Director of Public Prosecutions v Bui
[2010] VCC 25
•15 April 2010
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-09-00224
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LANH NGOC BUI |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 April 2010 | |
CASE MAY BE CITED AS: | DPP v Bui | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 25 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | |
| Ms S. Flynn | ||
| For the Accused | Mr M. Tovey |
HIS HONOUR:
1 Lanh Ngoc Bui, you have pleaded guilty to one count of trafficking MDMA in a large commercial quantity, one count of trafficking methylamphetamine and one count of trafficking heroin.
2 Exhibit 1 of the prosecution case is the case summary of your offending and I incorporate that into these reasons for sentence. Exhibit 2 is a chart analysis of the amount of drugs and possible evaluation of sale of such drugs that you were involved with and I incorporate that into these reasons for sentencing. Exhibit 2 reveals that over the telephone, you trafficked 4.5 kg of MDMA and 728 grams of methylamphetamine.
3 At your Frankston address, police seized 4975 tablets of MDMA. A total amount of cash of $234,270 was also seized. Police also located at the address two amounts of heroin, the first weighing 13.9 grams with a purity of 70 per cent and the second 0.2 grams with a purity of 20 per cent. This forms the basis of Count 3, which is being in possession of heroin for sale.
4
You were part of a drug syndicate which involved the wholesale distribution of drugs, including ecstasy, amphetamines and ice. Adam Hargrave managed one section and you ran the second arm, assisted by others including the co-accused, Kevin Ng. The operation was run out of a warehouse at
44-48 Rocco Drivein Scoresby, which was the site of a business operated by Adam Hargraves' father, known as Logistics Plus. Exhibit 1 refers to the specifics of your drug trafficking and I will not repeat such here.
5
You were convicted of the murder of Michael Dow and associated offences after a jury trial, concluding on 29 December 2008. You were sentenced by
Her Honour Justice King on 11 September 2009. You received a head sentence of 25.5 years with a non parole period of 20 years. That murder took place in the context of the drug trafficking operation you were involved in with Mr Hargrave, wherein it was alleged by the prosecution that Michael Dow was involved in a drug rip off concerning the syndicate. You have appealed that conviction and sentence.
6 Under s.14(1) of the Sentencing Act, I am required a fix a single non parole period in respect of all the sentences you are to serve and complete. The prosecution in this case submit that a head sentence of between seven to nine years should be imposed. In consideration of the new non parole period you should in fact serve, the prosecution submit that the addition of another two to three years on top of the 20 you are already serving would be sufficient.
7 In sentencing you here, I particular take into account the principles of totality and proportionality. I am mindful of your age, as you were 21 when you committed these offences and you will be in your 40s when you are released. Like Mr Hargrave, you have wasted the most productive part of your life as a result of your criminal activities. I also take into account your plea of guilty. Although not an early plea, it still attracts a sentencing discount because it has saved the community the expense of a long drug trial. This is often referred to as the utilitarian factor.
8 Your counsel, Mr Tovey QC, submitted that you should, in effect, serve an additional one to two years. He outlined your family background and in particular, the very poor male role models that you have had in your life. You father was a heroin addict and violent and aggressive towards yourself, your brothers and your mother. The marriage broke down. Your mother remarried, unfortunately to a man whose business was growing marijuana. After being charged with growing a substantial marijuana crop, your stepfather, when bailed, committed suicide.
9 Mr Tovey outlined your educational background and in particular, your commitment to passing HSC at De La Salle College. At the time, you were living by yourself, working in an Asian restaurant to support yourself as well attending school. To your credit, you passed your HSC.
10 Mr Tovey tendered seven character references in which you were highly spoken of. He called a character witness, Ty Ho, whose known your since you were 11. He described you as a good and compassionate person who had helped him in his own personal crisis. He said that when you began to use drugs, he noticed a change in you. He has been visiting you in gaol consistently and described you as very remorseful in respect of what you had done, wishing you could turn the page back. I take into account all those references.
11 Mr Tovey tendered a report from Patrick Newton, clinical forensic psychologist, dated 15 April 2009. In addition to outlining your family background, it also details your lengthy history of polysubstance abuse dating back to your mid-teens. Mr Newton recommended that your most pressing problem was continued drug education and counselling. He concluded that you had a number of features which suggested you have a positive potential for rehabilitation, including your intelligence and your insight into your offending.
12
Exhibit B3 contained a number of documents in relation to skills you have attained whilst you have been in custody. Whilst in custody, you have clearly made what I considered to be impressive steps towards your rehabilitation. You are part of a peer support program in the prison, having completing a peer education training program. You were involved within the
Melbourne Remand Centre in counselling other prisoners, mediating issues between prisoners and addressing school programs about drug offending. You want to study psychology at Monash University when you are released.
13 Mr Tovey submitted that your activities whilst in custody show a remarkable degree of commitment to turn your life around. I accept that submission. In sentencing you, I take into account all the submissions made on your behalf and those of the prosecution.
14 Your offending is a serious example of large scale drug trafficking and in sentencing you, I take into account the principles of general deterrence and the court's denunciation of your conduct. Because of your efforts so far at rehabilitation whilst in custody, specific deterrence plays a lesser but still significant role. I urge you, in the long years ahead, to remain positive and involved in your peer support education program and associated activities. Although different drugs are involved, your offending occurred in the course of operating the one business and I have made the sentences totally concurrent.
15 On Count 1, I sentence you to seven years' imprisonment. On Count 2, I sentence you to three years concurrent with Count 1. On Count 3, I sentence you to one year's imprisonment concurrent with Count 1. That makes an effective head sentence of seven years. I order that three years be served cumulatively with the sentence you are presently undergoing.
16
Under s.14(1) of the Sentencing Act 1991, I set a new non parole period in relation to your sentences of 22 years, such period to operate from
11 September 2009.
17 But for your plea of guilty, I would have sentenced you to a term of imprisonment of nine years with a non parole period of seven years.
18 I am not sure whether I should have said that. In the 6AAA, it is very difficult to work out whether I should say in relation to the new non parole period or the one I would have given if there had been no other sentencing.
19 MR BROWN: Yes, I think probably the new non parole period.
20 HIS HONOUR: All right, I will change that. Nine years with a new non parole period, to operate from 11 September 2009, of 24 years. Anything else I need to do in respect of Mr Bui?
21 MR BROWN: Your Honour, there are forfeiture and disposal orders which I believe are by consent.
22 HIS HONOUR: Is that right, Mr Tovey?
23 MR TOVEY: That is so, Your Honour.
24 HIS HONOUR: Thanks. I make a disposal order under s.77(1) of the Confiscation Act 1997 in relation to Mr Bui in the terms of the order I have just signed.
25 I make a forfeiture order under s.31(1) of the Confiscation Act 1997 in the terms of the forfeiture order that I have signed. Thanks.
26 MR TOVEY: Under an abundance of caution, I would ask Your Honour to make the same declaration in relation to Mr Bui.
27 HIS HONOUR: What was the time served there?
28 MR TOVEY: It was exactly the same, Your Honour, and the period of course was two years.
29 HIS HONOUR: In relation to sentencing Mr Bui, I want to make it clear my intent was that he do another two years on top of the non parole period Justice King sentenced and if I have to, I declare or take into account the declaration made by Justice King in respect of the 974 days that he spent in custody is to be taken into account as time served.
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