Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Le [2019] NSWSC 633 Hearing dates: 31 May 2019 Decision date: 31 May 2019 Jurisdiction: Common Law Before: N Adams J Decision: Without proceeding to any conviction pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the offender is discharged on a conditional release order for a period of 12 months.
The offender must not commit any offence and must appear before the Court if called on to do so at any time during the term of his conditional release order.Catchwords: SENTENCING – remarks on sentence – joint criminal enterprise – offence of being armed with a weapon, namely, three knives with intent to commit an indictable offence, namely, assault – plea of not guilty – self-defence – retaliatory offence following violent assault – no prior convictions – Crimes Act 1900 (NSW) s114(1)(a)(b) not commonly dealt with in Supreme Court Legislation Cited: Crimes Act 1900 (NSW), s114(1)(a)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Criminal Procedure Act 1986 (NSW), s 3
Interpretation Act 1987 (NSW), s 21Cases Cited: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Paris v R [2001] NSWCCA 83
R v Ingrassia (1997) 41 NSWLR 447
R v Isaacs (1997) 41 NSWLR 374
R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268
R v Mauger [2012] NSWCCA 51
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54Category: Principal judgment Parties: Regina (Crown)
Duc Thuong Le (Offender)Representation: Counsel:
Solicitors:
A Morris (Crown)
B Pierce (Offender)
Office of the Director of Public Prosecutions (Crown)
Archbold Legal (Offender)
File Number(s): 2016/50522 Publication restriction: Nil
JUDGMENT ON SENTENCE
Background
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On 9 May 2019, Duc Thuong Le and Nou Sovathara Loeung were both convicted by a jury of the offence of being armed with a weapon, namely, three knives, with intent to commit an indictable offence, namely, assault contrary to s 114(1)(a) of the Crimes Act1900 (NSW) (“count 7”).
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Duc Thuong Le now stands to be sentenced for that offence. The maximum penalty is seven years imprisonment. There is no relevant standard non-parole period prescribed.
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Although no agreed facts were tendered at the proceedings on sentence, both counsel for the Crown and the offender provided written submissions urging that I find facts of differing seriousness. It is thus necessary for me to determine the facts upon which the offender is to be sentenced. These facts must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377–378. I may not take facts into account in a way adverse to the interests of the offender unless they are established beyond reasonable doubt, whilst it is sufficient if facts that are favourable to the offender are established on the balance of…
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- AGLC
- R v Le [2019] NSWSC 633
- Case
- [2019] NSWSC 633
- Decision Date
CaseChat Overview and Summary
The court had to determine the validity of Le's claim of self-defence, considering the nature of the joint criminal enterprise and the statutory provisions under section 114(1)(a)(b) of the Crimes Act 1900 (NSW). The legal issues also encompassed the interpretation of the mens rea required for the offence of being armed with intent to commit an indictable crime and the consideration of Le's lack of prior convictions in the sentencing process.
In delivering its judgment, the court meticulously evaluated the circumstances of the assault and the defendant's immediate response. It found that while Le's actions were reactionary, they did not negate the intent to commit an indictable offence. However, the court acknowledged the mitigating factor of Le's lack of criminal history and the absence of any significant premeditation in his actions. Consequently, the court sentenced Le, taking into account both the seriousness of the offence and the mitigating factors presented.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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