Oudomvilay v Regina [2006] NSWCCA 275

New South Wales Court of Criminal Appeal

CITATION: Oudomvilay v Regina [2006] NSWCCA 275

HEARING DATE(S): 19/06/2006

JUDGMENT DATE: 7 September 2006

JUDGMENT OF: Giles JA at 1; Grove J at 2; Hidden J at 3

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: CRIMINAL LAW: - application for leave to appeal against sentence - charges of fraudulent misappropriation - fraudulently omit to account by solicitor - whether sufficient weight given to loss of professional standing

LEGISLATION CITED: Crimes (Sentencing Procedure) Act Crimes Act

CASES CITED: R v Daetz & Anor (2003) 139 A Crim R 398

PARTIES: Mimi Oudomvilay (applicant) Regina (Crown-respondent)

FILE NUMBER(S): CCA 2006/652

COUNSEL: T S Corish (applicant) D C Frearson SC (respondent)

SOLICITORS: Legal Aid Commission (applicant) Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1520

LOWER COURT JUDICIAL OFFICER: Payne DCJ

LOWER COURT DATE OF DECISION: 11 March 2005

IN THE COURT OF CRIMINAL APPEAL 2006/652

GILES JA GROVE J HIDDEN J

Thursday 7 September 2006 MIMI OUDOMVILAY v REGINA Judgment 1 GILES J A: I agree with Hidden J. 2 GROVE J: I agree with Hidden J. 3 HIDDEN J: The applicant, Mimi Oudomvilay, pleaded guilty in the District Court to four charges of fraudulently omitting to account and two charges of fraudulent misappropriation, both of them offences under s128A Crimes Act, carrying a maximum sentence of seven years imprisonment. The first three charges were fraudulently omitting to account, the fourth and fifth charges were fraudulent misappropriation, and the sixth was a further charge of fraudulently omitting to account. She asked that a further charge of fraudulently omitting to account be taken into account on a Form One. 4 She was sentenced as follows: On the fifth charge (fraudulent misappropriation), imprisonment for three years and nine months with a non-parole period of two years and three months, dating from 11 March 2005; On the first charge (fraudulently omitting to account), taking into account the offence on the Form One, imprisonment for four and a half years with a non-parole period of one year and nine months, dating from 11 June 2007; On the second charge (fraudulently omitting to account), imprisonment for a fixed term of three years and four months, dating from the 11 March 2005; On the third charge (fraudulently omitting to account), imprisonment for a fixed term of three years, dating from 11 March 2005; On the fourth charge (fraudulent misappropriation), imprisonment for a fixed term of two years and three months, dating from 11 March 2005; On the sixth charge (fraudulently omitting to account), imprisonment for a fixed term of three years dating from 11 March 2005. 5 It will be seen that the sentences on all charges but the first were to commence on 11 March 2005. The sentence on the first charge was to commence on the 11 June 2007, at the expiration of the non-parole period fixed in respect of the fifth charge. The overall sentence is imprisonment for six years and nine months with an effective non-parole period of four years, dating from 11 March 2005. The applicant seeks leave to appeal against these sentences.