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Supreme Court 30 August 2019

R v Loeung

[2019] NSWSC 1172

Assault & violence
SENTENCING REMARKS ON SENTENCE JOINT CRIMINAL ENTERPRISE PLEA OF NOT GUILTY SELF DEFENCE

Citation: R v Loeung [2019] NSWSC 1172
Court: Supreme Court of New South Wales
Date: 30 August 2019
Judge(s): N Adams J

Background

On the evening of 12 February 2016, the offender was at his Bonnyrigg home with his wife, three young children, and two guests when a female neighbour he had never met arrived seeking protection from her volatile partner. The offender and his guests went outside to assist her. When the partner arrived, angry and drunk, the offender and his guest attempted to calm him down and send him home.

The partner instead drove away and falsely told friends at a nearby gathering that the offender and his guest had threatened him. Nine men subsequently arrived at the offender's property and launched a violent attack on him and his guest, Mr Le. Armed with knives, the offender defended himself and his family. Four of the attackers were wounded, one fatally.

The offender stood trial on seven counts including murder, affray, and multiple counts of wounding with intent to cause grievous bodily harm. The jury acquitted him on most counts, verdicts consistent with the jury not being satisfied the Crown had disproved self-defence in relation to those charges. However, the offender was convicted on one count of wounding with intent to cause grievous bodily harm (count 6) and one count of being armed with three knives with intent to commit an assault (count 7), the latter charged as a joint criminal enterprise with Mr Le.

  • What was the objective seriousness of the offences given their retaliatory and defensive context?
  • What weight should be given to mitigating factors, including the offender's good prospects of rehabilitation and the circumstances of the attack?
  • Whether an Intensive Correction Order (ICO), served in the community rather than full-time custody, was appropriate given the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) concerning community safety and reoffending risk.
  • Whether parity required the same treatment as co-offender Mr Le, who had been discharged without conviction under s 10 of the Sentencing Act.
  • Whether count 7 should be dealt with under s 10 (no conviction) as it had been for Mr Le.

Decision

Adams J identified several significant mitigating features. The entire incident was instigated by the victim of count 6, Mr Danny Nguyen, who fabricated a story to mobilise a group of nine men to attack the offender's home. The offender had been trying to protect a stranger in need, had consumed no alcohol, and had repeatedly attempted to de-escalate the situation before the attack began. The offender and Mr Le were themselves injured during the assault.

The court found that, while the offending was serious, it fell at the lower end of the objective seriousness spectrum given the retaliatory and partially defensive context. The offender had good prospects of rehabilitation, had no relevant prior criminal history, and had experienced ongoing physical and psychological harm as a result of the events. His family had never returned to the home and remained traumatised.

On the question of parity with Mr Le, the court distinguished the two offenders' positions. Mr Le had been dealt with under s 10 on count 7 alone, with no other conviction recorded. The offender, by contrast, had also been convicted on count 6, meaning the s 10 approach was not appropriate for count 7 in his case. He had also been armed with two knives compared to Mr Le's one.

Having regard to s 66 of the Sentencing Act and the decisions in R v Fangaloka and Casella v R, the court was satisfied that an ICO adequately addressed community safety and the risk of reoffending, making full-time imprisonment unnecessary.

Orders Made

Count 6 (wounding with intent to cause grievous bodily harm):
- Convicted and sentenced to 20 months imprisonment, commencing 30 August 2019 and expiring 29 April 2021
- Sentence to be served by way of an Intensive Correction Order under s 7(1) of the Sentencing Act
- Standard ICO conditions applied (no further offending; supervision by a community corrections officer)
- Additional conditions: 50 hours community service work; attendance upon a psychologist if directed
- Directed to report to Fairfield Community Corrections Office at 12 noon on 2 September 2019

Count 7 (being armed with intent to commit an indictable offence):
- Convicted with no other penalty imposed, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Key Takeaways

  • A retaliatory attack context, where the offending was directly provoked by a violent assault on the offender's home, can significantly reduce the objective seriousness of wounding offences without eliminating criminal liability altogether.
  • Parity between co-offenders is not mechanical: where one offender faces additional convictions or was more heavily armed than another, different sentencing outcomes may be justified even where both were charged under the same joint criminal enterprise.
  • Under s 66 of the Crimes (Sentencing Procedure) Act, a court may impose an ICO where satisfied that community safety and reoffending risk do not require full-time custody, and that assessment is informed by the circumstances of the specific offender.
  • A s 10 disposition (no conviction recorded) for a joint enterprise offence is not available where the same offender has also been convicted of a related substantive offence arising from the same incident.
  • Mixed jury verdicts, with acquittals on more serious counts alongside convictions on others, can indicate the jury's partial acceptance of a self-defence claim and may inform the sentencing court's assessment of the circumstances in which the convicted offences occurred.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 93C, 114(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1), 9, 10, 10(1)(b), 10A, 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:
- Casella v R [2019] NSWCCA 201
- Gaggioli v R [2014] NSWCCA 246
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- 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
- The Queen v Phillips (1971) 45 ALJR 467