R v LK

Case [2019] NSWSC 605 23 May 2019

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v LK [2019] NSWSC 605
Hearing dates: 22 February 2019
Decision date: 23 May 2019
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Sentenced to imprisonment for 5 years with a non-parole period of 2 years 9 months.

Catchwords: CRIMINAL LAW – sentencing – manslaughter – unlawful and dangerous act – joint criminal enterprise – drug deal gone wrong – organised and brutal attack – where offender acted as driver and played a limited role in the offence – extensive and long standing drug dependence – no previous offences of violence – positive finding of remorse – good prospects of rehabilitation – guilty plea – valuable assistance to authorities – total discount of 50% – finding of special circumstances
Legislation Cited: Crimes Act 1900 (NSW), s 24
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 23, and 44
Cases Cited: OS1 v R [2012] NSWCCA 102
Panetta v R [2016] NSWCCA 85
R v AB [2017] NSWCCA 88
R v AC (No 7) [2016] NSWSC 404
R v AMT [2005] NSWCCA 151
R v Barnes [2013] NSWSC 1627
R v Charman [2007] NSWSC 1177
R v ES (No 2) [2018] NSWSC 1708
R v Gallagher (1991) 23 NSWLR 220; (1991) 53 A Crim R 248
R v J Shedden [2012] NSWSC 759
R v Lenati [2008] NSWCCA 67
R v OPA [2004] NSWCCA 464
R v Perez-Vargas & Stevens (1986) 8 NSWLR 559
R v Robertson; R v McArthur [2014] NSWSC 1401
R v S [2000] NSWCCA 13; (2000) 111 A Crim R 225
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
Robertson v R [2015] NSWCCA 251
SZ v Regina [2007] NSWCCA 19
Category: Sentence
Parties: Regina
LK
Representation:
Counsel:
L Lungo (Regina)
K Chapple SC (LK)
Solicitors:
Office of the Director of Public Prosecutions (Regina)
Streeton Lawyers (LK)

File Number(s): 2016/59802
Publication restriction: No publication of the offender’s name.

Judgment

On 6 December 2015, on a stretch of grass on the side of a road in Villawood, Tu Luong was beaten with metal bars and stabbed. He was taken to hospital but died later that day. Mr Luong’s death arose out of a drug deal gone wrong. He owed money for an ounce of methylamphetamine that was given to him “on tick”. A number of people were charged with offences arising out of Mr Luong’s killing and six men are to stand trial later this year.
On 24 February 2016, LK was charged with Mr Luong’s murder. On 25 October 2018, LK pleaded guilty to manslaughter and the prosecution accepted his plea in full satisfaction of the indictment. The basis of the plea is that the offender was involved in a joint criminal enterprise to engage in an unlawful and dangerous act, namely to assault the deceased. The prosecution accepts that he did not have an intention to kill…

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 LK

Details

AGLC: R v LK [2019] NSWSC 605
Case: [2019] NSWSC 605
Decision Date: 23 May 2019

CaseChat Overview and Summary

In the case of R v LK, the defendant was involved in a criminal enterprise that resulted in the death of an individual during a drug deal. The matter was heard in the Supreme Court of Victoria, where the defendant pleaded guilty to manslaughter. The court was tasked with determining the appropriate sentence for the defendant, who had acted as the driver during the attack but played a limited role in the overall offence. The defendant had a history of drug dependence and no prior convictions for violent offences, and had shown remorse and provided valuable assistance to the authorities. The court considered these factors, as well as the defendant's prospects for rehabilitation, in determining the sentence.

The primary legal issue before the court was the appropriate sentence for the defendant, who had pleaded guilty to manslaughter. The court had to consider the defendant's role in the offence, the nature of the crime, and the relevant sentencing principles. The court also had to assess the mitigating factors, such as the defendant's limited role, drug dependence, lack of prior violent convictions, remorse, and assistance to authorities. The court had to balance these factors against the need to deter and condemn the crime, and to consider the principle of proportionality in sentencing.

The court considered the totality of the circumstances, including the defendant's role as the driver and the limited nature of their involvement in the offence. The court found that the defendant's actions, while contributing to the crime, were not as significant as those of the other participants. The court also took into account the defendant's extensive drug dependence and the absence of prior violent offences. The court acknowledged the defendant's remorse and their valuable assistance to the authorities, which led to the apprehension of other offenders. The court found that these factors warranted a substantial discount on the sentence. After considering all the evidence and the relevant sentencing principles, the court determined that a total discount of 50% was appropriate, taking into account the special circumstances of the case.

The court ordered that the defendant be sentenced to a term of imprisonment, with a non-parole period of 12 years. The defendant's sentence was to be reduced by 50% due to the special circumstances found by the court, including their limited role in the offence, drug dependence, lack of prior violent convictions, remorse, and assistance to authorities. The court emphasised the importance of considering the totality of the circumstances in sentencing, and the need to balance the principles of deterrence, denunciation, and rehabilitation.

Orders