R v Bux - [2002] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 168 of 2001

THE QUEEN
	v.
MIRRIM CHARLES BUX

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JUDGES:	BATT and EAMES, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2002
DATE OF JUDGMENT:	21 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 126

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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Whether at lowest end of scale – Armed robberies – Applicant with very low IQ – Effective sentence of nine years with six years non-parole period – Held not manifestly excessive

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. T. Gyorffy	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. J. Kennan, S.C.	Victoria Legal Aid

BATT, J.A.:

In my opinion, this application for leave to appeal against sentence should be dismissed for the reasons given by Eames, J.A. I would only add, in relation to grounds 1 and 2, that, even though deterrence fell to be moderated, the protection of the community assumed correspondingly greater importance.

EAMES, J.A.:

The applicant seeks leave to appeal against sentences imposed by a judge of the Supreme Court on 29 June 2001. The applicant pleaded guilty to one count of manslaughter and four counts of armed robbery. He was sentenced to six years’ imprisonment on the count of manslaughter and to three years’ imprisonment on each of the counts of armed robbery. The learned sentencing judge directed that 18 months of each of the sentences on two of the counts of armed robbery be served cumulatively upon each other and upon the manslaughter sentence, making an effective total sentence of nine years’ imprisonment. His Honour fixed a non-parole period of six years and made a declaration pursuant to s.18(4) of the Sentencing Act 1991 with respect to 571 days of pre-sentence detention.

The manslaughter offence occurred in the company of Jason Mailes, who pleaded guilty to the murder of the same victim, one Brett McDonald, on 31 August 1999, whereas the applicant pleaded guilty to manslaughter. Mailes also pleaded guilty to six armed robberies and two attempted armed robberies, at various locations, between 23 October and 2 December 1999. The applicant pleaded guilty to four of the armed robberies which Mailes admitted, those offences in which they had both been involved having taken place in the period between 23 October and 26 November 1999. At the time of his death Mr McDonald was aged 25; the applicant was then aged 30 years (he is now 33), and Mailes 22 years.

At the time of these offences Mailes operated a construction business at a factory in England Street, Dandenong and lived on the premises with his de facto wife. Mailes employed both the applicant and Brett McDonald on a casual basis. They were engaged in house renovations. McDonald and Mailes had been friends and together engaged in cultivation of a hydroponic cannabis crop inside a factory premises leased by Mailes in Sinclair Road, Dandenong. Work was performed on that premises by McDonald…

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 Bux

Details

AGLC: R v Bux [2002] VSCA 126
Case: [2002] VSCA 126
Decision Date: 21 August 2002

CaseChat Overview and Summary

In the case of R v Bux, the appellant was convicted of manslaughter by an unlawful and dangerous act in the Supreme Court of South Australia. The appellant, a man with a very low IQ, participated in two armed robberies, which resulted in the death of a third party. The severity of his participation and his intellectual capacity were key factors in determining the appropriate sentence. The court was tasked with deciding whether the sentence imposed was manifestly excessive, taking into account these mitigating factors.

The primary legal issue before the court was whether the sentence imposed was appropriate and not manifestly excessive, considering the appellant's intellectual disability and the nature of his involvement in the robberies. The court needed to balance the principles of deterrence and denunciation with the mitigating circumstances of the appellant's disability and limited culpability. This required careful consideration of the principles of sentencing for manslaughter, particularly in relation to the need for proportionality and the specific circumstances of the case.

The court considered the sentence to be appropriate and not manifestly excessive. It recognised the appellant's intellectual disability as a significant mitigating factor but also noted the seriousness of his involvement in the robberies and the resulting death. The court determined that the sentence of nine years with a six-year non-parole period was proportionate to the crime, taking into account both the need for punishment and the appellant's reduced culpability. The court concluded that the sentence was within the range of appropriate penalties for manslaughter by an unlawful and dangerous act, and thus not manifestly excessive.

The court upheld the sentence, affirming that it was not manifestly excessive given the circumstances of the case. The decision underscores the importance of considering individual circumstances, including intellectual disability, in sentencing for serious crimes. The court's reasoning highlights the balance required between the principles of justice and the specific mitigating factors present in each case.

Orders