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Vu v The Queen

Vu v The Queen

Case [2020] VSCA 59 23 March 2020

Appeal

Sentencing

Recklessly causing serious injury

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0287

HUNG ANH VU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE, T FORREST and OSBORN JJA
WHERE HELD:	MORWELL
DATE OF HEARING:	12 March 2020
DATE OF JUDGMENT:	23 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 59
JUDGMENT APPEALED FROM:	[2018] VSC 732 (Tinney J)

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CRIMINAL LAW – Appeal – Sentence – Murder – Recklessly causing serious injury – Found not guilty of murder but guilty of manslaughter – Total effective sentence of 15 years’ imprisonment with non-parole period of 11 years – Pre-trial offer to plead guilty to manslaughter – Utilitarian value and sentencing benefits of plea offer – Whether post-offence conduct mitigatory – Whether individual sentences, total effective sentence and order for cumulation manifestly excessive – Whether principle of totality infringed – Serious examples of manslaughter and recklessly causing serious injury – Individual sentences within range – Order for cumulation manifestly excessive – Leave to appeal granted – Appeal allowed – Resentenced to 13 years and six months’ imprisonment with non-parole period of 10 years – DPP v Grabovac [1998] 1 VR 664 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Bayles with Mr J Connolly	Stary Norton Halphen
For the Respondent	Ms M A Mahady with Mr P J Smallwood	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA
OSBORN JA:

Summary

The applicant was indicted to stand trial in the Supreme Court. He pleaded not guilty to one charge of murder (charge 1), one charge of attempted murder (charge 2), one charge of intentionally causing serious injury (charge 3) and one charge of recklessly causing serious injury (charge 4). Charges 3 and 4 were put as alternatives to charge 2.

On 18 October 2018, the jury returned a verdict of not guilty to charge 1, but guilty to manslaughter, not guilty to charges 2 and 3, but guilty to charge 4.

On 26 November 2018, the applicant was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

Alternative to charge 1 Manslaughter 20 years’ imprisonment 12 years’ imprisonment Base

4 Causing serious injury recklessly
(Crimes Act 1958 s 17) 15 years’ imprisonment 6 years’ imprisonment 3 years

Total effective sentence: 15 years’ imprisonment

Non-parole period: 11 years

Pre-sentence detention: 478 days

Other relevant orders: Forfeiture and disposal orders

The applicant applied for leave to appeal against his sentence on the following grounds:

1.        The order for cumulation was excessive and thereby infringed the totality principle.
2.        The learned sentencing judge erred by granting the applicant only a           modest benefit for the utilitarian value of his plea offer.
3.        The learned sentencing judge erred by granting the applicant no    benefit for his plea offer other than for its utilitarian value.
4.        The learned sentencing judge erred by not treating as mitigating the           conduct of the applicant immediately after the offending.
5.        The individual sentences imposed for both offences, the order for cumulation and the total effective sentence were manifestly…

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 Vu v The Queen

Details

AGLC: Vu v The Queen [2020] VSCA 59
Case: [2020] VSCA 59
Decision Date: 23 March 2020

CaseChat Overview and Summary

The appellant, Vu, was convicted by a jury in the Supreme Court of Victoria for manslaughter and recklessly causing serious injury. The case was appealed to the Court of Appeal of the Supreme Court of Victoria. Vu was found not guilty of murder but guilty of manslaughter for the death of a man and recklessly causing serious injury to another. The appeal focused on the total effective sentence of 15 years’ imprisonment, with a non-parole period of 11 years, imposed on Vu.

The central legal issue was whether the total effective sentence and the order for cumulation were manifestly excessive, thereby infringing the principle of totality. The court had to determine if the individual sentences for manslaughter and recklessly causing serious injury were within the range, and whether the post-offence conduct and the plea offer were sufficiently mitigating. Vu had also argued that the principle of totality was infringed by the cumulation of sentences.

The Court of Appeal held that while the individual sentences for manslaughter and recklessly causing serious injury were within the appropriate range, the order for cumulation was manifestly excessive. The court acknowledged the mitigating factors, including the pre-trial offer to plead guilty to manslaughter, and Vu's post-offence conduct. It was concluded that the total effective sentence and the order for cumulation did infringe the principle of totality. Accordingly, leave to appeal was granted, the appeal was allowed, and Vu was resentenced to 13 years and six months’ imprisonment with a non-parole period of 10 years. The court's reasoning was influenced by the principles set out in DPP v Grabovac.

The final orders of the court were that Vu's sentence be reduced to 13 years and six months’ imprisonment, with a non-parole period of 10 years, reflecting the appropriate application of the principle of totality in sentencing.

Orders