R v Vuni - [2005] NSWSC 184

NEW SOUTH WALES SUPREME COURT

CITATION: R v Vuni [2005] NSWSC 184

CURRENT JURISDICTION: Common Law Division
Criminal List

FILE NUMBER(S): 2004/6

HEARING DATE{S): 29-30 November, 1-14 December 2004, 4 February 2005

JUDGMENT DATE: 11/03/2005

PARTIES:
Regina v Paongo Vuni

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
W. Creasey (Crown)
D. Yehia (Prisoner)

SOLICITORS:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Prisoner)

CATCHWORDS:

ACTS CITED:
Crimes Act, s 421
Crimes (Sentencing Procedure) Act, ss 3A, 21A, 28, 44

DECISION:
Imprisonment for ten years, with a non parole period of seven years six months. Sentence to date from 10 March 2003, with the earliest date upon which the prisoner will become eligible for release on parole being 9 September 2010.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST
STUDDERT J
Friday 11 March 2005
2004/6 REGINA v PAONGO VUNI
SENTENCE

HIS HONOUR: The prisoner, Paongo Vuni, stood trial on an indictment containing two counts:
(i)the first count charged him with aggravated break enter and steal on 29 January 2003;
(ii) the second count charged him with murder on 10 March 2003.
After a lengthy retirement, the jury found the prisoner not guilty on the first count and not guilty of murder but guilty of manslaughter on the second count.
On what basis did the jury arrive at the verdict on the second count? Manslaughter by unlawful and dangerous act was not an option in this case. The prisoner admitted that he fired the shot with intent to kill. The two possible paths to a verdict of manslaughter were by way of the application of s 421 of the Crimes Act, that is excessive force in self defence or defence of members of his family, or, alternatively, by reason of a finding of provocation. I observe that counsel for the prisoner did not address the issue of provocation with the jury; the issue of self defence and defence of the prisoner’s family was the focus of counsel’s submissions.
It is my task for sentencing purposes to find the relevant facts, and to do so recognising the constraints identified by the Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374. In their joint judgment in that case, Gleeson CJ, Mason P, Hunt CJ at CL and Simpson and Hidden JJ said (at 378):
“2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing…
3. The primary constraint upon the power and duty of decision- making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would…

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 Vuni

Details

AGLC: R v Vuni [2005] NSWSC 184
Case: [2005] NSWSC 184
Decision Date: 11 March 2005

CaseChat Overview and Summary

The defendant, Vuni, was charged with one count of robbery under the Crimes Act. The case was heard in the Supreme Court of New South Wales. Vuni pleaded guilty to robbing a 7-Eleven store at night, where he threatened the store clerk with a knife and stole money from the register. The prosecution accepted that the defendant had acted alone and without a firearm.

The primary legal issues before the court were the appropriate sentencing framework to apply and the factors to consider in determining the sentence. The court had to consider the statutory provisions under the Crimes Act and the Crimes (Sentencing Procedure) Act. Specifically, the court needed to decide whether the offence was an aggravated form of robbery and how to apply the aggravating factors outlined in the legislation.

The court found that the offence was an aggravated robbery due to the use of a knife. It considered the defendant's criminal history, his lack of remorse, and the circumstances of the offence. The court applied the provisions of the Crimes (Sentencing Procedure) Act, including sections 3A, 21A, 28, and 44, which outline the principles of sentencing and the aggravating factors. The court determined that the aggravating factors warranted a significant sentence, but also considered the defendant's guilty plea and the impact of imprisonment on him. The court ultimately sentenced the defendant to seven years in prison, with a non-parole period of four years and eight months.

Orders