Thammavongsa v Regina [2015] NSWCCA 107

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Thammavongsa v Regina [2015] NSWCCA 107 Hearing dates: 21 April 2015 Date of orders: 25 May 2015 Decision date: 25 May 2015 Before: Simpson J at [1] RA Hulme J at [14] Bellew J at [26] Decision: The time for filing an application for leave to appeal against sentence is extended. Catchwords: CRIMINAL LAW – procedure - application for extension of time in which to bring an application for leave to appeal against sentence – where delay properly explained – where error made out – extension of time granted

CRIMINAL LAW - offences – murder – sentence -– applicant sentenced before the decision in Muldrock – where sentencing judge gave determinative significance to the standard non-parole period and engaged in a two stage process of sentencing – Muldrock error made out – court required to exercise sentencing discretion afresh

CRIMINAL LAW – offences – murder – sentence – applicant took a "pen gun" to a function purportedly for the purpose of showing his friends – applicant also took ammunition – tension arose between two rival groups – applicant retrieved pen gun, loaded it and fired it at the opposing group, killing one person - whether offending properly assessed as falling in the mid-range of objective seriousness – where applicant 21 years of age at the time of offending – relevance of youth on sentence – whether offending exhibited immaturity – prospects of rehabilitation affected by continued drug use – remorse – where applicant sentenced at first instance to imprisonment for 21 years with a non-parole period of 16 - no other sentence warranted in law - extension of time granted – leave to appeal granted – appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Abdul v R [2013] NSWCCA 247 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 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 305 ALR 323 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Davis v R [2015] NSWCCA 90 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 Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947 Kentwell v R [2013] NSWCCA 266 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Category: Principal judgment Parties: Meng Thammavongsa - Applicant Regina – Respondent Representation: Counsel: Mr C Bruce SC - Applicant Ms N Williams - Respondent