R v Loeung

Supreme Court of NSW|2019-08-16|Before: Adams J

Solicitors: Solicitor for Public Prosecutions (Crown) McAneny Lawyers (Offender) File Number(s): 2016/47425 Publication restriction: Nil

Background

On 12 February 2016, the offender was at home in Bonnyrigg with his wife and three young children having dinner with two guests when his quiet evening was interrupted by a female neighbour, previously unknown to him, arriving at his door seeking protection from her abusive boyfriend. The offender's subsequent assistance to this neighbour led to a series of events culminating in a violent altercation involving nine strangers who arrived at the offender's property and attacked him and one of his guests, Mr Duc Thuong Le. The offender used knives to protect himself and his family. By the time his attackers fled the scene four of them were injured, one fatally. The offender and Mr Le also were injured in the attack.

Background

It was common ground at the trial that the instigator of the unfortunate events which occurred on 12 February 2016 was Mr Danny Nguyen, a man not previously known to either the offender or Mr Le before that day. He is also the victim of count 6 upon which the offender stands to be sentenced.
As at 12 February 2016 Mr Nguyen was married but estranged and in a relationship with another woman, Anh Tran. He had been arguing with Ms Tran throughout the day. Mr Nguyen had told Ms Tran that he had to meet his ex-wife for coffee the following day because she had called him to do so. Ms Tran telephoned the ex-wife to confirm this and was told that, in fact, it was Mr Nguyen who had called her and told her that he wanted to reconcile with her. Ms Tran did not take this news well.
At approximately 7:41 pm, Mr Nguyen visited Ms Tran's house at 11 Howitt Place, Bonnyrigg. He begged her to come out. He begged her to stay with him. Ms Tran refused to open the door and Mr Nguyen eventually left.
After he left Ms Tran's house, Mr Nguyen drove a short distance to 24 Gregorace Place in Bonnyrigg where his close friend Ly Ho was holding a barbeque to celebrate Chinese New Year. A number of mutual friends of Mr Ho and Mr Nguyen were present at the barbeque. The men drank beer, smoked cigarettes, some of them snorted cocaine and some food was provided. Mr Ho, Mr Nguyen and the other men present were all in their late twenties or early thirties.
While he was at the barbeque Mr Nguyen continued to exchange abuse with Ms Tran over WhatsApp. He claimed that she kept calling him, harassing him and asking him to come over. Attendees at the barbeque described Mr Nguyen as crying, distraught and agitated. Mr Nguyen spoke with Ms Tran on the telephone around 10.30 pm at which time Ms Tran called him a "piece of shit" and a liar. When she told him that she had called his ex-wife he became very angry and threatened her. Aggressively, he told her he was going to her house to smash her car.
After Mr Nguyen threatened Ms Tran, she ran across the road from 11 Howitt Place to get help from the residents at 6 Howitt Place, which was directly opposite her house in the cul de sac. She did not know the residents of 6 Howitt Place personally nor they her, but they all knew each other by sight.
The residents of 6 Howitt Place at that time were the offender, his wife Shirley Tan and their three young children. The two guests at 6 Howitt Place that night were Mr Le, who the offender called "Godbrother" and Hang Pheng Oeng, who the offender called "Uncle", although they are not related by blood.
When Ms Tran arrived at the offender's address she was first met by Uncle, who was outside the premises. He indicated to Ms Tran that he spoke little English, only Cambodian, whereas Ms Tran spoke Vietnamese and English. Realising her inability to convey to him what was happening she went straight to the front door of the offender's house, which was open. There she found the offender, his family and Mr Le.
The offender and his guests had just returned from picking up take-away when Ms Tran arrived. The food was set out on the table ready for a late dinner. No alcohol had been consumed that night by any of the residents of 6 Howitt Place. When Ms Tran arrived at the address, Mr Le was watching television with one of the children while the other two children ate with their parents. The offender, Uncle and Mr Le all went outside the premises to wait with Ms Tran on the driveway in case Mr Nguyen arrived.
Whilst they waited outside, the offender spoke to Ms Tran at the end of the driveway while Mr Le stood by listening and smoking a cigarette. Ms Tran gave evidence that she was scared. She told them that "Danny" was going to "smash up" her car and she asked them to protect her. She gave evidence that she had been assaulted by Mr Nguyen before. She also gave evidence that her intention in going to the offender's home was so that Danny could see that she was with other people so he would not hurt her. "He wouldn't do that in front of people", she told police.
When Mr Nguyen drove to Howitt Place at 10:43pm he was drunk and very angry. Ms Tran was at the end of the driveway with Mr Le and the offender. Mr Nguyen later told police, "I felt this is my relationship and we can sort it out." Mr Le and the offender offered him advice: something to the effect of, "go home, sleep it off, come back tomorrow." Mr Nguyen mocked Ms Tran, saying, "What now you have your friends now to protect you?" The offender's wife, Ms Tan, had joined them at the end of the driveway. She gave evidence that Ms Tran was saying to Mr Nguyen, "You wanted to hit me, hit my car." The offender was trying to calm him down by saying, "You drunk, just go home. Hitting woman is not [the] solution."
Mr Nguyen lost his temper and drove out of Howitt Place at approximately 10:46pm. His car left tyre marks on the road. As he was leaving he telephoned Aaron Mah (who was present at the barbeque) and lied to him. His evidence in court was that he was so annoyed that his girlfriend was standing with these other men that he lied to his friends and told them that the offender and Mr Le were going to "jump" him. It was common ground at the trial that this was not the case.
Mr Nguyen gave evidence that, because of his own ego, he made up a story that he was threatened by Ms Tran's friends and had his friends believe that. He wanted to prove himself to be a "big fellow", that he could handle those men and he did not want to be humiliated. He went to see Ms Tran at her house to "straighten" her out that night because he did not want her communicating with his wife with whom he wanted to reconcile. He agreed that there was potential that he was going to be violent towards her had she been alone.
The offender had two cameras installed inside and outside the carport of his home. A significant portion of the incident which eventuated was captured on CCTV footage. The front door to the property was located inside the carport. It was an issue at trial whether the roller shutters were closed and whether the offender could, accordingly, see out through the windows to the driveway to see their attackers' arrival or retreat.
After Mr Nguyen left the scene, the CCTV footage shows the offender, Mr Le and Ms Tan speaking with Anh Tran on the driveway for a few minutes. Evidence was given by Ms Tan and Ms Tran at trial was that the offender advised Ms Tran to get an apprehended violence order against Mr Nguyen.
Meanwhile Mr Nguyen returned to the barbeque and lied to his friends. These eight men, namely, Mr Ho, Aaron Mah, Steven Huynh, Thahn Nguyen, Seng Ly Vong, Lawrence Chea, Van Bi Co, and Bao Quoc Tran, all took Mr Nguyen at his word and immediately made the short drive from Gregorace Place to Howitt Place in two cars, one driven by Mr Nguyen and the other by Mr Mah. The evidence given at trial did not establish what, if anything, they discussed on the way.

The first incident

At approximately 10:52pm, six minutes after he had left, Mr Nguyen returned to Howitt Place with his eight "mates". Mr Nguyen parked his black Subaru Liberty up on the nature strip opposite the offender's house. Mr Mah, who drove the other car, a Honda CRV, did the same. Each car was parked facing back towards the entrance to Howitt Place. It is clear on the evidence that each driver anticipated the need to make a quick exit.
By the time they arrived, the offender, his family and friends had only just gone back inside. They had stayed with Ms Tran at the end of the driveway while Mr Nguyen returned to the barbeque. As they returned inside they heard the cars pull up beeping their horns. It was at this point that the offender retrieved a combat knife from beneath the sink in the kitchen to protect himself and his family. It was a 24-centimetre knife with a serrated edge he had bought for a cousin in the Cambodian military. He had secreted it from his family beneath the kitchen sink intending on his evidence to post it to Cambodia at some point.
While the offender was getting the knife from the kitchen, Mr Le went outside to see what was going on. He was met by Mr Nguyen, surrounded by several of his friends, on the driveway. Mr Nguyen said, "What, what, you want trouble? You want trouble?" Mr Le replied that he did not.
Although most of what occurred next is captured by CCTV footage, there was a blind spot to the left of the camera recording the driveway where, on the Crown case, injuries were subsequently inflicted on Mr Nguyen, Mr Mah and Mr Co and a tree covered the view of where Mr Nguyen's car, the black Subaru Liberty, was parked across the street. The footage from these cameras was tendered by the Crown and marked as Exhibit C. It was shown many times to the jury and played to each eye-witness.
There is no dispute that Mr Nguyen incited the affray that ensued or that he was the one who struck first. The CCTV footage depicts Ms Tran trying to stop him when he arrived but Mr Mah pushed her away and almost immediately Mr Nguyen punched Mr Le violently, without warning, two times to the left side of his head. Everything escalated from there. The offender, who was some distance away, just outside the front door of his home, unsheathed the knife and produced it from behind his back. He went to where Mr Le was struck. He started swinging the knife indiscriminately towards his friend's attackers. In his words to police following the incident, he started to "chop" at them. He told police that he was "very hyped up" at that moment. During this time Mr Nguyen, Mr Huynh and Mr Co were all wounded.
Seconds after the affray had started, at approximately 10:53pm, the offender was forced onto his back in the carport. He fell into a narrow space between his car and his children's trampoline. He was pinned down there by Mr Ho and Mr Huynh who stood over him, throwing punches at him. Somehow he regained his feet. As he stood up, he struck at Mr Ho's abdomen with the knife in his right hand. That strike can be seen on the CCTV footage. Regrettably, this wound to Mr Ho proved to be fatal.
While the offender was on his back in the carport, Mr Le was on the driveway. He was ducking to defend himself against the others who had joined in the affray. Mr Le picked up a paving stone and threw it towards Mr Mah, missing him. Mr Mah then glassed him with a bottle to the back of his head. Mr Le was bleeding profusely from his head from that time.
After he received his fatal wound to his stomach, Mr Ho continued in the affray for ten or twenty seconds. He bounced around with his hands still up, seemingly oblivious to the damage done to his body. Fight-or-flight adrenaline must have kept him on his feet during this time.

The second incident

The men soon retreated to their cars. With the assistance of Mr Vong, Mr Ho made it to Mr Mah's car and was driven to Liverpool Hospital where he died shortly thereafter. Unfortunately the knife wound had cut the portal vein to his liver and he effectively died of blood loss.
As he was running back to his own car, Mr Nguyen gratuitously attacked Mr Le's car, a white Lexus SUV, which was parked directly in front of the driveway to the offender's home. He smashed the driver's side mirror and broke the windscreen causing other costly damage. Mr Co gave evidence that Mr Nguyen was "[g]oing crazy just punching the car". Mr Nguyen agreed in his evidence that after he could not "discipline" Ms Tran he was so angry that he later attacked a car not caring who it belonged to.
While Mr Nguyen was smashing up the offender's car, the offender and Mr Le ran back inside the house. No evidence was led that either offender had called the other inside for any express purpose. The kitchen where the knives were kept was a short distance from the front door. The kitchen was accessed through the living and dining rooms. Mr Le and the offender were inside the house for approximately 26 seconds during which time they each grabbed a knife from a block near the stove. Mr Le took a kitchen knife and the offender was now armed with a second knife.
While Mr Le and the offender grabbed the knives, Ms Tran was still outside speaking to triple-zero requesting police and ambulance officers to attend at the address. It would take a further 20 minutes for police to attend, by which time the attackers were long gone.
At 10:54pm, the CCTV footage shows the offender and Mr Le running out from the house. The offender and Mr Le run up the driveway to Mr Nguyen's Liberty which sat parked across the street between 12 and 13 Howitt Place. Although the first car driven by Mr Mah with passengers including Mr Ho had left the scene, Mr Nguyen's car remained at the scene.
Unfortunately for all concerned, the reason that the second car of attackers did not leave the scene was that Mr Nguyen had lost his car keys and could not find them to start the car and get away. This was known to the occupants of his car but not to the offender and Mr Le as they ran towards them. The only thing apparent to those outside the vehicle was that the attackers were not leaving. There were three occupants in this vehicle besides Mr Nguyen.
Mr Nguyen's window was down when the offender and Mr Le came to the car. The occupants of the car were yelling out: "Where the fuck is your keys?" At this time, whilst both the offender and Mr Le were both standing at the car, Mr Nguyen received two stab wounds to his right lower leg: one to the front of the leg and the second to the back of the same leg. The Crown relied upon the wound to the front of the leg in support of count 6. There was no suggestion in the Crown case that Mr Le had caused any injury to anybody in the car. The Crown case was that it was the offender who assaulted Mr Nguyen in his leg.
None of the three other men in the white car were able to explain how the driver of the car, Danny Nguyen, received two knife wounds to his leg. Mr Nguyen did not initially give any evidence at the trial that the offender had stabbed him in the leg. Nor did he ever implicate the offender in his police statements. The only time that he ever implicated the offender as having stabbed his leg was at his own sentencing proceedings on 2 June 2017. When Mr Nguyen failed to give any evidence about count 6 at the trial, the Crown prosecutor was granted leave to cross-examine him about this evidence he gave in his own sentencing proceedings. Mr Nguyen was reminded of some of this evidence and then the following exchange occurred: "Q. Do you agree you gave that evidence at the District Court? June, 2017? A. It is already here. Q. Do you agree? A. Yes. Q. And that's what happened that night, wasn't it, because your window was down you didn't want to get stabbed in the face or chest? A. Well, the window was down. There was a lot of things that was happening that night. Like I said, it happened very quick and I just wanted to get out of there. Q. The next question you were asked is: "What do you do in response?" And on your sentence you answered: "So as soon as they got closer, I put my leg out and I kicked them away out of my vehicle and at the time I got struck in the leg twice with a knife." Do you agree you gave that answer to that question? Correct? A. Give me a sec. So it's already been stated, it's already gone on the record, it's already here, so we're reading it through here. Do you want me to just confirm‑‑ Q. I'm asking you "yes" or "no" do you agree it's correct that that's what you said to the District Court as appears in the transcript? A. As it appears in the transcript. Q. Yes? A. Yes. Q. And that's actually what happened, Mr Nguyen, I suggest? A. As it appears in the transcript. Q. Yes, that is, as soon as they got closer you put your leg out, you kicked them away out of your vehicle and at that time you got struck in the leg twice with a knife; that is actually what happened, I suggest, Mr Nguyen, on the night, Friday 12 February 2016? A. As stated in the transcript. Q. You agree that's what happened that night? A. As soon as they got closer, yes, I put my leg out and that was ‑ it's already been written in the transcript. Q. What was in the transcript is what happened that night; is that your evidence before the jury? A. Yes. Q. You were asked, "Did you receive two stab wounds?" A. Yes. Q. And you gave an answer, "Yes"? What part of your leg was stabbed, Mr Nguyen? A. I don't remember. It's already in the exhibit. … CROWN PROSECUTOR Q. Can you tell the Court what part of or what leg was stabbed? A. I'm not sure. I don't ‑ it was, like I said, it happened very quick. I don't remember. I was just focusing on turning on my car and getting out of there."
The injury received by Mr Nguyen was on the lower part of the leg. The medical evidence at trial was that the wound did not penetrate any nerves or major arteries but it did penetrate into deeper subcutaneous tissue and muscle and also caused a segmented fracture to the tibia.
The offender gave evidence at his trial. When he was cross-examined about count 6 his evidence was that he could not remember what happened there. He did say at one stage of his evidence, "Yes we were struggling, I can't hold anymore", being a reference to the knives he dropped into Mr Nguyen's car before it drove away. It is to be noted that count 6 was one of seven counts on the indictment and the offender provided more details of his other actions that evening both in his police interview and in court.
Consistent with the verdict on count 6, I am satisfied that as the offender, whilst he had a knife in each hand, struck at Mr Nguyen's legs whilst they were outside of the vehicle as Mr Nguyen was fending the offender off by kicking in his general direction. There was no suggestion in the evidence that Mr Nguyen was outside the vehicle once the offender and Mr Le arrived at the vehicle. When the offender struck at Mr Nguyen's leg he intended to inflict serious bodily harm on him. His case at trial was that he did so in self-defence. The jury must have rejected this defence.
As for count 7, I make the same finding as I did when sentencing Mr Le on count 7. I am satisfied that the offender was acting in self-defence when he ran from his premises armed with the knives. Once he arrived at Mr Nguyen's vehicle it would have been apparent to both of them that none of the attackers were still on his premises and the last four of them were passengers in a stationery motor vehicle. Consistent with the jury's verdict, I am satisfied that from the time he arrived at the motor vehicle the offender must have realised that his life was no longer in immediate danger. It was at that time that he entered into a spontaneous agreement with Mr Le to instil fear or fright in the men who had attacked them.
When Mr Nguyen eventually found his keys, he drove to Liverpool Hospital, arriving at about the same time as the Honda CRV driven by Mr Mah, carrying the nearly dead Mr Ho. The two knives that the offender was armed with were later found by police in Mr Nguyen's vehicle.
The offender and Mr Le both agreed to be interviewed by police whilst at Liverpool Hospital and Fairfield Hospital respectively. The offender made admissions about being armed and about other of his actions that night but claimed he was acting in self-defence. He did not make any admissions in relation to causing any injury to Mr Nguyen at the car.

Objective seriousness: count 6

By its verdict on count 6 the jury was satisfied beyond reasonable doubt both that when the offender stabbed Mr Nguyen in the leg he did so with intent to inflict grievous bodily harm and also that the offender was not acting in self-defence at that time. It seems to me that the jury's verdict on count 6 is consistent with three different factual scenarios.
The first possible scenario is the one advanced by the Crown. The Crown case at trial and at the proceedings on sentence was that the assault on Mr Nguyen was an act of revenge or retaliation and that its objective seriousness falls "around the middle of the range" of offences of this kind.
The second possible scenario is that the jury could have accepted that the offence was provoked by the earlier assaults on his home which mitigated the offence, even though such provocation does not amount to a defence at law.
The third possible scenario is that the jury accepted that the offender believed that it was necessary to assault Mr Nguyen but that it was not reasonable for him to do so in the circumstances; that is, this is a case of excessive self-defence.
The principles guiding the fact-finding process on sentence are well established, the primary one being that the facts I find must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378. I may not take facts into account in a way adverse to the interests of the offender unless they are established beyond reasonable doubt, whilst it is sufficient if facts that are favourable to the offender are established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).
It is a significant fact that Mr Nguyen's vehicle remained at the property after the four men fled the scene. Some of the men were still on the offender's property when he ran into his home to get a second knife. This does not seem to be consistent with a retaliatory act as advanced by the Crown. The offender had no way of knowing that the reason that this second carload of men remained at the scene was because Mr Nguyen had lost his car keys. In fact, had Mr Nguyen simply been able to locate his car keys and leave at the same time as the other attackers, the incident would have ended very differently.
I am not satisfied that the attack upon Mr Nguyen was a retaliatory act. Although it occurred after the earlier events, those events also show that the offender was wounded and fearful at the relevant time, even if what he did in response to that fear was excessive. Nor is there any evidence that the offender targeted Mr Nguyen because he was the instigator of the earlier incident. Rather, Mr Nguyen was the only man sitting near an open car window whose leg was then seen to be kicking out of the window in response to the offender's actions. I am satisfied that the offender's actions were momentary and committed in highly confusing and distressing circumstances.
The evidence does not suggest any pre-meditation, foresight or planning. The offence occurred during a period of around 17 seconds from the time that the offender and Mr Le were on the driveway and disappeared out of the view of the camera to the time that the car is seen to drive away.
I am satisfied beyond reasonable doubt that the jury's verdict is consistent with the offender believing at the time that he had to act as he did to defend himself and his family but he over-reacted when he assaulted Mr Nguyen with a knife while he was inside a car. I am also satisfied that it would be consistent with the jury verdict on count 6 to find that the offender was extremely provoked at the time of the offence. This is consistent with the jury verdict and the other evidence at trial.
It is to be accepted that the offender was armed with two knives rather than one when he caused the wounds to Mr Nguyen and that the wounds had to be washed out intraoperatively and resulted in stitches. Despite this, there was no evidence that Mr Nguyen suffers any ongoing or permanent damage from the wound. On the contrary, Mr Nguyen's evidence was that he did not even remember being stabbed in the leg. The medical evidence from the doctor who treated him at Liverpool Hospital in the early hours of 13 February 2016 at that time was of the opinion that Mr Nguyen was "likely to recover well with good prognosis and good recovery".
Although it is to be accepted that a significant degree of force must have been used in inflicting the wound, the Crown case was that Mr Nguyen was kicking out at the offender to protect himself at the time he was stabbed. It is difficult to know the extent to which that movement might be relevant to the depth of the wound.
Although Mr Nguyen received two stab wounds, count 6 only relied on the wound to the front of the leg which required 20 stitches. I accept the Crown submission that the relevance of the second wound is that the count 6 wound was not an isolated act.
Having regard to all of these matters I am satisfied that the objective seriousness of this offence is in the low range. Although the wound was serious enough to require 20 stitches, I am not satisfied that the wound is so serious as to warrant a higher finding of objective seriousness for count 6. There are a number of unusual aspects of this case which place it at the low end of the range of gravity for such an offence.

Objective seriousness: count 7

Count 7 was brought under s 114(1)(a) of the Crimes Act. The elements of an offence contrary to s 114(1)(a) is that the offender armed himself and he did so with the intention of committing an indictable offence. An indictable offence is defined in s 3 of the Criminal Procedure Act 1986 (NSW) as meaning "an offence (including a common law offence) that may be prosecuted on indictment" (see also s 21 of the Interpretation Act 1987 (NSW)). A common assault is thus at the lowest end for such an offence caught by the section.
The Crown's case on count 7 was not that the offender had used or attempted to use the knife against anyone or even that he had threatened to use it. Rather, the Crown's case was that the offender had intended to commit assault in the common law sense of the apprehension of injury or the instillation of fear or fright: see The Queen v Phillips (1971) 45 ALJR 467; [1971] ALR 740 at 472 per Barwick CJ. It is on this basis that he stands to be sentenced.
The offender and Mr Le put to the jury in their defence on count 7 that they armed themselves to defend against their attackers rearming themselves or otherwise seeking reinforcements. The jury must have rejected these defences.
With respect to count 7 the Crown submitted that the offence would fall between the lower and middle of the range of offences of this kind. The Crown relied upon the fact that one of the three knives was a 24 centimetre bladed hunting knife and that the offence only ended with the car driving off. The offender submitted that there was no planning to commit the offence, that the offence took place in circumstances of extreme provocation, that the carrying of the knives was initially lawful, that the offender had been seriously assaulted by the "attackers" (which compromised his ability to rationalise his behaviour) and that the offence only took place for a matter of seconds.
When sentencing Mr Le I was satisfied that the offenders did not initially obtain the knives with any unlawful intent. Rather, the offender and Mr Le armed themselves for protection, but when that protection was no longer necessary, the knives were in their hands and they were armed from then onwards for the unlawful purpose of putting the occupants of the car in fear. The offence was not planned; it was spontaneous and possibly only extended for a few seconds. I accept that it was committed in circumstances of extreme provocation.
Although it is not necessary for me to make any particular finding of objective seriousness in relation to count 7, I am satisfied that it is at the low range of objective seriousness for an offence contrary to s 114(1)(a) of the Crimes Act.

The offender's personal circumstances

The Crown relied upon a Crown bundle which included the offender's criminal history, the offender's custodial record and a Sentence Assessment Report prepared by Raian Irani dated 22 July 2019.
The offender relied upon a report of forensic psychologist Bradley Jones dated 6 August 2019, a Mental Health Plan completed by Dr Sukao Ly dated 11 July 2019 as well as a letter from Dr Ly dated 22 July 2019.
Both the Crown and the offender also provided written submissions on sentence.
The offender did not give evidence at his proceedings on sentence. The following account of his personal circumstances has been obtained from the reports of Ms Irani and Mr Jones.
At the time of sentence the offender was 36 years old and of previous good character. He was born in 1982 in Cambodia and is one of four children. He has a close relationship with his three siblings and they work together in a family business. The offender's parents are business owners and he is close to both of them. He described his parents' relationship as loving. The offender's mother is very upset at what has happened.
The offender moved to Australia in 1997. He did not have much family in Australia but was happy here, involving himself in several sports, including soccer and basketball. He had completed the equivalent of kindergarten to Year 9 in Cambodia and he completed from Year 9 to Year 12 at Cabramatta High School. He described himself as an above average student who was generally well-behaved. He enjoyed school and would often volunteer to help teachers with physical training and sport classes. After leaving school he obtained a Certificate III in Information Technology at TAFE and commenced work in his parents' café business. Since 2013 he has been self-employed in a mobile telephone shop.
The offender met his wife when they were both still in High School. He described this relationship as loving and happy. The offender and his wife have three children, now aged 14, 8 and 5 years.
The offender told Mr Jones that the incident has had a significant traumatic effect upon his children. The children have not returned to their home since the incident and experience nightmares. He described them as being particularly frightened at night when people visit. Mr Jones indicated in his report that the offender's wife had confirmed to him that the two younger children sleep in their parents' bed at night and the oldest child still checks the front and back doors every night to ensure they are locked and secured.
The offender told Mr Jones that he suffers from anxiety since the offences. He was initially refused bail and spent over a month in custody before being released. He was unable to sleep whilst in custody and was "constantly on edge". After being released from custody he continued to experience anxiety, poor sleep and worrisome thoughts about the court proceedings and potential retaliation from the victim's family. The offender also reports reoccurring memories of the incident. He avoids driving past his former home to prevent triggering memories of the incident but denied experiencing more severe symptoms of trauma.
Mr Jones noted that although the offender reported no previous mental health history, he is currently very worried and anxious. In Mr Jones' expert opinion the offender is experiencing clinically severe levels of anxiety. To assist the offender and his family, Mr Jones recommended Cognitive Behavioural Therapy ("CBT") to address his depression and anxiety, latent memories of the traumatic event and family counselling. He has engaged in one session with a psychologist. Mr Jones advised that such treatment should extent for approximately six months.
In his Mental Health Plan dated 11 July 2019, Dr Ly recommended that the offender be considered for CBT for an adjustment disorder.
Mr Jones stated that the offender demonstrated significant insight into the offending and identified poor impulse control as a contributing factor to the offence. In Mr Jones' expert opinion, the offender does not have behaviours or personality traits suggestive of violence or a propensity to engage in anti-social or violent behaviours. Mr Jones stated that "[t]he offending would appear to be an aberration and entirely out of character." He assessed the offender's risk level as low risk for committing general offences relative to other offenders and he presents a low risk for engaging in violent behaviour.
In the Sentencing Assessment report, Ms Irani also observed that the offender demonstrates good insight into his behaviour as well as empathy. She assessed the offender as a "T2/Low risk of reoffending according to the Level of Service Inventory -Revised (LSI-R)." She stated that the offender is willing to undertake any directed intervention to address his risk factors and has undertaken to engage with a psychologist to address the issues surrounding the impact of his offending. She described him as willing to undertake community service work and assessed him as suitable for such work.

Relevant mitigating factors

I am satisfied that the offender poses a very low risk of ever re-offending. The Crown did not suggest otherwise.
I am also satisfied that the offender has very good prospects of rehabilitation. The reports before me disclose that he is able to identify his poor judgment, has sought a mental health plan, has demonstrated insight into his offending, is willing to undertake intervention by seeing a psychologist, is willing to undertake community work and was forthcoming with information during the assessment process.
The offender has close family connections, is in a committed relationship, has gainful employment and is in a stable environment. He has never come in contact with the criminal justice system before and it is highly unlikely he ever will again. This offence is clearly an aberration.
The offender submitted that a further factor relevant to the sentencing process is the wounds he received to his hands.
At the trial, the medical evidence was that the offender suffered serious lacerations to both hands that severed tendons. He has ongoing loss of strength and dexterity as a result of these injuries. The significant injuries to his hands require ongoing treatment and now limit his ability to continue his employment as a self-employed mobile phone technician.
The evidence of Dr Bello at trial was that these injures to the offender's hands were consistent with holding or trying to hold a knife and were also consistent with defensive injuries of grabbing a knife. Dr Bello agreed with another specialist, Dr Ryder, who is a specialist at the Hand Clinic at Fairfield, that Mr Loeung's injuries were sustained by "grasping the knifeblade or holding his hand up to protect himself from stabbing or slashing" and also consistent with his description of defending himself against a knife.
When the offender was in custody the wounds became infected. The offender submitted that in addition to the psychological effect of pre-trial custody he also suffered from his wounds not being properly treated.
The offender's case at trial was that the injuries were consistent with his description of defending himself against a knife and the medical evidence supported this. The Crown case was that they had been self-inflicted when the offender's hands slipped on the blades towards the end of the assault.
I have had regard to the medical evidence concerning how the offender's wounds could have been obtained. Although the matter is finely balanced, I am satisfied on the balance of probabilities that the injuries were not self-inflicted and were caused whilst the offender was trying to protect himself. I do propose to take these wounds into account as extra-curial punishment.

Parity

The offender submitted that, although not strictly a matter of parity, it is a relevant factor on sentence that the persons who attacked him were all either not charged or dealt with very leniently.
On 8 December 2017, Mr Mah, Mr Huynh and Mr Co each pleaded guilty to one count of affray contrary to s 93C of the Crimes Act. Mr Mah and Mr Co were sentenced to 2 year good behaviour bonds under s 9 of the Sentencing Act whereas Mr Huynh was placed on a 12-month bond.
The CCTV footage played at the trial, as well as other evidence, established that Mr Mah had smashed a bottle over Mr Le's head resulting in serious head lacerations. He was never charged for this assault. Unlike the offender, Mr Mah had a criminal record.
The CCTV footage also clearly depicts Mr Huynh armed with a bottle punching the offender repeatedly whilst he lay on the ground. Mr Huynh was not charged for his attack on the offender.
Mr Nguyen pleaded guilty to affray and received a 15 month suspended sentence. He also pleaded guilty to using carriage service to menace, harass or offend Ms Tran contrary to s 474.17 of the Criminal Code (Cth) and was fined $500. He was never charged with the reckless damage he caused to Mr Le's car amounting to $5500.
All of these men were called as witnesses in the Crown case. They were witnesses who were unwilling to give evidence and showed contempt for the process. The Crown sought leave and was granted leave to cross-examine all of them under s 38(1) of the Evidence Act 1995 (NSW).
The offender submitted that the behaviour of his attackers is to be contrasted with his own behaviour. The offender assisted police by providing an interview whilst injured at hospital and did not interfere in any way with evidence before police arrived 20 minutes later at his home.
When I sentenced Mr Le I observed that the manner in which the attackers were dealt was to be contrasted with his prosecution in the Supreme Court over many weeks as a person of good behaviour for one offence contrary to s 114(1)(a) of the Crimes Act. I was satisfied that that fact was one of many which was relevant to my decision not to convict Mr Le. The offender is in a somewhat different situation given he was charged with more serious offences and convicted on an additional serious offence. I accept that the offender would have a justifiable sense of grievance as to how his attackers were dealt with and that this fact is part of the overall context in which the offender stands to be sentenced today. Despite this, it is well established that principles of parity do not apply to how different offenders are treated in the exercise of prosecutorial discretion: see Gaggioli v R [2014] NSWCCA 246.
Principles of parity do apply, however, in relation count 7. The offender submitted that the roles of the offender and Mr Le in arming themselves with knives were comparable and that their joint criminal enterprise was for all intents and purposes the same. On this basis it was submitted that a conditional release order without conviction was available and appropriate to the offender for the count 7 offence.

Instinctive synthesis

In sentencing the offender I am required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: see McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].
Count 6 was brought under s 33(1)(a) of the Crimes Act rather than s 33(1)(b), which captures offending when grievous bodily harm rather than a wound is caused. For both offences the maximum penalty is 25 years imprisonment and a standard non-parole period of 7 years imprisonment applies.
I have had regard to the purposes of sentencing: s 3A of the Sentencing Act. The Crown placed particular emphasis on the need for general deterrence in this matter. It was submitted that there is a community interest in deterring people from taking the law into their own hands and, in particular, in arming themselves and this should remain a prominent feature in the sentence imposed.
Although it is to be accepted that persons should be deterred from committing acts of vengeance, I am not satisfied that this is a proper categorisation of what occurred in this case. The unusual circumstances of this case do not require any significant element of general deterrence. Nor is there any need to protect the community from the offender. I have set out the evidence that the offender is a low risk of reoffending, is a man of previous good character and these offences were an aberration.
I have also had regard to the need to make the offender accountable for his actions, to denounce his conduct and to recognise the harm done to the community. Although these principles arise in every sentencing exercise, they play a less prominent role in the present one given the facts as I have found them.
Section 5(1) of the Sentencing Act provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. There was no suggestion that the s 5 threshold was crossed for count 7. The Crown submitted that the s 5 threshold had been crossed for count 6 whereas the offender submitted that it had not. The offender relied on the provocation, the fact that minutes earlier he had tried to diffuse a domestic situation without resorting to violence or threats, that there was no evidence of planning, the offence took place extremely quickly, he has excellent prospects of rehabilitation, his mental health has suffered and his lack of antecedents and prior good character.
It was submitted on behalf of the offender that while it would be unusual for a court to deal with a matter of such seriousness by way of a Community Corrections Order ("CCO"), that was the appropriate sentence in this matter, as a CCO can have significant conditions attached to it which make it an onerous form of punishment.
Despite all of the mitigating features I have already identified and the fact that I have found count 6 to be at the low end of the range of objective seriousness, I have come to the conclusion that the s 5 threshold has been met in relation to count 6. In doing so I have had particular regard to the guideposts of the maximum penalty and the standard non-parole period and the fact that the mental element of this offence is an intention to inflict grievous bodily harm.
Having determined that no penalty other than a sentence of imprisonment is appropriate, I must determine the term of imprisonment to be imposed. This must be determined without reference to the manner in which that imprisonment will be served. Having regard to my finding that the objective seriousness for count 6 was in the low range and the significant mitigating features I have already identified, I would impose a sentence of imprisonment of 20 months on count 6.
Having determined that a sentence of 20 months imprisonment is appropriate, I next consider whether that sentence of imprisonment should be one that is served in full time custody or whether an alternative to full time custody is available and should be utilised.

Availability of an Intensive Correction Order ("ICO")

The offender submitted that if, contrary to his submission, I was satisfied that the s 5 threshold had been crossed; count 6 should be dealt with by way of an ICO.
ICOs are provided for in Part 5 of the Sentencing Act. The imposition of an ICO in this matter is not precluded by either s 67 or s 68 and the offender has been assessed as suitable for an ICO in the Sentence Assessment Report.
Section 66 of the Sentencing Act provides that: (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
The Crown submitted that an ICO would be an unacceptable form of punishment for count 6 even if the length of sentence left open such a consideration. In support of this submission, reliance was placed on the need for general deterrence for retaliation offences, the maximum penalty of 25 years imprisonment and a SNPP of 7 years. In reliance upon the decision in R v Fangaloka [2019] NSWCCA 173 at [67], it was submitted that the significant element of leniency in an ICO is inconsistent with the imposition of an adequate penalty in this matter.
I have had regard to the Crown submission that the maximum penalty and standard non-parole period preclude the imposition of an ICO in this matter. The Judicial Commission Sentencing Statistics concerning s 33(1)(a) of the Crimes Act indicate that from February 2008 to 23 August 2018, out of 295 offenders convicted (post-Muldrock) under s 33(1)(a) during that time, one received a s 9 bond, 11 offenders received a suspended sentence and ten offenders received an ICO. Thus 22 out of the 295 offenders were not sentenced to full-time imprisonment. Even accounting for the usual limitations of these bare statistics, they do not suggest that an ICO is never appropriate for an offence contrary to s 33(1)(a) of the Crimes Act.
It is to be accepted that the imposition of an ICO involves a degree of leniency but I am satisfied that this is a case calling for leniency. The offender would not have found himself in the position where his judgment became flawed and he committed this offence had he not gone to the assistance of a neighbour. He is a man of previous good character. He has already spent 31 days in custody during which time he suffered psychological damage as well as infections to his wounds. He has ongoing problems due to the wounds on his hands. His family remains traumatised by the events of that evening. They have never returned to his family home and reside with the offender's parents.
I have regard to the terms of s 66 of the Sentencing Act, the decision in R v Fangaloka and the more recent decision of Casella v R [2019] NSWCCA 201. I am satisfied that imposing an ICO in this case gives effect to s 66 of the Sentencing Act insofar as community safety and the offender's risk of reoffending is concerned.
In relation to count 7 I do not propose to deal with the offender by way of s 10 of the Sentencing Act. Unlike Mr Le, his was not an isolated offence, given his conviction on count 6. In addition, although the two men were charged as being part of a joint criminal enterprise, the offender was armed with two knives rather than one.

Sentence

I impose the following sentence: In relation to count 6 1. The offender is convicted and sentenced to imprisonment for a period of 20 months to commence today, 30 August 2019. The full term of the sentence will expire on 29 April 2021. 2. Pursuant to s 7(1) of the Sentencing Act, the sentence imposed on the offender is to be served by way of an Intensive Correction Order. 3. The standard conditions of the order will apply. Namely, 1. The offender must not commit any offence; and 2. The offender must submit to supervision by a community corrections officer for the term of the order. 1. The following additional conditions apply: 1. The offender must perform community service work for a total of 50 hours. 2. The offender is to attend upon a psychologist if directed to do so. 1. If the offender fails to comply with the conditions of the order, sanctions may be imposed by the Commissioner of Corrective Services. Those sanctions may include a formal warning, the imposition of more stringent conditions or may include revocation of this order. If the order is revoked, the relevant offender may be required to serve all or some of the period of the sentence in full time custody. 2. The offender is directed to attend the court registry where a copy of this order will be explained and given to him. 3. The offender is to report to the Fairfield Community Corrections Office at 12 noon on 2 September 2019. In relation to count 7 1. The offender is convicted with no other penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 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: 06 September 2019

Crimes (Sentencing Procedure) Act 1986(NSW)

At a glance

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Catchwords

Judgment (13 paragraphs)

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Legislation Cited (6)

Cases Cited (12)

Cited By (1)