R v Vu - [2018] ACTSC 359

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Vu
Citation:	[2018] ACTSC 359
Hearing Dates:	31 August 2018; 14 December 2018
DecisionDate:	14 December 2018
Before:	Loukas-Karlsson J
Decision:	See [57].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentional wounding – plea of guilty – low range objective seriousness – no criminal history – low risk of re-offending – intensive corrections order
Legislation Cited:	Crimes Act 1900 (ACT) s 21 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 33
Cases Cited:	Hili v the Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McCullough v the Queen [2009] NSWCCA 94; 194 A Crim R 439 R v Bao (unreported, Penfold J, 16 September 2013, SCC 52/2012) R v Doan [2000] NSWCCA 317; 50 NSWLR 115 R v GM (unreported, Burns J, SCC 323/2011; SCC 356/ 2011) R v Hakimi [2006] ACTSC 139 R v Lowe [2015] ACTSC 116 R v Pham [2015] HCA 39; 256 CLR 550 Vimahi v the Queen [2018] ACTCA 18
Parties:	The Queen (Crown) Tung Lam Vu (Offender)
Representation:	Counsel Mr P Dixon (Crown) Mr K Archer (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)
File Numbers:	SCC 224 of 2017; SCC 225 of 2017

Loukas-Karlsson J

Introduction

On 18 July 2018, Tung Lam Vu (the offender) pleaded guilty to an offence of intentionally wounding contrary to s 21 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is five years' imprisonment.

Agreed Facts

The agreed facts are set out in the statement of facts which forms part of Exhibit 1, being the Crown tender bundle.

On 13 November 2016, a person named Mr Van Dung Dong sent Mr Minh Van Trong Hoang a text message to arrange a meeting for 4:30pm the following day at the rear of the Vinton Bakery at the Calwell Shopping Centre, where the complainant was working. He wished to discuss the dispute between himself, the complainant, and the offender. At approximately 4:30pm on 13 November 2016, the complainant drove his car to the Calwell Shopping Centre and parked in the car park. The complainant got out of his car and at the time was carrying a fishing knife in his pants. The meeting was captured on CCTV.

The complainant’s brother, Vu Hoang, also drove to the Calwell Shopping Centre and parked his car in the access road car park across from the Vinton Bakery rear door. The complainant met his brother on the access road where they had a quick chat before the complainant walked to the rear entry stairway for Vinton Bakery. Mr Hoang returned to his car and sat in the driver’s seat with the door open.

At this time, Mr Dong drove his car away from the Vinton Bakery. He got out of his car and walked about 50 metres to the Vinton…

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 Vu

Details

AGLC: R v Vu [2018] ACTSC 359
Case: [2018] ACTSC 359
Decision Date: 14 December 2018

CaseChat Overview and Summary

The appellant, Vu, was charged with intentionally wounding another person. Vu pleaded guilty to the charge, and the matter proceeded to sentencing. The central legal issues in the case were the appropriate level of punishment and the suitability of an intensive corrections order (ICO) as a sentencing alternative. The court needed to determine the objective seriousness of the offence, Vu’s criminal history, and the risk of re-offending. It was also necessary to consider the benefits of an ICO in rehabilitating the offender and preventing future crime.

The court assessed the objective seriousness of the offence, concluding that it was of low severity, given the absence of any significant aggravating factors. Vu had no prior criminal history, which was a mitigating factor. Additionally, the court found that Vu was at a low risk of re-offending, as he demonstrated remorse and a willingness to participate in rehabilitative programs. Considering these factors, the court determined that an ICO was an appropriate sentence, as it would provide an opportunity for rehabilitation and support services, potentially reducing the likelihood of future criminal behaviour.

In light of the above considerations, the court imposed an intensive corrections order on Vu. The court believed that this sentence would offer Vu the best chance of rehabilitation and reintegration into society, while also addressing the community's need for punishment and deterrence. The court's decision was based on a comprehensive assessment of the facts and circumstances of the case, including the nature of the offence, Vu’s background, and the potential benefits of an ICO.

The court's final orders included the imposition of an intensive corrections order on Vu, reflecting the court's belief that this sentence would provide the best opportunity for rehabilitation and reintegration into society, while also addressing the community's need for punishment and deterrence.

Orders

Orders of the court

See [57].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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