R v Le (No. 2) [2019] NSWSC 763

Citation: R v Le (No. 2) [2019] NSWSC 763
Court: Supreme Court of New South Wales
Date: 21 June 2019
Judge: Wright J

Background

The offender was arrested in January 2016 and charged with the murder and armed robbery of a victim at Campsie on 28 March 2015. He was found unfit to be tried in April 2018, and the Mental Health Review Tribunal subsequently determined he would not become fit within 12 months. As a result, a special hearing was conducted before Wright J sitting alone, as required under the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act).

At the conclusion of that special hearing, the Court found, on the limited evidence available, that the offender committed manslaughter (rather than murder) on count one, and committed robbery armed with an offensive weapon on count two. Those findings constituted qualified verdicts under the MHFP Act, not convictions in the ordinary sense.

The present judgment addressed the sentencing-equivalent step required by the MHFP Act: determining whether a sentence of imprisonment would have been imposed had the matter proceeded as a normal criminal trial, and if so, nominating a "limiting term" for each offence.

Legal Issues

Whether, in a normal trial against a fit accused, a sentence of imprisonment would have been imposed for each offence
What "limiting term" should be nominated for each offence under s 23(1)(b) of the MHFP Act
How standard sentencing principles, including those concerning mental illness, apply when nominating a limiting term
How the principles of totality and concurrency operate when multiple limiting terms are nominated

Decision

Wright J confirmed that a limiting term is not a punishment, because the offender has not been convicted of any crime. Its purpose is to set the maximum period the offender can be detained in custody, equivalent to the total sentence that would have been imposed following a normal trial resulting in conviction. The limiting term reflects the full sentence, not merely the non-parole period.

The Court applied the full range of sentencing principles, including the statutory purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the principles from Veen v The Queen (No. 2). It also applied the well-established principles governing mental illness in sentencing, as summarised in Aslan v R [2014] NSWCCA 114. Those principles are not absolute: the mere fact of mental illness does not automatically reduce moral culpability, diminish the weight of general deterrence, or reduce the significance of community protection. The sentencing court must examine the specific facts to determine which considerations are engaged and to what degree.

For manslaughter, Wright J assessed the objective seriousness of the killing, the circumstances of the offending, and the offender's mental state. For the armed robbery, the Court considered the statutory maximum, the use of a bladed weapon, and relevant subjective factors. On the question of totality, the limiting terms were structured to run concurrently in part, reflecting the fact that both offences arose from the same incident against the same victim.

Orders Made

Limiting term of 10 years nominated for the manslaughter of Xun Ke, commencing 28 January 2017 and expiring 27 January 2027
Limiting term of 8 years nominated for the robbery of Xun Ke whilst armed with an offensive weapon, commencing 28 January 2016 and expiring 27 January 2024
Offender referred to the Mental Health Review Tribunal pursuant to s 24 of the MHFP Act
Offender to be held in custody in an appropriate institution pending further assessment by the Mental Health Review Tribunal

Key Takeaways

A limiting term under the MHFP Act is the court's best estimate of the total sentence that would have been imposed had the special hearing been a normal criminal trial. It represents the ceiling on detention, not a minimum custodial period equivalent to a non-parole period.
Qualified verdicts under s 22(1)(c) and (d) of the MHFP Act do not amount to convictions. The purpose of nominating a limiting term is protective rather than punitive: it prevents detention beyond what could have been imposed following an ordinary conviction.
All standard sentencing principles apply when nominating a limiting term, including the purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), totality, and concurrency considerations where multiple offences are involved.
The principles concerning mental illness in sentencing, as restated in Aslan v R, direct the sentencing court's attention to commonly relevant considerations but establish no presumption. Reduced moral culpability, unsuitability as a vehicle for general deterrence, and increased burden of custody are possibilities to be assessed on the facts, not automatic consequences of a mental illness finding.
Where multiple limiting terms are nominated arising from a single incident, the totality principle remains operative, and concurrent or partly concurrent terms may be appropriate to avoid a combined term that exceeds the overall criminality of the offending.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 19, 22, 23, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 30L
- Crimes Act 1900 (NSW), ss 18, 24, 97

Cases
- Aslan v R [2014] NSWCCA 114
- Bhuiyan v R [2009] NSWCCA
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v AN [2005] NSWCCA 239
- R v Dawes [2004] NSWCCA 363
- R v Engert (1995) 84 A Crim R 67
- R v Green [1999] NSWCCA 97
- R v Le [2019] NSWSC 483 (verdict judgment)
- R v Lulham [2016] NSWCCA 287
- R v Mailes (2004) 62 NSWLR 181; [2004] NSWCCA 394
- R v Mitchell [1999] NSWCCA 120
- RS v R [2013] NSWCCA 227
- R v XX [2009] NSWCCA 115
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14