Director of Public Prosecutions v Bui

[2021] VCC 102

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01094

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICO BUI

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 February 2021
CASE MAY BE CITED AS:	DPP v Bui
MEDIUM NEUTRAL CITATION:	[2021] VCC 102

REASONS FOR SENTENCE

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Subject:

Catchwords: “traffick in drug of dependence - proceeds of crime - relevant prior history - deterrence general and specific.”

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Watson
For the Accused	Mr C. Terry

HIS HONOUR:

1Rico Bui, you have pleaded guilty to three charges of trafficking in a drug of dependence and one charge of possession of a precursor chemical as well as a related summary charge of dealing in property suspected of being the proceeds of crime, namely, $141,245.  The circumstances of your offending were outlined in a prosecution document tendered upon your plea and uncontested as to its contents.  I will summarise your offending on the basis of this document.

2At the time of the offences you were unemployed and living in Maidstone with your girlfriend and her children.  On 9 January of last year, 2020, at about
2.30 pm, police intercepted you while driving an SUV in that location.  You were alone in the car and you allowed the police to search it.  The police found concealed beneath the electronic window control module a number of bags which contained substances as well as a set of keys and cash from your wallet, which are part of the proceeds of crime offence.  Some $1,245 in cash was also found.

3You admitted possession of these items. Police searched the Maidstone address under a search warrant at about 5.30 pm that day.  You were present and you were asked to identify the location of any illicit substances which you did. At your direction, police located various press-seal bags containing substances which included heroin, methylamphetamine and cocaine as well as $140,000 in cash stacked in a wardrobe in your bedroom.

4In a second bedroom, police also found a heat-sealed bag which contained iodine and a press-seal bag which contained thioproline, a schedule 4 poison which has not been the subject of a charge.  A document which had upon it a list of glassware and precursor chemicals related to the manufacture of methylamphetamine later was found.  It was found that you have your thumb print on that particular piece of paper. A heat sealer, a number of silver-coloured plastic heat-seated bags and press seal bags were found, as well as a bottle of acetone and a bucket containing 1.6 grams of methylamphetamine.

5Subsequent analysis of the substances seized from the vehicle and from your residence confirmed that there were 255.6 grams of heroin present at
200 grams pure weight, 25.9 grams of methamphetamine at 28 grams pure weight, 56.5 grams of cocaine at 32 grams pure weight and 480.3 grams of iodine.  The traffickable quantity for heroin is 3 grams.  The traffickable quantity of methylamphetamine is 3 grams and that for cocaine is similarly 3 grams.

6The prescribed threshold quantity of iodine, a precursor chemical is 25 grams.  At the Footscray police station you were interviewed by police and you admitted ownership of the drugs located in the car which you put there the same day and admitted to living at the address which was searched by the police.  You admitted ownership of the drugs located, you also admitted ownership of the iodine.  You were remanded.

7The committal mention was adjourned to await drug analysis in April and in September you pleaded guilty to the current charges.  I consider that this was a plea at the earliest opportunity. 

8The charge of trafficking in a drug of dependence carries a maximum penalty of 15 years' imprisonment.  By this measure, the legislators have made clear that this is a serious offence and this maximum is an important guidepost as a factor to bear in mind in this sentencing exercise.  Possession of the precursor chemical, iodine, carries five years or 600 penalty units and the maximum for dealing with proceedings suspected to be proceeds of crime is two years' imprisonment.

9Trafficking and offences which are related to trafficking, consequential crime and its proceeds, possession of chemicals which are precursor to the manufacture of drugs of dependence are serious because of the damage and trauma that those drugs and trafficking inflict on the community and particularly the young.  It is a pernicious, insidious trade and those who would engage in it well know and appreciate the risk which they take when they engage in it and factor that risk into their conduct.

10The primary objects of this sentence must be the deterrence of others, denunciation, punishment and community protection. Those who are likeminded to engage in this evil trade must know in no uncertain terms that the court will denounce their conduct as totally unacceptable and that they will receive stern punishment proportionate to their conduct's criminality.  In this sense the sentence will act as a general deterrent.

11In your case specific deterrence is also significant because your prior history.  That aspect of course is also relevant as to another aspect of sentencing, that of rehabilitation and your prospects for it.  I will come to this matter in a moment.  In determining your sentence, I take into account your plea and cooperation with authorities upon your arrest.  I accept that your admissions and facilitation of the search, both of your car and home are to your credit.  Your plea has a utilitarian value which will be taken into account because it has facilitated the course of justice and is an acceptance of responsibility.  Your plea will reduce your sentence.

12During the plea, it was made clear that I did not accept that your plea was accompanied by what could be viewed as genuine remorse.  In my view your history and the matter of fact way you went about your arrest and interview demonstrates a clear-eyed understanding of your predicament.  You may have felt some regret at the impact on your partner and children, although that had not deterred you from criminality, you told police they had no knowledge or involvement in your enterprise.

13I take into account your personal circumstances.  You were born in Vietnam 42 years ago and you immigrated to Australia with your parents when you were eight years old.  At age 11 you said that your parents placed you in your grandparents' care and did not see them from then on.  From Darwin, where they lived, at age 14, you left and went to Perth while your grandparents left you unattended while they went on a holiday to Vietnam.

14You lived in Perth until 2004 when you relocated to Melbourne still a young man.  In 2009 you visited Vietnam and first met your true biological mother.  She still resides there and you have called her on a regular basis every few months but do not have a close relationship with her.  As a young boy you were made to work long hours by your grandparents and earlier you reported poor living conditions as a refugee.  Not only was food scarce but you were chained by your father without protection from the woman you then believed to be your mother.  You have not had any contact with any of your family members since adolescence.

15Before being abandoned in Darwin you had progressed well at school after which there was a decline in academic performance and mental health.  Upon arrival in Perth you were homeless until you were helped to obtain hostel accommodation and you enrolled in year 11.  However, in an effort to support yourself financially, you left school before the completion of that year and you became involved in criminal activity.

16Over the course of your lifetime, since this has been the way you have supported yourself primarily, with the exception of some employment between 2006 and 2010 as a kitchen hand and as a labourer for four months in 2018, involvement in criminal activity has been the bulk of your experience.  I take into account this history of abuse and instability when you were young as is appropriate to do.  It has been long acknowledged that the pervasive impact of this trauma when young upon the offender, even in later years, has been relevant to the sentencing consideration.

17This early disadvantage and poverty of nurture and opportunity clearly set you on a course of bad choices and offending which have set a pattern in your life.  Such a background acts to sensibly ameliorate the punishment to be imposed.  You have had two major relationships in your lifetime.  The first lasted between 2008 and 2015.  A daughter was born of it.  You have limited contact with ex-partner and have rarely seen your daughter since the end of the relationship.

18Your current relationship has been positive and supportive lasting some four years.  You have another daughter from it.  You have remained in contact during your remand.  Your second daughter was born while you were in custody and is now some six months old.  She suffers from a rare genetic condition, Pierre Robin Syndrome which impacts on her development and the development of a lower jaw, airways and palate.

19I have received a medical report about this aspect.  The diagnosis requires must and various therapy.  The diagnosis and disability significantly impact on her ability to function at home, in the community and daily activities for which she requires assistances, assistance which you as her father will not be able to provide.  She has been an in-hospital patient all of her life.  This has often meant she has been alone with your partner needing to look after her siblings, therefore experiencing distress and being overwhelmed.

20I take this hardship into account.  This will impact, to some extent on the weight of incarceration upon you as you reflect on the impact on your family and the distress which you will be unable to relieve because of your reclusion.  You have no history of mental health illness beyond experiencing depression in previous periods of incarceration.  You are diabetic relying on insulin injections.  Your drug use began age 15 in Perth, recreational use until age 19.  You then began heroin use which continued until 2006.

21You then abstained between 2006 and 2010.  Your first child was born then.  But what should have been a happy occasion was soured by your father's disinterest and rejection.  You relapsed soon thereafter and started using ice as well.  You have attempted to abstain after being released from gaol in 2018.  But when your employment was terminated after four months, you again took refuge in drug use.

22You have while on past parole periods and in custody engaged in some drug counselling which you found useful but you told Sandra Cokorilo, a psychologist who prepared a report for the court dated 3 December 2020, that your instability and accommodation, work and anxiety for your future induced you back to drug use.  Ms Cokorilo summarised your mental state as dependent and extremely severely depressed with mild anxiety and stress.

23You have experienced recurrent episodes of a major depressive disorder.  You meet, according to her report, the criteria for a borderline personality disorder which manifests in instability of interpersonal relationships and impulsivity as well as a substance use disorder.  These conditions are characterised in combination by self-damaging impulsivity, emotional dysregulation, unstable relationships, depression and anxiety.

24She considered your risk of re-offending as high.  With a history of pervasive maladjustment and poor mental health.  Imprisonment is likely to weigh more heavily on you than a person without these conditions and I take that opinion into account.  Institutionalisation appears likely upon your horizon given your history of offending.  She noted that you have now spent the majority of your adult life incarcerated and exhibiting symptoms of institutionalisation.  When persons with your history and makeup meet challenges and stressors with the inevitability of becoming overwhelmed and behave dysfunctionally, you readily relapse into drug use and criminality.

25I take into account the need for proportionality in the sentence in order not to extinguish hopes for reclamation and rehabilitation, although your prospects must be very guarded.  Your prior history is relevant to these prospects.  They bring deterrence to the fore and highlight the long-term difficulties you have and may have to mitigate and move into a law-abiding and productive future.

26I mention them not in order to punish you again for these prior offences but to bring into the focus the concern surrounding your realistic prospects of rehabilitation, specific deterrence and the need for transitional support and supervision after your imprisonment. 

27Your priors begin in 1997 in Western Australia with robbery in company, deprivation of liberty and burglary, for which a heavy sentence of 11 years was imposed by the Supreme Court of Western Australia, a heavy sentence for a young person in 1997.  In 2003, your first drug possession charge was dealt with by a fine.  Your first Victorian prior is in 2004 in this court for armed robbery and intentionally cause serious injury with a sentence of four and a half years with a non-parole period of two and a half years.

28Drug offences, proceeds of crime and weapons offences were also dealt with soon after that which cumulated a further six months' imprisonment.  An appeal was unsuccessful and in 2013, this court-imposed four years and two months with a non-parole period of two years, 10 months for trafficking in a drug of dependence, weapons possession and dealing with proceedings of crime.  That was a sentence of His Honour Judge McInerney which I have read.

29In 2014, His Honour Judge Allen dealt with charges of trafficking in a drug of dependence and possession of a drug of dependence for which he set a new non-parole period of three years having sentenced you to a period of imprisonment for the above offences.  I have read the sentencing remarks of His Honour.  In 2017, August and September, the Magistrates' Court and then the County Court dealt with you for breach of parole, trafficking in heroin and methamphetamine by a further period of imprisonment partly concurrent with the sentence which was uncompleted.

30It is apparent from reading the sentences of His Honour Judge McInerney that eight years ago he sought to enhance your chances of rehabilitation by a merciful sentence given that you had married in 2010 and his stated purpose was to encourage these chances.  The 2014 matter involved your participation in what was a large-scale drug syndicate involving three states.  His Honour Judge Allen noted that the offending he was dealing with had occurred one month before your plea before His Honour Judge McInerney, that is, committed while on bail for serious drug offences.

31His Honour refers to a report by Geoffrey Cummins which was also before His Honour Judge McInerney reflective of your background, as I have described it above.  Again at that time, of the sentence, the sentencing judge noted that you had a 'real incentive' to change while you were in gaol because of a loyal wife and a little girl to look after.  He noted that the steps taken by you seemed to 'auger well in terms of your prospects of rehabilitation'.

32You had worked as a gardener and had done a peer-listening course designed to assist other prisoners by acting as a peer in the prison system.  I note that I was told that you are again currently fulfilling this role in prison.  Though it is clearly to your credit and a matter that I take into account that you do this for others in the system, it is a factor which though relevant in the end in my view, must carry only relatively small weight given your history.

33His Honour sentenced you largely out of a consideration that the offences before him were properly regarded as a continuing with the earlier offences and sentence.  He considered in his usual, compassionate view that you then had 'at this stage of your life very good prospects of rehabilitation and a strong incentive to rehabilitate'.  It is sad to see those hopes dashed upon the rocks of your continued criminality and drug use.  You breached your parole His Honour set by further trafficking and possessions of drugs in 2017.

34On that occasion police intercepted you driving a Jaguar motor vehicle in possession of heroin and methamphetamine and they found a heroin press and other drugs and accouchements of trafficking at your residence.  I have recited this history at some length because it is relevant and appropriate to consider in the way I have indicated.  Clearly, I will not and cannot lawfully punish you for past offending. Such history I repeat, however, impacts on the sentence I impose because it goes to your prospects of future rehabilitation. The significance of specific deterrence, the aspect of community protection and the effect of incarceration.

35This of course does not call for a disproportionate sentence but an appropriate response to the crimes on the indictment which I note allege trafficking and possession on one day.  I accept you have been abstinent while in prison and that you are again seeking help to deal with this underlying addiction.  You have received some counselling, completed a number of programs aimed at relapse prevention.  I note also you did in the past complete a carpentry TAFE course.

36I note that while in remand in 2020 visits and contacts have been subject to COVID-19 restrictions, making the burden of that remand more onerous and I have taken those matters into account.  On the three trafficking charges, I will impose sentences which are wholly concurrent as between those charges, as well as the possession and the summary charge related to proceeds of crime which will carry some cumulative periods upon those first three charges and the sentence pertaining thereto.

37On Charges 1, 2 and 3 of trafficking, on each you are convicted and sentenced to four and a half years' imprisonment concurrent with each other.  On
Charge 4 of possessing a precursor chemical, you are convicted and sentenced to 12 months' imprisonment.  On the summary charge of proceeds of crime, you are convicted and sentenced to four months' imprisonment.  I order that four months on Charge 4 and two months on Charge 3, the summary offence be cumulative on the four and a half years imposed on Charges 1, 2 and 3, making a total effective sentence of five years with a non-parole period of three and a half years.

38I have orders for forfeiture and disposal which I will sign.  Yes. 

39But for your plea, I would have sentenced you to seven years' imprisonment with four and a half years non-parole period.  Are there any issues with the sentence?  There is a matter of the pre-sentence detention.  What is the pre-sentence detention period, is it agreed?

40MS WATSON:  Yes, 399 days, Your Honour.

41HIS HONOUR:  Yes.  Do you agree with that, Mr Terry?

42MR TERRY:  Yes, I do, Your Honour.  And there are no other issues with the sentence.

43HIS HONOUR:  I declare that Mr Bui has served 399 days by way of pre-sentence detention and I will have that number noted in the records of the court.

44MR TERRY:  If Your Honour pleases.

45HIS HONOUR:  Thank you.

46MS WATSON:  As the court pleases.

47HIS HONOUR:  Thank you both.  Mr Terry, do you wish to your - or need to speak to your client at this point of time?

48MR TERRY:  Yes, I would like to speak to him for just a couple of minutes, if that is all right.

49HIS HONOUR:  Yes, I think that we can facilitate that.  Perhaps I will just put the two of you in a lobby and you can have a conversation with him.  I will stand down, I have a jury that is out.  Thank you.

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