R v Le

[2019] NSWSC 633

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

1. 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”).

2. 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.

3. 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 probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. In addition to determining the facts in relation to which the offender is to be sentenced, I am required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: see McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].

The Trial

5. The offender’s trial commenced before me on 25 March 2019. The jury was empanelled that day and the trial proceeded until Thursday, 28 March 2019 when the jury had to be discharged. Another jury panel was not available until Tuesday, 2 April 2019. On that day another jury was empanelled and the second trial commenced. That trial proceeded until 9 May 2019. The offender was thus on trial in the Supreme Court for over 6 weeks.

6. The offender stood trial in the Supreme Court with his co-offender, Mr Loeung, on one count on an indictment that charged Mr Loeung with six other more serious offences. Of the seven counts on the indictment, six were brought solely against Mr Loeung. It is not necessary for me to set out counts 1–6 in their terms; they were charges of murder (count 1), wound with intent to inflict grievous bodily harm contrary to s 33(1) of the Crimes Act (counts 3, 4, 5 and 6) and affray (count 2). Mr Loeung was acquitted on counts 1, 2, 4 and 5 and the jury was hung in relation to count 3. No further proceedings have been directed in relation to count 3. Count 7 was brought against both men on the basis of joint criminal enterprise. Mr Loeung was convicted on count 6 as well as count 7.

7. The facts relevant to the sentencing of the offender on count 7 are of relatively limited scope and rely significantly upon CCTV footage and admissions made by the offender and Mr Loeung in their ERISPs. Despite this, I have come to the view that it is necessary to set out in some detail a summary of the evidence adduced at trial of events that occurred prior to the events upon which count 7 was based. As those facts will reveal, the offender was the unfortunate victim of a serious and un-provoked attack by nine men. The main issue at trial was whether he was acting in self-defence when he managed to get away from them, arm himself with a knife and return to the remaining attackers with the intention of instilling fear in them.

Background

8. It was common ground at the trial that the instigator of the unfortunate events which occurred on 12 February 2016 was Mr Danny Nguyen, a man not previously known to either the offender or Mr Loeung before that day.

9. As at 12 February 2016 Mr Nguyen was married but estranged and in a relationship with another woman, Anh Tran. He had been arguing with Ms Anh Tran throughout the day. Mr Nguyen had told Ms Tran that he had to meet his ex-wife for coffee the following day because she had called him to do so. Ms Tran telephoned the ex-wife to confirm this and was told that in fact it was Mr Nguyen who had called her and told her that he wanted to reconcile with her. Ms Tran did not take this news well.

10. At approximately 7:41 pm Mr Nguyen visited Ms Tran’s house at 11 Howitt Place, Bonnyrigg. He begged her to come out. He begged her to stay with him. But she did not open the door and so eventually he left.

11. After he left Ms Tran’s house Mr Nguyen drove a short distance to 24 Gregorace Place in Bonnyrigg where his close friend Ly Ho was holding a barbeque to celebrate Chinese New Year. A number of mutual friends of Mr Ho and Mr Nguyen were present at the barbeque. The men drank beer, smoked cigarettes, some of them snorted cocaine and some food was provided. Mr Ho, Mr Nguyen and the other men present were all in their late twenties or early thirties.

12. While he was at the barbeque Mr Nguyen continued to exchange abuse with Ms Tran over WhatsApp. He claimed that she kept calling him, harassing him and asking him to come over. Attendees at the barbeque described him as crying, distraught and agitated. Danny Nguyen spoke with Ms Tran on the telephone around 10.30 pm at which time Ms Tran called him a “piece of shit” and a liar. When she told him that she had called his ex-wife he became very angry and threatened her. Aggressively, he told her he was going to her house to smash her car.

13. After Mr Nguyen threatened Ms Tran, she ran across the road to where her neighbours were residing at 6 Howitt Place (which was directly opposite her house in the cul de sac) to seek protection.

14. The residents of 6 Howitt Place at that time were Mr Loeung, his wife Shirley Tan, and their three young children. Also visiting that night were the offender, who Mr Loeung called “Godbrother” and Hang Pheng Oeng, who Mr Loeung called “Uncle”, although they are not related by blood. The residents of 6 Howitt Place did not know Ms Tran personally but they knew her by sight.

15. When Ms Tran arrived at Mr Loeung’s address she was first met by Uncle who was taking a postprandial walk up the driveway. He indicated to Ms Tran that he spoke little English, only Cambodian, whereas Ms Tran spoke Vietnamese and English. Realising her inability to convey to him what was happening she went straight to the front door of Mr Loeung’s house which was open. There she found the offender and Mr Loeung along with Mr Loeung’s family.

16. Mr Loeung and his guests had just returned from picking up take-away when Ms Tran arrived. The food was set out on the table ready for a late dinner. The offender had been playing with Mr Loeung’s three small children earlier in the evening. No alcohol had been consumed that night by any of the residents of 6 Howitt Place. When Ms Tran arrived at the address the offender was watching television with one of the children while the other two children ate with their parents. Mr Loeung, Uncle and the offender all went outside the premises to wait with Ms Tran on the driveway in case Mr Nguyen arrived.

17. Whilst they waited outside, Mr Loeung spoke to Ms Tran at the end of the driveway while the offender stood by listening and smoking a cigarette. Ms Tran gave evidence that she was scared. She told them that “Danny” was going to “smash up” her car and she asked them to protect her. She gave evidence that she had been assaulted by Mr Nguyen before. She also gave evidence that her intention in going to Mr Loeung’s home was so that Danny could see that she was with other people so he would not hurt her. “He wouldn’t do that in front of people,” she told police.

18. When Mr Nguyen drove to Howitt Place at 10:43 pm he was drunk and very angry. Ms Tran was at the end of the driveway with Mr Loeung and the offender. Mr Nguyen later told police, “I felt this is my relationship and we can sort it out.” Mr Loeung and the offender offered him advice: something to the effect of, “go home, sleep it off, come back tomorrow”. Mr Nguyen mocked Ms Tran, saying, “What now you have your friends now to protect you?” Mr Loeung’s wife, Ms Tan, had joined them at the end of the driveway. She gave evidence that Ms Tran was saying to Mr Nguyen, “You wanted to hit me, hit my car”. Mr Loeung was trying to calm him down by saying, “You drunk, just go home. Hitting woman is not [the] solution.”

19. Mr Nguyen lost his temper and drove out of Howitt Place at approximately 10:46 pm. His car left tyre marks on the road. As he was leaving he telephoned Aaron Mah (who was present at the barbeque) and lied to him. His evidence in court was that he was so annoyed that his girlfriend was standing with these other men that he lied to his friends and told them that The offender and Mr Loeung were going to “jump” him. It was common ground at the trial that this was the case. Mr Nguyen gave evidence that, because of his own ego, he made up a story that he was threatened by Ms Tran’s friends and had his friends believe that. He wanted to prove himself to be a “big fellow”, that he could handle those men and he did not want to be humiliated. He went to see Anh Tran at her house to “straighten” her out that night because he did not want her communicating with his wife with whom he wanted to reconcile. He agreed that there was potential that he was going to be violent towards her had she been alone. He also agreed that after he could not “discipline her” he was so angry that he later attacked a car not caring who it belonged to.

20. After Mr Nguyen left the scene, the CCTV footage shows Mr Loeung and the offender and Ms Tan speaking with Anh Tran on the driveway for a few minutes. Evidence given by Ms Tan and Ms Tran at trial was that Mr Loeung advised Ms Tran to get an apprehended violence order against Mr Nguyen.

21. Meanwhile Mr Nguyen returned to the barbeque and lied to his friends. Without question, eight men, namely, Mr Ho, Aaron Mah, Steven Huynh, Thahn Nguyen, Seng Ly Vong, Lawrence Chea, Van Bi Co, and Bao Quoc Tran, all took Mr Nguyen at his word and immediately made the short drive from Gregorace Place to Howitt Place in two cars, one driven by Mr Nguyen and the other by Mr Mah. The evidence given at trial did not establish what, if anything, they discussed on the way.

22. Cameras were installed inside and outside the carport of Mr Loeung’s home, such that a great deal of the incident which eventuated was captured on video. The front door to the property was located inside the carport. It was an issue at trial whether the roller shutters were closed and whether the offenders could, accordingly, see out through the windows to the driveway to see their attackers’ arrival or retreat.

The first incident

23. At approximately 10:52 pm, six minutes after he had left, Mr Nguyen returned to Howitt Place with his eight “mates”. Mr Nguyen parked his Liberty up on the nature strip opposite Mr Loeung’s house. Mr Mah, who drove the other car, a Honda CRV, did the same. Each car was parked facing back towards the entrance to Howitt Place. It is clear on the evidence that each driver anticipated the need to make a quick exit.

24. By the time they arrived, Mr Loeung, his family and friends had only just gone back inside. They had stayed with Ms Tran at the end of the driveway while Mr Nguyen returned to the barbeque. As they returned inside they heard the cars pull up beeping their horns. It was at this point that Mr Loeung retrieved a combat knife from the beneath the sink in the kitchen to protect himself and his family. It was a 24-centimetre knife with a serrated edge he had bought for a cousin in the Cambodian military. He had secreted it from his family beneath the kitchen sink intending on his evidence to post it to Cambodia at some point.

25. While Mr Loeung was getting the knife from the kitchen, the offender went outside to see what was going on. He was met by Danny Nguyen, surrounded by several of his friends, on the driveway. Mr Nguyen said, “What, what, you want trouble? You want trouble?” The offender said he did not.

26. Although most of what occurred next is captured by CCTV footage, there was a blind spot to the left of the camera recording the driveway where, on the Crown case, injuries were subsequently inflicted on Mr Nguyen, Mr Mah and Mr Co and a tree covered the view of where Mr Nguyen’s car, a black Subaru Liberty, was parked across the street. The footage from these cameras was tendered by the Crown and marked as Exhibit C. It was shown many times to the jury. Much of the Crown case was led by playing the footage to each eye-witness.

27. There is no dispute that Mr Nguyen incited the affray that ensued or that he was the one who struck first. The CCTV footage depicts Ms Tran trying to stop him when he arrived but Mr Mah pushes her away and almost immediately Mr Nguyen punches the offender violently, without warning, two times to the left side of his head. Everything escalated from there. Mr Loeung, who was some distance away, just outside the front door of his home, unsheathed the knife and produced it from behind his back. He went to where the offender was struck. He started swinging the knife indiscriminately towards his friend’s attackers. In his words to police following the incident, he started to “chop” at them. He told police that he was “very hyped up” at that moment. During this time Mr Nguyen, Mr Huynh and Mr Co were all wounded.

28. Seconds after the affray had started, at approximately 10:53 pm, Mr Loeung was forced onto his back in the carport. He fell into a narrow space between his car and his children’s trampoline. He was pinned down there by Mr Ho and Mr Huynh who stood over him, throwing punches at him. Somehow he regained his feet. As he stood up, he struck at Mr Ho’s abdomen with the knife in his right hand. That strike can be seen on the CCTV footage. Regrettably, this wound to Mr Ho proved to be fatal.

29. While Mr Loeung was on his back in the carport, the offender was on the driveway. He was ducking to defend himself against the others who had joined in the affray. The offender picked up a paving stone and threw it towards Mr Mah missing him. Mr Mah then glassed him with a bottle to the back of his head. The offender was bleeding so profusely from his head that he thought he was bleeding all over. “I had blood, blood all over me,” he told police bedside in hospital. The offender’s injuries were extensive and I am satisfied that they inform his actions after they were inflicted.

30. After he received his fatal wound to his stomach Mr Ho continued in the affray for ten or twenty seconds. He bounced around with his hands still up, his mind latent to the damage done to his body. Fight-or-flight adrenaline must have kept him on his feet during this time.

The second incident

31. The men soon retreated to their cars. With the assistance of Mr Vong, Mr Ho made it to Mr Mah’s car and was driven to Liverpool Hospital where he died shortly thereafter. Unfortunately the knife wound had cut the portal vein to his liver and he effectively died of blood loss.

32. As he was running back to his own car, Mr Nguyen gratuitously smashed the offender’s car, a white Lexus SUV, which was parked directly in front of the driveway to Mr Loeung’s house. He smashed the driver’s side mirror and broke the windscreen causing other costly damage. Mr Co gave evidence that Mr Nguyen was “[g]oing crazy just punching the car.”

33. While Mr Nguyen was smashing up the offender’s car, Mr Loeung and the offender ran back inside the house. No evidence was led that either offender had called the other inside for any express purpose. The kitchen where the knives were kept was a short distance from the front door. The kitchen was accessed through the living and dining rooms. Mr Loeung and the offender were inside the house for approximately 26 seconds during which time they each grabbed a knife from a block near the stove. The offender took a kitchen knife. It was the first time that night that he had armed himself. Mr Loeung was now armed with a second knife.

34. While Mr Loeung and the offender grabbed the knives, Ms Tran and Ms Tan were still outside. Ms Tran was speaking to triple-zero requesting police and ambulance officers attend at the address. (It would take a further 20 minutes for police to attend, by which time the attackers were long gone.)

35. At 10:54 pm, the CCTV footage shows the offender and Mr Loeung running out from the house. The uncontested evidence at trial showed that by this stage the offender had received significant injuries to his arm and hand. He had sustained a fractured ulnar bone and his tendon was completely severed. He received a head wound described as a 4 cm superficial laceration to the parietal region which was treated with staples. The evidence was that “superficial” in this context means that it did not penetrate the cranium. The offender can be seen in the CCTV footage holding his head and favouring his non-fractured arm.

36. The offender and Mr Loeung ran up the driveway to Mr Nguyen’s Liberty which sat parked across the street between 12 and 13 Howitt Place. Although the first car driven by Mr Mah with passengers including Mr Ho had left the scene, Mr Nguyen’s car remained at the scene.

37. Unfortunately, for all concerned, the reason that the second car of attackers did not leave the scene was that Danny Nguyen had lost his car keys and could not find them to start the car and get away. This was known to the occupants of his car but not to the offender and Mr Loeung as they ran towards them.

38. Mr Nguyen’s window was down when the offenders came to the car. The occupants of the car were yelling out: “Where the fuck is your keys?” It was common ground that both the offender and Mr Loeung made it to that car. At this time, whilst they were both standing at the car, Mr Nguyen received stab wounds to his right lower leg in two places causing a wound that penetrated through muscle and bone resulting in a break in the bone from either side such that the wounds communicated with each other. Mr Loeung was charged and convicted of this wounding (count 6).

31. The only evidence of what the offender was doing at this time came from his admissions in his ERISP at the hospital shortly afterwards. He explained to police that when he got out to the car he tried to strike the rear passenger side door behind the driver but his arm was so badly injured he was unable to do so. His evidence at trial and in his ERISP was that he did not see Mr Loeung for the duration of the second incident.

32. When Mr Nguyen eventually found his keys, he drove to Liverpool Hospital arriving at about the same time as the Honda CRV driven by Mr Mah, carrying the nearly dead Mr Ho, to hospital.

33. Both of the offender and Mr Loeung agreed to be interviewed by police whilst they were at Liverpool Hospital and Fairfield Hospital respectively. They also both each gave evidence at the trial. Each of them separately admitted to having the respective knives in his possession. Mr Loeung’s evidence was in similar terms to the offender in that they both admitted their own conduct but claimed each was acting in self-defence and denied operating as part of any agreement.

34. It can be seen that the tragedy of this evening was all caused by Danny Nguyen’s ego. Not only would his close friend Mr Ho be alive today if not for Mr Nguyen’s selfish actions, Mr Loeung and the offender would never have come into contact with the criminal justice system for the first time in their lives. Not only that, the events would have ended very differently had he simply been able to locate his car keys.

35. If Mr Nguyen had been able to start his car and leave at the same time as the other attackers, he would not have been further injured by Mr Loeung. Significantly, had Mr Nguyen been able to find his keys more quickly, the offender would not be before me today for sentence. It was while Mr Nguyen was searching for his keys that the offender was armed with a knife and attempted to strike at the vehicle in the vicinity of the car.

36. The Crown’s case on count 7 was not that the offender had used or attempted to use the knife against anyone or even that he had threatened to use it. Rather, the Crown’s case was that the offender had intended to commit assault in the common law sense of the apprehension of injury or the instillation of fear or fright: see The Queen v Phillips (1971) 45 ALJR 467 at 472 per Barwick CJ. It is on this basis that he stands to be sentenced.

37. Mr Loeung and the offender each put to the jury in their defence that they armed themselves to defend against their attackers rearming themselves or otherwise seeking reinforcements. The jury must have rejected these defences.

Fact finding

46. The Crown case was that the agreement between the two men could have been formed any time from leaving the kitchen up until till the two men were present at the vehicle containing Mr Nguyen and his other passengers. It is thus necessary for me to make two factual findings on the evidence relevant to the assessment of the objective seriousness of the offence for which the offender is to be sentenced: when the agreement was formed, and on what basis self-defence was negated by the Crown.

47. The Crown submitted that not much turns on whether the agreement was reached inside the house, or at some point up to and including when each offender was standing side-by-side at the Liberty. The jury’s verdict means that the Crown disproved self-defence and the verdict is likely to mean the Crown disproved the first limb of self-defence in that the two offenders did not genuinely believe they needed to arm themselves with three knives intending to commit an assault by putting the occupants in fear, as opposed to a finding that the offence was on the basis of “excessive self-defence”.

48. It was submitted that it is unlikely that the jury found that the Crown had failed to disprove that each offender genuinely believed they needed to arm themselves with three knives to commit an assault by putting the occupants in fear in defence of themselves, property or another, but then went on to find the Crown proved beyond reasonable doubt that the response was not a reasonable response in the circumstances as each perceived them.

49. The Crown case was that, logically, the verdict means the jury found each offender acted in anger and/or in retaliation to what had occurred in the first instance.

50. Mr Pierce submitted that the Crown was unable to pinpoint exactly when the joint criminal enterprise was entered into. He argued that the most likely place the agreement was formed was at the Liberty proximate to count 6. He submitted that the Crown has never made an allegation the offender was not acting in self-defence during the first incident and that the most likely time that this can be proved to have changed is not within the house, but rather after the offender had left the house with the knife and seen his attackers trying to leave.

51. Mr Pierce’s submission was that the jury might have reasoned that when the offender got to the car his attitude changed, being one more of revenge, taking into account the damage to his own car. He submitted there is nothing in the actions of the offender that would prove beyond reasonable doubt that he left the house with an intention to unlawfully assault the persons who ultimately ended up in the Liberty. While the offender’s evidence must have been rejected, at least in part, the most likely place that the agreement was formed at the car. It was argued that it is likely that the jury reasoned that from the time the offenders were at the Liberty and saw the occupants trying to leave was the time the offence began.

52. Mr Pierce added that the offender was bleeding from significant wounds and there is a real chance he only realised that the co-offender had two knives while he was at the car.

53. Having regard to the submissions of counsel, and the evidence called at the trial, I am satisfied that at the time that the offender ran back into the house some of the attackers remained on the driveway and street. I am also satisfied that the offender was seriously injured at that time. I am not satisfied that when he ran from the house he did so solely to commit an unlawful assault by way of revenge. The evidence was that Ms Tran, the person he was seeking to protect in the first place, and Mr Loeung’s wife, Ms Tan, were still outside the premises. I do not accept the Crown submission put to the jury that it was open to the offender (and Mr Loeung) to remain in the premises at this time and leave these two women outside not knowing if the attackers had driven away or not.

54. Although I am satisfied that the offender was still acting in self-defence when he ran from the premises, once he ran to the road it would have been apparent to him that none of the attackers was still on the premises and the last four of them were passengers in a motor vehicle. Consistent with the jury’s verdict, I am satisfied that from the time he arrived at the motor vehicle the offender must have realised that his life was no longer in immediate danger. It was at that time that he entered into a spontaneous agreement with Mr Loeung to instil fear or fright in the men who had attacked them. I am thus satisfied that the agreement was formed spontaneously in this way and only lasted a few seconds.

55. As for the basis upon which the jury rejected the offender’s claim of self-defence, I have had regard to the interview he gave to police, his evidence at trial and the other evidence at the trial. I am satisfied that The offender believed that it was necessary to be armed with a knife to instil fear or fright in the attackers at the relevant time but, given that the evidence is that he was not actually under immediate threat it was not reasonable for him to proceed in that manner. The evidence at trial, including the CCTV footage shows that the attackers were still present when the offender ran into the house and that he believed they were still there when he returned outside. However, when the remaining men did not seek to get out of the car or assault the offender further I am satisfied that from that point on the offender believed it was necessary to still be armed with the knife with the intention to assault his attackers but that such conduct was not reasonable in the circumstances as perceived by him. I am satisfied that such a finding is consistent with the jury’s verdict.

Objective seriousness

56. The offence under s 114(1)(a) of the Crimes Act covers a broad range of criminal conduct. It is in these terms:

“(1)  Any person who:

(a)  is armed with any weapon, or instrument, with intent to commit an indictable offence,

(b)  has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,

(c)  has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence,

(d)  enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building,

shall be liable to imprisonment for seven years.”

57. As the terms of the section make clear the offence can pertain to a wide range of indictable offences. An indictable offence is defined in s 3 of the Criminal Procedure Act 1986 (NSW) as meaning “an offence (including a common law offence) that may be prosecuted on indictment” (see also s 21 of the Interpretation Act 1987 (NSW)). A common assault is at the lowest end for such an offence caught by the section.

58. The elements of an offence contrary to s 114(1)(a) is that the offender armed himself with the intention of committing an assault. The actus reus is being armed with the knife and the mens rea is the intention as to the use of that knife. In the present case that intention was to “assault” his attackers in the broad sense of the meaning of assault. The Crown did not allege any battery in this matter. The Crown case was that the intention was to put persons in fear. It is not an element of the offence that there be any actual assault although a subsequent assault would be evidence of the relative intention at the time. The offender was not charged with any assault, thus, he is to be sentenced on the basis that for a few seconds at the motor vehicle when he was already armed with the knife he formed the intention to instil fear in his attackers.

59. I have already found that the offender did not initially get the knife with any unlawful attempt. Rather, he armed himself to protect himself but when that protection was no longer necessary, the knife was in his hand and he was armed with it from then onwards for an unlawful purpose from then on.

60. As the facts reveal, the offence was not planned. It was spontaneous and possibly only extended for a few seconds. I accept that the offence was committed in circumstances of extreme provocation. The offender was the victim of a vicious attack by a large group of men whilst he was unarmed. The whole incident was depicted by CCTV footage. During the course of the trial I had the opportunity to view this footage of a number of occasions. It shows the offender being seriously attacked by a group of men in circumstances where he had done nothing to provoke it. I have already stated that, given his serious injuries, I accept that his ability to reason and rationalise would have been compromised.

61. The Crown case at trial was that the offender was clearly the victim in the first incident and did not cause any harm to anyone, nor was it suggested that he caused any harm to any of his attackers in the car as they were leaving. As for other mitigating factors the Crown conceded that the injury, emotional harm, loss or damage caused by the offence was not substantial, that the offence was not part of a planned or organised criminal activity and that the offender was provoked by the victims.

62. No question of parity arises because Mr Loeung has not as yet been sentenced.

The offender’s personal circumstances

63. The offender was born 23 January 1989. He is now 30 years of age. He has no prior convictions.

64. He arrived as a refugee from Vietnam to Australia in 1991. He became a citizen in 1992. He was raised in Cabramatta and went to high school and university where he was conferred with a Bachelor of Science in Information and Technology. He is the father of three children age two, four and six. They live with him and his parents as he is separated from their mother. Since graduating, he has worked in the area of information technology, customer sales, although in 2017 he was a car salesman for a period of time.

65. Three character references were tendered at the proceedings on sentence. A letter was provided to the court by Julie Pham, his close friend. She describes him as someone who is dedicated to his three children, who is a respected member of their community and someone who is not known to be a confrontational person or who acts irrationally or violently. She describes the offender as compassionate, considerate of others and stated that any display of anger or hate is not in his nature. She is aware of these proceedings.

66. Hai Manh Voong, who has known the offender for approximately 26 years, also provided a letter on his behalf. She describes him as a supportive father to his three children and that he has always played an important part in their lives. He is described as a person of good character who is humble, honest and friendly. She states that he is not known in the community as someone who is aggressive or acts violently or a kind of person who would commit a violent offence.

67. A letter was also provided from Phong Nguyen, who is the Regional Director of a company. This letter makes no reference to being aware of the charges before the court and appears to be a reference for employment purposes. Accepting this limitation, I note that the letter states that he had worked with the offender and described the offender’s ability to delve into detail, ask for help and accept constructive criticism. He described him as an individual who is motivated, dedicated and enthusiastic multi-tasker who has the ability to undertake complex work.

68. The offender spent one night in custody after being arrested on 15 February 2016. He was on conditional bail is the time of his arrest and up to the date of his conviction. He spent part of the night in custody during the trial, when there had been a misunderstanding about the residence condition of his bail.

69. Although the offender did not give evidence at his sentencing proceedings, I had the opportunity to observe him give evidence at the trial. In addition, I had the opportunity to view his hospital interview. It is clear that he was in significant pain at the time in that a number of medical practitioners interrupted the interview to attend to his needs. The offender presents as honest and throughout the interview. He did not overdramatise the situation in any way.

70. I am satisfied that he gave an accurate account within hours of the incident in circumstances where he was not required to, with only one exception. I do not accept that he was being truthful when he denied seeing Mr Loeung during the second incident. The jury must have rejected this evidence as well. Despite this, I am satisfied that this omission did not arise from any desire to minimise his own actions but, rather, it was a misguided attempt to protect his close friend.

71. As for other mitigating factors, the Crown conceded that the offender was a person of good character, that the offender is unlikely to reoffend, and that the offender has good prospects of rehabilitation.

Charges brought against attackers

72. At the conclusion of his hospital interview with police, the interviewing officer asked the offender if there was anything else he wished to tell them about what occurred that night. The offender asked two things. His first question was “When can I see my family?” His second question was “What’s going to happen to those guys that did this to me?” … “Have you found them?” Police assured him that police would be “investigating the whole incident” and that detectives from Fairfield Police station would be in touch with him to let him know “exactly what’s going to happen”.

73. What actually happened was that a few days later the offender was charged with the present offence and a further offence of affray which was subsequently discontinued. Furthermore, the DPP elected that the offender’s charge proceed on indictment with Mr Loeung. The persons who attacked him were dealt with very differently.

74. On 8 December 2017, Mr Mah, Mr Huynh and Mr Co each pleaded guilty to one count of affray contrary to s 93C of the Crimes Act. Mr Mah and Mr Co were sentenced to two-year good behaviour bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) whereas Mr Huynh was placed on a 12-month bond.

75. Mr Nguyen also pleaded guilty to affray and received a 15-month suspended sentence. He also pleaded guilty to use carriage service to menace, harass or offend contrary to s 474.17 of the Criminal Code (Cth) in relation to his threats to Ms Tran and was convicted and fined $500. He was never charged with reckless damage he caused amounting to $5500 to the offender’s car.

76. It is to be noted that the evidence called at the trial disclosed that Mr Mah was the person who smashed the bottle over the offender’s head resulting in a serious wound. The CCTV footage and evidence of the offender establishes that Mr Mah could have been charged and convicted of wounding with intent to inflict grievous bodily harm contrary to s 33(1) of the Crimes Act. Furthermore, unlike the offender, Mr Mah had a criminal record

77. Mr Steven Huynh was the person who was armed with a bottle and punched Mr Loeung repeatedly whilst he lay on the ground. This punching is clearly depicted on the CCTV footage. He was not charged with any assault either.

78. Although all of these witnesses gave their evidence at trial under certificates issued under s 128 of the Evidence Act 1995 (NSW), the CCTV footage and other evidence clearly discloses that one or more of these men inflicted the serious injuries on the offender I have already described above.

79. During the course of the trial these persons were unwilling to give evidence and showed contempt for the process. On the other hand the offender immediately assisted police and was charged.

Why was the offender not dealt with in the Local Court?

80. As would be apparent from my reasons, I am of the view that the manner in which the prosecutorial discretion was exercised in this matter was surprising to say the least. The offender’s attackers, who caused him serious injuries, were all charged with much less serious offences than their conduct warranted and then called as Crown witnesses. As I have already indicated, they appeared to take the proceedings as a joke. A Facebook photo of some of them outside the courthouse during the trial had one of them “flipping the bird”. This photograph was tendered on behalf of Mr Loeung at the trial. The evidence before me at trial clearly discloses that their criminality far exceeded that of the offender’s.

81. Not only did the offender’s attackers escape any serious charges being brought against them, the offence with which the offender was charged, which is more commonly dealt with in the Local Court, was committed for trial to the District Court and then transferred to the Supreme Court. Statistics obtained from the Judicial Commission showed that an offence contrary to s 114(1)(b) is more commonly prosecuted in the Local Court.

82. From October 2014 to 23 September 2018, the period covered by the JIRS statistics, 1811 persons were sentenced in the Local Court for offences contrary to s 114(1)(a) of the Crimes Act whereas only 61 persons were dealt with in the District Court or Supreme Court over a broader period being January 2008 to 23 September 2018. When I raised this issue with the Crown Prosecutor during the trial, he informed me that by the time he was briefed in the matter the decision to have the offender tried on indictment had already been made. Today, he clarified that after the offender was committed to the District Court he agreed that those proceedings then be transferred to the Supreme Court. It is still not entirely clear to me why that was necessary.

80. Some factors relevant to the discretionary decision as to whether the DPP would elect for a matter to be heard in either the District Court or the Supreme Court, rather than the Local Court, would include when the offender was also charged with much more serious offences (not this case) or where it is thought that, due to an offender’s criminal history, the appropriate penalty in the event of conviction would exceed the jurisdictional limit of the Local Court. As I previously stated, the offender did not have any criminal history.

81. It was submitted by Mr Pierce that the reason may have been simply one of convenience so that the Crown did not have to call the same witnesses twice. If that be the case, it has certainly caused an unnecessary burden to the offender who has had to attend a six-week trial in the Supreme Court for this offence.

82. In addition to the disparity as to how the offender’s attackers were dealt with, when compared with the charging of the offender, real questions also arise as to why the offender and Mr Loeung were charged as part of a joint criminal enterprise.

83. It is to be accepted that the evidence was capable of establishing such a charge but that does not mean that it was necessarily the appropriate charge in the circumstances of this case. As I indicated to the Crown Prosecutor during the trial, the Crown usually only relies on principles of joint criminal enterprise when the evidence does not clearly disclose which offender did what act in the commission of an offence. That was not this case. Nor would charging them separately have excluded reliance on the aggravated feature of being in company in the event that one or both of them were convicted.

84. Having considered the matter it seems to me that there are two possible reasons why the Crown relied upon principles of joint criminal enterprise in this matter. The first one might have been so that the offender’s matter could travel with Mr Loeung to the Supreme Court. It would have been difficult to have resisted an application for separate trials if they had been charged separately. The second reason might have been that the offender told police in his hospital interview that he acted alone by arming himself and running towards the car rather than doing so with Mr Loeung. Such a lie is clearly not consciousness of his own guilt but, rather, an attempt to not implicate his friend. Despite this, the Crown prosecutor sought a “consciousness of guilt” direction in relation to this lie at the trial. It was submitted that it was a lie about the offender’s own guilt given that the Crown had charged him as part of a joint criminal enterprise.

85. It is not necessary for me to make any findings either way as to why the charge was brought in this way and nor do I have sufficient material before me to do so. The prosecutorial discretion is broad and one in relation to which this court would not interfere unless an abuse of process could be established. The fact remains that the offender has had to endure a six-week Supreme Court murder trial in which the only issues in dispute were whether he was acting in self-defence when he was armed with a knife for a few seconds and whether at that time he was acting alone or in concert with Mr Loeung.

Availability of a conditional release order without conviction

89. Mr Pierce submitted that it was within the court’s broad sentencing discretion to place the offender on a bond under s 10 of the Crimes (Sentencing Procedure) Act.

90. The Crown Prosecutor opposed the offender being dealt with under s 10 in this way. He submitted that despite all of the mitigating factors in this case, the community interest in deterring people from taking the law into their own hands means that general deterrence remains a prominent feature of any penalty to be imposed and this necessitates recording of a conviction. He also pointed to the need for general deterrence in relation to the possession of a knife.

91. The relevant principles concerning the imposition of a bond under section 10 were considered by the Court of Criminal Appeal in R v Mauger [2012] NSWCCA 51. In that matter the respondent had been dealt with in the District Court pursuant to s 10 of the Crimes (Sentencing Procedure) Act for possession of 20 ecstasy tablets and a small amount of cannabis. No conviction was recorded but orders made that he enter into a good behaviour bond for a period of two years. Harrison J (with whom Beazley P and McCallum J agreed) dismissed the Crown’s appeal that the sentence was manifestly inadequate on the basis, inter alia, that the respondent was “undeniably a person of good character with no criminal antecedents”. The relevant principles were stated at [18] where his Honour stated:

“Section 10 and its predecessors reflect the willingness of the legislature and the community to provide offenders with an opportunity in certain circumstances to maintain a reputation of good character and to avoid the otherwise rigid application of inexorable laws: Cobiac v Liddy (1969) 119 CLR 257 at 269; R v Nguyen [2002] NSWCCA 183 at [50].”

92. His Honour noted that s 10 must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of that offence, however “the focus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence”: Walden v Hensler (1987) 163 CLR 561 at 577; [1987] HCA 54. At [21] his Honour observed that considerations of extra curial punishment may also be relevant to the exercise of the discretion conferred by s 10: see R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 at [49]–[50].

93. In his Honour’s view (at [38]), it was wrong “to assume that the decision to not record a conviction is automatically or necessarily coextensive with the imposition of an inadequate, or even a particularly lenient, sentence.” His Honour had regard to the fact that the recording of a conviction for the offence in that particular case was of little or no practical or theoretical consequence to the good order of the community but was by way of contrast potentially of great importance to the respondent. As Spigelman CJ said in R v Ingrassia (1997) 41 NSWLR 447 at 449, in a comment directed to a consideration of the impact of a conviction upon an individual offender, “[t]he legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a Court.”

94. Harrison J concluded at [41] by holding that it was “clear that the imposition of a bond pursuant to s 10 operates in fact, and will be perceived by the community as operating, in the same way as a bond imposed pursuant to s 9. The particular legal and social consequences for the respondent of recording a conviction against him in this case far outweigh the requirements of punishment, denunciation, or special or general deterrence.”

95. In the decision of R v Paris [2001] NSWCCA 83 at [42] the Court of Criminal Appeal noted that an offence does not need to be trivial for s 10 to apply. That principle was accepted by the Crown Prosecutor in the present matter.

96. I have had regard to these principles and to all of the purposes of sentencing: s 3A Crimes (Sentencing Procedure) Act. I am satisfied that the offender has been adequately punished. As for the question of general deterrence, although it is to be accepted that persons should be deterred from committing acts of vengeance, the unusual circumstances of this case render that general principle of limited application. There is clearly no need to protect the community from the offender. On the contrary he finds himself before me because he went to the aid of a woman who was at risk of domestic violence. I have also had regard to the need to make the offender accountable for his actions, to denounce his conduct and to recognise the harm done to the community. Although these principles arise in every sentencing exercise, they play no prominent part in the present one.

97. In deciding whether to make an order under s 10(1) of the Crimes (Sentencing Procedure) Act I have had regard to the matters in s 10(3) of the, namely the offender’s character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed and “any other matter that the court thinks proper to consider”. Although I would not describe the offence as “trivial” that does not mean that I am precluded from dealing with the offender under s 10(1) when the circumstances of the case are considered overall.

98. I have found this offence to be at the very bottom of the range of seriousness for an offence under s 114(1)(a) of the Crimes Act. I have had regard to the offender’s lack of prior criminal history. I have had regard to the fact that, as a result of assisting a neighbour, he received serious injuries and has ongoing pain and restricted movement in his right wrist. He has been dealt with in the Supreme Court and was not afforded the same charge bargaining as was offered to the persons who attacked him. I have had regard to the financial loss he has suffered as a result of his damaged car. In the unusual circumstances of this case I consider that the appropriate sentences to place the offender on a bond pursuant to section 10 of the Crimes (Sentencing Procedure) Act.

Sentence

99. I impose the following sentence:

1. 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.

2. 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.

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Amendments

07 June 2019 - Heading after [79] - "in" inserted after "with"

06 September 2019 - Cover sheet- typographical corrections

Decision last updated: 06 September 2019