R v Bui [2005] VSC 83

Supreme Court of Victoria|2005-03-23|Before: Hollingworth, J

Criminal law - sentence - two counts recklessly causing serious injury- one count being a prohibited person using an unregistered firearm - offender went to aid of friend under serious attack - fired three shots, two of which caused serious injury - plea of guilty on all three counts - offender on parole at time of offences - whether "exceptional circumstances" for the purposes of s 16(3B) Sentencing Act 1991 - offender already serving a sentence at the time of sentencing for present offences - sentenced to a total effective sentence of imprisonment of 4 years and 9 months with new non-parole period of 4 years and 2 months.

2 The seriousness of these offences is manifestly evident by the maximum penalties set by the legislature. The maximum penalty in respect of each count of recklessly causing serious injury is 15 years imprisonment. The maximum penalty for being a prohibited person using an unregistered firearm is 15 years imprisonment or 1800 penalty units.

3 The offences for which you are being sentenced today all relate to events that occurred on the morning of Saturday, 17 August 2002. On that morning you and some of your friends were at a nightclub called Hard Kandy. The club is located in Little Bourke Street, about 50 metres from the corner of Little Bourke and Russell Streets.

4 Shortly after 5.00 a.m., there was a disturbance inside the club and a number of people, including you and your friend Hoang Quoc Pham, were ejected by security staff. There was a suggestion in the depositions that the disturbance was a continuation of disagreements which had occurred between groups of people at another club earlier that morning. However, in your record of interview, you told the police that you had not been at any other club, and had gone directly from your home to the Hard Kandy club.

5 In your record of interview you said that your friend Hoang Pham had been struck from behind inside in the club. You said that you were escorted outside, but that no one recognised you so you left and walked to the car in which you had arrived, which was parked in a nearby car park in Russell Street. Your counsel submitted, and I accept, that at this stage your behaviour demonstrated that you did not stay to be a participant in, or observer of, any further trouble which occurred outside the club.

6 At that stage Mr Pham, who had become separated from you, was set upon by a group of males in the street outside the club. Darren Hobbs, a crowd controller at the club, said that he and other security staff tried to form a barrier around Mr Pham to keep the group away. A male broke through the barrier, grabbed Mr Pham by the hair, pulled him out of the barrier, to where the others were. At that point the group started attacking Mr Pham against a car parked on the southern kerb of Little Bourke Street. The security staff broke the fight up and at that point Mr Pham attempted to flee.

7 As Mr Pham tried to flee his assailants, he was pursued along Little Bourke Street by a group of approximately 15 to 20 males. The group in pursuit followed Mr Pham across Russell Street to the opposite, western side of Russell Street. There he was effectively cornered and surrounded against a shopfront, next to a pharmacy.

8 At this point Mr Pham continued to be the victim of what was clearly a concerted and violent attack by a large number of people. Several witnesses, including another nightclub patron, club security staff and a taxi driver all confirm the viciousness and seriousness of the attack on Mr Pham. Darren Hobbs said that he had seen many fights in his 4 ½ years as a crowd controller, but that the incident outside Hard Kandy on that morning was the most unfair act of violence he had ever seen.

9 When the car in which you were travelling stopped at the traffic lights, you saw Mr Pham being chased across Russell Street by a large group of men. At that point, you perceived that the assailants were hitting your friend with knives. There is no evidence that knives were in fact used in the attack on Mr Pham, although an independent witness, Mr David Bruton, stated that when observing the same events he thought that Mr Pham was being stabbed.

10 You saw Mr Pham running across in front of you, and the group of assailants threw one or more beer bottles at Mr Pham. According to you, a beer bottle broke, Mr Pham stumbled over it, and then fell over. At that stage the assailants surrounded Mr Pham and started kicking him, punching him, and - you thought - hitting him with bottles.

11 Mr Devlin, a patron of the club, agreed that the attack on Mr Pham was vicious and said that he had feared for Mr Pham's safety. However, he was not sure whether the assailants had bottles in their hands. Two of the security staff, Mr Hobbs and Mr Perdikis, also said that they heard bottles smashing.

12 Your counsel argued that whether or not you were accurate in your observation that Mr Pham was hit with bottles is irrelevant. Your perception was that your friend was at serious risk of being injured by a large group of men who had surrounded him and were undoubtedly administering a serious beating.

13 You then armed yourself with a .25 calibre self-loading pistol that was under a seat in the car. You told police that it was someone else's gun, but you knew that it was there, that it was loaded with ammunition and that it could fire approximately seven rounds.

14 You said that you had to get out of the car with the gun because you needed a means of scaring Mr Pham's assailants. You got out of the car and it is agreed that you fired one shot into the air. Apparently this was done in an attempt to make them cease their attack on your friend.

The first count of recklessly causing serious injury - Mr Michael Truong

15 The first count of recklessly causing serious injury related to injuries then inflicted by you upon a man by the name of Michael Truong. According to Mr Truong, he was standing outside the Hard Kandy club in a line waiting to get in, when he saw Mr Pham being pursued along the street. Mr Truong said that he joined in the chase because he was concerned as to whether a friend of his was involved.

16 Mr Truong says that he was at the south eastern corner of the relevant intersection when he heard a gunshot, the warning shot. Having heard the shot, he turned around and said he observed "the whole group" fighting by punching and kicking. He said several times that he did not see one man on the ground being savagely attacked by a group of men. Mr Truong's description of what he saw does not correspond with the version of events given by other witnesses, particularly independent witnesses, or with what is clearly visible on the security video footage.

17 Mr Truong says that he was about 15 to 20 metres away from the fighting when he was shot with your second shot. Prior to being shot he saw someone holding a gun, about 5 or 6 metres away from him. Although Mr Truong could not be sure, he thought he was watching you at the time he was shot, and that you were holding the gun upwards at the time. Mr Truong conceded that his memory of the shooting was not detailed. On the other hand, another witness, Huy Nguyen said that it did not seem that you had meant to shoot Mr Truong.

18 It is clear that Mr Truong was not attacking Mr Pham at the time you shot him. He was not within the camera frame that was taken by the security video camera. The Crown submits that this means that he was somewhere on Russell Street, probably closer to the middle of the road amongst a group of people. Later, the security video captures Mr Truong collapsed as a result of the shooting, on the south eastern corner of Russell Street.

19 According to the medical evidence, the bullet entered Mr Truong between his third and fourth ribs, travelled through the top of his lung, and exited under his left armpit. The Crown says that this means that the track of the bullet (assuming Mr Truong was standing up) was either pretty close to level or slightly upwards. Mr Truong was in hospital for some two weeks after the shooting. His injuries were not life-threatening. Due to a current illness unrelated to this incident, he did not provide a victim impact statement.

The second count of recklessly causing serious injury - Tram Le

20 What you did after recklessly causing serious injury to Mr Truong is clearly shown on the security video.

21 The firing of your first two shots caused most of the assailants to run. You then ran towards Mr Pham, who was at that time on the ground up against the shopfront still being beaten by two people who had not been deterred from continuing their attack. As you got closer to Mr Pham, the assailant on the right fled. That left Mr Tram Le, the victim of the second count of recklessly causing serious injury, as the only person still attacking your friend. As you got extremely close to Mr Pham, Tram Le began to run. You then leapt at Mr Le with the pistol in your right hand, striking him at the base of the neck on the right hand side. Tram Le was shot by a "contact" or "near contact" shot on the right hand side of the neck. That was the third shot you fired.

22 The Crown says that you either intentionally pulled the trigger, or the action of pulling the trigger was part of the same action as striking Mr Le on the neck with the gun.

23 In your record of interview, you thought you had only fired two shots. The first was clearly the warning shot up into the air. You said you thought you had only shot one person, being the man who stood nearest to your friend.

24 The statements made by Mr Le, the second victim, do not shed much light on the circumstances surrounding his injury. He maintained that he was acting in self-defence, a claim clearly rebutted by the video footage. He said he was very drunk, that he was fighting Mr Pham, and was then shot. Beyond that he was unable to recall much and had no unaided memory of punching and kicking Mr Pham. He thought he did not have a bottle.

25 After Mr Le was shot, you grabbed Mr Pham and ran with him to the waiting car, which was then driven off at speed down Little Bourke Street.

26 According to the medical evidence, the bullet went through the trapezius muscle on the right hand side and lodged adjacent to Mr Le's left shoulder or collarbone. No damage was occasioned to any vital organs and the bullet went through soft tissue only. According to Dr Sean Clarke, the wound had the potential to be life-threatening, but surgical intervention contained the damage and kept it to a soft tissue injury. Mr Le was discharged from hospital after 2 days.

27 Wayne Lownes was called on your behalf at the plea hearing. Mr Lownes was a taxi driver in the vicinity of the Hard Kandy club on the morning in question. He observed the assault on Mr Pham and your subsequent conduct. Mr Lownes gave evidence that Mr Pham appeared to be in serious trouble and that if the assault had continued he would not have survived. He believed Mr Pham was being kicked by a group with an intention to seriously injure him. Mr Lownes said that the assault ceased when you fired what he thought were two shots and bundled Mr Pham into a car. He said that there was no indication prior to your intervention that the assault would stop.

28 In my opinion, it is clear that it was only your interference that put an end to the attack on Mr Pham. The attack on Mr Pham was undoubtedly a vicious, cowardly and unremitting assault by a large group of men.

29 Mr Pham told police that he suffered pain in various parts of his body as a result of the assaults upon him, and that he was off work for some two weeks. However, he did not seek any medical assistance.

30 You were a prohibited person at the time of the offences, by reason of a conviction in June 2002 for robbery. It is not disputed that the pistol which you fired was unregistered. Those facts are sufficient to establish the elements of the offence.

31 Some time after the event, you gave the gun to unidentified friends, who you say kept it and threw it away. It has never been recovered by the police.

32 It is agreed that you were without conviction sentenced on the following charges:

(1) On 18 August 1995, trafficking in a drug of dependence (heroin);

(2) On 23 October 1995, two counts of possession of a drug of dependence (one heroin, one cannabis) and one count of using a drug of dependence (heroin); and

(3) On 14 December 1995, using a drug of dependence, possession of a drug of dependence and trafficking a drug of dependence (all heroin).

33 It is also agreed that you have been previously convicted of and completed your sentence for the following offences:

(1) On 9 January 1996, using a drug of dependence (heroin);

(2) On 7 July 1997, trafficking in a drug of dependence (heroin); two charges of possession of a drug of dependence (heroin), and failing to answer bail;

(3) On 17 July 1998, armed robbery, escaping from a youth training centre, trafficking in a drug of dependence (heroin), using a drug of dependence (heroin) and stating a false name upon lawful request.

34 On 12 June 2002 you were convicted in the County Court at Melbourne of robbery. For that offence, you were sentenced to a term of imprisonment of 24 months with a non-parole period of 1 year and 73 days. Having been convicted of that offence, you became a prohibited person under the Firearms Act 1996. Having already spent the non-parole period in pre-sentence detention, you were then released on parole. The present offences occurred on 17 August 2002, while you were on that parole.

35 On 6 May 2004, you were convicted of aggravated burglary - the circumstance of aggravation being the possession of a firearm at the time of the burglary - false imprisonment and theft. I am informed that the person carrying the firearm on that occasion was one of your co-accused.

36 On the offence of aggravated burglary you were sentenced to be imprisoned for 4 years. On the offence of false imprisonment you were sentenced to be imprisoned for 12 months, concurrently with the sentence on the first count. On the offence of theft, you were sentenced to be imprisoned for 3 months, 2 months of which was concurrent. Therefore, the total effective sentence was 4 years, 1 month, and the non-parole period set was 2 years, 3 months. The pre-sentence detention on that occasion was 155 days. You are still serving that sentence.

37 Under the provisions of the Sentencing Act 1991 ("the Act"), I am required to fix a new minimum term which must be served in respect of that sentence and the sentences which are imposed in respect of the current charges.

38 There is no relevant pre-sentence detention for the purposes of s.18 of the Act in respect of the current charges.

39 By your plea you have admitted the elements of each of these offences and have admitted that you had no lawful excuse for recklessly causing serious injury. The Crown did not dispute the proposition that the use of excessive force in a situation which nullifies the defence of others, may be seen as being at a lower level of culpability than gratuitous force. Although you used force which was so out of proportion that you had no lawful excuse for it, the circumstances mean that the moral culpability is less than it otherwise might be.

40 The Crown submitted that the use of an unregistered pistol in a public street when people are around is a serious matter and an aggravating feature of the first two counts, especially so where that unregistered pistol is used by a prohibited person. However, this is the subject of a separate count and I have not had regard to it as an aggravating factor in sentencing on the two counts of recklessly causing serious injury.

41 These offences are serious and call for a sentence reflecting both specific and general deterrence.

42 You have previously being convicted of an offence involving the use of a weapon. Although, this is the first occasion on which you have been involved in an offence concerning the discharge of a firearm, you must be dissuaded from using a firearm again. I am satisfied that you assessed the need to use the firearm in the circumstances you found yourself in, and your motive was the need to rescue your friend. I have factored that into this sentence. However, using a firearm is not a way to solve disputes, even violent ones. Violence on the streets, especially violence using lethal weapons, must be discouraged and the courts must register the public and social disapproval of such violence. The community does not condone any form of vigilante justice.

43 Your previous convictions demonstrate that this is no passing lapse, but evidence of a real unwillingness or incapacity to comply with the law. Your response to previous sanctions, prospects of reform and general attitude towards compliance with the law are revealed by your criminal record.

44 The doctrine of proportionality requires that I assess the gravity of your crimes in the light of its objective circumstances. The harm suffered by both Mr Truong and Mr Le was serious. In fact, in both cases, your actions endangered not only their lives, but those of many others, some of whom were innocent bystanders. However, I am satisfied that Mr Le was clearly a persistent assailant on your friend, which to some degree instigated your violent response. Whilst I in no way condone your response, that is a factor I have taken into consideration.

45 The effect of the crime on any victims is obviously an important consideration. In this case, there is no evidence of any permanent injury to either of your victims. No victim impact statements or pre-sentence reports were tendered at the plea.

46 When arrested by police on 25 November 2003, you made full admissions in relation to firing two of the shots. You also told the police that you used the firearm to save your friend's life and did not believe you could protect him without the firearm.

47 A plea of guilty, irrespective of when it occurs, saves public time and cost and contributes to reducing delays. Section 5(2)(e) of the Act provides that "in sentencing an offender a court must have regard to... whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so." The more serious the crime, the greater the weight to be given to a guilty plea.

48 The timing of a plea is important, and the earlier the plea, the greater the saving to the state and the greater the potential discount. Once the matter comes on for hearing, a plea in the face of an overwhelming prosecution case may have little mitigatory impact. On the other hand, a plea of guilty made in the face of evidence that is not absolutely conclusive is very significant.

49 The informant did not file charges of attempted murder, however those charges were filed at the instruction of the Office of Public Prosecutions. You were discharged at committal on the attempted murder charges and then directly presented on them. Your counsel submitted that you had pleaded guilty to the lesser offences at your first available opportunity and were therefore entitled to the proper sentencing discount that the law accords in such situations. The Crown on the other hand submitted that the filing of a presentment containing charges of attempted murder did not preclude you from pleading guilty to lesser charges. The Crown therefore argues that a plea of guilty was not entered at the earliest available opportunity, but only when your counsel changed on the eve of your trial.

50 I am of the opinion that your plea, is in the circumstances, legitimate, and if not made at the first available opportunity, was still made sufficiently early to warrant a discount in sentence. That plea of guilty of course is of benefit to the victims of these offences, to the community, and the administration of justice generally. The need for a two week jury trial with several witnesses requiring interpreters has been averted.

51 Neither the fact that you were originally charged with a more serious offence (whether or not there was a serious risk of conviction for that offence), nor any apparent lack of remorse, provide grounds for denying a discount for a plea of guilty.

52 You are now 25 years old. Given your previous record, your relative youth cannot be considered a barrier to the imposition of an appropriate sentence.

53 When you were 10 years old, your parents brought you and your siblings to Australia from Vietnam, after spending three years in a refugee camp in Malaysia. They were accepted into this country as refugees.

54 You are the third of seven children. You are the only member of your family to have been denied Australian citizenship, due to your criminal record.

55 When your parents came to Australia they worked in unskilled occupations. You went to Maribyrnong High School until Year 9. You have never actually worked. You became addicted to heroin, as is reflected in your criminal record to date.

Cumulative or concurrent sentences on the three counts?

56 The Crown argued that the sentences for each of the three offences should be imposed cumulatively. It argued that although it is, in effect, one episode, you had the power and the choice as to how and how many times you would use the firearm. It argued that the intent of the legislature was that prohibited persons in particular should not use or possess firearms, let alone unregistered ones, and that the court should impose cumulation in respect of these sentences.

57 On the other hand, your counsel submitted that sentencing cumulatively on the three counts would be unduly harsh, that the counts all arose as a result of the one incident and that it would be artificial to break it up and impose any cumulation in relation to each of the three counts.

58 In my view these offences clearly arise from the "same multi-faceted course of criminal conduct". The use of an unregistered firearm by you was part of the same criminal episode as the first two charges and in the circumstances, I consider that ordering you to serve that sentence cumulatively with the first two would be a double punishment.

59 However, in relation to the first two charges, whilst they followed in quick succession and were both part of your attempt to rescue your friend, they were in some respects separate incidents. The first count, being a shot fired into a crowd at random, is clearly the more serious of the two charges. In the circumstances, I will order that some but not all of the sentence for the second charge will be served cumulatively with the first.

Section 16(3B) of the Act

60 The offences for which you are to be sentenced were committed by you while still on parole for the 2002 conviction. Section 16(3B) of the Act provides that, unless otherwise directed by the court because of the existence of "exceptional circumstances", every term of imprisonment imposed on a person for an offence committed while on parole must be served cumulatively on any period of imprisonment which he or she may be required to serve in custody on cancellation of the parole order. To date, that parole order has not been cancelled.

61 Section 5(2AA)(a) of the Act precludes me from making any assumptions as to the future actions of the Adult Parole Board.

62 Your counsel submitted that exceptional circumstances arise in the present case. It was said that your breach of parole by way of these offences was exceptional in the way it occurred, that you were not carrying a gun on the night and only produced it when your friend was being threatened with serious injury if not death. It is said that if your friend had not been chased down the street and assaulted by this large group of people, these offences would not have happened. It is said that you weren't part of it, you had walked away to the car. The fact that you needed to defend your friend was in this case, the exceptional circumstance.

63 This submission is premised on the argument that "exceptional circumstances" can include the circumstances of the present offences and not just your personal circumstances in general.

64 The Crown submitted that "exceptional circumstances" can only apply to the offender, not to the offence. If exceptional circumstances can include the circumstances of the offence, the Crown did not agree that the defence of your friend could be considered exceptional circumstances. That was because you at all material times were a prohibited person for the purposes of the Firearms Act. You knew of the gun's whereabouts prior to the shooting and you disposed of it later. The Crown said that on all the available evidence the firearm was available for your use, and you did indeed use it. To allow you to rely on "exceptional circumstances" in relation to the defence of your friend would be to permit you to traverse the plea.

65 In determining whether the circumstances surrounding the commission of the three present offences constitute "exceptional circumstances" for the purposes of s. 16(3)(b) of the Act, I was not referred to any authority on what constitutes "exceptional circumstances".

66 In my opinion, there is no reason to restrict the application of the words "exceptional circumstances" to the personal circumstances of the offender. There will be occasions on which the actual offending itself occurred in "exceptional circumstances". However, the circumstances in which your offending occurred are not such a case. Therefore, I consider that your sentence should be served cumulatively with any period of imprisonment you may required to serve on cancellation of the parole order.

67 Individual sentences must not only fall within the perimeter of proportionality, but, in the case of multiple offences, the total sentence must be proportionate to the totality of the offending. A separate sentence must be imposed for each proven charge.

68 In respect of the first count of recklessly causing serious injury, I sentence you to imprisonment of 3 years and 6 months.

69 In respect of the second count of recklessly causing serious injury, I sentence you to imprisonment of 2 years and 3 months, 1 year of which is to be served concurrently with the sentence imposed under the first count.

70 In respect of the count of being a prohibited person using an unregistered firearm, I sentence you to 12 months imprisonment, all of which shall be served concurrently with the sentences imposed on the first and second counts.

71 Therefore, in respect of the present offences, I order that you be sentenced to a total effective sentence of 4 years and 9 months.

72 You are currently serving a sentence for the offences for which you were sentenced in May 2004. Section 14 of the Act requires that in sentencing you for the present offences, I must fix a new single non-parole period in respect of all the sentences you are required to serve or complete.

73 Looking at the sentences to be imposed here, the sentence currently being served for aggravated burglary, and applying the principles of proportionality and totality to the result, I fix a new non-parole period of 4 years and 2 months.

At a glance

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Judgment (85 paragraphs)

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