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Local Court 31 December 2008

Police V Le

[2008] NSWLC 18

Assault & violence
MALICIOUS WOUNDING ASSAULT OCCASIONING ACTUAL BODILY HARM PLEA OF GUILTY REMORSE

Citation: Police v Le [2008] NSWLC 18
Court: Local Court of New South Wales (Downing Centre)
Date: 15 October 2008
Judge(s): Chief Magistrate G L Henson

Background

The offender attended the Cabramatta Inn on 8 April 2007, accompanying a friend to a meeting that arose from a personal dispute between two men connected through a mutual acquaintance. The offender brought a concealed meat cleaver to the premises. When a physical scuffle broke out during the meeting, he produced the cleaver, waved it at the group, and used it to strike two people.

One victim, John Tran, received a wound to his back. The prosecution accepted this injury was caused accidentally in the course of the chaotic scene, but maintained the offender's reckless conduct with the weapon rendered him criminally liable. A second victim, Vinh Cao, received a six-centimetre cut to his right shoulder from a deliberate strike while he was on the ground.

The offender pleaded guilty to malicious wounding (in respect of Cao) and assault occasioning actual bodily harm (in respect of John Tran). The sentencing remarks address the appropriate penalties for both offences.

  • Whether the offender's claim that he believed one of the men was armed with a gun was credible and, if so, what weight it should carry on sentence.
  • Identification of the applicable aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Identification of applicable mitigating factors, including remorse and the utilitarian value of the guilty plea.
  • The appropriate sentences for malicious wounding under s 35(1)(a) of the Crimes Act 1900 and assault occasioning actual bodily harm under s 59(1), having regard to the legislative maximum penalties despite the Local Court's jurisdictional limit of two years per offence.
  • Whether the two sentences should be served concurrently or consecutively.

Decision

Chief Magistrate Henson treated the offender's claim that he believed Cao was carrying a gun with scepticism. There was no evidence a gun was physically present, and the only corroboration came from a witness who had since reconciled with the offender and whose evidence warranted caution. The assertion may have provided a partial explanation for some of the offender's conduct, but it did not explain his prior decision to bring a concealed meat cleaver to the venue or his apparent readiness to use it.

On aggravating factors, the court identified the actual use of violence, the use of a weapon, and the commission of the offences at licensed premises as significant. The manner in which the injuries were inflicted, graphically illustrated by surveillance footage played during the hearing, placed each offence towards the upper middle range of seriousness despite the injuries not being of the most serious kind.

The court acknowledged mitigating factors, most notably the guilty plea and the offender's remorse. A sentencing discount was applied for the utilitarian value of the plea, consistent with the principles in R v Thomson and Houlton. The starting point for malicious wounding was 18 months and for assault occasioning actual bodily harm was 14 months, both reduced by the discount.

The two sentences were ordered to be served concurrently, given the close factual nexus between the two offences. The court declined to set a separate non-parole period for the assault sentence, because serving it concurrently meant it would expire before the non-parole period on the malicious wounding sentence concluded.

Orders Made

  • Malicious wounding: imprisonment for a minimum term of 11 months (44 weeks), with an additional term of approximately 5 months and 2 weeks, during which the offender is eligible for parole subject to supervision by the Probation and Parole Service.
  • Assault occasioning actual bodily harm: imprisonment for 9 months and 2 weeks, to be served concurrently with the malicious wounding sentence.
  • No separate non-parole period set for the assault occasioning actual bodily harm sentence.

Key Takeaways

  • Under s 35(1)(a) of the Crimes Act 1900 (as it then stood), malicious wounding carried a maximum of 7 years imprisonment, and the Local Court was required to have regard to that legislative maximum even though its own jurisdictional ceiling was 2 years per offence.
  • A claimed belief that another person was armed does not automatically attract significant weight on sentence where there is no evidence to support the claim and the witness providing corroboration has a relationship with the offender that warrants caution.
  • Reckless use of a weapon in a crowd, causing injury to a bystander, can found criminal liability for malicious wounding even where the actual contact was unintended, consistent with R v Williams (1990) 50 A Crim R 213.
  • The close factual nexus between two offences committed in the same incident was sufficient to support a concurrent rather than cumulative sentence.
  • Arming oneself with a potentially lethal weapon and using it without hesitation in a public venue was treated as conduct properly reflected by placing the offences in the upper middle range of seriousness, notwithstanding that the physical injuries were not at the most serious end of the spectrum.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(1)(a), 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 45

Cases
- R v Carroll [2008] NSWCCA 218
- R v Dib [2003] NSWCCA 117
- R v Dickinson [2004] NSWCCA 457
- R v Doan (2000) 50 NSWLR 115
- R v Moore [2005] NSWCCA 407
- R v Palu (2002) 134 A Crim R 174
- R v Stambolis [2006] NSWCCA 56
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Underhill (CCA, 9 May 1986)
- R v Williams (1990) 50 A Crim R 213
- The Queen v Dodd (1991) 57 A Crim R 349