R v Bui
[2005] VSCA 121
•5 May 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 334 of 2004
| THE QUEEN |
| v. |
| VAN DO BUI |
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JUDGES: | WINNEKE, P., BYRNE and OSBORN, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 May 2005 | |
DATE OF JUDGMENT: | 5 May 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 121 | |
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Criminal Law - Sentence - Cultivation of cannabis - Limited intellectual capacity of appellant - Whether judge had proper regard for this disability.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.A. Trapnell | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr M. Kowalski | Valos Black & Associates |
WINNEKE, P.:
I will invite Byrne, A.J.A. to give the first judgment in this appeal.
BYRNE, A.J.A.:
The appellant, Van Do Bui, by leave granted on 11 February 2005, appeals against a sentence imposed by the County Court at Melbourne on 17 November 2004. On that day he was, on an earlier plea of guilty, convicted of two offences, as follows: first, cultivation of a narcotic plant, namely, cannabis L, in a quantity of not less than a commercial quantity applicable to that narcotic plant, contrary to the Drugs, Poisons and Controlled Substances Act 1981, s.72A; he was sentenced to 20 months' imprisonment; second, theft of a quantity of electricity from Origin Energy, contrary to the Crimes Act 1958, s.74, for which he was sentenced to six months' imprisonment. Her Honour ordered that four months of the theft sentence be served cumulatively with the sentence for cultivation, making an effective head sentence of 24 months. She suspended 12 months of the sentence for 12 months. Consequential orders were made, including forfeiture of certain drug paraphernalia and an order for compensation in favour of Origin Energy in the sum of $4,064.02.
The grounds of appeal as they appear in the application notice of 30 December 2004 are as follows: first, the learned sentencing judge failed to give any or any proper weight to the evidence of the applicant's limited intellectual capacity; second, the learned sentencing judge gave too much weight to the question of prevalence; third, the learned sentencing judge failed to take into account or give adequate weight to the fact that the applicant's limited intellectual capacity made him an inappropriate vehicle for general and/or specific deterrence; and fourth, the sentence imposed by the learned sentencing judge was manifestly excessive in the circumstances, particularly having regard to (a) the limited intellectual capacity of the applicant, (b) the early plea of guilty entered by the applicant, and (c) the facts that at the time that the applicant stood for sentence he was a man of 53 years of age with no prior convictions.
The circumstances of the crimes are set out in her Honour's sentencing remarks and I will not set them out here again. Suffice it to say that on 2 April 2003 a search warrant was executed at premises leased by the appellant at 100 Links Street, Ardeer, and this revealed a commercial quantity of cannabis and an illegal electrical bypass. It appears that the appellant was there conducting a hydroponic cannabis growing operation on a fairly substantial scale. 192 plants were at various stages of cultivation. Her Honour doubted his assertion that the crop was grown for his own use. I share those doubts.
On the plea, counsel for the appellant relied upon evidence that the full-scale IQ of his client was only 70, that is, a score which is better than only two percent of the population and close to the borderline marking intellectual disability. In cross-examination the impact of this evidence was somewhat diminished by evidence that the test is geared to the Australian community and that there is no equivalent test to allow for the cultural and background differences for Vietnamese people living in Australia. It is apparent from the transcript of the plea that her Honour was well aware that, notwithstanding his IQ score and the information this disclosed about his intelligence, the appellant had been able to function adequately in a variety of environments, both in Australia and overseas, and that he was able to set up and maintain the substantial cannabis growing operation, albeit in accordance with instructions received. She would have been well aware, too, that he was able to lease the premises where the operation was being conducted and to purchase real estate in Sunshine North and in Sydney.
It was put to us that the diminished intellectual capacity might properly be relevant to her Honour's determination of the sentencing role to be played by general deterrence, specific deterrence and moral culpability and to the appropriateness of the extension of mercy to the appellant. In her sentencing remarks, her Honour stated that, due to his limited intellectual capacity, she moderated the considerations due to general and specific deterrence. It was then said that her failure to mention moral culpability meant that she failed to consider the impact of his limited capacity upon his moral culpability, and that this was an error of law which this Court should correct. There is in my view no substance in this submission, for any or all of the following reasons.
First, the mere fact that her Honour makes no mention of the impact on moral culpability in her remarks does not lead to the conclusion that she failed to have regard to this matter. It was certainly discussed in argument before her. Second, it is clear that her Honour was well aware of the impact upon moral culpability of the appellant's limited intellectual capacity. The transcript shows this, and that she was not much impressed by an argument that in this case this had a major role to play upon his culpability. Third, her reference to the moderating considerations affecting deterrence leads to the conclusion that she very much had in mind his intellectual limitations in imposing the sentence which she did. Fourth, the sentence of 20 months imposed with a 12 months suspension for 12 months is a very eloquent indicator of her awareness of the particular circumstances of the appellant. The maximum penalty available for this offence was 25 years' imprisonment. In brief, the sentence was to my mind very light, given the nature of the offence. This conclusion means that the first ground of appeal must fail.
The submissions put on behalf of the appellant in support of the other grounds essentially depend upon the same point. The second ground was that her Honour erred in having regard to the need as the sentencing judge to respond to the prevalence of the crime in question by imposing a sentence which was directed to general deterrence. In principle, she was not criticised for this. What was put was that, as a man with limited intellectual capacity, the appellant was not a suitable vehicle for general deterrence. The remaining ground which was the subject of argument was that the sentence was manifestly excessive having regard to his limited intellectual capacity.
These grounds must likewise fail, for it is apparent that her Honour did have regard to his limited intellectual capacity when addressing the objective of general deterrence. She says so, and it is reflected in the sentence.
The other matters mentioned in ground 4, and which were not pressed before us, were also clearly in the forefront of the sentencing judge's mind. It has not been demonstrated that this regard was inadequate.
To my mind, the sentence imposed was very moderate. It displayed an acute awareness of the particular difficulties of the appellant and an appropriate response to the matters urged on his behalf. Indeed, if, contrary to my view, error had been shown in her Honour's sentencing reasoning, I would nevertheless not have reduced the sentence for an offence of this gravity. I propose, therefore, that the appeal be dismissed.
WINNEKE, P.:
For the reasons given by Byrne, A.J.A., I agree that the appeal should be dismissed.
OSBORN, A.J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the appeal is dismissed.
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