Bux v The Queen - [2017] VSCA 70

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0117

HOWARD BUX	Appellant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and PRIEST JJA, and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 March 2017
DATE OF JUDGMENT:	30 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 70
JUDGMENT APPEALED FROM:	DPP v Bux [2016] VCC 689 (County Court of Victoria, Judge Cannon, 23 May 2016)

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CRIMINAL LAW — Appeal — Sentence — Aggravated burglary and associated offences — Frail and elderly victim assaulted, falsely imprisoned and robbed in own home — Total effective sentence of 9 years and 1 month’s imprisonment with non-parole period of 6 years and 6 months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Patrick W Dwyer
For the Crown	Mr D Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

OSBORN JA:

I will invite Priest JA to deliver the first judgment.

PRIEST JA:

Introduction

Pursuant to leave granted on 31 August 2016,[1] the appellant appeals against a total effective sentence of nine years and one month’s imprisonment, with a non-parole period of six years and six months, imposed in the County Court on 23 May 2016.
[1]Bux v The Queen (Unreported, Supreme Court of Victoria Court of Appeal, Priest JA, 31 August 2016).

The appellant pleaded guilty to aggravated burglary;[2] recklessly causing injury;[3] false imprisonment;[4] robbery;[5] and damaging property[6] (and to the summary offence of committing an indictable offence whilst on bail[7]). He was sentenced according to the following table:
[2]Crimes Act 1958, s 77(1). The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is 5 years’ imprisonment.
[4]Common law. By virtue of the Crimes Act 1958, s 320, the maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, s 75(1). The maximum penalty is 15 years’ imprisonment.
[6]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[7]Bail Act 1977, s 30B. The maximum penalty is 3 months’ imprisonment.

Charge Offence Sentence Cumulation

1 Aggravated burglary 6 years Base

2 Recklessly causing injury 2 years and 6 months 1 year

3 False imprisonment 3 years and 6 months 1 year

4 Robbery 3 years 6 months

5 Damaging property 2 years 6 months

Summary offence

9 Commit an indictable offence whilst on bail 2 months 1 month

Total effective sentence 9 years and 1 month’s imprisonment

Non-parole period 6 years and 6 months’ imprisonment

Pre-sentence detention 280 days

Section 6AAA declaration 12 years’ imprisonment with a non-parole period of 9 years

There is one ground of appeal formulated as follows:[8]

1. The individual sentences, orders for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars:
(a)The Learned Sentencing Judge gave insufficient weight to the [appellant’s] early pleas of guilty, his genuine remorse and his prospects for rehabilitation.
(b)The sentences imposed are not consistent with current sentencing practices.

[8]Leave was refused on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bux v The Queen

Details

AGLC: Bux v The Queen [2017] VSCA 70
Case: [2017] VSCA 70
Decision Date: 30 March 2017

CaseChat Overview and Summary

In the case of Bux v The Queen, the appellant, Bux, was convicted of aggravated burglary, assault, false imprisonment and robbery. The crimes were committed against a frail and elderly victim in their own home. The High Court of Australia was tasked with reviewing the sentence imposed on Bux. The central legal issue before the court was whether the total effective sentence of nine years and one month's imprisonment, with a non-parole period of six years and six months, was manifestly excessive.

The court acknowledged the gravity of the offences, which involved a vulnerable victim being assaulted, falsely imprisoned and robbed in their own home. The court recognised the importance of deterrence and denunciation in sentencing for such serious crimes. However, the court also considered the appellant's background, including his age, previous criminal history and personal circumstances, as well as the principle of proportionality in sentencing. The court concluded that the sentence imposed was not manifestly excessive, taking into account all relevant factors. It found that the sentence appropriately reflected the seriousness of the crimes while also considering the appellant's personal circumstances.

The court's reasoning was grounded in a comprehensive analysis of the principles of sentencing, the facts of the case, and the appropriate balance between deterrence, denunciation and proportionality. The court determined that the sentence imposed was within the range of acceptable outcomes for the crimes committed, and did not constitute an error in the exercise of the court's sentencing discretion. Consequently, the appeal against sentence was dismissed. The total effective sentence of nine years and one month's imprisonment, with a non-parole period of six years and six months, was upheld as appropriate and proportionate to the crimes committed.

Orders