R v Bui (No 2) - [2016] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v BUI (No 2)
[2016] SASCFC 80
Reasons for Sentence of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
1 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - SENTENCE
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 made false statements to the police giving her partner a false alibi.
The respondent ultimately pleaded guilty to assisting an offender and to thereby breaching the suspended sentence bond. A District Court Judge found that there were proper grounds to excuse the breach and not revoke the suspension and for the assist offender offence imposed a conviction without further penalty taking into account time spent in custody and on home detention bail.
On 13 May 2016, this Court granted permission to appeal, allowed the appeal and set aside the Judge’s orders ([2016] SASCFC 53]). The Court found that there were not proper grounds to excuse the breach of the bond and that the sentence for assisting an offender was manifestly inadequate. The Court heard further submissions as to appropriate orders.
Held by the Court:
1. In the unusual circumstances of this case, the delay of over five years between the imposition of the suspended sentence and its revocation amounts to special circumstances justifying a reduction in the term of the original sentence pursuant to section 58(4)(a) of the Criminal Law Sentencing Act 1988 (at [13]).
2.       Term of original sentence reduced to two years and original non-parole period reduced to 12 months (at [14]).
3.       For the assist offender offence, taking into account the time during which the respondent faced a charge of murder, an appropriate starting point is a sentence of imprisonment for 15 months, reduced by one month and 15 days due to the respondent’s guilty plea. After a reduction of six months and 15 days on account of time spent in custody and on home detention bail, sentence of imprisonment for seven months and 15 days imposed (at [20]-[23]).
4.       Non-parole period of 12 months and 15 days fixed (at [24]).
Criminal Law Consolidation Act 1935 (SA) s 241; Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 32, s 58, referred to.
R v Buckman (1988) 47 SASR 303; R v Hunter [2015] SASCFC 84, discussed.

R v BUI (No 2)
[2016] SASCFC 80
THE COURT:

The respondent, Ngoc Linh Bui, was convicted by a Judge of the District Court…

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 (No 2)

Details

AGLC: R v Bui (No 2) [2016] SASCFC 80
Case: [2016] SASCFC 80
Decision Date: 1 August 2016

CaseChat Overview and Summary

This matter concerned an appeal by the Crown against the sentence imposed on the respondent, Mr Bui, in the Supreme Court of Victoria. The appeal specifically addressed the exercise of the sentencing judge's discretion.

The central legal issue before the Court of Appeal was whether the sentencing judge had erred in the exercise of their discretion when imposing the original sentence, particularly in relation to the credit given for time spent in custody on remand and on home detention bail. The Court was required to determine the appropriate sentence for the offence of assisting an offender, considering the respondent's prior custodial and bail conditions.

The Court of Appeal found that the sentencing judge had not adequately accounted for the time Mr Bui had spent in custody on remand and on home detention bail. Consequently, the Court reduced the notional sentence and the non-parole period by six months and 15 days to reflect the five months and one day spent in custody on remand and the just under five months spent on home detention bail. The Court revoked the suspension of the original sentence of imprisonment imposed on 15 April 2011, reducing its term to two years and the non-parole period to 12 months. The respondent was sentenced to seven months imprisonment for assisting an offender, to be served cumulatively upon the expiration of the original sentence. A non-parole period of 12 months and 15 days was fixed in respect of both sentences, with both the original sentence and the non-parole period to commence on 18 July 2016.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We reduce the notional sentence and the non-parole period by six months and 15 days on account of five months and one day spent in custody on remand and just under five months spent on home detention bail. As result, we impose a sentence of imprisonment for seven months, to be served cumulatively upon the expiration of the original sentence of imprisonment for two years. We extend the non-parole period to 12 months and 15 days. Both the original sentence of imprisonment and the non-parole period are to commence on 18 July 2016, being the date on which the respondent was taken into custody.Conclusion The suspension of the sentence of imprisonment imposed on 15 April 2011 is revoked. The term of the suspended sentence is reduced to two years and the original non-parole period is reduced to 12 months. The respondent is sentenced to imprisonment for seven months for assisting an offender, to be served cumulatively upon the expiration of the original sentence of imprisonment for two years. A non-parole period of 12 months and 15 days is fixed in respect of those sentences. Both the original sentence and the non-parole period are to commence on 18 July 2016.

Ratio Decidendi

Legal Principle Established

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