Le v The The King

Case [2022] NSWCCA 243


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.…

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Le v The The King [2022] NSWCCA 243
Case
[2022] NSWCCA 243
Decision Date

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.

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