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Le v The The King

Le v The The King

Case [2022] NSWCCA 243 21 November 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Le v R [2022] NSWCCA 243
Hearing dates: 9 November 2022
Date of orders: 21 November 2022
Decision date: 21 November 2022
Before: Button J at [1]
Fagan J at [2]
R A Hulme AJ at [3]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – firearms and drug offences – whether judge erred in finding special circumstances and increasing balance of term of sentence – whether judge erred in taking into account offences on Forms 1 – error not established

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2A) and (2B)
Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
Firearms Act (1996) NSW, ss 66(1)(a) and (1)(b)
Prevention of Cruelty to Animals Regulation 2012 (NSW), Sch 3
Sentencing Act 1989 (NSW), ss 5(1) and (2)

Cases Cited:
Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Dolman v R [2010] NSWCCA 137
Musgrove v R [2007] NSWCCA 21; (2007) 167 A Crim R 424
Nguyen v R [2019] NSWCCA 209
R v Hampton (1998) 44 NSWLR 729
R v Moffitt (1990) 20 NSWLR 114
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Tobar; R v Jan [2004] NSWCCA 391; (2004) 150 A Crim R 104
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
RO v R [2019] NSWCCA 183

Category: Principal judgment
Parties: Thanh Tung Le (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr P English (Applicant)
Ms S Traynor (Respondent)
Solicitors:
Simon Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/239974
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 February 2022

Before:

Townsden DCJ

File Number(s):

2020/239974

HEADNOTE

[This headnote is not part of the judgment]

Mr Thanh Tung Le sought leave to appeal against an aggregate sentence imposed in the District Court. Mr Le had pleaded guilty to two offences of possessing an unauthorised Glock pistol (one of which was also “prohibited”), an offence of supplying 51.99g of methylamphetamine and an offence of possessing a prohibited weapon, namely a cattle-prod taser. He asked that his guilt of four related offences be taken into account. Two of those offences were of possessing a defaced firearm which were founded on the fact that the Glock pistols each had their serial number erased.

Leave was sought to appeal on two grounds. Ground 1 was that in finding special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge erroneously increased the balance of the term of the sentence, and thereby the overall sentence, rather than reducing the non-parole period which he had first determined.…

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 The King

Details

AGLC: Le v The The King [2022] NSWCCA 243
Case: [2022] NSWCCA 243
Decision Date: 21 November 2022

CaseChat Overview and Summary

Le appealed against his sentence for firearms and drug offences. The trial judge found special circumstances existed, justifying an increase in the sentence term's balance, and took into account previous offences on Forms 1. The court was required to determine whether these findings constituted errors warranting an appeal. The appellant argued that the trial judge erred in finding special circumstances and in considering the previous offences, which were not admissible under s 28B of the Crimes (Sentencing Procedure) Act 1999. The appellant submitted that the judge's reliance on these factors led to an overestimation of the sentence.

The court examined the grounds of appeal, focusing on the trial judge's findings of special circumstances and the consideration of previous offences. It was established that the trial judge did not err in finding special circumstances, as these were clearly identified and appropriately considered. The court also found no error in the judge's consideration of the previous offences, as they were relevant to the sentencing process under s 23 of the Act, despite being listed on Forms 1. The court concluded that the trial judge correctly applied the law and that the sentence was not manifestly excessive. Therefore, the appeal against the sentence was dismissed.

Orders