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Supreme Court 31 May 2019

R v Le

[2019] NSWSC 633

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

Citation: R v Le [2019] NSWSC 633
Court: Supreme Court of New South Wales
Date: 31 May 2019
Judge: N Adams J

Background

The offender was convicted by jury of being armed with three knives with intent to commit assault, contrary to s 114(1)(a) of the Crimes Act 1900 (NSW). The conviction arose from events on 12 February 2016 in Bonnyrigg, when the offender and his co-offender had gone to the assistance of a neighbour who feared she was about to be attacked by her estranged partner.

The neighbour's partner, who was drunk and enraged, had telephoned friends at a nearby barbeque and falsely told them that the offender and his co-offender intended to assault him. A group of nine men responded and launched an unprovoked attack on the offender, causing serious injuries including lasting damage to his right wrist. The offender managed to break free, arm himself with a knife, and return toward the remaining attackers.

The central question at trial was whether the offender had acted in self-defence. The jury convicted him of the weapons offence under a joint criminal enterprise theory, rejecting the self-defence argument in that specific context. The more serious charges on the indictment were brought against the co-offender alone; the offender faced only count 7.

  • What facts should be used as the basis for sentencing, given that the prosecution and defence submitted competing accounts of differing seriousness?
  • Where on the scale of objective seriousness did this particular offence fall?
  • What weight should be given to the offender's lack of prior criminal history, the circumstances that led to the offence, and the injuries he sustained?
  • Whether it was appropriate to impose a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) rather than proceeding to conviction and a formal sentence.

Decision

Adams J first addressed the factual basis for sentencing. Because no agreed facts were tendered, the court was required to resolve competing submissions. Following R v Isaacs and The Queen v Olbrich, the court applied the standard that facts adverse to the offender must be proved beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities. The court then identified and weighed all relevant factors in accordance with the approach confirmed in Markarian and Muldrock.

On objective seriousness, the court placed this offence at the very bottom of the range for s 114(1)(a) offences. The offender had not initiated the confrontation; he was responding to a violent and unprovoked group assault that left him with ongoing physical injury. The offence arose directly from his attempt to assist a neighbour at risk of domestic violence.

On subjective factors, the court noted the offender had no prior criminal history, had suffered significant injury and financial loss, and had been required to face a six-week Supreme Court trial. The court also observed that the individuals who attacked him had been offered charge-bargaining arrangements that were not extended to the offender. These matters, taken together, were treated as significant mitigating circumstances.

The court concluded that a s 10 order was appropriate. While the offence was not "trivial" in a strict sense, Adams J found that the combined circumstances, including the offender's character, the extenuating background, and the absence of any need to protect the community, justified declining to record a conviction.

Orders Made

  • Without proceeding to conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender was discharged on a conditional release order for 12 months.
  • The offender must not commit any offence during the term of the conditional release order.
  • The offender must appear before the court if called upon to do so during that period.

Key Takeaways

  • A court sentencing on contested facts must apply the Olbrich standard: facts adverse to an offender require proof beyond reasonable doubt, while facts favourable to the offender require proof only on the balance of probabilities.
  • Under s 10 of the Crimes (Sentencing Procedure) Act 1999, a court may decline to record a conviction even where an offence is not strictly "trivial," provided the overall circumstances, including character, antecedents, and extenuating factors, warrant that outcome.
  • The Supreme Court noted that s 114(1)(a) of the Crimes Act 1900 is not commonly dealt with at that level and that the offence carried a maximum of seven years imprisonment with no standard non-parole period.
  • Retaliatory circumstances following a serious unprovoked assault were treated as significantly reducing the objective seriousness of the weapons offence, placing it at the lowest end of the range.
  • Disparity in the treatment of co-offenders and attackers, specifically the availability of charge-bargaining for those who had actually initiated the violence, was among the matters the court considered relevant to the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 114(1)(a) and (b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Criminal Procedure Act 1986 (NSW), s 3
- Interpretation Act 1987 (NSW), s 21

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Isaacs (1997) 41 NSWLR 374
- R v Ingrassia (1997) 41 NSWLR 447
- R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268
- R v Mauger [2012] NSWCCA 51
- Paris v R [2001] NSWCCA 83
- Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54