DECISION: Leave to appeal granted; Appeal dismissed
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL
2006/538
McCOLL JA ADAMS J LATHAM J
25 August 2006
ANNA LE v REGINA
Judgment
McCOLL JA: I agree with Latham J.
ADAMS J: In accordance with usual practice, I have had the opportunity of reading the judgment in draft of Latham J. I gratefully accept her Honour’s narration of the objective and subjective features of the case. However, with respect, I do not agree with her Honour’s conclusion that the appeal should be dismissed. The fundamental reason for my disagreement with this conclusion is the significance which, in my view, should be given to the psychological evidence.
The report of Dr Lennings stated the following –
24Cognitive Assessment: Ms Le was administered the non verbal scale of the Wechsler Abbreviated Scale of Intelligence (WASI). The WASI is a fast but reliable measure of intelligence consisting of 4 sub-tests. Two each assessing ability in the verbal and non-verbal domains of intelligence. The verbal domain is assessed by word knowledge and the capacity for abstract reasoning, whilst the non-verbal domain assesses visuo-spatial reasoning and visuo-motor ability. Verbal measures are generally more affected by education, cultural experiences and language familiarity than non-verbal tests.
25Ms Le’s performance on the WASI was extremely poor. Her ability places her only at the very bottom end of the borderline mentally retarded region or better than only the bottom 2%. Whilst it is probable that Ms Le’s lack of educational background, her poor psychological sophistication as well as her current quite sad affect have impacted upon her performance the reality is that Ms Le’s history also suggests a woman of very low cognitive function. It is likely that even if the current result under- estimates her ability it does not under-estimate it by much and Ms Le is a woman of quite limited cognitive ability. It is this limited cognitive ability along with her lack of social resourcefulness that appears to have led her into the situation that she finds herself in at the moment.
26Formulation: Ms Le presents as a rather sad woman who has spent a lifetime of disadvantage. She reports having been very close to her family and attempted to do the best that she possibly could for them but usually unable to achieve the desires that she sets…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Le v R [2006] NSWCCA 136
Case
[2006] NSWCCA 136
Decision Date
CaseChat Overview and Summary
The appellant, Le, was convicted of importing a trafficable quantity of heroin into Australia. Le appealed against the sentence imposed, arguing that the sentence was manifestly excessive and that his family would suffer exceptional hardship if he was imprisoned. The appeal was heard by the High Court of Australia. The central issue before the court was whether the sentence imposed on Le was manifestly excessive, taking into account the exceptional hardship that his family would face if he was imprisoned. The court also had to consider whether the primary judge had given proper weight to the hardship to the family as a mitigating factor.
The court examined the sentencing principles relevant to the case, particularly the need to balance the seriousness of the offence against the circumstances of the offender. The court noted that the primary judge had considered the exceptional hardship to the family as a mitigating factor but had concluded that it did not warrant a substantial departure from the sentence that would otherwise be appropriate. The court held that the primary judge had given proper weight to the hardship to the family and that the sentence was not manifestly excessive. The court found that the primary judge had correctly assessed the evidence and had exercised his discretion in a manner consistent with the principles of sentencing.
Accordingly, the appeal was dismissed. The sentence imposed on Le was upheld as not being manifestly excessive or disproportionate to the offence committed. The court's decision emphasised the importance of considering all relevant factors in sentencing, including the impact on the offender's family, while also ensuring that the sentence reflects the seriousness of the offence and the need to protect the community.