R v Le - [2007] SASC 251

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v LE
[2007] SASC 251
Judgment of The Honourable Justice Gray
5 July 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Application for permission to appeal - appeal on grounds that sentence was manifestly excessive and inadequate reduction for pleas of guilty - consideration of sentencing discretion - no error of sentencing principle - sentence within sentencing judge's discretion - permission to appeal refused.
Criminal Law Consolidation Act 1935 (SA) s 367; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Markarian v R (2005) 79 ALJR 1048; R v Shannon (1979) 21 SASR 442; R v Whiting [2005] SASC 244; R v Blick (1999) 108 A Crim R 525, considered.

R v LE
[2007] SASC 251
Criminal
GRAY J.

This is an application for permission to appeal against sentence.
Introduction
On 11 December 2006, the applicant, Huy Xuan Le, pleaded guilty to the offences of attempted murder and threatening a witness. On 4 May 2007 the applicant was sentenced by a Judge of this Court to imprisonment for 13 years. A non-parole period of nine years was fixed.
Circumstances of the offending
The applicant and the victim were acquaintances. On 3 December 2005, the applicant went to the victim’s home. The applicant asked the victim for alfoil from the kitchen so that he could smoke heroin. This was a ruse. While the victim was in the kitchen, with his back to the applicant, the applicant shot the victim with a firearm three times in the back. He used a potato as a silencer.
At trial, it became apparent that the applicant believed that some time prior to the offence, the victim was having an affair with his girlfriend. This belief led to the shooting. The crime was premeditated.
The circumstances of the charge of threatening a witness were that between 1 and 17 December 2005, the applicant wrote to the victim suggesting that he would harm the victim or his family if the victim did not inform the Court that the applicant had not committed the offence.
The Sentence
At the time of sentencing the applicant was 29 years of age and had a number of prior convictions including use of heroin, non-aggravated criminal trespass and possession of an offensive weapon.
The learned sentencing Judge had regard to the applicant’s personal antecedents as well as psychiatric and psychological reports.
The Judge took the view that the applicant’s offending was premeditated and of a serious nature:
[Y]our act was not a crime committed on the spur of the moment. It was premeditated. You went to his home feigning friendship when your purpose was to kill him. You obtained a gun and attended [the victim’s] home with the intention to shoot and kill him. You engineered a situation in which you were able to fire the gun when he had his back turned. You shot him three times. The crime is a serious crime. It must result in a lengthy term of imprisonment.
Additionally, after being arrested and charged you wrote a letter to [the victim] with the intention of deterring him from pursuing the charges and frightening him. That is another serious crime.
In imposing the one sentence pursuant to section 18A of the Criminal Law Consolidation Act 1988 (SA), the Judge observed:
If it had not been for your plea of guilty, I would have sentenced you to 15 years imprisonment. Your plea came well after your first arraignment. You are entitled to some credit for your plea and I therefore reduce the sentence of 15 years imprisonment to 13 years imprisonment and I set a non-parole period of nine years imprisonment.
Permission to Appeal
Section 367 of the Criminal Law Consolidation Act 1936 (SA) empowers a single Judge of this Court to grant leave to appeal to the Full Court. The test for granting permission is whether it is at least arguable that the sentencing judge’s discretion had miscarried or there could be a real element of injustice to the applicant if permission was refused.[1]
[1] R v Whiting [2005] SASC 244; R v Blick (1999) 108 A Crim R 525.
In Markarian,[2] the High Court observed:[3]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
…
Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
[2] Markarian v R [2005] HCA 25, (2005) 79 ALJR 1048.
[3] Markarian v R [2005] HCA 25 at [25], [27]; (2005) 79 ALJR 1048 at [25], [27] (footnotes omitted).
Counsel for the applicant sought permission to appeal on the ground that the head sentence was manifestly excessive and that an inadequate reduction was made on account of the applicant’s pleas of guilty. Counsel complained that the Judge, in determining the reduction to be made, only had regard to the timing of the plea rather than the totality of the circumstances surrounding that plea.
Counsel for the applicant submitted that whilst the applicant’s plea was entered after the arraignment date, it was still seven months prior to the trial commencing and came after a number of medical reports were obtained to determine whether the applicant was fit to plead. Accordingly, it was counsel’s complaint that the reduction of two years on a fifteen year head sentence was manifestly inadequate.
Counsel for the applicant, however, accepted that the reduction given for a plea of guilty was a matter of discretion for a sentencing Judge. Counsel further accepted that the learned Judge in the present case did not proceed to sentence under any misapprehension of fact. It was also accepted that there was no error of sentencing principle.
Counsel for the Director of Public Prosecutions submitted that the sentencing Judge correctly took into account all of the circumstances of the offences. It was said that the offence of threatening a witness demonstrated a lack of insight by the applicant into his criminal offending. Counsel further submitted that the reduction to be made on account of the pleas of guilty was a matter of discretion. As King CJ observed in Shannon:[4]
The sentencing judge possesses a discretion of great width. It would be improper to seek to define or prescribe the area in which that discretion is to operate. It is for the judge to interpret the quality and implications of the plea.
[4] R v Shannon (1979) 21 SASR 442 at 446.
As earlier observed, the applicant’s offending was serious and premeditated. The applicant shot the victim three times in the back, used a silencer and did not assist the victim afterward. The applicant then proceeded to threaten the witness with the intention of having the criminal proceedings discontinued against him. The maximum penalty for attempted murder is life imprisonment. The maximum penalty for threatening a witness is seven years.
The head sentence of 13 years’ imprisonment was well within the sentencing discretion for these offences. In determining the sentence, including the reduction for the applicant’s pleas of guilty, the sentencing Judge had particular regard to the psychiatric and psychological reports tendered. The Judge had regard to all relevant matters. I do not consider that it is reasonably arguable that the sentence imposed is manifestly excessive. No arguable error of sentencing principle has been identified. The reduction made for the pleas was also within the proper sentencing discretion.
Permission to appeal refused.