R v Bui - [2018] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BUI
[2018] SASCFC 19
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
23 March 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS - OFFENDER'S ADDICTION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS
Appeal against sentence for serious drug offending in 2011 and 2013 in South Australia. Prior to being sentenced and in 2014, the appellant failed to answer bail having been charged with a drug offence in New South Wales. He was there sentenced to six years’ imprisonment with a non-parole period of three years. Upon serving the non-parole period, the appellant was extradited to South Australia. He was then sentenced to 10 years and four months’ imprisonment with a non-parole period of seven and a half years.
Whether and to what extent drug addiction is a relevant factor in sentencing – whether the principles in R v Todd and Mill v The Queen applied to the appellant’s situation – whether sentence imposed in this State was manifestly excessive or excessive having regard to the sentence already served in New South Wales.
Held Vanstone J (Kelly J agreeing; Kourakis CJ dissenting): Appeal dismissed. Drug addiction is not a mitigatory circumstance, although it is relevant factor. The sentencing judge properly had regard to the New South Wales sentence. It remained an important feature of the circumstances of the appellant. However the approach recommended in Mill v The Queen, where a spate of offending occurred in two states over a period of six weeks, was not engaged on the facts. The sentences fixed were not manifestly excessive. The totality principle did not call for a reduction of them.
R v Spiero (1979) 22 SASR 543; R v Proom (2003) 85 SASR 120, applied.
R v Constant (2016) 126 SASR 1; Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517, distinguished.
R v Constant (2016) 126 SASR 1; R v Varano (1989) 150 LSJS 140, considered.

R v BUI
[2018] SASCFC 19
Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ

KOURAKIS CJ: This is an appeal against sentences totalling a little over 10 years four months imprisonment for serious drug trafficking offences committed in 2011 and 2013. I gratefully adopt the summary of the sentencing material in the judgment of Vanstone J. I would allow the appeal but only for the purpose of reducing the non-parole period from seven and a half years to six years and two months.
I agree that the sentence imposed for the 2011 offending, viewed in isolation, was not affected by error for the reasons given by Vanstone J, subject to the following two qualifications.

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 R v Bui

Details

AGLC: R v Bui [2018] SASCFC 19
Case: [2018] SASCFC 19
Decision Date: 23 March 2018

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant for serious drug offences committed in South Australia in 2011 and 2013. The appellant had previously failed to answer bail for these charges, leading to their delay. While on bail, he committed a further drug offence in New South Wales in 2014, for which he received a six-year sentence with a non-parole period of three years. Upon completing this non-parole period, he was extradited to South Australia and subsequently sentenced to 10 years and four months imprisonment, with a non-parole period of seven and a half years. The appeal was heard by Kourakis CJ, Vanstone and Kelly JJ.

The central legal issues before the court were whether drug addiction was a relevant factor in sentencing in the appellant's circumstances, whether the principles established in *R v Todd* and *Mill v The Queen* applied, and whether the South Australian sentence was manifestly excessive, particularly in light of the time already served in New South Wales. The appellant argued that both the individual sentences and the total sentence imposed in South Australia were too severe, and that insufficient weight had been given to the three years of imprisonment already served in New South Wales.

The court found that the sentences imposed were just and fair. While the sentencing judge did not explicitly mention the totality principle, the court was satisfied that the judge was aware of it. The court concluded that the sentences, both individually and in totality, did not warrant a reduction based on the totality principle or the period already served in New South Wales. The court also found no error in the sentencing judge's approach to the appellant's drug addiction, implying it was considered but did not necessitate a reduction in the sentence. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant had been before the District Court in 2012 to 2014 in relation to these charges, but because he failed to answer his bail, they were not finalised. In March, 2014 the appellant committed a further drug offence in New South Wales and was sentenced there to a term of six years’ imprisonment with a non‑parole period of three years. On completion of the non-parole period he was extradited to this State. The appellant argues that both the individual and the total sentences imposed in the District Court were too long, and that insufficient weight was given to the service of a term of imprisonment of three years in New South Wales, immediately prior to imposition of the present sentences. Background It is convenient to set out aspects of the sequence of the offending, in tabular form: It can be seen that the appellant’s was a serious course of offending. Dealing with the first information, the appellant was apprehended at his home having just driven into his driveway. In the motor car was found 26 grams of methylamphetamine paste, together with scales and snap lock bags. In the house police found 5,490 tablets of pseudoephedrine, a precursor, said to be worth about $25,000 if sold by the ounce. This was count 4 on the information. Also found was 7.8 grams of methylamphetamine, with respect to which the Director of Public Prosecutions accepted a plea to simple possession. That was said to be worth at least $6,000. The appellant entered his guilty pleas in the District Court on 17 June 2013, but foreshadowed a facts dispute going to the circumstances of his possession of the substances. That hearing took place on 11 March 2014. Having heard the appellant’s evidence, the sentencing Judge was not persuaded on the balance of probabilities by the appellant’s evidence that he was holding the pseudoephedrine and the methylamphetamine for a third party for safe keeping, that his premises were used to cut drugs for that other, or that he sometimes supplied drugs to his own friends on behalf of that other person but had no intention to sell them himself. In rejecting that basis the Judge had available to him a document in the form of a “tick list” in the appellant’s handwriting containing numerous names and evidencing large transactions, as well as evidence that police had also found a number of mobile telephones and zip lock bags. In submissions by the appellant’s counsel on 9 August 2013, the Judge was told that the appellant had developed a drug habit which had escalated in 2010 to the point of being very severe, but which he had now overcome. It was said that the appellant had ceased using drugs and was “confident” that he could continue to progress well. Later in the same month he was arrested for the offences which were charged in counts 1 and 2 of the second information. (Count 2 was subsequently discontinued.) In respect of the 2013 offending the prosecution alleged a significant drug dealing enterprise yielding substantial commercial benefit. That was said to be demonstrated by the amount of $60,000 in cash found in the bathroom of the appellant’s home, along with glass wear and equipment suitable for manufacturing drugs and the 17.43 grams of heroin, the subject of count 1, the trafficking charge. That was said to be worth at least $9,000. Also found in the home were other smaller amounts of controlled substances, including the methylamphetamine, the subject of count 3.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having considered all the relevant matters, I have reached the view that the sentences imposed on each information were just and fair. It was appropriate to order concurrency as between the offences on each information and it was appropriate to accumulate the two longer sentences. I cannot agree that the sentences were excessive, even in the context of their following upon the three year period already served. It is true that the Judge did not mention the totality principle in his remarks; but that does not indicate that he was not cognisant of it. More importantly, the sentences fixed did not, in my opinion, call for a reduction having regard to that principle and the period already served. Conclusion No error has been shown in the Judge’s approach to the sentence. The sentences imposed – individual and total – did not call for a reduction on account of totality and were not manifestly excessive. I would dismiss the appeal. KELLY J: I agree that the appeal should be dismissed for the reasons given by Vanstone J.

Ratio Decidendi

Legal Principle Established

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