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DPP (Cth) v Bui

DPP (Cth) v Bui

Case [2011] VSCA 61 9 March 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0170
DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA	Appellant
v
KIEU THI BUI	Respondent

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JUDGES	NETTLE, HANSEN JJA and ROSS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 November 2010
DATE OF JUDGMENT	9 March 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 61	1^st Revision: 9 Mar 2011 [41] n 24
JUDGMENT APPEALED FROM	R v Kieu Thi Bui (Unreported, County Court of Victoria, Judge Wilmoth, 30 April 2010)

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CRIMINAL LAW – Sentencing – Director’s appeal – Importation of a marketable quantity of a border controlled drug – S 16A(2)(p) Crimes Act1914 (Cth) – Exceptional circumstances – Markovic v R; Pantelic v R [2010] VSCA 105 – Error of law – Manifest inadequacy – Double jeopardy – S 289 Criminal Procedure Act 2009 (Vic) application to federal offences – Residual discretion not exercised – Appeal upheld – Respondent resentenced to four years’ imprisonment with a non parole period of two years.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Director of Public Prosecutions (Cth)
For the Respondent	Mr G F Meredith	Greg Thomas

NETTLE JA:

I agree with Ross AJA.

HANSEN JA:

I also agree with Ross AJA.

ROSS AJA:

Introduction

On 27 April 2010 the respondent pleaded guilty in the County Court to the single count of importation of a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code (Cth). She was sentenced to three years imprisonment, to be released forthwith upon giving security by recognisance of $5,000.00 and to be of good behaviour for three years. The sentence commenced on 30 April 2010.

The Director of Public Prosecutions (Cth) has appealed against the sentence imposed, contending that it is manifestly inadequate. Before turning to the grounds of appeal it is convenient to briefly set out the circumstances of the offending. This information is derived from the agreed summary of facts which was read into the court record in the proceedings below.

In 2007 or 2008 the respondent met a person she knew as ‘Ho’. Ho told her that he arranged for people to bring heroin back from Vietnam to Australia and he paid them up to $20,000. In October 2008, the respondent was running short of money and during a phone conversation with Ho, asked if she could borrow $3,000. Ho agreed to lend her the money and said that she could decide if she wanted to pay the money back or bring drugs back from Vietnam. Ho told her that she would be paid $8,000 per pellet and she agreed to bring the pellets back because she needed the money to pay off her debts.

About a month after borrowing the money, the respondent arranged to travel to Vietnam with some friends. The respondent told Ho that she was going to Vietnam and on the day before she left, Ho met her and gave her the name and contact phone number…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP (Cth) v Bui

Details

AGLC: DPP (Cth) v Bui [2011] VSCA 61
Case: [2011] VSCA 61
Decision Date: 9 March 2011

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions (Commonwealth) versus Bui, the appellant sought a higher sentence for the respondent's role in the importation of a significant quantity of a controlled drug, in breach of section 16A(2)(p) of the Crimes Act 1914 (Cth). The respondent, Bui, was originally sentenced to a term of imprisonment with a non-parole period, which the Director deemed inadequate. The matter was heard in the High Court of Australia, where the appellant's appeal focused on the sentencing process and the adequacy of the original sentence.

The primary legal issue before the court was whether the original sentence imposed on the respondent was manifestly inadequate, warranting a higher sentence under the relevant statutory provisions. The court examined the principles set out in Markovic v R and Pantelic v R, which address the criteria for considering whether a sentence is manifestly inadequate and the exercise of discretion in sentencing. The court also considered whether the respondent's sentence could be altered without breaching the principle of double jeopardy, as per section 289 of the Criminal Procedure Act 2009 (Vic).

The High Court found that the original sentence imposed on the respondent was indeed manifestly inadequate, and therefore, the appeal was upheld. The court determined that the original sentencing judge had not appropriately exercised the residual discretion available under the law. The respondent was resentenced to a term of imprisonment with a non-parole period, which the court deemed appropriate given the circumstances of the case. The court did not exercise its residual discretion to alter the sentence further, and the respondent's appeal was dismissed.

Orders