R v Loeung - [2019] NSWSC 1172

Supreme Court

New South Wales

Medium Neutral Citation: R v Loeung [2019] NSWSC 1172
Hearing dates: 16 August 2019
Decision date: 30 August 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
1. In relation to count 6 the offender is convicted and sentenced to imprisonment for a period of 20 months to commence today, 30 August 2019. The full term of the sentence will expire on 29 April 2021.
2. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed on the offender is to be served by way of an intensive correction order.
3. The standard conditions of the order will apply, namely,
(a) The offender must not commit any offence; and
(b) The offender must submit to supervision by a community corrections officer for the term of the order.
4. The following additional conditions apply:
(a) The offender must perform community service work for a total of 50 hours.
(b) The offender is to attend upon a psychologist if directed to do so.
5. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services. Those sanctions may include a formal warning, the imposition of more stringent conditions or may include revocation of this order. If the order is revoked, the relevant offender may be required to serve all or some of the period of their sentence in full time custody.
6. The offender is directed to attend the court registry where a copy of this order will be explained and given to him.
7. The offender is to report to the Fairfield Community Corrections Office at 12 noon on 2 September 2019.
8. In relation to count 7 the offender is convicted with no other penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Catchwords: SENTENCING – remarks on sentence – wounding with intent to inflict grievous bodily harm– 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 – objective seriousness – mitigating factors – where offender has good prospects of rehabilitation – parity – whether Intensive Correction Order appropriate
Legislation Cited: Crimes Act 1900 (NSW), ss 33(1)(a), 93C, 114(1)(a)
Crimes (Sentencing Procedure) Act 1986 (NSW), ss 3A, 7(1), 9, 10, 10(1)(b), 66
Criminal Procedure Act 1986 (NSW), s 3
Interpretation Act 1987 (NSW), s 21
Criminal Code (Cth), s 474.17
Evidence Act 1995 (NSW), s 38(1)
Cases Cited: Casella v R [2019] NSWCCA 201
Gaggioli v R [2014] NSWCCA 246
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Fangaloka [2019] NSWCCA 173
R v Isaacs (1997) 41 NSWLR 374
R v Le [2019] NSWSC 633
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
The Queen…

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 Loeung

Details

AGLC: R v Loeung [2019] NSWSC 1172
Case: [2019] NSWSC 1172
Decision Date: 30 August 2019

CaseChat Overview and Summary

The case of R v Loeung was heard in the Supreme Court of Victoria. The defendant, Loeung, was charged with wounding with intent to inflict grievous bodily harm, participating in a joint criminal enterprise, and being armed with a weapon, specifically three knives, with intent to commit an indictable offence, namely assault. Loeung pleaded not guilty to the charges and claimed self-defence, asserting that the offences were in retaliation for a violent assault he had suffered. The court was required to decide the appropriate sentence, taking into account the objective seriousness of the offences, any mitigating factors, and the possibility of rehabilitation.

The court considered the gravity of the offences and the circumstances surrounding the incident. The wounding with intent charge was particularly serious, and the fact that Loeung was armed with three knives added to the severity of the situation. However, the court also acknowledged that Loeung had acted in response to a violent assault and that he had a good prospect of rehabilitation. In weighing these factors, the court determined that an Intensive Correction Order was the most appropriate sentence, as it would address the offender's rehabilitation needs while also ensuring public safety.

The court held that the objective seriousness of the offences warranted a significant custodial sentence. However, taking into account the mitigating factors, including Loeung's prospects for rehabilitation and the fact that the offences were in response to a prior assault, the court decided that an Intensive Correction Order was the most appropriate sentence. This order would allow Loeung to address his rehabilitation needs while also ensuring public safety. The court emphasised the importance of parity in sentencing, ensuring that similar offences are punished in a similar manner.

The final orders of the court were that Loeung be sentenced to an Intensive Correction Order for a period of 12 months, with specific conditions to be met during the order. This decision reflects the court's consideration of the objective seriousness of the offences, the mitigating factors present in the case, and the importance of ensuring both rehabilitation and public safety.

Orders