R v Le

Case [2019] NSWSC 633 31 May 2019

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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 21
Cases 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 54
Category: Principal judgment
Parties: Regina (Crown)
Duc Thuong Le (Offender)
Representation:
Counsel:
A Morris (Crown)
B Pierce (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Archbold Legal (Offender)

File Number(s): 2016/50522
Publication restriction: Nil

JUDGMENT ON SENTENCE

Background

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”).
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.
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…

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 [2019] NSWSC 633
Case: [2019] NSWSC 633
Decision Date: 31 May 2019

CaseChat Overview and Summary

The defendant, Le, was charged with carrying a weapon, namely three knives, with intent to commit an indictable offence, specifically assault. Le pleaded not guilty to the charge, claiming self-defence, asserting that the possession of the knives was in retaliation to a violent assault he had previously endured. The case was heard in the Supreme Court of New South Wales, a venue where such matters are infrequently addressed.

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