Bui v The Queen - [2008] NSWCCA 343

New South Wales
Court of Criminal Appeal

CITATION: Bui v R [2008] NSWCCA 343

HEARING DATE(S): 24 October 2008

JUDGMENT OF: McClellan CJ at CL at 27; Nettle AJA at 2; Simpson J at 28

EX TEMPORE JUDGMENT DATE: 24 October 2008

DECISION: Grant leave to appeal but dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - whether sentencing judge erred by quantifying the discount afforded for guilty plea and assistance separate to other sentencing considerations - combined discount for guilty plea and assistance - whether sentencing judge deviated from instinctive synthesis approach - appeal dismissed

LEGISLATION CITED: Customs Act 1901 (Cth)
Criminal Code 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Crimes Act 1914 (Cth)

CATEGORY: Principal judgment

CASES CITED: Markarian v R (2005) 228 CLR 357
R v Gallagher (1991) 23 NSWLR 220
R v Mo (2007) 169 A Crim R 60
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Pham (1991) 55 A Crim R 128

PARTIES: Hoang Anh Bui (applicant)
The Crown

FILE NUMBER(S): CCA 2007/4531

COUNSEL: G D Wendler (Applicant)
W J Abraham QC (Crown)

SOLICITORS: AKN & Associates (Applicant)
Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0672
06/21/0159

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 5 October 2007

2007/4531

McCLELLAN CJ at CL
NETTLE AJA
SIMPSON J
FRIDAY 24 OCTOBER 2008

BUI, Hoang Anh v R

Judgment

1 McCLELLAN CJ at CL:

The court is in a position to deliver judgment. I will ask Nettle AJA to deliver the first judgment.

2 NETTLE AJA: On 15 August 2006, the applicant pleaded guilty to one count of aiding, abetting, counselling and procuring the importation of a commercial quantity of a prohibited import (namely, 34.8065 kilograms of methylamphetamine) contrary to s 11.2(1) of the Criminal Code 1995 (C’th) and s 233B(1)(a)(ii) of the Customs Act 1901 (C’th) and on 5 May 2006 he pleaded guilty to one count of supplying an indictable quantity of a prohibited drug (namely, 3.64 grams of MDMA) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). In each case the plea was entered at the first available opportunity.

3 After hearing a plea in mitigation of penalty, on 5 October 2007, Judge Freeman sentenced the applicant:

(a) On the Commonwealth offence to 16½ years’ imprisonment with a non-parole period of 10 years to commence on 15 February 2007, with the applicant thus to be eligible for parole on 14 February 2017; and
(b) On the State offence to two years and three months’ imprisonment with a non-parole period of 20 months to date from 15 February 2006 (being the date on which the applicant was arrested).

The Facts

4 The facts of the State offence, as they appear in the judge's sentencing remarks, were as follows. On 3 September 2005, the applicant was standing outside the Homebush State Sports Centre in an admissions line awaiting admission when he attracted…

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 Bui v The Queen

Details

AGLC: Bui v The Queen [2008] NSWCCA 343
Case: [2008] NSWCCA 343
Decision Date: 24 October 2008

CaseChat Overview and Summary

In Bui v The Queen, the appellant, Bui, appealed against his sentence for a criminal conviction. The case was heard in the High Court of Australia, which considered whether the sentencing judge made errors in calculating the discount given for Bui's guilty plea and his assistance to the prosecution. The court also examined whether the sentencing judge had correctly applied the principle of instinctive synthesis when considering all relevant sentencing factors.

The primary legal issues before the court were whether the sentencing judge erred by quantifying the discount for Bui's guilty plea and assistance separately from other sentencing considerations, and whether the judge had properly applied the instinctive synthesis approach in sentencing. The appellant argued that the judge should have considered the discount as part of a holistic assessment of all mitigating factors, rather than as a separate step in the sentencing process. The court needed to determine if these errors warranted a departure from the usual deference given to the primary judge's sentencing discretion.

The High Court held that the sentencing judge did not err in quantifying the discount for the guilty plea and assistance separately, as long as the judge's overall approach remained consistent with the instinctive synthesis method. The court found that the sentencing judge had correctly considered all relevant factors and had provided adequate reasons for the sentence imposed. The judge's approach, while involving separate consideration of the discount, did not deviate from the principles of instinctive synthesis. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders