R v Le - [2009] VSCA 247

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 676 of 2008

THE QUEEN
	v
TU QUANG LE

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JUDGES:	ASHLEY and WEINBERG JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2009
DATE OF JUDGMENT:	15 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 247
JUDGMENT APPEALED FROM:	R v Le (Unreported, County Court of Victoria, Judge Jenkins, 3 June 2008)

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CRIMINAL LAW –Reckless conduct placing another in danger of serious injury – Recklessly causing injury – Prohibited person in possession of an unregistered firearm – Appeal against conviction and sentence – Section 51 of the Interpretation of Legislation Act1984 – Double punishment – Leave to appeal against conviction granted – Application of sentencing principles – Youthful offenders – R v Verdins (2007) 16 VR 269 – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr G M Hughan	Victoria Legal Aid

ASHLEY JA:

I will ask Justice Coghlan to deliver the first judgment.

COGHLAN AJA:

On 26 May 2008, Tu Quang Le pleaded guilty in the County Court at Melbourne to reckless conduct placing another in danger of serious injury, recklessly causing injury, and being a prohibited person who both possessed and used an unregistered firearm.

He was sentenced to be imprisoned for three years on the first count, 18 months on the second count, two years on the third count and five years on the fourth count. Eighteen months of the sentence on count 1 and six months of the sentence on count 2 were ordered to be served cumulatively upon each other and upon the sentence on count 4. The sentences on count 3 and 4 were ordered to be served concurrently. The total effective sentence was therefore seven years. A non-parole period of five years was fixed.

On 4 June 2008 the applicant made application for leave to appeal against sentence. On 5 June 2009, Maxwell P granted leave. He is an applicant for leave to appeal against conviction and I will describe him by that title.

On 17 July 2009 the applicant made application for leave to appeal against conviction out of time on counts 1 and 4, based principally upon the consideration of double punishment contained in s 51 of the Interpretation of Legislation Act1984. On 3 September 2009 the Acting Registrar granted an extension of time and ordered an expedited hearing, which was subsequently fixed for today.

The facts may be stated shortly. On 29 March 2007 the applicant purchased a car from Mr Suleyman Ozturk Ozluses. A dispute arose between them about the provision of a roadworthy certificate and the completion of work to make the vehicle roadworthy. The applicant was aggrieved by the process. On 2 May 2007 the applicant and a friend, Michael Tammekand, went to Ozluses' address to demand help with making the vehicle roadworthy. There was a verbal dispute, but the applicant appeared to settle down after…

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 [2009] VSCA 247
Case: [2009] VSCA 247
Decision Date: 15 October 2009

CaseChat Overview and Summary

In the matter of R v Le, the appellant was convicted on two counts: recklessly causing injury and possessing an unregistered firearm, being a prohibited person. The appeal against conviction and sentence was heard in the Victorian Court of Appeal. The appellant contested the conviction and argued that the sentence was excessive. The appeal was assessed against the relevant statutory provisions and sentencing principles.

The primary legal issues addressed in the appeal revolved around the interpretation of recklessness and whether the convictions constituted double punishment for the same act. The court examined the meaning of recklessness under the Crimes Act 1958 and whether the convictions for recklessly causing injury and possessing an unregistered firearm amounted to double punishment. The court also considered the applicability of Verdins in the context of youthful offenders.

The court found that the interpretation of recklessness was correctly applied by the trial judge, and the convictions did not constitute double punishment. The court applied the principles from Verdins, considering the appellant’s age and mitigating factors. The appeal against conviction was allowed, and the case was remitted for resentencing. The court emphasised the importance of considering the youth of the offender in determining an appropriate sentence.

Orders