Legal Research
Cases
Bui v The Queen

Bui v The Queen

Case [2015] VSCA 313 25 November 2015

Criminal Liability

Sentencing

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0094

BINH BUI

THE QUEEN

---

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)

---

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.

---

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…

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 [2015] VSCA 313
Case: [2015] VSCA 313
Decision Date: 25 November 2015

CaseChat Overview and Summary

Bui v The Queen is a case before an Australian court involving a dispute over the sentencing of an individual found guilty of cultivating a commercial quantity of cannabis. The appellant, Bui, challenged the severity of the sentence imposed by the lower court, arguing it was excessive. The court was tasked with determining whether there was an error in the assessment of the gravity of the offence and the appellant’s culpability, taking into account his disadvantaged background and the squandered opportunity associated with his refugee status.

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