R v Phuoc Van Bui [2006] VSCA 96

2 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).

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.

4 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.

5 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.

6 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.

7 The fixing of a new non-parole period by her Honour, operative from the date on which sentence was imposed by her, meant that the appellant was required to serve a further period of four years and two months from 23 March 2005.

8 At that stage, and in relation to all of his offences, and including a period of pre-sentence detention of 155 days, the appellant had been in custody from 4 December 2003. Accordingly, her Honour's disposition produced an aggregate total effective sentence made up of the period of pre-sentence detention, the period of incarceration between the imposition of sentence on 6 May 2004 and 23 March 2005 and the new single non-parole period of four years and two months. This totalled approximately six years.

9 As at the date of sentence, the order made in 2002 had not been cancelled by the Adult Parole Board but this was done subsequently, and he could be required to serve an additional period of nine months and two days.

10 Altogether, if release on parole was refused, the appellant could be required to serve a total period of incarceration of a little under seven years from December 2003.

11 It has been conceded by the Crown that the learned sentencing judge appears not to have had proper regard to the interaction of the separate sentences and, in particular, to have fallen into error allowing for a possible period of only seven months parole under the sentence that she was imposing. Accordingly, it has been accepted by the Crown that these errors need to be corrected. That concession is, I consider, appropriate in the circumstances. There is therefore no need to address the other grounds upon which reliance was to be placed by the appellant in the written submissions prepared on his behalf and with which we have been provided.

12 I now turn to the circumstances relating to the various offences.

13 In the early hours of Saturday 17 August 2002, the appellant was present at an establishment known as the "Hard Candy Nightclub" in Little Bourke Street, Melbourne. Some time after 5.00 a.m. an altercation took place, which resulted in the appellant and his friend Quang Quoc Phan, amongst others, being ejected from the premises by security staff. It was suggested that this dispute represented the continuation of an altercation that had taken place earlier in the evening at a different nightclub. However, I should point out that there was no evidence that the appellant was present during the earlier events, and he denied in his subsequent police interview that he was.

14 After exiting the premises the appellant and Phan became separated and the appellant returned to a nearby car park and retrieved his motor vehicle. During this time, Phan was set upon by a group of approximately 15-20 males in the street outside the club. Michael Truong, the subject of count 1, stated that he observed Phan being pursued by a group of males and "joined in" as he was concerned that one of his friends was involved. The group pursued Phan across Russell Street to the opposite side of the road, where he was cornered and attacked.

15 The appellant, who at this time was proceeding along Russell Street, stopped his vehicle at traffic lights. On observing Phan being chased across Russell Street, he armed himself with a loaded and unregistered .25 self-loading pistol that was in the vehicle.

16 He got out and walked towards the group attacking his companion and fired a single shot into the air. In his interview, he stated that he did this in order to attempt to stop the assault. Truong, who was a member of the attacking group, was standing in the middle of Russell Street when the appellant discharged the gun for a second time and he was struck in the chest (count 1). The bullet entered between the third and fourth ribs, lateral to the sternum, travelled through the lung and exited under the left armpit. It follows that it was almost certainly fired parallel to the ground.

17 The first two shots caused most of those involved in the incident to disperse. The appellant then ran towards Phan, who was still being attacked by two men. As he approached, one of the men ran away, leaving the other, Tram Le, still assaulting Phan. The appellant continued towards Le, holding the firearm in his right hand. At this stage, Le also attempted to run away, but the appellant launched himself at him and with the pistol struck him at the base of the neck on the right-hand side. The firearm discharged and Le was struck on the right side of the neck (count 2). The bullet passed through the trapezius muscle on the right-hand side and lodged adjacent to the victim's left scapula.

18 The appellant then grabbed Phan and ran with him to his waiting car. They then left the area. Phan subsequently told the police that he had suffered pain in various parts of his body as a result of this incident, causing him to be absent from work for about two weeks. However, he did not seek medical treatment for his injuries.

19 The appellant was, by reason of his prior convictions, a prohibited person pursuant to s.3 of the Firearms Act 1996 at the time of the commission of these offences, and this provided the basis of the summary charge. In his record of interview he stated that the gun did not belong to him but he knew that it was loaded and capable of firing seven rounds.

20 Truong was hospitalised for two weeks.

21 Le suffered muscle and soft-tissue damage, requiring surgical intervention. However, no vital organs were involved.

22 The appellant was not a suspect for the commission of these offences for some time after this incident, but he was eventually interviewed and charged by the police on 25 November 2003. He admitted discharging the pistol in defence of his friend but maintained that he had only deliberately fired two shots. He stated that one was fired into the air and the other hit the chest of a man who was assaulting Phan.

23 The appellant was, at the time of the commission of the offences, aged 22 years. He had been born in Vietnam and had come to Australia with other family members as refugees when he was six years old. He is the third of seven children and the only member of his family who has been denied Australian citizenship. This was due, I understand, to his criminal record. Since their arrival in this country his parents have worked in unskilled occupations. The appellant, who left school in year 9, has never worked at all, and, as his criminal history indicates, has developed an addiction to heroin. I note the absence of any material or submissions with respect to the appellant's prospects of rehabilitation in the proceeding before the judge at first instance and it does not appear that there is much that could have been said on his behalf in this respect, save that he insisted at all stages that he was acting in defence of his companion and that he had entered an early plea of guilty.

24 The argument was advanced on the appellant's behalf before us again that his actions were motivated by a desire to defend his companion, who was being subjected to a sustained and vicious attack by a large group of men, and that his resort to the firearm occurred in response to what he perceived reasonably as an emergency situation. While so much can be accepted, it must not be forgotten that his conduct was not only unlawful but engaged in only a short time after his release from prison for an offence involving the use of a gun and was itself potentially lethal.

25 Other questions arise to which no answers have been provided concerning the circumstances under which the appellant came to be travelling around, in the early hours of the morning, in a car in which he knew there was a loaded handgun. When regard is had to his criminal history, these matters occasion a considerable sense of unease and certainly do not augur well for his rehabilitation.

26 However, the appellant was still only 22 years of age at the time of the commission of the offences and will be required to serve a substantial overall period of incarceration for his various offences, not only those with which we are immediately concerned. It is to be hoped that, with appropriate assistance particularly in relation to his drug addiction, he may yet develop a more satisfactory lifestyle. He has co-operated with the authorities, pleaded guilty and is currently at risk of deportation. I also note in his favour the reports that have been provided as to his progress since he has been in custody and in particular his preparedness to participate in appropriate programs to assist him.

27 In all of the circumstances, I consider that the individual sentences imposed in the court below were clearly appropriate and I would confirm those sentences. However, I would set aside the order for cumulation made by her Honour in respect of count 2.

28 This would create a total effective sentence of three years and six months from 23 March 2005. I would fix a new non-parole period operative from 6 May 2004 of three years and six months.

29 The intended effect of these orders is that the appellant's total effective minimum period of incarceration, calculated from 4 December 2003, would be approximately four years in relation to an overall period of possible detention of approximately five years and seven months, taking into account his liability under the other parole order.

30 Finally I would add that, although the Court has not had the benefit of argument on the matter, I consider that the view with respect to the relationship between s.16(1A)(d) and s.16(3B) of the Sentencing Act 1991 expressed by Callaway, J.A., who granted leave to appeal to the appellant, is almost certainly correct. His Honour stated:

" ... despite its apparently general terms, s.16(1A)(d) refers only to s.16(3B). It does not mean that s.16(1) does not apply in relation to any current term of imprisonment where an offence is committed on parole. It simply subordinates s.16(1) to the provisions of s.16(3B). The latter, in turn, provides for prima facie cumulation only on the parole sentence ('any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order'). Section 16(1A) is no more than an index to the other provisions of the Act - one in the serious offenders part of the Act and the other in s.16 itself - where there is a departure from the prima facie rule in s.16(1)."

31 It is apparent from the Prisoner Indent Report of the Office of Corrections that the calculation of the relevant dates has been made on this basis.

The individual sentences imposed below are confirmed, save that the order for cumulation in respect of count 2 is set aside, thereby producing a total effective sentence of three years and six months, which is to operate from 23 March 2005. A new non-parole period of three years and six months is fixed and is to operate from 6 May 2004.

In the light of these orders no further declaration of pre-sentence detention need be made.

The intent of these orders is that the total effective minimum period of detention, calculated from 4 December 2003, will be approximately four years in relation to a possible detention of five years and seven months. The non-parole period now fixed will expire on 6 November 2007.

I certify that the preceding 7 pages are a true copy of the reasons for judgment of Buchanan, Vincent and Neave, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 26 April 2006.

DATED the day of 2006.