Director of Public Prosecutions v Bui

[2024] VCC 604

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT SHEPPARTON

CRIMINAL DIVISION

CR 23-01977

DIRECTOR OF PUBLIC PROSECUTIONS

v

SON BUI

---

JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Shepparton
DATE OF HEARING:	2 May 2024
DATE OF SENTENCE:	2 May 2024
CASE MAY BE CITED AS:	DPP v Bui
MEDIUM NEUTRAL CITATION:	[2024] VCC 604

REASONS FOR SENTENCE

---

Subject:CRIMINAL LAW SENTENCE

Catchwords:              Sentencing – cultivate narcotic plant, commercial quantity

Legislation Cited:      6AAA of the Sentencing Act 1991, s52H of the Sentencing Act  1991

Cases Cited:

Sentence:Imprisonment – total effective sentence 2 years and 6 months, non-parole period 20 months, Forfeiture and disposal order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Ms B. Kelly, Office of Public Prosecutions
For the Accused	Mr M. Cookson	Mr J. Valos, Valos Black & Associates

HIS HONOUR:

1       Son Hui Bui, you have pleaded guilty to one charge of cultivating a commercial quantity of cannabis between May and June of 2023.  The facts of your offending are set out in Exhibit A, the prosecution opening for plea.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate into these reasons for sentence, and sentence you on the basis of the facts set out in that document.  There is no need therefore to deal extensively with the facts.  You have just heard them read this morning by the learned Crown prosecutor.

2       Very briefly stated, on 15 June of 2023 you were located in a property in Labuan Road, Strathmerton, that had been set up as an elaborate hydroponic cannabis growing venture, with plants in 10 rooms of the house totalling 307 in number with a weight of 245.86 kilograms.  This is significantly higher than a commercial quantity, which is 25 kilograms of weight or 100 plants.

3       The place was sophisticated.  It had a drying room; it had a bypass.  You then were interviewed by the police where you made full admissions as to your role which, it is accepted by the prosecution, you were a sitter for the crop.  You were not a principal, and you were being paid at a rate of $700 a week plus an anticipated $7,000 profit when the crop was harvested.  You performed the function of sitting.  You mixed chemicals, you fed the plants, and the plants, you told the police, were already there when you came.  Your job was to look at the plants.

4       Turning to your personal circumstances.  You are 45 years of age, being born in January 1979.  You were born in North Vietnam.  Your personal history is set out in your counsel's extensive submissions, which are Exhibit 1 on your plea.  You were an educated man in Vietnam.  You completed Year 12 level and became a civil engineer, and you completed another degree in construction project management in North Vietnam.  You were married in North Vietnam and had two children from that marriage, and you were providing financial support to that ex-wife and your children, who still reside in Vietnam.

5       You came to Australia as a student some 10 years ago.  You worked in full time positions since you have been here.  You worked as a forklift driver, you worked as a pizza delivery man, and you have been further educated.  You got married again in a relationship that can only be described as complex and dysfunctional.

6       Your second wife had two children of her own.  She had a brief de facto relationship with another man and had a child who was born with Down Syndrome, known as Leo.  It seems on the material before me that she has completely abandoned that child, but you were effectively the only father figure and caring figure in his life prior to your incarceration.

7       Since you have been arrested, and you have been in custody now for about a year, your sister-in-law has been looking after Leo.  Your relationship with Leo is set out in detail in Exhibit 3, the letter from Thuy Fan, your sister-in-law.  She at present looks after Leo.

8       You became involved in the cultivation of this cannabis crop because of financial commitments that you had, firstly to your ex-wife and children in Vietnam.  I think I was told that was in order of one or $2000 a month.  You were caring for your father who was unwell in Vietnam and sending money for his medical treatment, which cost you about $400 a month, but significantly your now, who knows where, second wife developed a gambling habit with poker machines.  She pawned your car and you found yourself covering her debts from her gambling addiction.

9       In order to fund the various financial constraints upon you, you were recruited and engaged in this cultivation exercise as a means of funding the demands upon you.  When you were arrested, as I said, you cooperated fully with the police and made admissions.  You pleaded guilty at the earliest practical opportunity, and I treat your plea as an early plea.  That was before committal, after the matter was settled with the prosecution.

10      Because you are a foreign national you are at risk of being deported.  Whether or not you are is a matter for the government and not for me, and I do not take the fact that you may be deported into account in sentencing you.  However, I do take into account the fear and apprehension that you have of being deported, particularly as that will tear you away from the country that you have established roots in; you have been here for 10 years and, secondly, it will terminate whatever relationship you might have with Leo in the future.  Whether you are deported or not I do not know, but certainly you are scared of being deported and that will make your time in custody more onerous for you.

11      I take into account your, as I said, your pleas of guilty, your cooperation with the police and I accept that they demonstrate remorse for your offending on your part.  You have no prior convictions of any sort.  You have been a hard-working man in your 45 years, and I accept that your prospects of rehabilitation must be seen as good.

12      However, this is not an insignificant crop.  You were involved in a serious criminal enterprise.  The number of plants and the weight of the plants, the sophistication of the enterprise all demonstrated it to be a significant commercial crop which you were well aware of.  You knew you were doing something illegal, and your plea of guilty acknowledges that you were aware that it was a commercial crop in nature.

13      Your case in some ways is unusual.  The factors that have been relied upon by your counsel, I think, do mitigate your offending and reduce your moral culpability.  I have unfortunately been involved in many, many cases of the same or similar nature to yours.  All too often people who have come to this country find themselves caught up in the cultivation of cannabis which is entirely for personal financial gain.  You were making a reasonable sum of money, and stood to gain a bigger sum of money when the crop was harvested.

14 Parliament has set a maximum penalty of 25 years' imprisonment for your offending that indicates how seriously Parliament views your conduct. I am required to impose a custodial order pursuant to s52H of the Sentencing Act[1] as it is conceded that none of the exceptions applicable under s52H exist in your case. Your counsel properly conceded that a head sentence with a minimum was the only option for this court to impose. Prison is always the last alternative, but the seriousness of your offending dictates that nothing other than a term of imprisonment is appropriate for your offending.

[1]s52H Sentencing Act 1991

15      Having regard to all of the factors that I have referred to and discussed with your counsel this morning, the sentence of the court is that on the one charge of cultivate a commercial quantity of a narcotic plant you are sentenced to be imprisoned for 30 months, and I order that you serve 20 months of that sentence before being eligible for parole.

16      I declare that 322 days of the sentence that I have just imposed has already been served by way of pre-sentence detention.  Pursuant to 6AAA of the Sentencing Act[2] I indicate that but for your plea of guilty I would have imposed a term of imprisonment of four and a half years with a non-parole period of three.

[2]S6AAA Sentencing Act 1991

17      Are there any other matters, Madam Prosecutor?

18      MS MacDOUGALL:  Yes, there is, Your Honour.

19      HIS HONOUR:  I make the disposal orders sought by the prosecution.

20      MS MacDOUGALL:  Forfeiture, yes, thank you, Your Honour.

21      HIS HONOUR:  I make those ancillary orders.  Anything else, Mr Cookson?

22      MR COOKSON:  Not from my end, Your Honour.

23      HIS HONOUR:  Thank you.  I will terminate the links and I thank you all for persevering with the technology.  Thank you, Madam Interpreter.

- - -