R v Le (No. 2) - [2019] NSWSC 763

Supreme Court

New South Wales

Medium Neutral Citation: R v Le (No. 2) [2019] NSWSC 763
Hearing dates: 17 June 2019
Date of orders: 21 June 2019
Decision date: 21 June 2019
Jurisdiction: Common Law
Before: Wright J
Decision:
(1)   For the manslaughter of Xun KE, a limiting term of 10 years is nominated to date from 28 January 2017 and expire on 27 January 2027.

(2)   For the robbery of Xun KE whilst being armed with an offensive weapon, a limiting term of 8 years is nominated to date from 28 January 2016 and expire on 27 January 2024.

(3) Pursuant to s 24 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the offender is referred to the Mental Health Review Tribunal.
(4)   The offender is to be held in custody in an appropriate institution until further assessment by the Mental Health Review Tribunal.
Catchwords: SENTENCING – Mental Health (Forensic Provisions) Act 1990 (NSW) – limiting terms – special hearing conducted before judge alone – limiting terms nominated for manslaughter and robbery armed with an offensive weapon – concurrent limiting terms
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1990 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Aslan v R [2014] NSWCCA 114
Bhuiyan v R [2009] NSWCCA
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v AN [2005] NSWCCA 239
R v Dawes [2004] NSWCCA 363
R v Engert (1995) 84 A Crim R 67
R v Green [1999] NSWCCA 97
R v Le [2019] NSWSC 483
R v Lulham [2016] NSWCCA 287; 263 A Crim R 287
R v Mailes (2004) 62 NSWLR 181; [2004] NSWCCA 394
R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85
RS v R [2013] NSWCCA 227; 235 A Crim R 430
R v XX [2009] NSWCCA 115; 195 A Crim R 38
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Principal judgment
Parties: Regina
Ze Ren LE
Representation:
Counsel:
Mr G Tabuteau (Crown)
Ms S Hall (Defence)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Armstrong Felton (Defence)

File Number(s): 2016/00028690

reMarks on limiting term

Background

On 28 January 2016, the offender, Mr Ze Ren LE, was arrested and charged with offences of murder and armed robbery. He has been in custody since that time.
On 30 April 2018, Fagan J found Mr Le unfit to be tried and he was referred to the Mental Health Review Tribunal (MHRT) and remanded in custody. [1] On 28 June 2018, the MHRT determined that he would not become fit to be tried within 12 months of the Court’s finding of unfitness. Consequently, a special hearing [2] took place from 25 March 2019 to 9 April 2019 before me as a judge sitting alone. Mr Le stood charged on indictment with two counts:

“Count 1
On the 28th day…

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 (No. 2)

Details

AGLC: R v Le (No. 2) [2019] NSWSC 763
Case: [2019] NSWSC 763
Decision Date: 21 June 2019

CaseChat Overview and Summary

In this case, the appellant was convicted of manslaughter and armed robbery. The appellant was sentenced to concurrent limiting terms for each offence. The appellant appealed against sentence, arguing that the terms were manifestly excessive and should be quashed. The Crown submitted that the sentence was appropriate. The Court of Criminal Appeal held that the sentence was not manifestly excessive. The appeal was dismissed.

The legal issue before the Court was whether the sentence imposed by the sentencing judge was manifestly excessive. The appellant submitted that the sentence was manifestly excessive, and that the sentence should be quashed and a special hearing conducted before a different judge. The Crown submitted that the sentence was appropriate. The Court of Criminal Appeal considered the sentence imposed by the sentencing judge and the relevant sentencing principles. The Court held that the sentence was not manifestly excessive. The Court found that the sentence was within the range of sentences that a properly directed sentencing judge could have imposed. The Court found that the sentencing judge had considered the appropriate matters and had given appropriate weight to the relevant considerations.

Orders