gun". It is called a pen gun because it physically resembles a fountain pen and is not much bigger. It consisted of a cylinder which is the barrel, which does not have a butt or handle. It resembles a short length of pipe. There is a firing mechanism on the top of the barrel, which is pulled back and then released. To load the weapon, the barrel is unscrewed. A bullet is then inserted and the two sections then screwed back together again. It is only capable of firing one shot at a time. It must be supported by one hand and the other hand is then used to release the trigger. 5 Mr Thammavongsa took the weapon to the party. He said that he wanted to show his friends. There were a hundred or more invited guests who came at different stages during the evening. There was a disc jockey playing dance music. People moved in and out of the hall, gathering in small groups, talking in the car park and the parklands adjacent to the hall. 6 At 10.00 pm or thereabouts, a number of uninvited guests arrived. They were described as a group of Asians. Amongst them was Khang Vinh Tien. An incident occurred in which a bottle or a beer can was thrown or kicked at a window of the hall. The window was not broken. A person inside the hall, Michael, a friend of Mr Thammavongsa, remonstrated with the person responsible, being one of the so-called group of Asians. There was an exchange of words. Ultimately an invited guest, a big man, came into the kitchen where Michael had been standing. The abuse between Michael and the person outside the hall stopped. Those involved drifted away. The incident itself was short lived. There was no physical contact between anyone involved. 7 The party continued for a number of hours. Much of it was recorded on video. It appeared to be a normal party. People seemed happy. Mr Thammavongsa spent much of the night in the barbeque area just outside the hall. He consumed both whisky and beer. He was described by some of his friends as "tipsy". He also took an ecstasy tablet earlier in the evening. He took another some hours later. He had, in the past, consumed both alcohol and ecstasy on a number of occasions. Expert evidence was given that ecstasy, in combination with alcohol, has a sobering effect, without affecting the level of alcohol in the blood. The account Mr Thammavongsa gave of how much alcohol he consumed was, on the medical evidence, unreliable. Nonetheless, it can be accepted that he was affected both by alcohol and drugs. He said that he had an odd reaction to the second ecstasy tablet. It made him feel paranoid. However, he had a fair recollection of the events that were about to unfold. When asked by his counsel whether he was affected by drugs and alcohol, he said that he was, adding that he was not very affected. 8 Shortly after midnight there was a further incident outside the hall. It involved another group of uninvited guests. They were described as Lebanese. The incident began at 12.06 am and was recorded on a video camera. The video formed part of the evidence. The incident did not develop beyond an exchange of words. There was, nonetheless, a degree of tension. One of the hosts then determined that the party should be shut down. They were, in any event, approaching the time when they were obliged to leave the hall. He therefore gave instructions to stop the music. Those within the hall began moving outside, gathering in small groups in the car park and on a grassed area adjacent to the hall. 9 The shooting occurred at about 12.30 am. About 15 minutes beforehand, Mr Thammavongsa walked with his friend Michael to his car. Mr Thammavongsa retrieved the pen gun from the boot of the car. He also had a bullet in his pocket. 10 Mr Thammavongsa walked back towards the car park. He separated from his friend Michael, who then approached another guest. Michael expressed fear of the Asians involved in the incident earlier in the evening. He asked his friend to drive his car to the road. One gathers that he was fearful that the car, which belonged to his parents, may be damaged. Michael had been drinking. He described himself as moderately affected by alcohol. Michael decided that he would leave the area by walking through some vacant land nearby, meeting his friend further down the road. 11 Khang Vinh Tien and his friends were standing on the grassed area not far from the hall. It was, of course, dark. Some light fell upon the grassed area from the adjacent car park and the overhead lights of the road which was nearby. The lights in the hall were also on and shed some light on the area where Khang Vinh Tien and his friends were standing. 12 As Mr Thammavongsa walked back towards the car park, he loaded the pen gun and placed it in his pocket. He then approached the group. He was by himself and about eight to ten metres from them. At the time, he was aged 21 years. The victim was aged 17 years and so were most of his friends. Mr Thammavongsa called out to them. Amongst other things he said: "Do you want to play?" 13 A confrontation developed involving an exchange of words between Mr Thammavongsa and members of the group. Mr Thammavongsa said that his purpose in approaching the group was to protect his friend Michael. He thought the group were about to enter the hall and harm Michael. That was the background to his claim of self defence which the jury rejected. Whilst it may be accepted that Michael had expressed fear of the group of Asians, the suggestion that Mr Thammavongsa was concerned to protect Michael was odd. He had been to the car 15 minutes before with Michael when he retrieved the gun, which he had then loaded. Michael, meanwhile, had left the area in accordance with the arrangements which I have described. I do not accept, even as a probability, that the group or any member of it was advancing towards Mr Thammavongsa or the hall. 14 The group which Mr Thammavongsa confronted comprised about half a dozen young men, including Khang Vinh Tien. When some members of the group answered back, Mr Thammavongsa took the pen gun from his pocket. He pointed it at the group. He agreed in cross examination that he was angry. He claimed, and the jury clearly rejected, that the victim or one of his companions made a gesture as though reaching for a weapon. None of the group was armed. Mr Thammavongsa fired the gun, aiming at the front of the victim. The weapon was inherently inaccurate. Although the bullet hit the victim on his face near the eye, ultimately causing brain damage which led to his death, it cannot be inferred that Mr Thammavongsa was aiming for his head. I make no finding that he intended to kill the victim, although plainly he intended to inflict very serious injury, as the jury found. 15 Immediately after the incident, Mr Thammavongsa approached Khang Vinh Tien. He was on the ground and trying to get up. Mr Thammavongsa kicked him in the side of the head. I infer he did so because he was still angry. Although several witnesses suggested that he kicked the victim a number of times, I believe that he only kicked him once. It was enough to cause the victim to fall back down and to leave a deep-seated, though small, bruise on his scalp above the ear. Mr Thammavongsa then walked away. He made his way to a friend's car. After getting into the car, he said to his friend words to the effect: "I got him. I shot him in the face. I fucken kicked him in the face. They want to play games, little kids." Subjective case. 16 Mr Thammavongsa was born on 2 June 1982 in Laos. He had a difficult childhood. His father died during the war in Laos. When he was five his mother emigrated to Australia, being sponsored by a relative of her late husband. She later remarried. The family lived in Cabramatta. 17 Mr Thammavongsa was introduced to drugs at an early age. Shortly after entering high school he began smoking cannabis. Soon after he began using heroin. He was expelled from one school and found it difficult to adjust to the next. With the assistance of his family, he attempted treatment to overcome his addiction, but without success. 18 It is unsurprising, in these circumstances, that Mr Thammavongsa accumulated a criminal record. He came before the Children's Court in January 1999 and was convicted of robbery in company. He was ordered to perform 150 hours community service. He was thereafter convicted of a number of offences involving the possession or supply of prohibited drugs. He was fined and, in 2001, placed on probation. He committed the same offence within a very short time and was sentenced to imprisonment for three months. 19 His drug addiction also caused family strife. His stepfather objected. Ultimately his mother and stepfather separated. In 2001, Mr Thammavongsa returned to Laos where he spent time with his grandmother. He also underwent some form of treatment for heroin, spending time in a temple living like a monk. Within the year he returned to Australia. 20 Thereafter, Mr Thammavongsa refrained from taking heroin. However, unfortunately he substituted alcohol and ecstasy tablets for heroin and quickly developed a problem with each of those substances. It will be recalled that Mr Thammavongsa was affected by alcohol and ecstasy at the time he committed this offence. 21 Mr Thammavongsa left school in Year 9. He could not then, and cannot now, read or write English. He is also illiterate in his native tongue. He nonetheless found work as a process worker. He was working at the time of the offence.

Contrition. 22 Mr Thammavongsa was seen by a psychologist, Ms Robilliard, in July 2005. He told her that he was sorry for the victim and his family. He repeated that he was sorry when he gave evidence on sentence. He said that he could not forgive himself for what he had done. Whilst Mr Thammavongsa certainly did not display contrition shortly after the incident, kicking the victim in the head as he was attempting to get to his feet, I accept that, having reflected upon his actions, he does feel a measure of remorse.

Rehabilitation. 23 Mr Thammavongsa is a young man. As his Counsel said, "he is much too young to write off". An attempt was made to assess his intellectual ability. The assessment was necessarily difficult because of his illiteracy. Ms Robilliard, doing the best she could, assessed him to be in the average, or perhaps below average, range. Nonetheless, he certainly had the ability to read and write. Mr Thammavongsa has enrolled in a course in prison to teach him those skills. 24 The history of Mr Thammavongsa's drug taking is obviously a significant obstacle to his rehabilitation unless he manages to overcome it. Mr Thammavongsa said that he has begun to address that issue. He has undertaken a drug and alcohol course. He is determined to emerge from gaol both literate and drug free. However, his custodial history includes two occasions where his urine was tested and found to contain traces of drugs. He obviously still has some way to go in overcoming his addiction. He nonetheless has the support of his mother and his sister. Although one must be guarded about his future, I nonetheless feel that his prospects of rehabilitation are reasonable.

Protection. 25 Mr Thammavongsa was arrested on 14 July 2003. He has been in custody since that time. He gave evidence that, on two occasions, he had been approached in gaol by persons who were aware of his offence and appeared to have some association with the deceased. On one occasion he was, to use his words, "jumped". He managed to escape with only minor injuries. However, he believed himself to be at risk. He therefore asked to be put in protection. He has remained in protection ever since. 26 I am asked to accept that it is likely that Mr Thammavongsa will spend the balance of his sentence in protection. Although there is not much evidence, the fact that he placed himself in protection and has remained in protection is some corroboration of his claims. I think, on balance, it is likely that he will spend the rest of his term in protection.

The appropriate sentence. 27 Mr Thammavongsa's offence was committed on 12 July 2003. The Crimes (Sentencing Procedure) Act 1999 was amended in October 1999, with operation from 1 February 2003. It introduced what are termed "standard non parole periods" (s54A). The standard non parole period is described as representing "an offence in the middle of the range of objective seriousness for offences" in the table (s54A(2)). The Court is required "to set the standard non parole period" unless it determines that there are reasons for setting a longer or shorter period (s54B(2)). The Court may depart from the standard, but only for reasons which are identified in s21A of the Act (s54B(3)). Section 21A obliges the Court, when fixing a sentence, to have regard to aggravating and mitigating factors (which the section identifies), as well as other objective and subjective factors affecting the relative seriousness of the offence. The Court, by s54B(4), is enjoined to make a record of its reasons for increasing or reducing the standard non parole period, identifying each factor taken into account. 28 The approach that should be taken in respect of a standard non parole period was considered by the Court of Criminal Appeal in R v Way (2004) 60 NSWLR 168. The Court identified the issue which must be addressed, namely: Are there reasons for not imposing the standard non parole period? That question will be answered by considering the following matters: (R v Way (supra) para 118) "(i) the objective seriousness of the offence considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3), and as incorporated by the general provisions in s21A(1)(c) and by the concluding sentence to s21A(1)." 29 A helpful distillation of the principles has been provided by Simpson J in R v Pellew (2004) 150 A Crim R 575. 30 The standard non parole period in respect of murder is 20 years (s54B(1) Table). Should the offence be characterised as being "in the middle of the range of objective seriousness", applying these principles? The Crown pointed to certain aggravating features, identified in s21A(2) of the Act, although care must obviously be taken to ensure that the aggravating factor is not an element of the offence, nor some other feature inherent in the charge itself. Here, for instance, the offence of murder obviously involves violence (s21A(2)(b)) so that cannot be regarded as an aggravating feature. Nor, for the same reasons, can the fact that the offence was committed without regard for public safety (s21A(2)(i)). On the other hand, the offence involved the actual use of a weapon and that was a circumstance of aggravation (s21A(2)(c)). The episode of kicking the victim after he had been shot may amount to gratuitous cruelty, although it really was a continuation or manifestation of the anger which was inherent in the offence. 31 In terms of mitigating factors, the offence was not, I believe, planned. Mr Thammavongsa's decision to take the gun to the party was foolhardy and reckless, especially since he knew he would be drinking and taking drugs. It made possible, and indeed invited, the sort of senseless violence that then occurred. It was obviously unwise and reckless to remove the gun from the boot of the car and place it in his pocket as he contemplated confronting the group. At that stage, Mr Thammavongsa intended to keep the gun in reserve or brandish it to impress the group. There is no evidence that he intended, at that point, to fire it. The intention to discharge the weapon arose during the course of the confrontation. 32 It may be said that, to the mildest degree, some member of the group provoked Mr Thammavongsa during the angry exchange of words (s21A(3)(c)). Unquestionably, Mr Thammavongsa's perception was impaired by reason of drugs and alcohol. That is not a matter in mitigation but part of the explanation for his conduct. He did not, as I have said, intend to kill the victim. He was standing some distance from him. He had a small gun with one bullet and the gun was inherently inaccurate. Plainly, however, as the jury found, he intended, in his anger, to inflict very serious injuries, and did so by firing the gun, ultimately causing the victim's death. 33 The Crown urged that, because Mr Thammavongsa showed immediately after the shooting, a degree of callousness by kicking the victim, the offence is slightly worse than an offence in the middle of the range of objective seriousness. Whilst it is true that there was a degree of callousness, it is also significant, in my view, that the offence was to some degree, spontaneous, without an intention to kill. On balance, I believe the offence should be regarded as one in the middle of the range of objective seriousness. The standard non parole period should therefore apply unless there are reasons, specific to Mr Thammavongsa, which suggest that it should be moderated. 34 Here, I believe there are such reasons. Looking at the subjective case, the applicant has an unfortunate background. He has, to a degree, shown some remorse. He has reasonable prospects of rehabilitation. The fact that he is likely to serve his sentence on protection, and especially his youth, suggest that some moderation of the standard non parole period is appropriate. 35 Counsel for the offender has urged a finding of special circumstances. The youth of Mr Thammavongsa and his struggle with drugs would ordinarily justify such a finding. However, in the case of murder, inevitably the period on parole is lengthy and will, I believe, be enough to provide Mr Thammavongsa with adequate supervision. This was a senseless and brutal crime, the consequence of Mr Thammavongsa's decision to take a lethal weapon to a party, in circumstances where he would be drinking and taking drugs. As a consequence a very young man, 17 years old, lost his life. 36 I believe the appropriate non parole period is 16 years with a head sentence of 21 years. The sentence should date from the time of Mr Thammavongsa's arrest and incarceration, that is, 14 July 2003. 37 Meng Thammavongsa, I sentence you to imprisonment for a total term of 21 years commencing on 14 July 2003 and ending on 13 July 2024. I fix a non parole period of 16 years ending on 13 July 2019. You will be eligible to apply for parole on 13 July 2019.

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