R v Le

The facts

1. At about 3:05am on the morning of 22 February 2022, three men entered into a house (apparently a housing commission home) at 2 Church Street Marrickville. They entered into the property by the rear door after overcoming a gate at the rear of the premises.
2. Inside the dwelling house were the victim (Ngoc Tuyen Ly), his son (Hoia Nam Ly, also known as 'Alex'), Thi Dung Bui (the victim's ex-wife) and Sungeon Bae (Alex's then girlfriend, also known as 'Nina').
3. The victim and his ex-wife had been watching television together before the latter went to bed in the main bedroom. The victim remained on the living room sofa.
4. After the entry of the three men into the home, one of them soon knelt on the victim's head; whilst the other two were seen (at least for a time) surrounding the victim. The person who knelt carried a gun. Another of the men also carried a gun. Two torches were used by the men.
5. Another of the men went into other parts of the home. Curiously, there was a camera in one of the bedrooms in which Alex was lying at or about the time that the intruders entered the home. CCTV footage (of short duration) showed that one of the three men entered that particular bedroom (carrying a black back-pack) and touching or indeed rifling through loose items and removing a black bag from the room. Nina had said that her hair dryer bag had been taken. It was likely that it was this bag that the man took.
6. There was other evidence to indicate, and I so find, that the door to the ex-wife's bedroom was damaged by one of the men. I further accept the ex-wife's bedroom that her bag in the kitchen, containing bank cards and her Medicare card were taken by the group.
7. The inference was strong that the three men were motivated to take property belonging to the occupants in the home. That inference was put beyond reasonable doubt by evidence, from each of the victim and Alex, which I accept, that each of them heard the questions "Where's the money" and "Money. Money. Money?".
8. As one of the three men knelt on his head, the victim struggled to move his head. After doing so, one of the men used the gun to strike him above his right eyebrow. This caused blood to seep down the victim's face and on to the lounge room sofa.
9. Although the other occupants of the home gave limited descriptions of the physical appearances of the three men in the trial, the task of identification was hampered, amongst other reasons, because all of them were said to be wearing face masks precluding any fuller description.
10. The jury's verdict signifies acceptance of the following facts: (a) the use by the group of multiple guns and torches, (b) the concealment of the men's physical appearances, (c) the entry into the place at a time when it was plainly expected that there would be occupants and (d) the hovering around the victim when his head was being knelt on.
11. All of these facts made out the elements of the intention of all of the men to commit the 'serious indictable offence' (of intimidation). Moreover, the circumstances also established the element of the factor that the accused was in the company of other persons.
12. As to the offence of intimidation, it was common ground that this was a reference to the offence in s 13 of the Crimes (Domestic and Personal Violence Act) 2007 (NSW), which incorporates the definition of 'intimidation' in s 7 of that legislation. That offence carries the maximum penalty of 5 years' imprisonment satisfying the threshold requirement of a 'serious indictable offence' (under s 4 of the Crimes Act).
13. A document prepared at trial that correlated the real times when the entry and exit of the men from the dwelling house indicated that the men were in the house for about 7 minutes.
14. In addition to the victim's experience, there was also evidence in the trial about the fear experienced by the other occupants: Alex and Nina ran out into the street (the latter screaming for help) and the victim's ex-wife, ran out into or beyond the rear yard, hiding behind a car; before the arrival of the police (commendably) not that long after the men had left.
15. The most significant factual issue determined by the jury was that the offender was one of the three persons who entered into the property.
16. The Crown succeeded at trial in establishing before the jury that the offender was one of three persons involved in an extended joint criminal enterprise. The foundational offence was that of aggravated entry into the dwelling house, contrary to s 111(2) of the Crimes Act; with the particular aggravating circumstance being that the offender's entry was "in the company of other persons".
17. The additional crime or offence of specially aggravated entry into the dwellinghouse was established by the jury being satisfied beyond reasonable doubt that if it was not the offender himself who struck the victim with the gun, the offender at least foresaw the possibility that one of the other 2 participants to the enterprise would, once inside the dwelling house, use a handgun to strike and intentionally wound the victim. The specially aggravated entry into a dwelling house was the index offence. It is not however, possible for me to find beyond reasonable doubt that it was the offender who actually struck the victim on the latter's head.
18. In lieu of anyone seeing (or hearing) him actually enter into the dwelling house in question, the Crown's case of the offender's involvement depended for the jury's acceptance of its circumstantial case. The evidence for that circumstantial case that directly implicated the offender largely comprised:

• the offender repairing the grey or silver-coloured Lexus motor vehicle (the 'vehicle') (replacing the left rear tyre) within hours of his entry into the dwelling house at premises at 328 Illawarra Road (from which the 3 persons to the joint criminal enterprise embarked on their journey to the dwelling house that they entered);
• the offender depositing items of property into a communal bin in the aforementioned apartment block (including one of the false licence plates giving rise to the 'back up' offence);
• the offender riding and, to some extent, walking a bicycle back to the crime scene after the offence (by essentially the same route that the vehicle had earlier been driven) and being seen by a local resident surveying (and even smiling at) police after police had been called to the crime scene;
• the offender having changed his clothes after the commission of the offence to when he returned riding (and walking the bicycle) to the property where the offence took place.

1. All of this evidence is now relevant to establishing the degree of planning between the three men in preparation for the offence. It also establishes the 'back up' offence to which, as I indicated, the offender pleaded guilty.
2. As indicated, it was an agreed fact in the trial that one of the occupants, the victim, received a wound that necessitated 8 or 9 stitches.
3. At the risk of some repetition, consistently with the jury's verdict, and with reference to some of the evidence referred to above, the Crown submitted, and I accept that:

• The offender travelled to the premises with two other unknown persons;
• The offender entered into the premises with those two persons;
• The offender and those other persons entered the premises with their faces covered;
• The offender and the two other persons threatened and demanded to know from the victim where money was;
• There were 4 occupants inside the premises at the time, including the victim;
• One of the three persons entering the premises had a handgun under their possession; and
• This handgun was used to pistol-whip the victim causing a wound above his right eyebrow.

The offender's position

1. After his conviction and his going into custody, the offender confided in his clinical psychologist, Dr Pusey, that "I should only have been found guilty of lending my car to the wrong person. I was unable to say no to him because he was standing over me." The offender intimated that this person was not someone who he could really say no to when they wanted something from him. It was that person who, at the trial, the offender had said, had died 3 or 4 days after the incident.
2. He otherwise cavilled with the jury's verdict; asserting that he had not entered into the house. He indicated his intention to appeal his conviction.
3. From his conversations with the offender, Dr Pusey surmised that part of the offender's explanation for his conduct was a fear for his safety and well-being if the demand placed upon him to use his car was rejected.

Evaluating the objective seriousness of the offences

1. Whilst acknowledging the broad range of conduct that could make out the offence, the Crown submitted that the offending conduct could be classified as a 'home invasion'. But the offending here was a severe example of that conduct. With reference to s 105A(1) of the Crimes Act, aggravating circumstances of the offending included that: the offender was in the company of two unknown persons. The group as a whole held down the victim; thereby preventing the possibility of his escape. Aside from the victim himself, the offender knew that there were other persons in the premises when entering the premises. The Crown submitted that specially aggravating features of the offending were that the wound to the victim's eyebrow (requiring stitches) was intentionally inflicted by a dangerous weapon. I accept all of these matters going to the objective gravity of the offending.
2. Further, in anticipation of what I say about, and perhaps to pre-empt a point that the Crown will make regarding further aggravating factors under s 21A(2) Crimes (Sentencing Procedure) Act 1999 (NSW) ('the CSP Act'), I also take into account, as relevant to the objective gravity that the victim was situationally vulnerable because he was virtually asleep at the point when he was pinned down: Du Plessis v R [2024] NSWCCA 164 at [64]-[70].
3. The offender argued that it could not be found that the offender was in the possession of the firearm; nor that the offender had actually known of the presence of the firearm. Whilst true, these matters only marginally lessen the gravity of the offending. The offender was at least one of the persons who pinned the victim down. Assuming that he did not administer the pistol whipping himself, he was complicit in the act and there was nothing to indicate his baulking at one of the co-offenders who did; or demonstrating any care for the victim's welfare. His Counsel accepted, however, that the offending involved the actual use of a weapon against the victim. I take into account that the extent of the wounding, which aside from the visible result indicated in a photograph exhibited in the trial, was not shown to have long-lasting effects. I do not, however, overlook what I take to be the psychological effects upon the victim of the wounding.
4. In terms of the objective gravity of the offending, Counsel for the offender submitted the offending sat just below the mid-range. I agree with that characterisation.

Statutory aggravating factors

1. The index offending was aggravated by the circumstance of its occurring in the victim's home: s 21A(2)(eb) CSP Act; although care is needed to avoid double-counting given that this particular factor is commonly apparent in an offence of this kind.
2. Other occupants of the home, other than the victim of the wounding, witnessed aspects of the home invasion and, in that particular sense, were victims as well. They were, to a degree, shocked and fearful at the intrusion into their homes. The consideration in s 21A(2)(m) of the CSP Act was engaged.
3. In relation to the victim who was wounded, Tuyen Ly, the Crown submitted that because he was asleep on the lounge and had only roused by noise, when he was set upon, he was unable to defend himself. This was said to engage the aggravating circumstance of his being 'vulnerable', for the purposes of s 21A(2)(l) of the CSP Act. I disagree. Vulnerability for this purpose usually refers to classes of recognised cases where, by reason of age, employment or situation, the victim attains that status; not simply because of the particular circumstances that pertained when the relevant element of the offence occurred: Du Plessis at [58]. Further, I note that the circumstance that I have already taken into account the circumstances of the victim (along with the other occupants) being in his home.
4. In the facts outlined, I referred to preparatory steps and acts of concealment before and after the offending. I prefer to have regard to those facts as engaging the statutory aggravating factor of planning under s 21A(2)(n) of the CSP Act rather than treating it under the rubric of objective seriousness. I accept the Crown's submission that steps were taken to hide the identity of those involved in the enterprise.
5. By its written submissions, the Crown alluded to the offender's criminal history as an aggravating factor. I prefer to address that matter when considering the offender's subjective case.

Age, background and health condition

1. The offender was 44 years of age at the date of the offending. He is now 46 years old. The offender's background was closely considered by Dr Paul Pusey, a clinical and forensic psychologist, who prepared a report dated 7 September 2024, from which the following observations are mainly drawn. Dr Pusey interviewed the offender (by AVL) for 2 hours on 6 September 2024. Dr Pusey has been a practising psychologist now for 20 years. Dr Pusey relied predominantly upon the offender's self-reporting.
2. The offender is one of 8 children born into a Vietnamese family that migrated to Australia when he was 8 years of age. His parents divorced when he was aged between 13 and 14. His mother looked after him in Glebe, where she still resides. Two of his siblings are now deceased. He said he gets along well with the rest of them even though he acknowledged that he had been chastised by them for his behaviour in the past. He also indicated his belief that he has a positive relationship with both of his parents.
3. Under his mother's care at Glebe, he started to get into trouble; going into juvenile detention and for a time moved to Port Macquarie. Like many others who come before this Court, he said that he had been abused in juvenile detention and exposed to antisocial behaviour. This led to his making a civil claim to compensation, which process concluded at the end of 2023.
4. In relation to his education, he left school in Year 10; having had stints in schools in Sydney and Port Macquarie. Since leaving school he has attempted studies at TAFE, but he was unable to complete them.
5. In terms of his employment history, he spent time working in a bakery in his brother's shop in Port Macquarie but accepted that his employment history was inconsistent.
6. The offender did not consider himself very social. Most of his associations were with drug users and this has been his plight since he left juvenile detention.
7. He said he has been in a relationship with a partner, for a period of 3 or 4 years. He is the father of 4 children (most teenagers but one adult) to a former wife; from whom he has been separated for about 10 years.
8. The offender told Dr Pusey that prior to entering into custody, he was a regular heroin user; using it 3-4 times a day for the past 10-15 years. It was, he said, his "drug of choice". The offender indicated to Dr Pusey that the commencement of his drug taking was a consequence of his experience in juvenile detention; so he could "forget about some things and block a lot of things out". He said that he had some history of treatment for his substance use. He indicated that to some extent this was effective. He had also had some drug and alcohol counselling whilst on parole.
9. Dr Pusey used certain tests to help him check the veracity of what he was told. The upshot was that he considered the offender's presentation was credible.
10. He diagnosed the offender as having a substance use disorder in early remission and a major depressive disorder. He also considered whether the offender had PTSD; before recommending that further work be done to confirm that provisional diagnosis.

Moral culpability

1. I do consider that there is scope to find that the offender's background and childhood, featuring his exposure to abuse, led to his resort to drugs and association with anti-social persons. The drugs were a misconceived coping mechanism and, in this way, precipitated to the downward spiral that the offender had found himself in. There is, in the offender's circumstances, some potential scope to reduce his moral culpability on account of Bugmy principles (Bugmy v The Queen (2013) 249 CLR 571). I further observe that even for serious offence of the present kind as count 1, this can serve to substantially moderate the salience given to general deterrence for this type of offence (eg Lloyd v R [2022] NSWCCA 18).
2. The offender denied that he was experiencing depression at the time of the offending. He did however, articulate his belief that his decision-making was "impacted by substance use". But as Dr Pusey noted, this subjective expression of belief was not unique: according to Dr Pusey, the offender attributed his extensive criminal history to substance misuse.
3. In the circumstances, I do not ascribe any causal connection between that condition and the offender's offending; especially in light of the way in which the offender expressed his position; which was effectively that he was doing what he was told by an unnamed person who died a few days after the offending in question. That said, for the purposes of determining eligibility for a referral of the offender to the Drug Court (under s 5A(1)(e) of the Drug Court Act 1998 (NSW), whose purposes (under s 3(1) of that Act) are not necessarily aligned to the CSP Act, there is a nice question whether his offence was "related to the person's long-term drug dependency and associated lifestyle". That may ultimately be a matter for the Drug Court to consider.
4. Moreover, there was little or nothing to show what attempts he had made to treat his substance misuse before the offending; and according to Dr Pusey, even as he faced this sentencing hearing, he was not currently involved in any treatment.
5. In a case preceding Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, that being R v Wright (1997) 93 A Crim R 48, Hunt CJ at CL said (at 50-51), that 'general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others', but his Honour added the rider: "But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great." [1]
6. In this, on the offender's own case (though it was rejected), there was nothing to indicate that he did not know what he was doing, in lending the car or making inquiry as to the possibly nefarious uses to which the car might be put. He was, rather, exercising a judgment in what he perceived to be his best interests and made a moral choice.
7. I am unable to accept, on the probabilities, that the offender's substance use disorder or any other mental condition, diminishes his culpability in any material way and in fairness, the offender's Counsel did not attempt to persuade me otherwise.

Antecedents

1. The offender's criminal record was before the Court on the sentencing hearing. It is not impressive. Leaving aside many violence offences dealt with in the Children's Court, he has been dealt with in the Local Court, this Court, and the Drug Court for many offences of larceny, break and entering, dealing with the proceeds of crime, driving and drug possession offences for which he has previously been incarcerated. The offender's record disentitles him to leniency.
2. More than this, however, the Crown submitted that his history manifested a continued disobedience to the criminal law (Veen v R (No.2) (1988) 164 CLR 465 at 477). It was said that specific deterrence was accordingly a consideration to which substantial weight should be given. I agree with that and would add that it also bears upon an assessment of his rehabilitation prospects.

Remorse/contrition

1. The offender did not give evidence in the sentencing hearing. He told Dr Pusey that the only aspect of regret was that he had "loaned my car to the wrong person." I have already noted Dr Pusey's record of what the offender told him. Essentially, the offender maintains his innocence and plans to appeal his guilty verdict. That is his right and I draw no conclusion adverse to the offender from his planned exercise of that right; save to say that his indicative position removes from him the capacity to rely upon a factor in mitigation that he might otherwise have had.

Character references and their significance

1. In the sentencing hearing, the offender relied upon written testimonials from his daughters (Madison Huong and Anissa Le) and partner (Lauren Coleman).
2. These referees acknowledged the offender's struggles with addiction and paint a picture of his being a loving and supportive father and partner. These references do not really prove that the offender was a person of prior good character.

Rehabilitation prospects & likelihood of re-offending

1. The referees, especially Ms Coleman (who attended Court at the sentencing hearing), do however, provide a measure of support on this issue. Ms Coleman referred to the offender's motive to seek help for his addiction and favourably commented upon the effect of his being sober since going back into custody. His daughter, Anissa, commented upon the offender being 'eager to make a change in his life'. I recognise, in favour of the offender's case on the issue of his rehabilitation prospects, that he has family support. Apart from this, the offender did not produce anything to indicate his prospects for employment or other prosocial matters.
2. In the absence of evidence directly given by the offender, such hearsay assertions by family members about the offender's commitment substantially go no higher than vague aspirations and therefore weight should considered accordingly. There is, as Dr Pusey's report shows, little objective evidence to indicate any real commitment to change.
3. Dr Pusey opined that the offender's risk of recidivism was moderate to high; an opinion based upon the offender's extensive history of criminal offending which was (according to the offender) attributable to his substance misuse and general mental health pathology. Reference was also made to the offender not currently receiving treatment in relation to his substance use or mental health pathology to address his 'risk factors'. He supplied a treatment pathway for the offender.
4. It follows from Dr Pusey's rather hedged opinion that the offender's rehabilitation prospects can only be regarded as guarded. I cannot discount the not insubstantial prospect that he will re-offend again.
5. The focus of the offender's oral argument in the sentencing hearing was quite narrow. It was that the offender had an entrenched heroin addiction which needed redressing, preferably by participation in a drug treatment program at Parklea. This was a program thought to be of 18 months duration. There were at least some indications that he might be motivated to commit himself to the program and he should have the chance to so participate. That would be to his personal benefit and derivatively, the community's benefit.

Instinctive synthesis

1. I am of course mindful of the maximum penalty.
2. I am also mindful of the competing sentencing principles in s 3A of the CSP Act.
3. The Crown drew my attention to the observations of Bellew J in O'Grady v R [2013] NSWCCA 281 at [43]-[44], which emphasised the Court's prime responsibility to protect the community from offending of the current kind.
4. The offender acknowledged the need for community protection and for the offender to be held accountable for the harm inflicted upon the victim who was wounded (whose dignity requires vindication) and the violation of the sanctuary for the other occupants afforded to them by their home and community more generally. The offender curiously took issue, however, with the salience of general and specific deterrence. His Counsel did not develop the point in oral argument. I find, however, that both sentencing considerations do have substantial weight in this sentencing exercise. In all of the circumstances, including the use of the weapon and resultant wounding in premises involving 4 occupants, weight should be given to retribution and denunciation.
5. The offender conceded that the s 5(1) threshold was crossed; and also that it should be by way of full-time custody. I agree.
6. The offender argued, however, for a finding of special circumstances to address his substance abuse issues. The Crown acknowledged that it was open to make such a finding, albeit that the extent of the variation was affected by all sentencing considerations. In view of Dr Pusey's references to his lack of treatment to date, his case for such a finding is far from compelling. In my view, he understands the concerns of his family members who support him and some incentive needs to be given to him to treat his condition; and this justifies some alteration to the statutory ratio.
7. The offender took no point against the offence on the s 166 certificate being separately the subject of a fine. I view that related offence as a serious instance of offending of that kind; given the purpose for the offending.

Pre-sentence period in custody

1. The offender has been in custody, in total for nigh on a year (1 year and 1 day). The commencement date for the sentence will be backdated to take that period into account.

Referral to the Drug Court

1. Counsel for the offender submitted that her client was appropriately eligible for a referral to the Drug Court. The Crown did not object to such referral.
2. I first have to consider whether there are "grounds on which the Drug Court might find the person to be an eligible convicted offender". It is immediately apparent that this Court is not obliged to actually determine the question of whether he is an eligible convicted offender, as that concept is defined in s 5A(1) of the Drug Court Act 1998 (NSW). I alluded to the aspect of connection in s 5A(1)(e) earlier in these remarks and I consider that the issue referred to in that particular eligibility requirement is open, notwithstanding the views expressed earlier when considering the offender's moral culpability. Another question, arising from the facts, is whether the exception in s 5A(2)(a), the offence for which the offender was convicted 'involved the use of a firearm'.
3. As will shortly become apparent, s 5A(1)(b)(i) and (ii) will not present particular difficulty.
4. Generally, the threshold question in s 18B(2)(a) does not represent a high bar. It suffices for me to find that there are grounds for the Drug Court to find that the offender is an 'eligible convicted offender'. By s 18B(2)(b), it is my duty to refer the offender to the Drug Court to determine whether the person should be the subject of a compulsory drug treatment order.

Sentence and orders

1. Mr Le, please stand.
2. For count 1 on the indictment, I sentence you to a term of imprisonment of 5 years, commencing on 12 September 2023 and expiring on 11 September 2028. The non-parole period is 3 years and 4 months, expiring on 11 January 2027; after which you will be eligible for release on parole.
3. For the offence attached to the s 166 certificate, I sentence you to a fine of $1,500.
4. Pursuant to s 18B(2) of the Drug Court Act 1998 (NSW), I refer you to the Drug Court to determine whether you should be the subject of a compulsory drug treatment order.

Endnote

1. This reasoning was applied in Blake v R [2021] NSWCCA 258 per R A Hulme J (Leeming JA and Fullerton J agreeing) at [44]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2024