Le v The Queen - [2012] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

SAPCR 2010 0038

TIEN QUOC LE
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and MANDIE JJA, WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 September 2011
DATE OF JUDGMENT:	14 March 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 43
JUDGMENT APPEALED FROM	The Queen v Tien Le (Unreported County Court of Victoria, Judge Douglas, 12 July 2009)

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CRIMINAL LAW − Appeal against Sentence − Two counts of aggravated burglary, one count of rape, armed robbery, intentionally causing serious injury and recklessly causing serious injury − Whether sentence of 17 years’ imprisonment with non-parole period of 14 years manifestly excessive − Change in Crown position as to appropriate range of sentences – Appeal allowed − Sentence reduced to 15 years’ and non-parole period reduced to 12 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Victoria Legal Aid
For the Crown	Mr O P Holdenson QC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I have had the advantage of reading in draft the reasons of Mandie JA and agree for the reasons he gives that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

There will be occasions where, as a consequence of the findings made by the sentencing judge or for some other reason, the Crown should reconsider the sentencing range or how the seriousness of the appellant’s conduct should be categorised.[1] That is to say it will not always be in the interests of justice for the Crown to maintain the position adopted in the court below. Sometimes it may even be necessary for the Crown to review its position during the course of the plea in mitigation.[2]
[1]See the discussion in Ashdown v The Queen [2011] VSCA 408, [174] as to the identification of the correct category of seriousness of the offending conduct.
[2]W C B v The Queen [2010] VSCA 230 [52] (Warren CJ, Redlich JA).

As Mandie JA has explained, on appeal the Crown changed its submission as to the appropriate range of the total effective sentence in compliance with its obligation under MacNeil-Brown.[3] It also altered its position as to the category of seriousness that should be assigned to the appellant’s conduct on particular counts.
[3]The Crown’s obligation is further examined in Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372, [70].

The submissions by senior counsel for the Director as to the appropriate range of sentences for individual counts and the total effective sentence, served to re-enforce the appellant’s submissions that notwithstanding that the appellant’s criminality was of a very serious order, the individual sentences on the counts of aggravated burglary were beyond the sound exercise of the sentencing discretion and the total effective sentence infringed the principle of totality.

This case thus serves to illustrate that the administration of criminal justice will be advanced where, in appropriate cases, the Crown reassesses the position it has…

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.

Continue reading Le v The Queen

Details

AGLC: Le v The Queen [2012] VSCA 43
Case: [2012] VSCA 43
Decision Date: 14 March 2012

CaseChat Overview and Summary

In the case of Le v The Queen, the appellant was convicted on two counts of aggravated burglary, one count of rape, one count of armed robbery, one count of intentionally causing serious injury, and one count of recklessly causing serious injury. The appellant sought to appeal the sentence of 17 years’ imprisonment, with a non-parole period of 14 years, on the basis that it was manifestly excessive. The Crown altered its position during the appeal regarding the appropriate range of sentences, which was a central issue in the case.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive in light of the changed circumstances presented by the Crown. The appellant argued that the original sentence was disproportionately harsh, and the Crown's concession that the sentence was at the higher end of the appropriate range provided additional grounds for reconsideration. The court had to weigh the principles of proportionality and deterrence in sentencing, alongside the arguments presented by both parties.

The court found that the original sentence was indeed manifestly excessive, taking into account the totality of the circumstances, including the Crown's revised stance on the appropriate sentence range. The court recognised the severity of the crimes committed but considered the totality of the offending and the appellant's background. As a result, the appeal was allowed, and the sentence was reduced to 15 years’ imprisonment, with a non-parole period of 12 years. This decision reflects a careful balancing of the principles of justice and proportionality in sentencing.

Orders