R v Bui; R v Beedar

[2002] SASC 407

R  v  Tuan Van BUI and Idris BEEDAR
[2002] SASC 407

Court of Criminal Appeal: Duggan, Debelle and Williams JJ

1. DUGGAN J.         The appellants have appealed against their respective sentences for various offences, some of which were committed jointly.  The offences and the starting points for penalties considered appropriate by the learned sentencing judge prior to the application of the principle of totality are set out in the following tables.  The joint offences are numbered 7, 8 and 9 in the table.

   The appellant Beedar

No.	Date	Offence	Plea of guilty or jury verdict	Youth / Adult	Penalty before application of principle of totality
1 2	31/10/99 31/10/99	Unlawful wounding at Shell Service Station, Hectorville Unlawful wounding at Shell Service Station, Hectorville	Plea of guilty Plea of guilty	Youth Youth	2  years  }             }             }- concurrent             } 2  years  }
3 4 5 6	26/2/00 “    “   “ “    “   “ “   “   “	Unlawful wounding – Currie Street Unlawful wounding – Currie Street Unlawful wounding – Currie Street Wounding with intent to cause grievous bodily harm – Currie Street	Plea of guilty during trial “     “    “     “ “    “     “       “ “     “     “	Youth Youth Youth Youth	3  years   }             }             } 3  years   }             }             }- concurrent 3  years   }             }             } 6  years   }
7	20/9/00	Robbery with violence – BP Kilkenny Service Station	Verdict of jury	Adult	6  years cumulative
8	26/9/00	Armed robbery – Shell Service Station – Valley View	Plea of guilty	Adult	6  years cumulative
9	6/10/00	Robbery with violence – Holden Hill Video Games Warehouse	Verdict of jury	Adult	10  years cumulative
Total  30 years

The appellant Bui

No.	Date	Offence	Plea of guilty or jury verdict	Youth / Adult	Penalty before application of principle of totality
7	20/9/00	Robbery with Violence – BP Kilkenny Service Station	Verdict of jury	Adult	8  years
8	26/9/00	Armed robbery – Shell Service Station – Valley View	Plea of guilty	Adult	7½ years
9	6/10/00	Robbery with violence – Holden Hill Video Games Warehouse	Verdict of jury	Adult	12 years
10	3/1/0/00	Armed robbery – Mobil Service Station – Holden Hill	Plea of guilty	Adult	9 years
Total  36½ years

1. After indicating the appropriate penalties prior to the application of the principle of totality, the learned sentencing judge then applied that principle and sentenced Beedar to imprisonment for 18 years with a non-parole period of 10 years.  Bui was sentenced to imprisonment for 21 years with a non-parole period of 12 years.

2. In order to discuss the issues to which the appeal gave rise, it is necessary to refer shortly to the details of the offences.

   Offences 1 and 2

3. The appellant Beedar and some of his friends attended a party at Athelstone.  They were told to leave.  One of the persons who told them to leave was Mr Gramazio.  In the early hours of the following morning Beedar drove to the Shell Service Station at Hectorville and confronted Mr Gramazio and a youth named Trimacco.  Beedar was armed with a machete and one of his companions was armed with a knife.  Beedar swung the machete and wounded Trimacco in the left arm.  Four stitches were later inserted in the wound.  Mr Gramazio was stabbed in the right buttock by a youth who accompanied Beedar.

   Offences 3, 4, 5 and 6

4. On the evening of Saturday 26 February 2000 the appellant Beedar attended a party at a restaurant in Currie Street.  The four victims of these offences also attended the party.  There had been some slight animosity between Beedar and one of the victims prior to the party.

5. As the victims were walking from the party, Beedar and two friends confronted them.  Beedar was armed with a knife.  He attacked one of the victims by punching him in the face and breaking his nose.  He then produced the knife and stabbed this victim in the left elbow as the victim raised his arm to protect himself.  This caused a deep wound to the left upper arm.

6. Beedar then joined one of his associates in an attack on one of the other victims.  The associate used a baseball bat as a weapon.  Beedar stabbed this victim three times, once in the back of the neck and twice in the back.  One of the wounds to the back penetrated the chest wall and perforated the lung.  This wound required emergency surgery.  This offence resulted in the more serious charge of wounding with intent to cause grievous bodily harm being laid (offence number 6).

7. The appellant Beedar then attacked another victim and stabbed him in the left arm.  The blade penetrated the left upper arm and lacerated the arm pit area.

8. The final victim in this incident attended the party but did not leave with the other victims.  This victim and his sister followed the appellant Beedar and his associates as they left the scene of the stabbings.  Beedar approached him and a fight took place in the course of which Beedar stabbed him in the right forearm.  The blade penetrated the full thickness of the forearm.

   Offence 7

9. The two appellants and a female accomplice went to the BP Kilkenny Service Station on the evening of 20 September 2000.  The attendant was attacked by Beedar and Bui who stabbed him in the lower back after placing the attendant in the toilet.  Beedar and the female accomplice then ransacked the shop while Bui held the attendant in the toilet.  Cigarettes, a mobile telephone and some money were taken from the service station.

   Offence 8

10. On the evening of 26 September 2000 the two appellants entered the Shell Service Station at Valley View.  The female attendant on duty was alone.  She was threatened with a knife.  Cigarettes and money were taken by the appellants.

    Offence 9

11. The two appellants and a female accomplice entered the premises of Video Games Warehouse at Holden Hill on the evening of Friday 6 October 2000.  All three were armed with knives.  The proprietor was threatened with the knives and he suffered lacerations to both hands when he attempted to grapple with the appellants.  The appellants demanded information about a safe and one of the appellants stabbed the proprietor in the right thigh.  The proprietor’s mother was working in the store on this occasion and she attempted to telephone for help.  She was attacked, grabbed by the throat and thrown to the floor.  The proprietor and his mother were tied up while the store was searched.  A number of video games, a mobile telephone and cash were taken from the premises.

    Offence 10

12. This offence was committed by the appellant Bui on the evening of 3 October 2000.  He went to the mobile service station at Holden Hill and jumped over the counter whilst, at the same time, threatening the attendant with a large knife.  He took the cash register draw which contained $518.

    The appellant Beedar

13. This appellant is a single man.  His parents lived in Afghanistan before going to Iran as refugees.  The appellant has lived in Australia since the age of two.  He is the youngest of three children in his family and he was living at home with his parents at the time of these offences.  Prior to his arrest he worked as a casual shop assistant for a year.  He obtained this employment on leaving school.  The appellant completed Year 11, but was expelled for assaulting another student.

14. Prior to the commission of the present offences, the appellant had two appearances before the Youth Court.   The first involved an estreatment of bail and on the second occasion he was charged with offences of offensive language, false name and address, unlawfully on premises and assault.  On the occasion of this appearance before the Youth Court he was placed on a bond to be of good behaviour for 12 months.  It would appear that the recognisance was breached by the commission of the unlawful wounding offences which were committed on 31 October 1999.  The appellant was placed on home detention after being charged with the wounding offences.  The robbery offences were committed during the period of the home detention.

15. There appears to be some doubt on the material before the court as to the age of this appellant. However, he was sentenced on the assumption that he was born on 11 September 1982, so that he was 17 at the time of the Hectorville offences and approximately 17 years and four months at the time of the Currie Street offences. After the charges had been laid, a judge of the Supreme Court made an order pursuant to s 17 of the Young Offenders Act 1993 (the Act) directing that the appellant be dealt with as an adult on the wounding offences.

16. This order made available to the sentencing judge a broader range of penalties than would have been the case if the appellant were to be sentenced as a youth.  In addition, the sentencing judge was entitled to have regard to the deterrent effect which any proposed sanction might have not only on the youth, but also on other youths (s 3(2a(b)).  However, as Cox J pointed out in R v C (1998) 72 SASR 391 at 396, all this does not mean that a young person’s age recedes into unimportance when such an order is made under the Act. Despite the making of such an order, the court is required to bear in mind certain principles which are established by the Act. The principles are set out in s 3. They include recognition of the object of the Act which, according to s 3(1), “is to secure the youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential”.

17. More specific principles are set out in s 3(3); they are to be given effect “as far as the circumstances of the individual case allow”.  These principles include statutory policies such as the preservation of family relationships s 3(3)(b)), the fact that a youth should not be withdrawn unnecessarily from his or her family environment (s 3(3)(c)) and that there should be no unnecessary interruption of the youth’s education and employment (s 3(3)(d)).  These statutory policies will not necessarily apply to the same extent in every case.  Their relevance will depend very much on the nature of the offending and the circumstances of the offender.  The fact that this appellant has repeatedly offended in such a serious manner and that a number of the offences were committed when he was an adult are factors which call into question the relevance of seeking to give effect to the statutory policies in his case.  The policies are likely to have a greater role to play in the case of the young person who has committed fewer and less serious offences and who is at school or is gainfully employed.  Nevertheless, as a matter of general sentencing principle, it is necessary to attach significance to the appellants age, lack of maturity and the importance of rehabilitation.

18. I return then to the circumstances of the Hectorville and Currie Street offences.  The Hectorville offences were premeditated and the appellant was motivated by anger at being told to leave the party he had attended earlier in the evening.  The appellant and his friend deliberately armed themselves with weapons.  The appellant chose a machete.  The two victims were cut with the machete and stabbed with a knife respectively.  They suffered psychological as well as physical trauma.

19. After giving due weight to the fact that the appellant was a youth, I am unable to say that the intimated sentence of two years for this armed revenge attack was manifestly excessive or that the sentencing judge proceeded on a wrong principle.

20. The Currie Street offences followed a similar pattern.  As a result of some animosity between the appellant and one of the victims who had attended a party at which the appellant was present earlier in the evening, the appellant and his colleagues waited to attack this person and his friends.  Again, the appellant was armed, this time with a knife.  A colleague was armed with a baseball bat.  Severe injuries were inflicted on the victims.

21. The offence of wounding with intent to cause grievous bodily harm was particularly serious bearing in mind the stab wounds which were inflicted.  I have referred to the fact that there were three wounds; one to the back of the neck and the others to the back.  The victim’s lung was perforated.

22. In my view it was inappropriate for the sentencing judge to arrive at the sentence for this offence as he did by discounting from what would have been an appropriate sentence for an adult.  However, upon reflection, I think the sentence of imprisonment for six years is justified, bearing in mind the nature of the offence and its consequences.  I agree with the provisional sentences suggested by the sentencing judge for the other offences which occurred on this occasion.

23. Offence number 7 was Beedar’s first offence as an adult.  In my view the provisional penalty of imprisonment for six years for this offence cannot be criticised.  It is at the lower end of the range of sentences considered appropriate for offences of this nature and the appellant was not entitled to leniency by reason of a plea of guilty.  His age was a relevant factor to be taken into account, but the offence was particularly serious in view of the stabbing of the attendant.

24. The next offence, number 8, was committed six days later.  This offence did not result in physical injury to the victim, although she was threatened with violence.  A penalty of six years was considered appropriate by the sentencing judge after allowing a reduction of two years for a plea of guilty.  A provisional penalty of imprisonment for 10 years was fixed for offence 9.  This offence involved injuries to the proprietor and an assault on the proprietor’s mother.  The conviction resulted from the verdict of a jury.

25. The escalation in penalty for offence 8 cannot be justified by reference to the relative seriousness of that offence as compared with offence 7 which was clearly more serious.  However, the sentencing judge appears to have taken into account the commission of the earlier wounding and robbery offences when fixing penalty in relation to offences 8 and 9.  When considering the penalty for offence 9 which took place on 6 October 2000 his Honour said:

    “As at 6 October 2000 you had a formidable history of woundings and robberies.”

    The sentencing judge was there referring to the offences then before the court.

26. It is well settled that, whereas good character may operate to reduce a sentence from the level which would otherwise be appropriate, bad character cannot operate so as to increase a sentence (R v McInerney (1986) 42 SASR 111 at 103). However, previous offending is relevant when considering the background of an offender, particularly in relation to the extent to which leniency might be considered appropriate. Offences committed before the commission of the offence for which a penalty is to be imposed may be taken into account when fixing that penalty despite the fact that convictions have not been recorded for the earlier offences prior to the commission of the subsequent offence. In some cases, it might be appropriate to impose greater penalties for offences which are later in a series of offences committed over a period of time (R v Place (2002) 81 SASR [112]).  However, it is important to bear in mind the observation by King CJ in McInerney’s case (113) that:

    “Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases.  The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending.  He must be sentenced against the background of his record: Director of Public Prosecutions v Ottewell (1968) 52 Cr App R 679, at p681. The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.”

27. In the present case, it was appropriate for the sentencing judge to sentence for subsequent offences against the background of offences committed earlier.  However the earlier offences of robbery were committed as part of a series and only six days separated offences 7 and 8.  A further 10 days separated offences 8 and 9.

28. For the reason given by King CJ in the passage quoted above, the relevance of the earlier offences is not as significant as it would have been if the court had dealt with the earlier offences prior to the commission of the subsequent offences.  The element of persistency inherent in offending despite a formal warning occasioned by an earlier offence is absent in relation to these robbery offences.

29. The learned sentencing judge appears to have increased the starting point for offence 8 simply by reason of the earlier offence.  I do not think that this course was justified.  I am also of the view that the same reasoning led to error in the case of offence 9.  An increase of four years imprisonment above the sentence for count 7 cannot be justified on the basis of relative seriousness and it appears that the sentencing judge has given too much emphasis to the commission of the earlier offences in sentencing for this offence also.  There are elements in offence 9 which justify a slightly higher sentence than that imposed for the other robbery offences; there were two victims and each was subjected to extensive physical violence.  However, this would not justify the disparity between the sentences for offences 7 and 9.

30. It is my view that, subject to the application of the totality principle, the appropriate sentences would have been six years imprisonment for offence 7, five years for offence 8 and eight years for offence 9.  I agree with the sentencing judge’s decision to give cumulative effect to these sentences.

31. It follows that in my view, the appropriate head sentence for all offences prior to the application of the totality principle would be imprisonment for 27 years.

32. As there was an error in sentencing principle, it is appropriate for this court to reassess the overall penalty after adjustment for the principle of totality.  After taking into account the appellant Beedar’s youth, I would allow his appeal against sentence for the purpose of substituting a head sentence of 16 years and fixing a non-parole period of 9 years.

    The appellant Bui

33. This appellant was 19 years of age at the time of the offences with which he was charged.  He was born in Vietnam and was taken by his family to Thailand as a refugee when he was five.  His family came to Australia when he was 10 years of age.  He was educated in Australia and left school during Year 9 at the age of 16.  Since then, he has worked from time to time as a market gardener.  After leaving school he became addicted to heroin.

34. The appellant’s first appearance before the Youth Court was in 1996 when he was dealt with for carrying an offensive weapon.  Since then, he has had appearances in that court for common assault, damaging property, illegal use of a motor vehicle, unlawful possession and larceny.  In May 1998 he committed an offence of robbery with violence for which he was sentenced to detention for six months.

35. The learned sentencing judge considered that a sentence of imprisonment for eight years was appropriate for offence 7.  He then said that imprisonment for 10 years was an appropriate starting point for offence 8, but this was reduced to seven and a half years on account of the plea of guilty.  Offence 10 was committed before offence 9.  His Honour concluded that a starting point of imprisonment for 12 years was appropriate for offence 10, but this was reduced to imprisonment for 9 years by reason of a plea of guilty.  Finally, he decided upon a sentence of imprisonment for 12 years for offence 9.

1. As in the case of the appellant Beedar, it is clear that the sentencing judge increased the sentences for subsequent offences because of the commission of the prior offences in the series.  When directing his remarks to the appellant Bui he said:

   “On 3 October you alone, armed with a large knife, robbed the Mobil Hilltop Service Station at Holden Hill.  You pleaded guilty to that offence. However as at 3 October you were fresh from the two previous robberies and you had, as I said, a previous court appearance, two counts of robbery with violence.”

2. For the reasons which I have already given, I think that too much emphasis was placed on previous robberies in the series.

3. In my view, the penalty of imprisonment for eight years for offence 7 was appropriate having regard to the fact that the attendant was stabbed.  Bui’s previous record justified a slightly higher penalty than that which was appropriate for Beedar.  However the starting point of 10 years for offence 8 in which there was no injury appears too high by comparison.  The same applies to the penalty of imprisonment for 12 years for offence 9 and the starting point of imprisonment for 12 years for offence 10.

4. I think the penalties prior to the application of the totality principle should have been eight years’ imprisonment for offence 7, seven years for offence 8, nine years for offence 9 and seven years for offence 10.  This comes to a total of 31 years.

5. As in the case of the appellant Beedar, it is necessary to reassess the overall sentence for Bui after taking into account the totality principle.  I would allow the appeal by Bui against sentence and impose a head sentence of 18 years and a non-parole period of 10 years.

6. DEBELLE J.        I have had the advantage of reading the reasons of Duggan J.  I agree with the orders he proposes.

7. WILLIAMS J.      I agree with the orders proposed by Duggan J for the reasons which he has given.