Regina v Le

[1999] NSWSC 993

CITATION:	Regina v Le [1999] NSWSC 993
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	L00019/96
HEARING DATE(S):	Friday 20 August 1999
JUDGMENT DATE:	20 August 1999
PARTIES :	Regina v Hiep Van Em Le
JUDGMENT OF:	Michael Grove J at 1

COUNSEL :	P. Thompson, Solicitor (Crown) S. Kaur-Bains (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) Jackson Smith (Applicant)
CATCHWORDS:	Criminal Law and Procedure - Life Sentence - Redetermination
ACTS CITED:	Sentencing Act 1989
DECISION:	Applicant Resentenced

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 20 August 1999

L00019/96 - REGINA v HIEP VAN EM LE

DETERMINATION

1    HIS HONOUR: This is an application under s 13A of the Sentencing Act for redetermination of a life sentence imposed by me after the applicant was convicted by a jury of murder in 1994. As I have formed a firm conclusion as to the outcome of this application, I propose to deal with it forthwith. No doubt I could express myself more fully and felicitously were I to reserve my judgment but for a number of reasons I have elected to take the course of dealing with the matter by giving this ex tempore judgment.

2    The applicant lodged his application some considerable time ago. There seems to me to be no reason to add to his anxiety concerning what the ultimate outcome should be by reserving my decision when I have, as I have said, reached a conclusion about the matter.

3    The second reason why I think it is appropriate to deal with the matter now is I have been informed that there are relatives of the deceased victim present in Court and I think it is appropriate that they should hear the reasons I express for the course I am going to take.

4    It scarcely needs any comment from me to observe that an innocent life was taken by this crime. In my remarks on sentence in 1994 I made some observations about what I then called the forensic history of both the applicant and some former co-accused. Those remarks may be taken as incorporated in what I say today.

5    In broad terms five young men including the applicant invaded, to use a currently popular term, a house across the road from the residence of an acquaintance of theirs which had been the subject of a robbery. Apparently amongst other things items such as a video recorder and television were alleged to have been taken. The residents of the house were a family. In addition, the victim and his partner resided in a caravan at the rear of the house. When the invading group came to the house, the young man who resided in the caravan simply came forward in order to see what the commotion was about. In the course of this, the applicant stabbed him. This fatality was of course totally unnecessary.

6    In the course of legal proceedings, one of the five invaders was given immunity in order to provide evidence against the others. Without again detailing all the various trials and appeals, the ultimate outcome was that apart from the applicant no person was punished for this crime. In a sense of course the applicant merited punishment because he was the one who produced the knife and caused the fatality.

7    At the time of sentence I declined to find that there were mitigating circumstances such as would have reduced the culpability of the applicant so as to justify my then imposing upon him a sentence less than the mandatory life term. The mandatory life term however must be viewed in the context of its application up until the passage of the Sentencing Act 1989. Prisoners sentenced to life penal servitude were routinely released on ticket of leave in a continuing practice dating virtually from the European settlement of this State in 1788. The nature of the tickets of leave was that such persons were on parole unless a special order was made by the governor terminating the conditional nature of liberty.

8    The relevance of that history at the moment is that but for the passage of the Sentencing Act the applicant would have reasonably expected to have been considered for release upon ticket of leave at some time after serving a significant portion of his sentence. The Sentencing Act itself reflects this in the sense that it makes available an application such as this after at least eight years' imprisonment has been served.

9    In the present case, the applicant has been in custody since late in the evening of 28 September 1988. He was first before a court on the following day and pursuant to the order I made in 1994 his sentence dates from then.

10    The Sentencing Act and the general law require me to take into account a number of matters, particularly subjective matters concerning the applicant. It should be emphasised at the outset that my setting of a minimum term as I have indicated I intend to do does not of itself operate as an order for release of the applicant on the expiry of that period. It will remain ultimately a decision for the parole authorities to determine when within the ambit of the total sentence the applicant can appropriately be released into the community.

11    Thus I turn to some subjective matters concerning the applicant. His background shares the tragedy of many migrants to this country who came here looking for a new life after the ravages of the Vietnam conflict. Apart from his wife, to whom I will make later reference, he has no really close family ties in this country. His background was that his family were fisherfolk. At the time of the sentencing proceedings in 1994 I was provided with information as to how the applicant first at about the age of fourteen came into contact with intoxicating liquor. It appears that it was the practice of the fishermen when the weather was too rough to put out to sea to tend to their nets and spend their time, perhaps for days on end, drinking fortified liquor such as rice wine. Later when he came to Australia the applicant began to partake of other forms of intoxicating liquor and Dr Barclay, whose assessment I found then and I find now to have been most helpful, said that in general terms the applicant could have been described in 1988 as an alcoholic. No doubt he was considerably affected at the time of committing this crime.

12    It appears that during his incarceration he has recovered from alcoholism although this has been replaced to an extent by participation in drug ingestion. I infer that he was able to obtain drugs whilst a prisoner. It is notorious that in the prison system in this State drugs are obtained by prisoners. Indeed, frustrated at the apparent lack of listing of his application for redetermination, in February this year the applicant mixed a cocktail of drugs and undertook what I assess to be a suicide attempt. Self-evidently this was unsuccessful but it gives an indication of the feelings of the applicant as at the time.

13    His prior record, that is to say prior to his arrest on this matter, is by no means admirable. As Mr Thompson for the Crown has reminded me, he had been released on parole but a few days before he committed this terrible crime.

14    After his arrest he was interviewed by police. His responses were unusual, indeed unique to my experience, in that from time to time one finds persons who are the focus of allegation who deny the matters put to them; one finds people who admit them. In this case, the applicant said he had no memory of the event but in effect if his friends said he had done it, then he accepted he had. He has maintained that posture to the present time. He has said that he has no recollection of this event but he accepts from the evidence of others that he must have done so. Given his consistent and steady adherence to that posture and given the expressions of remorse that he has made, I accept that that is the true situation.

15    I said that I would turn to the situation concerning the applicant's wife. A young woman, now Olian Le, had been at school with the applicant. She is a native of Cambodia but now an Australian citizen. She came to know of the plight of the applicant serving his sentence through a family contact. There is evidence from her on affidavit. I find that evidence quite impressive. The material set out therein demonstrates a balanced young woman, anxious to set up a regular and lasting relationship with her husband. She did not rush into marriage with the applicant and indeed it was something over three years before she accepted his proposal. She has stated that she only agreed to marriage when she had satisfied herself that he had changed from his past and would be a good husband and had an understanding of the bad things that he had done in the past. This young woman has set up a home just over the Queensland border. She has employment. She supplements her income by some sewing and dressmaking work.

16    The applicant himself has commendable reports concerning his work history whilst in prison. There are a number of prison offences but I do not regard them as critical in the current circumstances. His work history shows that he has diligently applied himself to work in the textile industry conducted in the gaol and has become an efficient and effective self-taught sewing machine mechanic. That skill will undoubtedly complement his wife's industry and intentions as to occupation.

17    The applicant was twenty two years of age at the time of the offence. He has now been in custody nearly eleven years. As I am required to do by the Sentencing Act , I take into account the previous practice concerning release on licence and I also take into account my own knowledge of the range of sentence which is generally imposed for offences of murder. No two offences are identical and I do not suggest that there is anything approaching a tariff for offences such as this. It would appear however that the applicant has, after a stormy period whilst in gaol initially and particularly in the period prior to the second trial over which I presided in 1994, set upon a path of genuine attempt at rehabilitation. He should therefore have the opportunity to demonstrate that he can contribute to society as a useful and law abiding citizen.

18    I am not bound to divide sentence into minimum and additional terms in accordance with s 5(2) of the Sentencing Act when dealing with a matter pursuant to s 13A. I indicated to counsel during exchange that I had in mind setting a longer total term of imprisonment but setting a minimum term which will expire within a foreseeable time, emphasising of course as I have said earlier that it will be for the parole authorities to decide whether or not the applicant is actually ready for release. He is presently still at B classification although he has apparently remained frozen, as it were, in that classification because the current matter has been pending now for over two years. It will be necessary for him to pass through the C classifications and to see whether or not he can be trusted for example upon work release and other leave.

19    In setting a long additional term, it is not my expectation that the applicant will necessarily require supervision during the whole of the term. Nevertheless, I think it appropriate that such term should be of remaining potential so that in the event that he does not fulfil the promise that he currently gives, he will understand that he may be returned to serve the balance of the total sentence.

20    Hiep Van Em Le, for the murder of Alan Stanley Ball, in lieu of the sentence of penal servitude for life which I imposed upon you on 14 October 1994, I sentence you to a total term of twenty years' penal servitude, to commence on 29 September 1988. That sentence is to comprise a minimum term of twelve years commencing on 29 September 1988 and to expire on 28 September 2000 AD, together with an additional term of eight years commencing on 29 September 2000. You will first become eligible for parole on 28 September 2000.

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Last Modified: 09/30/1999