R v Phuoc Van Bui - [2006] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 92 of 2005

THE QUEEN

PHUOC VAN BUI

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JUDGES:	BUCHANAN, VINCENT and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 April 2006
DATE OF JUDGMENT:	26 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 96

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Criminal law – Sentence – Recklessly causing serious injury – Being a prohibited person using an unregistered firearm – Appellant on parole at time of commission of offences – Appellant also serving another sentence for separate matters – Crown concession that sentencing judge failed to have proper regard to interaction of separate sentences – Appeal allowed in order to correct error – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Robert Stary & Associates

BUCHANAN, J.A.:

I will ask Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.:

The appellant pleaded guilty in the Supreme Court at Melbourne, on 7 March 2005, to two counts of recklessly causing serious injury (counts 1 and 2) and one count of being a prohibited person using an unregistered firearm (count 3).

He also admitted 18 convictions or findings of guilt arising from seven court appearances between 18 August 1995 and 12 June 2002. For the most part, they related to the possession and use of drugs, but they included as well a conviction in the County Court, on 17 July 1998, for armed robbery.

Of particular importance in the present context was his conviction in the County Court on 12 June 2002 for robbery and for which a sentence of imprisonment for two years with a non-parole period of one year and 73 days had been imposed. He was at the time of the commission of the offences with which we are here concerned at liberty in relation to this matter, having been released from custody only a few weeks earlier.

It is also relevant that he was at the time of sentencing undergoing an effective sentence of four years and one month's imprisonment with a non-parole period of two years and three months, for quite separate matters.

Returning to the present case, after hearing a plea in mitigation of penalty, the learned sentencing judge, on 23 March 2005, imposed the following terms of imprisonment:

On count 1     -          three years and six months;
On count 2     -          two years and three months; and
On count 3     -          12 months.

Her Honour directed that 12 months of the sentence imposed on count 2 be served concurrently with the sentence imposed on count 1 and that the whole of the sentence imposed on count 3 be served concurrently with the sentences imposed on counts 1 and 2. This created a total effective sentence of four years and nine months' imprisonment, in respect of which a new non-parole period of four years and two months was fixed.

The fixing of a new non-parole period by her Honour, operative from the…

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 Phuoc Van Bui

Details

AGLC: R v Phuoc Van Bui [2006] VSCA 96
Case: [2006] VSCA 96
Decision Date: 26 April 2006

CaseChat Overview and Summary

In the case of R v Phuoc Van Bui, the appellant stood before the court, charged with various criminal offences. The dispute primarily revolved around the sentencing of the appellant who was found guilty of recklessly causing serious injury while being a prohibited person using an unregistered firearm. The appellant was on parole at the time of the commission of the offences and was also serving another sentence for separate matters. The Crown conceded that the sentencing judge failed to properly consider the interaction between these separate sentences, leading to an appeal.

The legal issues that the court was required to decide included the appropriate weight to be given to the appellant's status as a prohibited person, the severity of the injury caused, and the relevance of the appellant's parole status and other ongoing sentences. The court had to determine whether the sentencing judge adequately considered these factors in arriving at the original sentence. Additionally, the court needed to address the Crown's concession regarding the sentencing judge's oversight and decide whether the appeal should be allowed to correct this error.

The court found that the sentencing judge did not have proper regard to the interaction of the separate sentences, which was a critical factor in determining the overall sentence. The court allowed the appeal and re-sentenced the appellant, taking into account the relevant factors that were previously overlooked. The court's decision highlighted the importance of ensuring that all aspects of a defendant's circumstances are properly considered in the sentencing process. This included the interaction of multiple sentences and the specific characteristics of the offence committed.

The final orders of the court involved allowing the appeal and re-sentencing the appellant. The court provided detailed reasons for the revised sentence, ensuring that all relevant factors were appropriately considered. This included the interaction of the appellant's ongoing sentences and the specific nature of the offence. The re-sentencing aimed to address the error identified in the original sentencing process, ensuring a more accurate and fair outcome for the appellant.

Orders