R v Bui
[2010] VSC 342
•29 July 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0011 of 2009
| THE QUEEN |
| v |
| KY BUI |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 June 2010 | |
DATE OF SENTENCE: | 29 July 2010 | |
CASE MAY BE CITED AS: | R v Bui | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 342 | |
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CRIMINAL LAW – Trafficking in drugs of dependence – Large commercial quantity – Possession of equipment with intent to traffick drugs of dependence – Attempt to possess a drug of dependence – Direct presentment – Guilty plea – Good prospects of rehabilitation – Remorse – No prior convictions.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr M. Tovey QC | Grigor Lawyers |
HIS HONOUR:
On Friday, 11 June 2010, you pleaded guilty before me to the following offences: Trafficking in not less than an aggregate large commercial quantity of MDMA, cocaine, methylamphetamine and Methorphan; two counts of having in your possession chemicals and equipment for the purpose of trafficking in a drug of dependence, and a fourth count of attempting to possess a drug of dependence, namely ephedrine.
The maximum sentences for these offences are: Count 1, life imprisonment; Counts 2 and 3, ten years and Count 4, five years.
You have no prior convictions.
The case against you was opened in detail by the learned Crown prosecutor on the plea. The written opening was tendered as Exhibit 1. In outlining the circumstances of your offending I will call heavily upon that opening.
Facts
In early 2009, you attempted to collect a parcel from the Braeside Post Office. That parcel was addressed to Cuong Hoang and you produced a driver’s licence with your photo on it in that name. The parcel was not delivered to you at the time; it contained just over a kilogram of iodine, which is a precursor chemical. The material was in a disguised container.
The ephedrine, the subject of Count 4, had also been delivered to that post office box. It contained white tablets, containing ephedrine, 979 in number. Ephedrine is also a precursor chemical used to make methylamphetamine, but it is a drug of dependence in its own right. The trafficable quantity is 20 grams; the commercial quantity 100 grams. I make reference to those matters only to indicate where the quantity obtained fit within the hierarchy.
You were notified of the presence of that parcel on 29 April and by your plea, you accept that you intended to collect it, knowing what it was.
In relation to the iodine, that was delivered to you on 15 April 2009, the day after you had first attended at the post office. You were followed from the post office. You went home where you remained for a short while before travelling to a self-storage complex in Springvale, where you were for about ten minutes. You had hired that self-storage unit in your own name in March 2008.
On 23 April 2009, police covertly executed a search warrant on that storage unit and located a red and black sports bag containing:
· a snap-lock bag containing a number of beige/light brown pills with a love heart symbol stamped on them;
· a plastic bag containing a beige/light brown powder; and
· a large plastic tub containing a light green powder.
Samples from the tubs were analysed and found to contain MDMA. Later analysis put the pills in the same category.
Police also found a clear plastic container with a yellow liquid in it, which upon analysis was found to be Benzaldehyde, another proscribed precursor chemical used in the manufacture of methylamphetamine.
Inside a locked filing cabinet, the police found a false driver’s licence in the name of Cuong Hoang with your photograph on it; a false Australian birth certificate in that name; the iodine parcel collected from the Braeside Post Office and a large number of snap-lock bags containing white powder and crystalline substances. Upon analysis, a sample of the white powder was found to contain cocaine and the crystalline substance was found to contain dimethyl sulfone, a dietary supplement used to dilute illicit drugs.
On 29 April, whilst under surveillance, you went to the storage unit in Springvale. You were observed leaving your vehicle at those premises carrying two cardboard boxes, which you carried into the unit. You were arrested by the police upon entry. Police asked if you were in possession of any drugs, and you informed them that you had an ounce of cocaine.
When searched, police found in your jacket pocket a paper towel package, wrapped with a rubber band which contained white powder. Subsequent analysis of the package revealed that it weighed 21.7 grams and contained cocaine of 70 per cent purity. The false driver’s licence in the name of Cuong Huang was in your shirt pocket.
During the further search of the unit, police again located the black and red sports bag which still contained the snap lock plastic bag containing the tablets and the two plastic tubs of powder. The bag contained 37 tablets which weighed 10.3 grams and contained MDMA, at a purity of 30 per cent. The powder in the smaller of the plastic tubs weighed 210 grams and, when analysed, was found to contain MDMA with a purity of 25 per cent. The powder in the larger plastic tub weighed 974 grams, and when analysed was found to contain MDMA with a purity of 18 per cent. It was also found to contain methylamphetamine with a purity that was not determined and which has and will not been dealt with separately from the MDMA in that transaction. The two cardboard boxes you carried contained chemicals and equipment, such as plastic tubing and scientific glassware, used in the manufacture of a drug of dependence.
Chemicals located in the storage unit included a plastic container of Benzaldehyde, previously observed. A further bottle containing 57 mls of benzaldehyde was located, in addition to 1241 grams of iodine and 27.5 grams of Ephedrine. They, together, form the basis of the charges listed in Count 2, to which you have pleaded guilty.
In summary, when looking at the material recovered from the filing cabinet and from your person, the following substances were found; 1196 grams of MDMA, 403 grams of cocaine, varying between 60 and 80 per cent, 48.1 grams of methylamphetamine and 132.5 grams of Methorphan. Some of the substances which contained MDMA, as I have already indicated, also contained methylamphetamine and Methorphan, and for the purposes of the calculations I have just set out, those substances have only been included in the bulk amount for MDMA. It is those substances which form the basis of Count 1.
At the completion of the search of the storage unit, you were taken to your home. Police executed a search warrant at that address and located a pseudoephedrine extraction in the process of drying out, adjacent to the kitchen sink. When analysed, this substance was found to consist of 47.9 grams of white solid, and 483 grams of blue liquid. It contained 2.9 grams of pseudoephedrine, and also contained Methorphan and doxylamine pseudoephedrine. Methorphan and doxylamine are compounds that can be found in cold and flu pharmaceutical preparations. Pseudoephedrine can be obtained by extraction from such pharmaceutical preparations and then used as a precursor for the manufacture of methylamphetamine. The liquid found near the kitchen sink was consistent with such process.
Police also located other items commonly associated with the manufacture of methylamphetamine, such as sulphuric acid and hydrochloric acid, isopropyl alcohol, acetone and caustic soda.
Further, they located scientific glassware, tubing, boss head clamps, a hot plate, pH test strips, scales and a submersible pump, which could all be applied in the process of manufacturing methylamphetamine. These items form the basis of Count 3. When searching the master bedroom, police found a small safe in the walk-in robe. When asked how much was in the safe you said 80 or 90,000 dollars. On counting, the police found there to be 101,150 in cash, which has now been forfeited. You were then taken to St Kilda Road Police station for interview, where you gave a no comment response to the allegations put to you by the police.
During the search of your house, police had seized three computer towers, two hard drives, and two USB hard drives. These were found to contain a large number of documents relating to methods for the manufacture of illicit drugs. In total, there were 13 files that contained literature concerning the manufacture of illicit drugs.
The titles included such things as “A Complete MDMA Synthesis for the First Time Chemist”, “Making Methylamphetamine at Home", "Secrets of Methylamphetamine Manufacturing" and literature included recipes for MDMA, ecstasy and other psychedelic amphetamines and large scale methylamphetamine manufacture. They are the circumstances of your offending.
Background
I move to your background. You married your wife, Christine, in 2006, having known each other since she was 14 and you were 16. You have been a couple, as it was put, since she was 15 and you were 17. It was emphasised on your plea that you had been friends and partners for that length of time. As a child, and I will deal with some of your upbringing later, you suffered some difficulties due to your home environment. You were embraced by Christine’s family and together set some goals, the first of which was to achieve good education. Secondly, you aimed to obtain financial security, and together you planned to get an investment property and then your own home. Ultimately, you wanted to save enough money for a special wedding. Together, you did all those things.
References provided and evidence led on the plea show you to be a very hard working person, and throughout your life you have maintained a high standard of employment. Your wife, Christine, has been present throughout your Court proceedings to support you. Christine maintains her employment with a major bank and earns a substantial income from it. That is said only to reflect how well she has done in her professional career.
In 2007, both your brothers were arrested for murder and additionally one of them was charged in respect of drug offences. The murder had its associations with, and grew out of, involvement with drugs. In the result, one of your brothers was acquitted. The other is currently serving a sentence with a non-parole period of 22 years.
It is apparent that while your mother discouraged you from involving yourself in criminal activity, she nevertheless urged you - and by your own account you came to feel an overwhelming responsibility - to look after your brothers and to give them the best legal representation. It was in furtherance of that responsibility that you embarked upon the enterprise which led you here.
Your counsel urged on your plea that ultimately their defence had exhausted other means of obtaining finance. Mr Tovey explained that over 2008 you contributed by re-mortgaging properties and selling a property something in the vicinity of $240,000 before going down this path. On the material that was subsequently provided to me, I am satisfied that you had extended an amount in the range of $240,000 on the defence of your brothers.
I note that a week before your arrest, your wife, Christine, confirmed that she was pregnant.
You are now 31 years old and you were born in Vietnam. Your brother, Cuok, is 26 and Ngoc is 24. It is Ngoc who is presently undergoing the sentence of imprisonment. There is an appeal on foot. You were almost two years old when you came to Australia with your mother in 1980. Your father had left Vietnam for France and left your mother behind, which had led to a very close bond between you and your mother and a significant degree of responsibility towards her which has manifested itself in many ways over the years. It was explained that issues had arisen because the men with whom she had been associated since, and she in her own right, had a proclivity for poker machines - with the fairly common results.
Having arrived in Australia, your mother met a man by the name of Phan, who was a motor mechanic and who became your stepfather. He was a heroin user, an alcoholic and, on all accounts, a violent man. On arrival in Australia, you and your mother lived in Perth, and when you were about three you came to live in Fitzroy, then in South Melbourne and then in the North Melbourne Housing Commission flats. During that period, you were in primary school in North Melbourne and Flemington.
Your family purchased a property in St Albans at one stage while you were at primary school. That created additional problems in relation to maintaining repayments; sometimes food was short and providing the basis for an additional source of conflict between your mother and stepfather and between stepfather and you boys. Your recollection of those times are fairly bleak. Your remember truancy from school and teachers coming looking for you. You recall also living at times in women’s shelters with your mother, sometimes just the two of you, sometimes with your brothers. It was not until you were in your late teens that you became aware that your brothers are, in fact, your half brothers; not that such knowledge is of any real moment.
Your brother, Cuok Bui, provided a written reference and tells of an incident relating to you taking responsibility for drinking a bottle of Coca-Cola belonging to your stepfather. Somebody stood to be beaten for it and you choose to take the beating yourself. It was urged on me that such incident was significant for two reasons. Firstly, it demonstrated the sort of indiscriminate violence that your family life involved and, secondly, it demonstrated something of the sense of responsibility you bear in reference to your younger brothers, that is, the protective instinct that you feel towards them.
Your childhood was apparently interspersed with such episodes often resulting in your leaving the house, on occasions spending the night sleeping outdoors to eventually be found by relatives and returned home. You felt that you were treated more severely than your brothers, and it was not until later life that you became aware that your father was not, in fact, your natural father.
When you were in about Year 7 or 8, your mother met an Australian man who owned a company which was, at that time, a successful sunglasses wholesaling business. Your mother left your stepfather, initially with just you, and first stayed with friends before moving to Rosebud. During this period of disruption, you attended school on an intermittent basis.
Ultimately, you and your mother returned and settled at Cheltenham. Your brothers came to live with you; your stepfather could not support them and you attended Cheltenham High School in Year 8 and part of Year 9. Following that, there was a move to Seaford, where you attended St Bedes in Mentone for the remainder of your education.
You refer to your mother’s Australian partner as your stepfather, though you came to learn that he remained married to somebody else throughout that period of your life, although he was regularly present or staying at your home. Nevertheless, you describe him as financially supportive and regularly present, kind and generous to you and your brothers. It would seem, however, that his business failed and apparently he moved into cultivating marijuana.
Whilst you do not know the details, your Australian stepfather ultimately committed suicide. You recall however, it was through your Australian stepfather that cannabis was made available to you whilst you were still at school in your mid-teen years. One cannot help but observe that that was the first reminder to you of the problems that arise when turning to dealing in drugs as a means of getting out of financial difficulty.
In 1996, you finished Year 12. During this period, you were working at a restaurant in Seaford, earning a modest income and saving a small amount of money. Upon leaving, you undertook a two year International Diploma of Trade at Chisholm TAFE in Moorabbin. In 1999, you commenced a Bachelor of Computer Science at Victoria University.
You were, at that stage, living with a cousin in the Flemington Housing Commission flats. You were again supporting yourself, working for a company call centre which sold AAPT telephone services. While you failed some subjects, you persevered. You had also received your security licence and were performing night work as a security guard for MPL Security.
During this period of time, you, as you had from time to time in the past, used marijuana. You had also began smoking methylamphetamine to give yourself what you saw to be stamina, to cope with your night work and day uni. In discussion and with reference to the psychiatric report tendered on your behalf, you have suffered to an extent from your use of amphetamine over a period of time. I received a report on the plea from Dr Anthony Cidoni dated 30 May 2010.
Dr Cidoni, a forensic psychologist, concluded these matters under the heading “Opinion and Recommendations”:
Mr Bui has a history consistent with amphetamine induced psychotic disorder. Whilst I note that the main symptoms of this disorder have resolved, Mr Bui describes an ongoing suspiciousness which will need to be monitored. If his symptoms regressed, he would require antipsychotic treatment.
Mr Bui has also described periods of depression that are consistent with periods of adjustment disorder with depressed mood in the context of very significant stressors, including his brother's legal problems and incarceration and his own problems.
Mr Bui has suffered from poly-substance abuse, although I note that in recent years his usage has reduced. It is quite possible that one of the drivers of his substance use may have been the depressive symptoms which he had sought to self-medicate with.
That is a description of you and what you suffered from at the time of this offending, but from other material I received, it seems that you were generally functioning adequately in the community, both in your job and at home.
Counsel on your behalf accepted that there was not sufficient connection between your offending and the psychiatric or psychological condition as to warrant, as a matter of separate consideration, any significant operation of the principles set out in R v Verdins.[1] You have stressed that you do not seek to make your drug use an excuse for what you have done, however they are matters that I take into account. On your own approach, you sought to acknowledge that your actions were wrong, and have acknowledged that you knew precisely what you were doing.
[1](2007) 16 VR 269.
I noted on the plea that there was an absence of evidence in your ordinary conduct, work or otherwise, that seems to have been affected by consumption of drugs, as I have already mentioned. Your wife was aware you were using drugs, but there has been no suggestion drug use was affecting your day to day work.
In the chronology of events, we come to 2004. Having completed university, you worked in the IT industry and continued to work in the IT industry up until the time of your arrest. Your wife, Christine, moved in with you in 2005, at which stage you were working at BMW Australia as a project and systems designer. In 2006, you moved to work for the RACV, doing help desk support and were promoted to a position providing desk top support.
You married Christine in 2006. At that stage, between you, you owned some investment properties. You purchased land at Waterways and built a house, and then moved on to work for Commander Australia, a company which provides AT and phone systems and remained there several years, ultimately working as a network engineer. You were by then living in your new home at Waterways, and your wife had secured a job with a major bank. In December 2007, your brother was arrested and came to trial.
It was submitted that during this period of time, you felt you were under considerable pressure, and you resorted to drugs to a greater extent than you had previously in an attempt to try and alleviate it. In the meantime, you ceased employment with Commander Australia and took a job with Telstra, in IT, which you held for nine months, up until being charged.
It was an important feature of your life that about a week prior to being arrested your wife had confirmed her pregnancy. It was submitted that at that point you said to your mother you did not think you could go on doing what was needed to look after your brothers, but you were reminded of your obligations.
During the plea, Tuan Trinh, a friend and former employer of yours, gave evidence on your behalf and spoke well of you. He had worked with you and he had contemplated going into business with you. He regarded you as hardworking and reliable. On the plea I also received written references from your mother, both of your brothers, Brendan Tran, your wife’s cousin, Vin Van Tran, your father-in-law, Martin Torese, a longstanding friend - you had been at TAFE together. Jim Solakitis, a work colleague and friend, Tuan Trinh, a previous work colleague who interviewed and hired you, and also who gave evidence on the plea. Dr James Nguyen, a friend of your parents-in-law, Dr Darren Ricketts, a previous employer, your wife and Nghia Nguyen, a family friend.
I received a statement from you. I also received five certificates of courses that you have completed while you have been incarcerated, an indication that you have tried to make the best of the situation in which you found yourself.
I am prepared to accept that you expended significant funds upon the defence of your brothers and that you did so driven by a sense of family obligation. Your choice, as matters progressed to raise funds by dealing in drugs, was a life changing decision for you and those close to you. It is often said in these courts, but it is perfectly true, that it is very often the families of those who are involved in criminal exercises who suffer the most. And I suspect that is true in this case. But you took the chance. Your enterprise must have involved a substantial investment. You have chosen to accept complete responsibility for it.
I do not understand how, given the fate of your brothers, you chose this course. But it must be you chose the course while completely understanding the risks, more so than almost any other person in the community. The stakes were significant. You had $101,000 in your safe. You had drugs in your possession to the value of about $250,000, if treating you as a mid level dealer, not as a street dealer, and I get to that figure by extrapolating as best I can from the values given in the statement of Detective Senior Constable Vaughan. I indicate that it is nowhere near the highest figure that might have been extracted from those values.
That figure that covers most of the material in Count 1. There was still the potential to manufacture from the material referred to in Counts 2 and 3, which are difficult if not impossible to quantify.
As a result of automatic forfeiture, I accept that your share in the family home now will be forfeited. I accept that you lawfully obtained that property and I have taken the automatic factor forfeiture into account in your favour, although your present entitlement to a half share of the equity in that property is now modest.
The forfeiture of the $101,000 will not be taken into account because I am not entitled to do so. I suppose it indicates however, and looking at the matter in its totality, not much financially has been gained by you since that money has been taken from you.
I would not regard the criminality involved in Counts 2, 3, and 4 as being at a high level, but you were sufficiently sophisticated to import material from overseas. The fact that you did begin to involve yourself in the manufacturing process does, to some degree, indicate your desperation at this time, given the possible profitability of the other parts of your enterprise, particularly in relation to cocaine and MDMA. Your involvement in Count 1, on the other hand, I regard as very serious.
The amount of MDMA is, in its own right, a large commercial quantity. The amount of cocaine was very close to, when dealing with the pure substance, a commercial quantity. The amount of methylamphetamine was well above the traffickable quantity. Separately, in relation to both the cocaine and methylamphetamine, you had well above the automatic forfeiture quantity. I note, however, that the bulk of the MDMA would have needed to have been treated in some way, that is, made into pills or tablets to be sold on the street. The cocaine, however, was of high level purity, and you did have the plastic bags and the cutting agent available to you to deal in that substance.
Ultimately, I am not prepared to accept that you were solely motivated to help your brothers, although I do accept that the contribution you had made to your brothers’ legal expenses had represented a very significant amount and a drain on your family resources.
On Count 1, when the quantities of drugs of dependence are looked at, your offending is somewhat above the lower end of the offence of its kind. That, however, has to be viewed in the context that the offence ranks equally with the most serious offences in this State.
On Count 1, I sentence you to be imprisoned for eight years.
On Counts 2 and 3, I sentence you to be imprisoned for two years on each count. I direct that nine months on each count be accumulated upon each other and upon the sentence on Count 1.
On Count 4, I sentence you to be imprisoned for 12 months’ imprisonment and I order that six months of that sentence is to be served cumulatively upon the sentence on Count 1 and the sentences on Counts 2 and 3. That is a total effective sentence of ten years.
I regard your prospects of rehabilitation as being good. I am satisfied that you are remorseful. I have a minor reservation about whether you are likely to offend in the future only because of the way you came to offend on this occasion, but I do accept that you have insight into your offending and it does augur well for the future. You have pleaded guilty and, as I have already noted, you have no prior convictions. It should be noted your plea of guilty was at a very early stage.
I have had regard to all of those matters in fixing the sentences that I have just announced, but I have afforded them more weight when having regard to the appropriate non-parole period, which I fix at seven years. It is between 12 and 18 months less than the non-parole period I would have fixed had it not been for the very significant matters that were put on your behalf on the plea. I state that had it not been for your plea of guilty, notwithstanding this was an overwhelming case, I would have sentenced you to be imprisoned for 12 years with a non-parole period of ten years. I direct that this statement and its details be entered in the record of the Court.
I declare 457 days as having been served pursuant to this sentence and I order that this declaration and its details be entered in the records of the Court.
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