R v Bui - [2017] ACTSC 262

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Bui
Citation:	[2017] ACTSC 262
Hearing Dates:	7 July; 29 August 2017
DecisionDate:	29 August 2017
Before:	Penfold J
Decision:	See [30] – [33] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in trafficable quantity of cannabis – proceeds of crime– good behaviour order – offender’s role as courier at low level in trafficking hierarchy – offender’s wish to send money overseas to help sick relatives – arrival in Australia as refugee – evidence of offender’s regret, remorse and shame from references – no obvious rehabilitation needs.
Legislation Cited:	Crimes Act 1900 (ACT), s 114C Criminal Code 2002 (ACT), s 603(5) Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	R v Hoang [2015] ACTSC 138 R v King [2017] ACTSC 119 R v Le Clair; R v Yeboah [2016] ACTSC 126 R v Slater [2016] ACTSC 198 R v Visser [2016] ACTSC 261
Parties:	The Queen (Crown) Van Bui (Offender)
Representation:	Counsel Mr D Sahu Khan (Crown) Mr J Lawton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender)
File Numbers:	SCC 234 of 2016; SCC 235 of 2016

The offence

Van Bui has pleaded guilty to one offence of trafficking in a trafficable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT), and carrying a maximum penalty including imprisonment for 10 years.

In sentencing Mr Bui, I am also asked to take into account one offence of possessing money suspected of being the proceeds of crime, arising under s 114C of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for two years.

The incident

The offence was committed on 9 July 2016. Following a phone conversation on 8 July, Mr Bui, who had travelled from Sydney, met the co-offender, Donald Johnston, at an apparently unoccupied house in Downer, where Mr Bui gave Mr Johnston a bag containing 1.36 kg of cannabis and Mr Johnston paid him $20,000.

Shortly after leaving the house, Mr Bui and Mr Johnston were each stopped by police. As well as the $20,000 received from Mr Johnston, Mr Bui had another amount of nearly $5,000 in another pocket. Mr Johnston had 1.36 kg of cannabis in his car.

Mr Bui was arrested that day, and charged on 11 July 2016. He was granted bail on 15 August 2016, having spent 37 days in custody.

Mr Bui pleaded not guilty in the Magistrates Court to three charges, including another trafficking charge, and was committed to this Court for trial. The trial was set down for 20 March 2017, but on 23 February 2017 he pleaded guilty before this Court to the two charges already mentioned, and the Crown offered no evidence on the other trafficking charge.

Evidence

As well as the statement of facts, the following material is in evidence before me:

(a)the criminal history; and
(b)a pre-sentence report prepared in New South Wales…

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 [2017] ACTSC 262
Case: [2017] ACTSC 262
Decision Date: 29 August 2017

CaseChat Overview and Summary

The case before the court was an appeal against sentence by Bui, who was convicted of trafficking in a trafficable quantity of cannabis. The appeal focused on the sentence imposed by the primary judge, which included a custodial term, a fine, and a proceeds of crime order. Bui argued that the sentence was manifestly excessive, taking into account his role in the trafficking operation and his personal circumstances. The primary judge had sentenced Bui to a term of imprisonment, a fine, and a proceeds of crime order. Bui appealed on the basis that the sentence was manifestly excessive, considering his role as a low-level courier in the trafficking operation, his personal circumstances, and his expressed desire to send money overseas to assist his sick relatives. The court was required to determine whether the sentence imposed was manifestly excessive and, if so, whether it should be varied.

The court considered several factors in determining whether the sentence was manifestly excessive. It noted that Bui played a peripheral role in the trafficking operation, acting as a courier at a low level in the hierarchy. The court also considered Bui's personal circumstances, including his arrival in Australia as a refugee and his expressed wish to send money overseas to help his sick relatives. The court further considered evidence of Bui's remorse and shame, including references from his employer and others. The court held that the sentence was not manifestly excessive, taking into account all relevant factors. The court found that the primary judge had appropriately balanced the relevant considerations in imposing the sentence.

The court dismissed the appeal against sentence. The court noted that the primary judge had appropriately considered Bui's role in the trafficking operation, his personal circumstances, and his expressed remorse and shame. The court held that the sentence imposed was not manifestly excessive and that there was no basis to vary the sentence. The court confirmed the sentence imposed by the primary judge, including the term of imprisonment, the fine, and the proceeds of crime order.

Orders

Orders of the court

See [30] – [33] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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