Regina v Thammavongsa [2005] NSWSC 915

New South Wales Supreme Court

CITATION : Regina v Thammavongsa [2005] NSWSC 915

30-31/5/05 1-2/6/05 6-9/6/05 HEARING DATE(S) : 15/6/05 17/6/05 20/6/05 2/9/05

JUDGMENT DATE : 13 September 2005

Common Law Division JURISDICTION : Criminal List

JUDGMENT OF : Kirby J

DECISION : Imprisonment for a total term of 21 years commencing on 14 July 2003 and ending on 13 July 2024. A non parole period of 16 years ending on 13 July 2019. Eligible to apply for parole on 13 July 2019.

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

Regina PARTIES : Meng Thammavongsa

FILE NUMBER(S) : SC 2003/0164

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

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

LOWER COURT JURISDICTION :

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

JUSTICE DAVID KIRBY

Tuesday 13 September 2005

2003/0164 REGINA v MENG THAMMAVONGSA

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.