Director of Public Prosecutions v Bui

[2015] VCC 474

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00040

DIRECTOR OF PUBLIC PROSECUTIONS

v

BINH BUI

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2015
DATE OF SENTENCE:	23 April 2015
CASE MAY BE CITED AS:	DPP v Bui
MEDIUM NEUTRAL CITATION:	[2015] VCC 474

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – cultivation commercial quantity – theft

Legislation Cited:     Crimes Act 1958 (Vic), Drugs, Poisons and Controlled Substances Act (1981), Sentencing Act 1991 (Vic)

Cases Cited:DPP v Duong [2006] VSCA 78; R v Pidoto & O'Dea (2006) VSCA 185; R v D'Aloia [2006] VSCA 237; DPP v Corbel [2015] VCC 7; R vVerdins [2007] VSCA 102

Sentence:Convicted and sentenced 5 years imprisonment with a non-parole period of 3 years imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes	Solicitor for the Office of Public Prosecutions
For the Accused	Ms P Smith	Revill and Papa Lawyers

HIS HONOUR: 

1

Today, Mr Binh Quoc Bui pleaded guilty to two charges on Indictment number E13503098.  The first of those is a charge laid by the Director that

Mr Binh Bui, at Braybrook, between 29 July 2014 and 21 October 2014, cultivated a narcotic plant, in this instance being cannabis L, in a quantity not less than the commercial quantity applicable to that plant.

2Such is a breach of s.70(A) of the Drugs, Poisons and Controlled Substances Act (1981).  Insofar as that particular offence is concerned, the seriousness of such is demonstrated from the fact that the maximum penalty prescribed by Parliament for such offences is one of 25 years' imprisonment.

3The second offence on the Indictment, to which Mr Bui has plead guilty to, is a charge, that in Braybrook in the same period, stole electricity belonging to AGL Retail Energy Limited, an offence against s.74 of the Crimes Act 1958 (Vic), again the seriousness of which is demonstrated by the fact that parliament prescribes a maximum penalty of ten years' gaol.

4Mr Bui is now 65, having been born on 28 May 1950.  He is unemployed.  He has been a member of this community for at least 20 years when he came from Vietnam, as I understand it, a refugee.

5His prior history sheet is not of large, however there are particular matters.  In this particular case there are two matters.  One occurring at 2004 which is ten years now.  It is to be noted that as a result of that offence, of trafficking cannabis, a 12 month suspended sentence was imposed against Mr Bui and he served, successfully, that sentence.

6It is however, of significance to note that the circumstances of that were quite similar to the circumstances of fact insofar as Count 1 is concerned in this matter.  I point out that in our system, one is not in any way penalised for one's prior offences.  However, where there are prior offences of a like nature, they can illuminate the sentence involved.  In particular instance and indeed sometimes restrict the alternatives.

7The second prior offence occurred in 2008, when Mr Bui was convicted at the Sunshine Magistrates' Court, for a charge of possess heroin and deal property suspected of proceeds of crime.  That matter was adjourned upon the defendant entering into certain undertakings as to seeking advice for alcohol and other issues to ensure, hopefully, that no further commission of offending.

8Exhibit A was tendered and was agreed by both counsel as representing the facts upon which I have to sentence Mr Bui.  As I said, Mr Bui has been a resident of this country for over 20 years.  It is most unfortunate in my view that he has chosen to commit criminality of such a serious nature.  This community has indeed been enlightened in many ways by the impact of the Vietnamese community.

9It is unfortunate when we have before the Court, persons who choose, despite having attained refuge in this country, commit offences of this nature.  I understand, given the circumstances, the distress that Mr Bui has faced and has suffered and his concern in the circumstances as to the impact of these offences, in particular upon his three children who are here in Court to support him.

10

The particular circumstances insofar as Charge 1, which are detailed, was cultivate narcotic plant, was that the police visited his residence at

37 Airforce Drive in Braybrook, where as a result of the matters that Ms Smith tells me, had only been there for a relatively short period.  As a result of that visit, there was located the cannabis and the hydroponic system found at such premises.

11The summary of what was found there was 94 plants in total, giving a total weight of 56.4 kilos with a yield weight of 33.7 kilos.  In a system which is predominantly concerned with the weight of items, it is to be noted that the limit insofar as when one enters the commercial quantity in such cases is one of either 25 kilos or 100 plants.  Hence, whether one takes either the yield figure or the total weight figure, clearly Mr Bui was in such category of a very serious offence.

12The second offence by way of summary, occurred essentially over the same period so that the hydroponic operation could operate and involved the theft from AGL Energy Limited of the relevant electricity require for such system which has been estimated to amount to the sum of $10,903.33.  I have today, signed a compensation order in regard to such sum.

13

As a result of such visit to the premises, as a result of the search warrant,

Mr Bui was arrested, made a record of interview in which he made full admissions.  He admitted to personally setting up the system and personally cultivating the cannabis over a period of two months.  The system has been remarked and explained by Ms Smith, was set up in his son's home after a number of circumstances led to previous members of the family vacating that home.

14Mr Bui said, in answer to question 20, that he knew it was wrong, that he deliberately and did personally set up the bypass to steal electricity. At question 36, he was asked this question:  "When they finish growing, what do you do then?"  He responded:  "I would cut them up and then dry them and sell them.  Yeah, people told me that once you harvest and sell them, you get the big - big money".

15Insofar as the weight was concerned, I have detailed the specifics in regard to that and those matters were fully set out by the learned prosecutor, in particular, by the amendments made this day, and to be filed in due course.

16There is no doubt, as was submitted by the prosecutor, that in particular in regard to the first offence, the only appropriate sentence, given the seriousness for these charges, is one of immediate incarceration.  There was a proposition put by Ms Smith which sought to resile from that proposition, however as indicated by the Court, it was my view that it was inappropriate to consider any alternative.

17As detailed by Buchanan JA in DPP v Duong [2006] VSCA 78, where Parliament prescribes a maximum penalty of 25 years, such a penalty shows unambiguously how seriously the community, through its Parliament, views this particular crime. Indeed it is irrelevant what particular drug is involved. The system essentially is quantity based. We have in regard to the criminal provisions in our State, a quantity base sentencing regime. I should point out, however that the quantity of such has no arithmetical relationship to a sentence, but of course is a very significant factor in the total sentencing process.

18This particular regime of which I have referred to was fully detailed by the Court of Appeal in R v Pidoto & O'Dea (2006) VSCA 185. In particular at paragraph 34, where four of the Appeal Court Justice's, in a joint judgement, noted the structure that Parliament has:

…"adopted a hierarchy of seriousness defined by and only by a quantity of the drug of dependence that has been trafficked."

19Obviously the differences here are that we are not dealing with a trafficking charge but the issue and involvement of the quantity still remains for the purpose of sentencing.  This case clearly is a cultivation case.

20In Pidoto and O'Dea, at paragraph 62, the Court indicated the ultimate question for a sentencing Court, given such structure, is this:

"It is not whether, in that case, trafficking in one drug, is to be viewed more seriously than traffic of another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing with the material involved".

21Substitute in this case cultivation for trafficking.  As I have already remarked, Mr Bui, the maximum penalty in regard to your offence is one of significance.

22Nettle JA, as he then was, in R v D'Aloia [2006] VSCA 237, in particular at paragraph 56, set out the general approach for sentencing Judges in these types of cases. In that particular case, he was dealing with MDMA. He said as follows:

"As far as the effects of MDMA concerned, the matter may still be approached on the basis that all of the drugs which are described have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore appropriate to be regarded as a serious criminal offence".

23Again, substitute for the word trafficking in that general reference, the word cultivation in your particular circumstances.  As I have indicated, clearly this is an offence which warrants an offence of imprisonment.  In particular, the particular aspects of this case show that yours was a role not often accepted in these cases.

24I point out that your prior history shows that you have previously been involved in a hydroponic situation.  Although, as I understand the plea was taken simply on a simple traffic charge, despite the number of plants in that instance.

25As put by your counsel, there is no one else involved in this case.  You, Bui, set up this process and set it up for the purpose of profiting yourself.  It was put by your counsel that there might be some gainsaying as to what the motive was.  It was suggested that I should discriminate in the profit motive from the fact that you are simply not gaining money and putting it in the bank or wherever criminals may nefariously put there proceeds, but doing it for the purpose of travelling to Vietnam and marrying your wife, marrying your prospective wife.  I think in reality, it makes not the slightest difference given the seriousness of Charge 1.

26It is noted that you have already served by way of remand 184 days.  A order was served - was requested as to dispose and I have signed that order as well.  It was noted that this matter was resolved at the earliest time.  That was at committal mention.  It is to be also noted as I remarked, these offences only occurred in October of last year.  They were settled at committal mention and here we are doing the plea today.  It could not be much quicker.  Indeed, it could almost be such as to instigate a new sentencing regime.  Thankfully, it did not.

27Ms Smith, if I might say so, said as much as she could on your behalf.  She did not, in any way, resile from the fact that prima facie being so serious and given Parliament's view as to the maximum penalty, imprisonment was very much on the horizon for you.  She stressed the support that you have from your family, and the concern that they have.  She stressed your own remorse as expressed very early and in particular as shown in Mr Crewdson's psychological report, insofar as the concern for the impact on your family, Mr Crewdson’s report being Exhibit 5.

28As I say, the particular circumstances in which the matter, the cultivation and the hydroponic setup was made, was explained, I have already referred to that.  The background in regard to how you came to be in the house was also referred to.  It was put that given the degree of maturity of the plants themselves, that seemed to give some consistency to the story being put by you that it was only when the family vacated that you started this project.

29It was put that you have led a somewhat depressed life since the breakup of your marriage.  That you have been somewhat isolated and it was a result of this isolation that you saw some attempt or possibility of starting another family and this is the basis and the background for these circumstances.

30As I say, there is nothing really that would lead me to disbelief those circumstances, however it is not really relevant in the circumstances except as perhaps an explanation.

31I understand in the period since you have arrived in Australia, you have had some difficulties in seeking employment.  Essentially, as a result of that, both you and your wife had the benefits of pensions provided in Australia for most of that time.  However, your difficulties seem to begin somewhere around 2002-2003, when your wife left the family home.

32Subsequent to that, you began to gamble.  That seems to be an affliction that I often find related to Vietnamese who get into trouble in this Court and in your case, also excessive drinking.  As was put by your counsel, perhaps coinciding with those circumstances was the fact that, for the first time, you committed the offences as I have already referred to.

33Since you left the family home, you have worked as a volunteer at the Buddhist temple as described in a reference set out in Exhibit 4 and a confirmation of your role and the - your actions in serving the community is noted by me.  Mr Crewdson notes in Exhibit 5, the depressed disorder that you have had for some considerable period and that seems related to your marriage breakdown.  It also seems that your deterioration, your isolation and loneliness over the last decade, as was put by your counsel, also seems to relate to that and again, consistent with the proposition put to me was, that was the reason why you have taken such a grand leap in criminality.

34As an indication of the effect, it was noted by your counsel that you were before the Court for the first time at the age of 54, which is late for persons who are criminally minded and of course, you are now only 64.  It was put by your counsel that you understood the need for a sentence which effected general deterrence and she accepted the proposition put by me that any person who has a role in these serious offences, must condign punishment.  That is the will of Parliament and consistent with determinations of the Court of Appeal.

35However in the particular circumstances of this case, your counsel pointed out the issues, although not particularly unusual for a person of your age but the difficulties you will have with gaol and I note those.  In particular, your counsel pointed out that you have, from the first instance in this matter, assisted the Courts, that you have aided justice, that you are entitled to be recognised for the remorse demonstrated by your plea and that you are entitled to the appropriate discount that that plea should warrant.

36It is necessary, of course, in prescribing a sentence for me to take into account not only the factors of general deterrence, the need for punishment, but in particular, the matters put to me by your counsel.  Insofar as those matters, I was assisted by the written defence submissions which were tendered as Exhibit 1, the chronology that was provided by your counsel and in addition, the medical report from Dr Pham, dated 3 March 2015.  It is by way of a synthesis of all of those factors that one comes to an appropriate sentence in this matter.

37If you be good enough to stand, Mr Bui.  Insofar as the first charge in the matter, you are to be sentenced to a period of imprisonment of four and a half years.  On the second charge, a period of imprisonment of two years.  I order that six months of the sentence imposed in the second charge be served cumulatively upon the sentence imposed in the first matter, making an aggregate sentence of five years.

38I order that the period that you must serve before being eligible for parole is a period of three years and I further declare pursuant to s.18 of the Sentencing Act 1991 (Vic) that the period of 184 days that you have served on remand is to be seen as service of this sentence and a declaration to that effect, be recorded in the records of this Court. I declare, pursuant to s.6AAA of the Sentencing Act, that had you not pleaded guilty in this matter, I would have sentenced you to a period of imprisonment of six years and eight months with a minimum of four years and five months.

39I indicate that I intend to sign and have signed the forensic sample order.  I restricted it to a sample to be taken from your mouth, not a blood sample.  You will be approached in gaol as I understand it, in regard to that.  I have signed the compensation and disposal orders and I think that is all I need to do.  Anything else I have not attended to?

40MS COOMBES:  No that is all correct, Your Honour.

41HIS HONOUR:  Sorry, there was one other matter I wanted to say.  Counsel did hand to me a comparator, if it can be put that way, which no doubt the Court is going to have to get very used to in due course, of DPP v Corbel [2015] VCC 7. I have read it. It seems to me that some pretty significant differences in that matter although there are similar charges. The amounts are not all that different, nor the totals. It was a plea. It was a person who was aged 70, however his health was significantly different and indeed, there had been a Verdins,[1] finding in that matter as to culpability.  It seemed to me having said that, all I can say is Mr Corbell was quite lucky with a generous sentencing judge he had.

[1]R vVerdins [2007] VSCA 102

42MS COOMBES:  There were also no priors in that matter, I think that was ‑ ‑ ‑

43HIS HONOUR:  And no priors either.

44MS COMBES:  Yes, that is right.

45HIS HONOUR:  Mr Bui, good luck.  We do not want to see you here committing crimes.  We want to see you here looking after your family.  Just for your own benefit, the maximum penalty I have prescribed for you is five years. The minimum you have to serve is three years, less the six months you have served.  So two and half years to go and your counsel will explain the matter more fully.  Thank you.

46COUNSEL:  As Your Honour pleases.

47HIS HONOUR:  Thank you.

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