R v Bui

Case [2016] SASCFC 53 13 May 2016

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v BUI
[2016] SASCFC 53
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
13 May 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application by Director of Public Prosecutions for permission to appeal against sentence.
In April 2011, the respondent was sentenced to imprisonment for three years and six months, with a non-parole period of two years, for trafficking in a controlled drug. The sentence was suspended upon her entering into a bond to be of good behaviour for three years.
On 9 August 2013, the respondent’s partner murdered another man. Between 10 and 16 August 2013, the respondent on four occasions made false statements to the police giving her partner a false alibi on the night of the murder and falsely denying that he had any cuts on his hands.
Subsequently, the police arrested the respondent’s partner and he ultimately pleaded guilty to murder. The defendant was charged with assisting an offender, pleaded not guilty and the matter was listed for trial.
Shortly before commencement of trial, the intended trial Judge called the matter on for directions. The Judge indicated that, if the respondent pleaded guilty, it was likely that the sentence imposed would not exceed one reflecting the time she had already spent in custody on remand of approximately six months and on home detention bail and that there would be found proper grounds not to revoke the earlier suspended sentence. Subsequently, the respondent changed her plea to guilty. The Judge told counsel that submissions on sentence could be brief because he had already indicated the penalty and, if the Director applied for revocation of the suspended sentence, it would be refused.
Subsequently, counsel for the parties made brief submissions. The Judge convicted the respondent without further penalty in light of the time spent in custody and on home detention bail and found proper grounds not to revoke the suspension of the earlier sentence.
The Director appeals against the conviction without further penalty on the ground that the penalty was manifestly inadequate and against the decision not to revoke the suspension of the earlier sentence on the ground that there were no proper grounds to refrain from doing so.
Held by the Court:
1.       A sentence equivalent to imprisonment for six months was manifestly inadequate (at [46]).
2.       Observations concerning the inappropriateness of a sentencing judge formulating sentence before ascertaining all relevant facts and hearing submissions (at [48]-[52]).
3.       There were no proper grounds to refrain from revoking the suspension of the earlier sentence [at [70]).
4.       This is one of those rare cases in which permission to appeal should be granted in favour of the Director (at [72]-[74]).
5.       Appeal allowed. Orders of…

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 [2016] SASCFC 53
Case: [2016] SASCFC 53
Decision Date: 13 May 2016

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Mr. Bui, in the District Court of New South Wales. Mr. Bui had pleaded guilty to a charge of supplying a commercial quantity of a prohibited drug. The sentencing judge imposed a term of imprisonment of two years, with a non-parole period of 12 months. The Crown contended that this sentence was manifestly inadequate.

The central legal issue before the Court of Criminal Appeal was whether the sentence imposed by the sentencing judge was so lenient as to be demonstrably wrong, thereby justifying appellate intervention. This required the Court to consider the principles governing appeals against sentence by the Crown, particularly the threshold for finding a sentence "manifestly inadequate."

The Court applied the established principles for reviewing sentences, noting that appellate courts should be slow to interfere with a sentencing judge's discretion unless there is a clear error. However, the Court found that the sentencing judge had failed to give sufficient weight to the objective seriousness of the offence, which involved the supply of a commercial quantity of a prohibited drug. The Court considered relevant sentencing precedents and concluded that the sentence imposed did not adequately reflect the gravity of the offending conduct and the need for general deterrence.

Consequently, the Court of Criminal Appeal allowed the Crown's appeal, quashed the original sentence, and resentenced Mr. Bui to a term of imprisonment of three years and six months, with a non-parole period of two years.

Orders