SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0094
| BINH BUI |
| v |
| THE QUEEN |
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| JUDGES: | REDLICH and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 October 2015 |
| DATE OF JUDGMENT: | 25 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 313 |
| JUDGMENT APPEALED FROM: | DPP v Bui [2015] VCC 474 (Judge McInerney) |
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CRIMINAL LAW – Sentence – Offence of cultivation of commercial quantity of cannabis L – Whether error in assessing gravity of offending and appellant’s culpability – Applicant’s disadvantaged background – Relevance of squandered opportunity as refugee – Whether manifestly excessive – Statistics and comparable cases considered – Application refused/Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Appellant | Mr P J Doyle | Revill and Papa Lawyers |
| For the Respondent | Ms S M K Borg | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
WHELAN JA:
On 23 April 2015 the applicant/appellant (‘the appellant’) was arraigned and pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant, and one charge of theft of electricity. The County Court judge heard a plea on the appellant’s behalf and sentenced him that same day as follows:
Charge on
Indictment
Offence
Maximum
Sentence
Cumulation
1 Cultivation of narcotic plants—commercial quantity
[s 72A of the Drugs, Poisons and Controlled Substances Act 1981]
25 years 4 years 6
months’ imprisonment
Base 2 Theft [s 74(1) of the Crimes Act
1958]
10 years 2 years’
imprisonment
6 months’
cumulation
Total Effective Sentence: 5 years’ imprisonment Non-Parole Period: 3 years Pre-Sentence detention declaration: 184 days 6AAA Statement: 6 years 8 months’ imprisonment with a non-parole period of 4 years 5 months. Other relevant orders:
· Disposal Order pursuant to s 77 of the Confiscation Act 1997.
· Compensation Order pursuant to s 86 of the Sentencing Act 1991.
· Forensic Sample Order pursuant to s 464ZF(2) of the Crimes Act 1958.
The appellant sought leave to appeal his sentence on two proposed grounds. They are:
1The learned sentencing judge erred in assessing the gravity of the offending, and the applicant’s culpability, by:
(a)treating the applicant’s reasons for the offending as irrelevant; and
(b)failing to take into account in mitigation the applicant’s disadvantaged background.
2The sentence on charge 1, and the total effective sentence, are manifestly excessive.
On 12 August 2015 the appellant was granted leave to appeal on proposed ground 1. The question of leave on proposed ground 2 was referred to the Court that would determine the appeal on proposed ground 1.
Circumstances of the offences
On Tuesday 21 October 2014 police attended at the appellant’s address to execute a search warrant. A search conducted at the premises revealed a bathroom which had been modified to cultivate cannabis. The internal windows had been covered with heavy duty black plastic and the perimeters sealed with duct tape. There were 64 plants in the bathroom in various stages of maturity. The plants…
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- AGLC
- Bui v The Queen [2015] VSCA 313
- Case
- [2015] VSCA 313
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the sentence was manifestly excessive. This involved examining the lower court’s assessment of the offence’s gravity and the appellant’s culpability. The court also considered the relevance of the appellant’s disadvantaged background and the missed opportunity he faced as a refugee. In assessing the sentence, the court examined statistics and comparable cases to ensure the sentence was proportionate and aligned with judicial standards.
The court meticulously reviewed the sentencing principles and the lower court’s approach, ultimately finding no error in the assessment of the gravity of the offending or the appellant’s culpability. The court determined that the sentence was not manifestly excessive, given the nature and circumstances of the offence. The court also considered the appellant’s background but found it did not warrant a significantly different outcome. As a result, the application for a reduced sentence was refused, and the appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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