R v Bui - [2005] VSC 83

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1482 of 2004

THE QUEEN

PHUOC VAN BUI

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2005
DATE OF SENTENCE:	23 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSC 83

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Criminal law – sentence – two counts recklessly causing serious injury- one count being a prohibited person using an unregistered firearm – offender went to aid of friend under serious attack – fired three shots, two of which caused serious injury – plea of guilty on all three counts – offender on parole at time of offences – whether “exceptional circumstances” for the purposes of s 16(3B) Sentencing Act 1991 – offender already serving a sentence at the time of sentencing for present offences – sentenced to a total effective sentence of imprisonment of 4 years and 9 months with new non-parole period of 4 years and 2 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Kayser	Solicitor for Public Prosecutions
For the Accused	Mr J D Montgomery	Robert Stary & Associates

HER HONOUR:

The charges

On 7 March 2005, you, Phuoc van Bui, were presented and pleaded guilty in this court to two counts of recklessly causing serious injury under s. 17 of the Crimes Act1958 and one count of being a prohibited person using an unregistered firearm contrary to s. 5(1A) of the Firearms Act 1996.

Maximum penalty in respect of each offence

The seriousness of these offences is manifestly evident by the maximum penalties set by the legislature. The maximum penalty in respect of each count of recklessly causing serious injury is 15 years imprisonment. The maximum penalty for being a prohibited person using an unregistered firearm is 15 years imprisonment or 1800 penalty units.

The events of 17 August 2002

The offences for which you are being sentenced today all relate to events that occurred on the morning of Saturday, 17 August 2002. On that morning you and some of your friends were at a nightclub called Hard Kandy. The club is located in Little Bourke Street, about 50 metres from the corner of Little Bourke and Russell Streets.

Shortly after 5.00 a.m., there was a disturbance inside the club and a number of people, including you and your friend Hoang Quoc Pham, were ejected by security staff. There was a suggestion in the depositions that the disturbance was a continuation of disagreements which had occurred between groups of people at another club earlier that morning. However, in your record of interview, you told the police that you had not been at any other club, and had gone directly from your home to the Hard Kandy club.

In your record of interview you said that your friend Hoang Pham had been struck from behind inside in the club. You said that you were escorted outside, but that no one recognised you so you left and walked to the car in which you had arrived,…

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 R v Bui

Details

AGLC: R v Bui [2005] VSC 83
Case: [2005] VSC 83
Decision Date: 23 March 2005

CaseChat Overview and Summary

The case of R v Bui involved the defendant who was charged with two counts of recklessly causing serious injury, with one count involving the use of an unregistered firearm by a prohibited person. The defendant had gone to the aid of a friend who was under a serious attack and in the course of this intervention, fired three shots, two of which resulted in serious injuries. The defendant pleaded guilty to all three counts. At the time of the offence, the defendant was already on parole. The court was required to determine whether there were exceptional circumstances under section 16(3B) of the Sentencing Act 1991 to warrant a departure from the usual sentencing principles.

The central legal issue was whether the circumstances of the case constituted "exceptional circumstances" warranting a departure from the usual sentencing principles. The court examined the defendant's plea of guilty, the fact that he was already serving a sentence at the time of the offence, and his actions in defending a friend under serious attack. The court also considered the severity of the injuries caused and the use of an unregistered firearm by a prohibited person. The court had to balance these factors in light of the defendant's ongoing parole status and the mitigating factor of his intervention in a violent situation.

The court held that there were indeed exceptional circumstances in this case, primarily due to the defendant's intervention to protect his friend during an attack. While acknowledging the seriousness of the offences, particularly the use of an unregistered firearm, the court found that the defendant's actions, though reckless, were motivated by a protective instinct. Given these mitigating factors and the defendant's ongoing parole status, the court determined that a departure from the usual sentencing principles was warranted. The defendant was sentenced to a total effective sentence of imprisonment of 4 years and 9 months, with a new non-parole period of 4 years and 2 months.

The final orders of the court included the imposition of the aforementioned sentence, taking into account the exceptional circumstances identified. The court emphasised the importance of considering the totality of the circumstances in arriving at a just and proportionate sentence. The court's decision reflects a nuanced approach to sentencing, balancing the severity of the offences with the mitigating factors present in this case.

Orders