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…

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 R v Le

Details

AGLC: R v Le [2007] SASC 251
Case: [2007] SASC 251
Decision Date: 5 July 2007

CaseChat Overview and Summary

The case before the court involved an appeal against a sentence imposed by a lower court. The defendant, Le, sought permission to appeal the sentence imposed on him, contending that it was manifestly excessive and that the sentencing judge had failed to adequately reduce the sentence for his pleas of guilty. The appeal was heard in the higher court, which was tasked with determining whether the defendant's grounds for appeal were sufficient to warrant permission to proceed with the appeal.

The court had to consider whether the sentence imposed by the lower court was manifestly excessive and whether there was an error in the application of sentencing principles. The court also needed to determine whether the sentencing judge had appropriately exercised their discretion in imposing the sentence, and whether the failure to adequately reduce the sentence for the defendant's pleas of guilty constituted an error of principle. Ultimately, the court had to decide whether the defendant's appeal was meritorious and whether permission to appeal should be granted.

In its reasoning, the court found that the sentence imposed by the lower court was within the sentencing judge's discretion and that there had been no error of principle in the sentencing process. The court considered the nature of the offence, the defendant's criminal history, and the circumstances surrounding the offence, and concluded that the sentence was appropriate in the circumstances. The court also found that the sentencing judge had adequately considered the defendant's pleas of guilty and had exercised their discretion appropriately in imposing the sentence. As a result, the court refused permission to appeal.

The court did not make any specific orders beyond the refusal of permission to appeal. The defendant's appeal was dismissed, and the original sentence imposed by the lower court remained in place.

Orders