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District Court 13 September 2024

R v Le

[2024] NSWDC 421

Assault & violenceDrugsTheft & property
CRIMINAL LAW SENTENCING OFFENDER HAS ENGRAINED HEROIN ADDICTION

Citation: R v Le [2024] NSWDC 421
Court: District Court of New South Wales
Date: 13 September 2024
Judge: Abadee DCJ

Background

The offender was convicted by a jury of specially aggravated entry into a dwelling house under s 111(3) of the Crimes Act 1900 (NSW), following a home invasion in the early hours of 22 February 2022 at a housing commission property in Marrickville. Three men forced entry through the rear of the house, where four occupants were present. One man knelt on the head of the victim, who was struck above the right eyebrow with a handgun, requiring eight or nine stitches. The intruders demanded money and removed property before leaving after approximately seven minutes.

The Crown's case rested on circumstantial evidence placing the offender within the joint criminal enterprise. No witness directly identified the offender entering the house. The evidence against him included his repair of the getaway vehicle shortly after the offence, his disposal of property including a false number plate, his return to the crime scene by bicycle, and his change of clothing after the offence.

Shortly after the jury verdict, the offender also pleaded guilty on a s 166 Criminal Procedure Act 1986 (NSW) certificate to using false number plates on the getaway vehicle, contrary to the Road Transport (Vehicle Registration) Regulation 2017 (NSW).

  • What facts could the sentencing judge find consistently with the jury's verdict, and to what standard must disputed facts be proved?
  • What was the offender's precise role in the joint criminal enterprise, and how did that bear on his moral culpability?
  • How should the offender's entrenched heroin addiction be weighed in the sentencing exercise?
  • Whether the offender should be referred to the Drug Court under s 18B(2) of the Drug Court Act 1998 (NSW), having regard to the eligibility criteria in s 5A, including whether the offence "involved the use of a firearm."

Decision

Abadee DCJ accepted that the offender was one of the three participants in the enterprise but could not find beyond reasonable doubt that he was the person who actually struck the victim with the gun. The jury's verdict on the specially aggravated offence was consistent with the offender having foreseen the possibility that one of the other participants would use a handgun to strike and wound the victim, without necessarily being the person who did so. This distinction informed the court's assessment of the offender's moral culpability, which was treated as serious but calibrated to his role in an extended joint criminal enterprise rather than as a principal offender who personally used the weapon.

The offender's longstanding and deeply entrenched heroin addiction was acknowledged as a relevant mitigating factor under the principles in Bugmy v The Queen (2013) 249 CLR 571. However, consistent with established principle, addiction did not excuse the offending; it was relevant to explaining why the offender may have participated and to the question of rehabilitation.

On the question of Drug Court referral, Abadee DCJ found that there were grounds on which the Drug Court might find the offender to be an eligible convicted offender within the meaning of s 5A(1) of the Drug Court Act 1998 (NSW). The District Court noted that the threshold under s 18B(2)(a) is not a high bar: the referring court need only find that grounds exist for the Drug Court to make that determination, not that eligibility is established. Notwithstanding the arguable application of the firearm exception in s 5A(2)(a), the court was satisfied the referral threshold was met, and a referral was made.

Orders Made

  • Count 1 (specially aggravated entry into a dwelling house): imprisonment of 5 years, commencing 12 September 2023 and expiring 11 September 2028; non-parole period of 3 years and 4 months, expiring 11 January 2027.
  • s 166 certificate offence (false number plates): fine of $1,500.
  • Referral to the Drug Court under s 18B(2) of the Drug Court Act 1998 (NSW) to determine whether the offender should be subject to a compulsory drug treatment order.

Key Takeaways

  • A sentencing judge following a jury verdict may make independent factual findings, provided those findings do not conflict with the jury's verdict, as confirmed in Savvas v The Queen (1995) 183 CLR 1 and Cheung v The Queen (2001) 209 CLR 1.
  • Under an extended joint criminal enterprise, an offender's moral culpability falls short of that of the person who physically inflicted harm, where the sentencing court cannot find beyond reasonable doubt that the offender was the direct perpetrator.
  • Disputed facts adverse to an offender must be proved by the Crown beyond reasonable doubt; disputed facts favourable to the offender need only be proved on the balance of probabilities, following R v Olbrich (1999) 199 CLR 270.
  • The threshold for referring an offender to the Drug Court under s 18B(2) of the Drug Court Act 1998 (NSW) requires only that the sentencing court find grounds on which the Drug Court might determine eligibility; the referring court is not required to resolve the eligibility question itself.
  • Entrenched drug addiction remains a relevant mitigating factor in sentencing, capable of bearing on moral culpability and prospects of rehabilitation, but it does not excuse participation in serious offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 105A(1), 111(2)-(3)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Court Act 1998 (NSW), ss 3, 5A, 5B, 18B
- Road Transport (Vehicle Registration) Regulation 2017 (NSW), s 129(3)

Cases
- Blake v R [2021] NSWCCA 258
- Bugmy v The Queen (2013) 249 CLR 571
- Cheung v The Queen (2001) 209 CLR 1
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Du Plessis v R [2024] NSWCCA 164
- Lloyd v R [2022] NSWCCA 18
- O'Grady v R [2013] NSWCCA 281
- R v Olbrich (1999) 199 CLR 270
- R v Wright (1997) 93 A Crim R 48
- Savvas v The Queen (1995) 183 CLR 1
- Veen v R (No.2) (1988) 164 CLR 465