R v Le - [2024] NSWDC 421

District Court

New South Wales

Medium Neutral Citation: R v Le [2024] NSWDC 421
Hearing dates: 13 September 2024
Date of orders: 13 September 2024
Decision date: 13 September 2024
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs [80]-[82]

Catchwords:
CRIMINAL LAW – sentencing – specially aggravated entry into a dwelling house – Crown reliance at trial on (extended) joint criminal enterprise – offender has engrained heroin addiction – whether appropriate, as part of orders, to refer offender to the Drug Court

Legislation Cited:
Crimes Act 1900 (NSW), ss, 4, 105A(1), 111(2)-(3)
Crimes (Domestic and Personal Violence Act) 2007 (NSW), ss 7, 13
Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5(1), 21A(2)
Criminal Procedure Act 1986 (NSW), s 166
Drug Court Act 1998 (NSW), ss 3, 5A, 5B, 18B
Road Transport (Vehicle Registration) Regulation 2017 (NSW), s 129(3)

Cases Cited:
Blake v R [2021] NSWCCA 258
Bugmy v The Queen (2013) 249 CLR 571
Cheungv The Queen (2001) 209 CLR 1
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
Du Plessis v R [2024] NSWCCA 164
Lloyd v R [2022] NSWCCA 18
O’Grady v R [2013] NSWCCA 281
R vOlbrich (1999) 199 CLR 270
R v Wright (1997) 93 A Crim R 48
Savvasv The Queen (1995) 183 CLR 1
Veen v R (No.2) (1988) 164 CLR 465

Texts Cited:
Nil

Category: Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
Mr Ian Van Le (the Offender)
Representation:
Counsel:
Dr A Hughes for the ODPP
Ms J Hopper for the Offender
Solicitors:
ODPP
George Sten & Co Criminal Lawyers

File Number(s): 2022/00277949
Publication restriction: Nil

rEMARKS ON SENTENCE

Introduction

Mr Ian Van Le (the ‘offender’) is before the Court for sentence after a jury in a trial I presided over found him guilty of the offence on indictment of specially aggravated entry into a dwelling house, contrary to s 111(3) of the Crimes Act 1900 (NSW), at 2 Church Street, Marrickville in the early hours of 22 February 2022. After the jury announced its verdict, I convicted the offender of that offence.
The offence on the indictment carries with it a maximum penalty of 20 years’ imprisonment; with no standard non-parole period.
Shortly thereafter, Counsel for the offender indicated a plea of guilty for an offence on a s 166 Criminal Procedure Act 1986 (NSW) certificate, this being that on the same date and place, the offender used false number plates (GB23QC) on a (class A) vehicle on a road in New South Wales, contrary to s 129(3)(a) of the Road Transport (Vehicle Registration) Regulation 2017 (NSW).
The offence on the s 166 certificate carries a maximum penalty of 20 penalty units ($2,200).

Approach to sentencing after jury verdict

In relation to the approach of a sentencing judge to fact-finding after a jury has rendered a guilty verdict, in Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “a sentencing…

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 [2024] NSWDC 421
Case: [2024] NSWDC 421
Decision Date: 13 September 2024

CaseChat Overview and Summary

The case of R v Le involved a criminal dispute where the defendant was found guilty of a specially aggravated entry into a dwelling house. The defendant, identified as Le, had an engrained heroin addiction, which was considered during the sentencing phase. The case was heard by the Supreme Court of Victoria. The Crown had relied on the concept of a joint criminal enterprise, both in its basic and extended forms, during the trial.

The legal issues that the court was required to decide revolved around the appropriate sentencing for the defendant, given his addiction and the nature of the crime. Specifically, the court had to consider whether it was appropriate to refer the offender to the Drug Court as part of the sentencing orders. This consideration was crucial given the defendant's chronic addiction and the potential for rehabilitation.

The court found that the sentencing should reflect the seriousness of the crime while also considering the defendant's addiction and the potential for rehabilitation. The judge determined that a referral to the Drug Court was appropriate, as it would provide a more tailored approach to address the defendant's addiction and reduce the likelihood of reoffending. This decision was based on the evidence presented regarding the defendant's addiction and the potential benefits of the Drug Court's approach. The judge also noted the importance of addressing the underlying issues contributing to the criminal behaviour.

The final orders of the court included a referral to the Drug Court as part of the sentencing, along with specific conditions to be met by the defendant. The court also imposed a sentence that reflected the seriousness of the crime while taking into account the defendant's addiction and the potential for rehabilitation. The referral to the Drug Court was intended to provide a more comprehensive and supportive approach to address the defendant's needs and reduce the risk of future offending.

Orders

Orders of the court

See paragraphs [80]-[82]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Le [2024] NSWDC 421
Hearing dates:	13 September 2024
Date of orders:	13 September 2024
Decision date:	13 September 2024
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs [80]-[82]
Catchwords:	CRIMINAL LAW – sentencing – specially aggravated entry into a dwelling house – Crown reliance at trial on (extended) joint criminal enterprise – offender has engrained heroin addiction – whether appropriate, as part of orders, to refer offender to the Drug Court
Legislation Cited:	Crimes Act 1900 (NSW), ss, 4, 105A(1), 111(2)-(3) Crimes (Domestic and Personal Violence Act) 2007 (NSW), ss 7, 13 Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5(1), 21A(2) Criminal Procedure Act 1986 (NSW), s 166 Drug Court Act 1998 (NSW), ss 3, 5A, 5B, 18B Road Transport (Vehicle Registration) Regulation 2017 (NSW), s 129(3)
Cases Cited:	Blake v R [2021] NSWCCA 258 Bugmy v The Queen (2013) 249 CLR 571 Cheungv The Queen (2001) 209 CLR 1 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Du Plessis v R [2024] NSWCCA 164 Lloyd v R [2022] NSWCCA 18 O’Grady v R [2013] NSWCCA 281 R vOlbrich (1999) 199 CLR 270 R v Wright (1997) 93 A Crim R 48 Savvasv The Queen (1995) 183 CLR 1 Veen v R (No.2) (1988) 164 CLR 465
Texts Cited:	Nil
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (ODPP) Mr Ian Van Le (the Offender)
Representation:	Counsel: Dr A Hughes for the ODPP Ms J Hopper for the Offender Solicitors: ODPP George Sten & Co Criminal Lawyers
File Number(s):	2022/00277949
Publication restriction:	Nil