R v Lual - [2023] NSWDC 336

District Court

New South Wales

Medium Neutral Citation: R v Lual [2023] NSWDC 336
Hearing dates: 04 April 2023
Date of orders: 04 April 2023
Decision date: 04 April 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 5 years and 2 months with a non-parole period 2 years and 8 months

Catchwords:
CRIME — Aggravated break & enter commit serious indictable offence — Assault occasioning actual bodily harm in company of others
SENTENCING – Relevant factors on sentence — early guilty plea — home invasion — in company — no apparent planning — serious harm inflicted — weapon used — Good Samaritan assaulted —offender’s deprived background — history of traumas — impairments in cognitive function — young immature offender — parity — leading the commission of crimes arrest and gaol — special circumstances

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Lau v R [2010] NSWCCA 43
Nasrallah v R [2021] NSWCCA 207
R v Keegan [2022] NSWDC 715

Category: Sentence
Parties: Deng Lual (the offender)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
S Fraser (for the offender)
Solicitors:
Mardini Defence Lawyers (for the offender)
T George (for Director of Public Prosecutions)

File Number(s): 2021/367085

JUDGMENT – EX TEMPORE REVISED

On 26 December 2021, at about 8pm, two men entered a home in Southern Wollongong, where a 59-year-old man and his 56-year-old female friend were living.
One, Ryan Kegan, was wearing a face mask, and the other, Deng Lual, a balaclava. The male victim understandably said, “What are you doing here?” And Lual said to him, “We want the car keys.” The male victim said he was not giving them the keys, and Kegan said, “We want the car keys. Where are the car keys?” He responded, “I am not giving you the car keys,” and walked towards both offenders, who were still near the female victim.
Both offenders then approached the male victim and threw punches at his head, chest, and face. He grabbed Lual and they wrestled. He let go and ran out the front door of his premises, calling for help. He then went back inside and saw both offenders in the kitchen. When he got to the kitchen, one of them was holding a knife above his head. The male victim grabbed the blade of the knife and tried to get the knife from that person. The person holding the handle was trying to pull the knife away. The victim ended up in a wrestle with both offenders. At this stage, he was still holding onto the blade and both offenders were moving back and forth. He also felt some scratching on his back and stomach.
At this point, a neighbour who had heard a call for help, walked in through the front door. He walked into the kitchen and pushed…

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 Lual

Details

AGLC: R v Lual [2023] NSWDC 336
Case: [2023] NSWDC 336
Decision Date: 04 April 2023

CaseChat Overview and Summary

The case of R v Lual involved the appellant, who was charged with serious indictable offences including aggravated break and enter, assault occasioning actual bodily harm, and committing an indictable offence in company. The incident in question involved the appellant and his companions breaking into a home, where they assaulted the occupants, causing serious harm. The court was tasked with determining the appropriate sentence for the appellant, taking into account various mitigating and aggravating factors.

The legal issues before the court included the appropriate weight to give to the appellant's early guilty plea, the seriousness of the home invasion, the fact that the crime was committed in company, the lack of planning, the use of a weapon, the assault on a Good Samaritan, the appellant's deprived background, history of traumas, cognitive impairments, and the fact that the appellant was a young, immature offender. The court also had to consider the principle of parity with co-offenders and the appellant's criminal history of leading the commission of crimes and his prior arrests and time spent in gaol.

In determining the appropriate sentence, the court considered the totality of the circumstances, including the appellant's deprived background, history of traumas, cognitive impairments, and young age. The court acknowledged the seriousness of the offences and the harm caused to the victims but also recognised the mitigating factors. Ultimately, the court imposed an aggregate sentence of imprisonment of 5 years and 2 months, with a non-parole period of 2 years and 8 months.

Orders

Orders of the court

Aggregate sentence of imprisonment of 5 years and 2 months with a non-parole period 2 years and 8 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Lual [2023] NSWDC 336
Hearing dates:	04 April 2023
Date of orders:	04 April 2023
Decision date:	04 April 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 5 years and 2 months with a non-parole period 2 years and 8 months
Catchwords:	CRIME — Aggravated break & enter commit serious indictable offence — Assault occasioning actual bodily harm in company of others SENTENCING – Relevant factors on sentence — early guilty plea — home invasion — in company — no apparent planning — serious harm inflicted — weapon used — Good Samaritan assaulted —offender’s deprived background — history of traumas — impairments in cognitive function — young immature offender — parity — leading the commission of crimes arrest and gaol — special circumstances
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Lau v R [2010] NSWCCA 43 Nasrallah v R [2021] NSWCCA 207 R v Keegan [2022] NSWDC 715
Category:	Sentence
Parties:	Deng Lual (the offender) Director of Public Prosecutions (the Crown)
Representation:	Counsel: S Fraser (for the offender) Solicitors: Mardini Defence Lawyers (for the offender) T George (for Director of Public Prosecutions)
File Number(s):	2021/367085