Director of Public Prosecutions v Bui
[2013] VCC 1049
•13 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02260
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICO BUI |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April & 4 June 2013 | |
DATE OF SENTENCE: | 13 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Bui | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1049 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Trafficking in a drug of dependence – methyl amphetamine – heroin – possession of a drug of dependence – cocaine – dealing with property suspected of being the proceeds of crime – possession of a controlled weapon – prior criminal convictions
Legislation Cited: s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 – s.73 of the Drugs, Poisons and Controlled Substances Act 1981 – s.195 of the Crimes Act 1958 – s.6(1) of the Control of Weapons Act 1990
Cases Cited:
Sentence: total effective sentence of 4 years and 2 months – non-parole period of 2 years and 10 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S. Coombes | Ms E. Taylor (Office of Public Prosecutions) |
| For the Accused | Mr C. Nikakis | Haines & Polites |
HIS HONOUR:
1 In this matter Mr Nikakis appeared on behalf of Mr Bui and Mr Coombes, instructed by Ms Taylor appeared on behalf of the Director. Ms Taylor appears today.
2 Mr Bui of 13 Lorne Crescent, Braybrook, pleaded guilty on 26 April 2013 to three charges under Indictment Number C10488751. Mr Bui was thirty-three at the time of the offences. He is now thirty-four.
3 The first of those charges is a charge pursuant to s.71AC of the Drugs, Poisons and Controlled SubstancesAct 1981, that is of trafficking in a drug of dependence. In that case the drug was one of amphetamine.
4 The determination in that matter as to the trafficking, was by means of s.70 of the Act by which possession or sale, is the basis for the trafficking. The amphetamine on that time on that concerned in that matter is of 90 percent purity and is made up of some 256.9 grams.
5 It is to be remarked that the trafficable quantity is 3 grams. The commercial quantity is 500 grams. Essentially it is put on the lower margin between those two amounts. The point should be made that it is 90 percent purity. The value given was one of $210,000, however I am unsure precisely and no one seemed to be able to advise the Court what that value was as to.
6 Suffice to say that the seriousness of this offence is demonstrated by the fact that parliament has prescribed a maximum penalty for breach of this provision of fifteen years imprisonment.
7 Such offence occurred on the basis of the warrant being executed at the prisoner's premises. Also on that date, being 16 February 2012, Mr Bui was found in possession of heroin and that is the basis for Charge 2, which is also a charge pursuant to s.71AC of the Drugs, Poisons and Controlled SubstancesAct 1981, of trafficking in a drug of dependence, in this instance heroin.
8 The amount found on that day was a figure of 33.2 grams and the point to be made again is that a trafficable quantity under the Act is 3 grams.
9 The final charge concerned possession of cocaine pursuant to the provisions of s.73 of the Drugs, Poisons and Controlled SubstancesAct 1981. As I understand the provision, I am not to sentence on the basis other than this is for a non-trafficable purpose, and therefore the maximum penalty is five penalty units.
10 Pursuant to s.145 of the Criminal ProcedureAct 2009, there are also two uplifted summary offences to which the prisoner did plead. One being dealing with property suspected of being the proceeds of crime, that is the sum of $25,250.00 being an offence against s.195 of the Crimes Act 1958. The second summary offence was one of possession of a controlled weapon, being an offence against s.6(1) of the Control of Weapons Act 1990.
11 The prior offences of Mr Bui are significant. His history, unfortunately, is marked by offending from a very young age. The full details of his offending were not set out. By consent, Exhibit 1 was tendered, being the sentencing remarks of Her Honour Judge King in the matter of R v. Bui, pronounced in this Court on 26 October 2004.
12 Exhibit 1 was tendered by consent, indeed by Mr Nikakis, to give me an understanding of some prior offences that were not otherwise disclosed, which occurred when Mr Bui was in Perth at a young age and, of course, a most significant crime for which he was sentenced. I do not know the full details but certainly one understands some of the sentences in Western Australia are significantly higher than Victoria but, at any rate, Mr Bui was an eighteen year old boy when he was sentenced to eleven years imprisonment for a charge of aggravated burglary and four charges of deprivation of liberty. It was significant, as remarked by Her Honour in the sentence in the sense that of such sentence he served five and a half years from the age of eighteen.
13 The other prior offences are admitted, and significantly the offences as reported in the sentence for armed robbery and intentionally causing serious injury, pronounced by Her Honour on 26 October 2004 which was, again, for a young man a period of imprisonment of four and a half years with a minimum of two years. And then, further, Mr Bui has a history in so far as possession of a controlled weapon and other drug offences and was sentenced to six months imprisonment in February 2005.
14 In so far as the circumstances of this trafficking Mr Bui was quite up-front and open in his record of interview, in particular, as pointed out by Mr Nikakis at questions 86, 89 and 92 he indicated that the purpose of same was or the purpose of him undertaking this criminal conduct was for the purpose of obtaining finance.
15 As I say, Exhibit A, was tendered by consent as an appropriate rendition of the facts relevant to sentence, and the facts accepted by Mr Nikakis on Mr Bui’s behalf. Exhibit B was also tendered, which are photos of Mr Bui's residence detailing the circumstances of the warrant and the findings. What is set out at paragraph 19 of Exhibit A are the areas where the drugs were located, and the various accoutrements.
16 The trafficking in this matter is established by way of the provisions of the Act, which allow for trafficking to be proved by way of possession, pursuant to s.70 of the Drugs, Poisons and Controlled Substances Act 1981.
17 Mr Bui, in regard to these offences, as I understand was bailed on 9 March 2012, and the agreed pre-sentence detention therefore in regard to this sentence is a period of twenty-eight days. I understand he has been subsequently remanded on another matter for which, obviously, I will not take into account. Those matters fall or to be taken into account by another Court.
18 Mr Bui is still on remand and in such position, I revoked his bail in regard to these offences on the last occasion. I have previously signed a disposal order and a forfeiture order.
19 In so far as the plea was concerned, this hearing initially began before the Court on 26 April 2013. However, it was the concern of Mr Nikakis as to the need for a report as to the psychiatric or psychological state of his client as being important in this case and, as a result, on the resumed hearing on 4 June, tendered was the psychological report prepared by Mr Jeffrey Cummins dated 24 April 2013, and Mr Cummins indeed was called to give evidence in so far as that report was concerned.
20 Coming to the plea itself, Mr Nikakis relied on the report of Mr Cummins, which was tendered as Exhibit 2. The report gives the history of the time in which Mr Bui arrived in Australia. The circumstances where, as a very young man, he left the home and soon found himself in Perth without strong support and thereafter the circumstances whereby he came to be placed in imprisonment.
21 Mr Bui was a particular young person apparently when he arrived in Perth, having run away from his family home because of abuse and other matters. Indeed, it would appear that he was there at the age of thirteen. Somehow he tried to survive in those circumstances. As pointed out he was ostracised from parental support. He lived on the streets of Perth. He received no substantial education. He had minimal work abilities. This unfortunately led to circumstances where he, as I have remarked, got into substantial difficulty and served the extensive periods of imprisonment that I have indicated.
22 Mr Bui arrived in Melbourne approximately 2004. He had problems with heroin and addiction to heroin, and no doubt that was the reason for the earlier offences that I have referred to.
23 Fortuitously, Mr Bui managed in 2009 to meet his current partner, Ms Lyn Trinh, who is aged twenty-six, and he has for the first time and had for the first time in his life obtained some stability both by way of being able to assist in regard to her mother's café in Sunshine and in so far as being able to partake of a normal family environment which he had never before and never had the ability.
24 I suppose as indicative of the impact of the life style that we have spoken about and his incarceration and the ongoing effects of drugs, despite this positive turn in his circumstances he could not stay away from heroin. He became involved in this particular offending to maintain his own supply of heroin and, unfortunately, ultimately became addicted, was involved in the milieu of drug addiction and unfortunately that led to the circumstances whereby he has been apprehended and is now before the Court on these very serious charges.
25 In so far as the report of Mr Cummins was concerned, Mr Bui indicated that he had been free from heroin at that time for a period of some two months. He was diagnosed, having never been formally diagnosed before as intermittently suffering from a dysthymic disorder, and that that would date back many years and also depression relating to such matter.
26 It was certainly the view of Mr Cummins that such disorder, his undergoing depression and his compromised upbringing would certainly have a background in the fact that he became addicted and serviced his underlying addicted personality, and in order to service that having engaged in this serious criminality. I accept all those matters.
27 While one has to understand the personal characteristics of a person involved in these type of offences, I accept that Mr Bui was servicing his own addiction but the reduction in culpability brought about thereby has to be balanced, of course, by the serious nature of these offences.
28 Despite the serious nature of the prior offences Mr Bui is not in any way to be sentenced again by this Court. I make that clear. However, such offences limit the scope for sentencing even further. In so far as the submission as to ultimate determination it was quite clear in discussion between the Court and Mr Nikakis that the only solution for Mr Bui is to get rid of that addiction, if that is possible. However, we note in so far as that the reference in the evidence of Mr Cummins that to say the least Mr Bui is not, to use Mr Cummins' words, "Not a psychologically strong person". Mr Nikakis pointed out in final submission that the Court is dealing, obviously with a complex person. He did not suggest any alternative as being appropriate, but for prison.
29 Mr Bui had, in fact, married his partner in 2009. This relationship, with his partner and her family, give perhaps for the first time in Mr Bui's life a positive outlook and the chance of success and hopefully the chance of rehabilitation. Mr Bui has, as put by Mr Nikakis, for the first time someone supporting him, despite his less than easy life and the periods he served in gaol. This Court has to be positive that a still relatively young man does have a future and one would hope that with the assistance of his family and the parole authorities that he is able to effect rehabilitation.
30 As I say, Mr Bui, you more than anyone else know fully the circumstances of this crime. You are fully appreciative of the effects of drugs and what it can wreak and the damage it can wreak and it is ultimately up to you. Mr Nikakis stressed the matters that are of particular relevance, the cooperation and the admissions made, and the plea of guilty. He asked, essentially, while accepting the reality of the sentence that would have to be passed in the matter he sought from the Court, in all the circumstances, a merciful sentence which did not eliminate or fail to take into account the hopeful possibility of rehabilitation for Mr Bui in the future.
31 The learned prosecutor, in response, pointed out the serious nature of the trafficking and he submitted that what was required, given the penalties involved was an immediate sentence to serve the ends of both general and specific deterrence. The prosecutor, I think, questioned rehabilitation in the circumstances but was not fully negative about that. He also pointed out the substantial monetary amounts involved in these crimes.
32 Doing as best I can I have tried to take into account all of those circumstances. As I say the law is clear that persons involved in this type of criminality take high risks. They take by their actions, the risk of condone punishment being imposed. They are participating by this trafficking in distributing misery throughout the community. I accept that it is somewhat of a conundrum where the person distributing this misery is, indeed, in the misery of addiction himself. However, as was markedly pointed out in the earlier case today Victoria is in the grip of a chronic addiction to drugs of various forms and persons who participate, as you have, Mr Bui in distributing these drugs must understand that punishment must be imposed and significant punishment.
33 Given those guidelines I have done, as I have said, as best I can to take into account the matters raised by Mr Nikakis. Mr Bui, if you would stand please.
Sentence
34 On Charge 1, of trafficking in a drug of dependence, you are sentenced to a period of imprisonment of three and a half years.
35 On Charge 2, of trafficking in a drug of dependence, you are sentenced to a period of imprisonment of two and a half years.
36 On Charge 3, of possession of a drug of dependence, a financial penalty of five penalty units is imposed. At the time of this offence the penalty units were $122.14. The total therefore of such fine is $610.70.
37 In so far as the summary matters are concerned, on Summary Charge 5, I impose a period of imprisonment of six months, and on Summary Charge 6, I impose a period of imprisonment of six months.
38 Using the sentence of three and a half years on Charge 1 as the base, I cumulate six months of the sentence imposed on Charge 2 and two months of the sentence imposed on Summary Charge 6, making a total effective sentence of four years and two months imprisonment.
39 I declare that the period that must be served prior to Mr Bui being eligible for parole is a period of two years and ten months imprisonment.
40 I declare that the twenty-eight days served by way of pre-sentence detention be deemed as service of this sentence, and that such declaration be recorded in the records of this Court.
41 As best I can in complying with the requirements of Parliament, pursuant to s.6AAA of the Sentencing Act 1991, I declare that the period I would otherwise have imposed, had Mr Bui not pleaded guilty, would have been a period of imprisonment of five years with a minimum non-parole period of three and a half years imprisonment.
42 As I have said I understand that I have signed all the ancillary orders. Is that right?
43 MS TAYLOR: Thanks Your Honour. Thank you.
44 HIS HONOUR: Yes. Mr Nikakis, anything that is not clear or - - -
45 MR NIKAKIS: No, Your Honour.
46 HIS HONOUR: Mr Bui, you must give up the drugs. You have got a chance. You have got a family and a wife who want to look after you but it is not going to help anyone if you are going to stay on drugs. You must get off it when you get out. All right? Good luck. Take the prisoner away.
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