R (Cth) v Bui

[2021] NSWDC 806

District Court

New South Wales

Medium Neutral Citation:

R (Cth) v Bui [2021] NSWDC 806

Hearing dates:

17 March 2021

Date of orders:

17 March 2021

Decision date:

17 March 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See par [35]

Catchwords:

CRIME – SENTENCE – IMPORTATION OFFENCE – Possession of prohibited substance – Contrition and remorse – Offender sufficiently remorseful.

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

Ruben Botero (unreported, Court of Criminal Appeal, 24 June 1998)

Texts Cited:

Nil.

Category:

Sentence

Parties:

R (Cth) – Crown
Defendant – Linh Bui

Representation:

Counsel:
R - Kanagasabapathy
Defendant – Grace, D. QC
Solicitors:
R (Cth) – Commonwealth Office of the Director of Public Prosecutions

File Number(s):

2019/00330020

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Linh Bui stands for sentence as a consequence of pleading guilty to a charge that between 4:30pm and 6:30pm on 21 October 2019 at Sydney, he attempted to possess a substance, the substance being unlawfully imported, the substance being a border controlled drug namely methylamphetamine, and the quantity possessed being a commercial quantity, contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth). That offence carries a maximum penalty of life imprisonment.

Facts

2. On 15 October 2019, the Australian Border Force (“ABF”) intercepted an imported pallet of Sriracha, a condiment (chilli sauce), at Air Menzies International at 1A Hale Street, Botany. There were suspicions raised about the genuineness of contents of the chilli sauce bottles. The ABF enlisted the aid of the Australian Federal Police who then transferred the investigation of the matter to the New South Wales Police. The consignment was taken to the Sydney Police Centre and there was a deconstruction of the consignment. The consignment contained 64 boxes, each containing 12 bottles purporting to contain the chilli sauce. That is there was a total of 768 bottles. The police tested one bottle from each of the 64 boxes. Each test returned a positive result for the presence of methylamphetamine. The purity of the substance was found to be 41.5%. The total weight of the substance was 610.551 kilograms. The estimated pure weight of the methylamphetamine was 253.38 kilos.

3. The commercial quantity of methylamphetamine is 750 grams. The amount of pure methylamphetamine in the consignment was 337.84 times the commercial quantity threshold. It was a large importation. On 16 October 2019, the New South Wales Police substituted the consignment of bottles with other Sriracha sauce of bottles. On the following day, the consignment was taken by a white truck and delivered to a business address in Wetherill Park. An employee of the commercial premises, Pack and Send, used a forklift to move the consignment containing the sauce from the truck.

4. On 18 October 2019, at about mid-day, Kevin Lam attended the Pack and Send premises at Wetherill Park and took possession of the consignment. He loaded it onto a black Ford utility registered number DXC50C. He was the only occupant of the vehicle. Lam drove the consignment in the black utility to
   National Storage at 2 Zeleny Street, Michinbury. At the National Storage facility, Lam unloaded the consignment box by box and placed each into unit 4122, which was hired by him in his name. Lam left the National Storage facility and then travelled to Bossley Park.

5. From admissions made by the offender after his arrest, he was approached by another man named Kevin and offered a job on 19 October 2019 which required him to take over the consignment, whilst the drugs were at National Storage in Michinbury, The offender described “Kevin” as being a Vietnamese person of Chinese background aged in his late 40’s who was 175cm tall. He was promised, for his part in the attempted importation, a reward of $10,000. The offender, however, needed money to play his part. For that purpose, he borrowed $2000 from his cousin, Trung Nguyen. He also enlisted his cousin to accompany him on his task. They flew to Sydney on Sunday 19 October 2019, arriving at 10:30pm. The flight and accommodation in Sydney were paid for by the offender with the money that he borrowed from his cousin.

6. They rented accommodation in Meriton Suites, Kent Street, Sydney. On 21 October 2019, a person driving a silver Mitsubish Outlander seven seater, registration number 1NX1OZ, unsuccessfully attempted to gain access to the National Storage facility, unit 4122, the one in which Kevin Lam had placed the replacement consignment. The person then driving the silver Mitsubishi Outlander made inquiries and found out that access to the unit in question was suspended due to late fees. The person who found that out provided a credit card number in order to pay the fees to allow access to the unit.

7. At 3:30pm, the offender and his cousin in the same vehicle attended the National Storage facility and gained access to the unit 4122. The offender and his cousin were captured on a listening device inside the storage unit. Much of the audio is indistinct but several statements were captured. In one, the offender said “He said just open… a box, have a taste.” The offender’s cousin is recorded as saying “This fucking looks real, man” and then later “This one is real.” The cousin later is recorded as saying “Take a photo. Say we’ve opened and tasted it.” The offender is then recorded as saying two things but at different times. The first is “This is like the real one at the shop. It doesn’t look like...” The second thing attributed to the offender was “[k]ind of bitter. Numbing the tip of the tongue.”

8. There were recorded on the offender’s telephone certain messages which appeared to have passed between him and either Kevin who offered him the job, or somebody else in a criminal syndicate. This person is identified in the text messages as “King”. It is clear that the offender had rented the Mitsubishi Outlander on his own initiative. He was told that he also needed to have bags in messages commencing at 8.41am. He said that he had rented a vehicle, but had not yet have purchased the bags. He indicated that his vehicle he had hired was a seven-seater car. King described this as a “minivan”. The offender said “Yeah something like that”. Eventually, the offender gave the details of the vehicle to King.

9. A further series of text messages commenced at 2.17pm on the same day, 21 October 2019. There was a discussion about opening hours of the facility, at Minchinbury, and tentative arrangements were made to do a pick-up at 5.30pm. King instructed the offender to “Go find bags” and “A lot of them” and then pointed out that “Hockey bags are best”. A photograph of a bag was sent to King. The offender described it as being large enough to take two human bodies. King then said to the offender that it might be necessary to do two or three loads. That prompted the offender to reply whether there were one or two pallets. King then told the offender that there was one pallet.

10. There was then a discussion between them as to whether the vehicle could take the whole shipment in one load, and the offender indicated that it should be possible to take the whole consignment in one trip. Those text messages were all exchanged before the offender reached the unit in which the consignment had been stored. The text messages, like the overheard voices on the listening device, indicate that there was concern that the sauce bottles were genuine, and not ones that had been tampered with to take or accommodate some illegal substance. Towards the end of the text messages was this exchange:

“BUI: U sure it the right stuff bro.

KING: 1000%.

BUI: Fk taste like real sauce but

Okie feel a bit bitter now.”

Earlier, King had told the offender that the sauce when tasted should be “bitter as fuck.” It would appear that the offender and his cousin believed that the consignment was not pure chilli sauce, but was adulterated with a bitter substance. That substance could only have been an illicit drug.

11. The offender and his cousin then drove the consignment in the Mitsubishi Outlander to the Meriton Suites at Kent St, Sydney. They went to Room 2310 on Level 23. They had arrived at the Meriton apartments at 4.51pm. At 6.10pm, the offender and his cousin returned to the carpark with a luggage trolley which they loaded with boxes of the chilli sauce. They took those boxes to a lift, and seven minutes later returned to the car park with an empty luggage trolley. It would appear that they had taken some of the boxes to their room, but returned with the empty luggage trolley to obtain a further load of boxes.

12. They were then arrested. New South Wales Police searched their car and found large canvas bags, box cutters, and gloves, presumably so that the bottles of sauce could be removed from the cardboard boxes and placed in the canvas bags.

13. There was a formal interview between the offender and the New South Wales Police. The offender admitted that he had picked up the chilli sauce from the storage facility. He admitted that he had hired the car at the airport. He admitted that a person had told him that he would pay him $10,000 to travel to Sydney, pick up the chilli sauce, and deliver them to an apartment. He admitted that he opened a chilli sauce bottle and tasted it, and it tasted like real chilli sauce, so he continued with the work that he was doing.

14. He identified the Kevin who had spoken to him. He had previously met him three times. Kevin was a Vietnamese person of Chinese background, aged in his late 40s, and was 175 cm tall. He made the admission that this Kevin offered him the job on 19 October 2019, leading to his flight to Sydney later that day. He admitted borrowing moneys from his cousins and recruiting his cousin into the job. He admitted that it was the Kevin that he knew who had told him to taste the sauce that was in the bottle, obviously to ascertain whether it was pure sauce or contaminated sauce.

15. The police also interviewed Nguyen but I shall not say anything about what he is alleged to have told the police. At the current time, Kevin Lam and Trung Nguyen are standing trial before Pickering DCJ and a jury. That trial commenced on 8 March 2021 and is due to conclude next Friday.

Seriousness of the offence

16. I have to consider the seriousness of the offence. It is not just a question of putting labels of what the offender did, but discussing his involvement. He was recruited for a purpose which he must have known was a criminal one. No one offers to pay to a person in Melbourne, which is where the offender has lived since he migrated to Australia at the age of nine, $10,000 to collect a load of chilli sauce bottles, and move it from one place to another. $10,000 would far exceed the value of the chilli sauce.

17. He took instructions from the person identified as “King” to fly to Sydney, rent a vehicle, hire accommodation, go to the storage facility, collect the shipment, transport it back to their dwelling place, and await further instructions.

18. He sought to ascertain whether the consignment was what was anticipated, that is, chilli sauce that had been contaminated with another substance, so that it tasted bitter. Again, the only inference to be drawn was that he must have known that the sauce was contaminated with a drug of some form or other.

19. He knew that the consignment was large, hence the need to hire a seven-seater vehicle, not a two-door small car that might be necessary for him to drive himself and his cousin around in Sydney. He also knew that he needed to obtain large canvas bags and box-cutters to open the boxes. He knew prior to entering the storage facility that there was at least one pallet containing drugs. He knew that it was a large consignment, one of great value.

20. He tested the drug, thought it was what he desired to pick up, that is, drug-contaminated chilli sauce, removed it from the storage facility, and transported it back to the accommodation that he had rented in Sydney, where he was to await further instruction. He clearly was in communication with “King”, someone clearly at the head of, or amongst those running, the drug importation “racket”, or a drug importation cartel. He knew that he needed gloves to do the work that he was going to do on the consignment, perhaps to try to hide his fingerprints on any of the bottles that he might touch.

21. The Crown concedes the offender’s role appears to be of a “courier” type, but it was more than that. Clearly King trusted the offender to do what he did. He trusted the offender sufficiently to allow him to take possession of what amounted to 253.38 kilograms of pure methamphetamine. King trusted the offender to be able to recruit someone, namely his cousin, to assist him in doing the work. Not only was he moving the drug around, he was testing its quality, as he was a trusted member or worker in the drug cartel.

22. Clearly, his role was greater than a mere courier moving the consignment from one place to the other. He was involved in testing it and he was trusted not to decamp with the consignment, trusted to do what he was told to do and to await further instructions.

Antecedents

23. The offender comes before this Court as a man of prior good character. He has no criminal antecedents in this country and, as I said, migrated to Australia at the age of nine so he could not have committed any crimes in his native country. His personal circumstances have not been deposed to in any evidence, but have been summed up by his counsel, Mr Grace QC, in his written submissions and they do not appear to tell me anything other than what is consistent with facts.

24. The offender is a middle child of a traditional Vietnamese family. He was born in 1985 in Haiphong. At the time of the offence the offender was 34. He is now 36. He has two sisters, one older and one younger. In Vietnam his parents ran a family convenience store in Haiphong. When the Defendant was nine years old, his family, comprising his parents, him and his older sister, came to Australia as refugees. His younger sister was born in Australia. He grew up in Victoria.

25. He attended a state primary school in Braybrook, a suburb of Melbourne. He attended a secondary college in that suburb as well. He completed year 12 in 2002. He gained entry to a Diploma of Business course at the Royal Melbourne Institute of Technology and commenced that in 2003, but discontinued it in 2004 as he did not enjoy the course. He then enrolled in a Diploma of Hospitality at the Victoria University, and he completed that diploma in 2006. He then worked in hospitality for a short period only. He then obtained a full-time job at the Toyota factory in Melbourne until 2017. He then worked at a Woolworths distribution warehouse in another suburb of Melbourne. In 2018 he obtained work at a pipe manufacturing premises in another suburb of Melbourne, and he was in that job at the time he involved himself in this attempted importation.

26. His income was not great. He married at the age of 25 and purchased a property in Braybrook where he lived with his wife, his parents, and his sisters. He divorced in 2017. He has no children. After his divorce, he continued to reside in the house that he bought with his parents and his sisters. According to his counsel, the offender suffered some psychological problems and commenced drinking alcohol, going to nightclubs, and gambling to excess. One can understand a man who having been estranged, separated and divorced, might go clubbing, perhaps trying to find another lady, and he might seek solace in the bottle.

27. Whether the offender was gambling to excess I do not know. However, his taking up this promise of “easy money” is consistent with his having a need for money. According to his counsel, the offender, because of his gambling to excess, had fallen behind in his mortgage payments, and owed money to loan sharks and on his credit cards, hence the need to obtain ready money. I must point out that it has been well established in this State for many years that, to make substantial amounts of money from dealing with drugs for the payment of personal or family debts, is not less criminal than doing the same for making pure profit. The authority is the judgment of Barr J in Ruben Botero (unreported, Court of Criminal Appeal, 24 June 1998).

Contrition and remorse

28. The Sentencing Assessment Reports tell me a number of things in favour of the offender. They do suggest contrition. When discussing the offender’s insight into the impact of his offending, the Sentencing Assessment Report says this:

“Mr Bui commented he took a risk not having sought knowledge of the goods he was picking up”.

The offender stated that he was disappointed with his poor choice, especially as he could see every day how illicit drugs negatively impact on so many people’s lives. Since his arrest, the offender has been incarcerated at Long Bay Gaol. He can see the effects of illicit drugs on the prison population. The majority of prisoners in our custodial system are there because of either trading in drugs, importing drugs, or committing other serious crimes to obtain money to support their illegal drug habit. He now knows, but ought to have known from his life in Melbourne, that drugs destroy lives, destroy families, and destroy careers. He is contrite and I accept that he has the requisite insight, and I accept the statement in the report that his risk of re-offending is low according to the standard testing used by community corrections.

29. The offender does not use illicit drugs. His alcohol intake, when he was in the community, was occasional, but his gambling was a problem. That is also stated in the pre-sentence report. I am confident that the offender will not reoffend because of the effect of his current offending, and the deterrent effect that the current sentence will have upon him.

Crimes Act 1914, section 16A(2)

30. Of course, I am required to deal with each of the matters contained in s 16A(2) of the Crimes Act 1914 (Cth). I have sought to do so. There is no actual victim here. The putative victims are those who might have bought the drugs had they been successfully imported, and our society. The offender has shown contrition for his crime in two ways: (1) by his plea of guilty; and (2) by cooperating with the authorities and giving them the information that he did in his electronically recorded interview. It implicated himself and gave some information which may be of utility to the authorities in tracking down others involved in this importation.

31. I have little doubt that personal deterrence will be effective here. It has been effective already. However, the important thing in crimes of this nature is general deterrence. Young men like this young man must realise that if they try to make “quick money” by involving themselves in the drug trade, they will obtain lengthy prison sentences.

32. The prospect of rehabilitation is good because chances of recidivism are low. I have sought to outline the offender’s character, antecedents, age and means. As I said, he is a man of prior good character and a man who is unlikely to reoffend.

Consideration

33. I have come to the view that I should start this sentencing exercise with a head sentence of 10 years. I allow a 25 percent discount to that sentence for the utilitarian value of the offender’s plea of guilty which he entered at an early time. That reduces the head sentence to 7 years and 6 months.

34. The remaining question is the length of the non-parole period. The offender has been in custody since the 21 October 2019, that is, for over one year and 4 months, in fact for one year and 5 months. The offender is a Melbourne man incarcerated in Long Bay Gaol. I was bemused by Mr Grace QC’s submission that the “effects of the COVID-19 pandemic have made his time in prison very onerous.” He has spent his time in prison in New South Wales. One is safer from COVID-19 in a New South Wales Gaol than one is in ordinary life in sunny, suburban, downtown Melbourne. In any event, had he been in custody in Victoria he would no doubt have had the same anti-COVID regime that has been practiced in the New South Wales correctional system. However, the time in prison has been more onerous than it is for other prisoners because the offender has not been able to have contact with his parents, his sisters, or members of his extended family. It is his hope that, after sentence, the offender will be incarcerated in a custodial facility closer to Victoria such as that at Junee or at the prison farm at Mannus. I reach the view that the appropriate non-parole period is four years and six months.

33. Linh Bui, on the charge that on or about the 21 October 2019 at Sydney in this state you did attempt to commit an offence, namely to possess a substance having been unlawfully imported, the substance being a border-controlled drug namely methylamphetamine, and the quantity being a commercial quantity, you are convicted. I sentence you to imprisonment for a term of seven years and six months expiring on the 20 April 2027. I fix a non-parole period of four years and six months expiring on the 20 April 2024.

34. Any other order sought?

SOLICITOR ADVOCATE: No Your Honour.

GRACE: No Your Honour.

Decision last updated: 21 July 2022