R v Bui
[2017] ACTSC 262
•29 August 2017
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 and dated 6 July 2017;
both of which were tendered by the prosecution. As well, the defence tendered references from two longstanding friends of Mr Bui and from his current part-time employer in Sydney.
Oral evidence was given by Mr Bui's daughter and Mr Bui himself.
Objective seriousness of the offence
In considering the objective seriousness of the offence, I have had regard to the following matters.
Mr Bui gave evidence that his role was simply as a courier; that is, he was to transport the cannabis from Sydney to the dealer in Canberra and return the price paid for the cannabis to Sydney, at which point he would be paid $1,000. His daughter gave evidence consistent with this evidence. The Crown conceded that there was no basis for challenging Mr Bui's claim. This means that Mr Bui is at a relatively low level within the trafficking hierarchy, albeit still playing a vital role in distribution.
The quantity of cannabis, at 1.36 kg, was noted by the prosecutor to be three times higher than the minimum quantity that constitutes a trafficable quantity, but equally it could be said to be less than 5% of the quantity that would move the offence into the next most serious category. It is apparent that neither of these calculations is particularly useful.
Mr Bui gave evidence that the nearly $5,000, that was separate from the $20,000 he received from Mr Johnston for the cannabis, had been borrowed, and was to be used by him to buy a car.
Mr Bui's family friends and his employer, who wrote references for him, reported that he had expressed regret, remorse and shame for his actions and for the disappointment he has caused his family and friends, saying that his actions involved a lapse of judgment and a failure to think through his options properly. Mr Bui's offence is, in my view, a low‑level example of the offence concerned.
Subjective circumstances
I have also had regard in this sentencing to Mr Bui's subjective circumstances.
Mr Bui is now 56 years old. His criminal history consists of three offences committed in New South Wales in 2001. There is one offence of possessing stolen property and one of supplying a prohibited drug, both committed in early 2001, for which he served two concurrent three-month terms of periodic detention. In 2003, he was sentenced to two years imprisonment with a 12-month non-parole period for an offence of supplying prohibited drugs on an ongoing basis, committed over several days in September 2001.
Mr Bui's clean record between 2001 and 2016 is consistent with the comment of one of his referees that he had changed his life after being convicted of the earlier offences.
Mr Bui was born and raised in Vietnam, but migrated to Australia as a refugee in 1991 at the age of 30. Though he told the pre-sentence report author that he had a stable upbringing in Vietnam, his family friend who gave a reference described Mr Bui's childhood in Vietnam as mentally abusive and impoverished.
Before coming to Australia, Mr Bui was in a long-term de facto relationship from which he has three children. That relationship broke down after his migration to Australia, but Mr Bui remains close to his three children and currently lives near two of them.
Mr Bui's marriage of 10 years broke down in September 2016, reportedly as a result of the commission of the current offences.
Mr Bui's referees reported that since coming to Australia, he has made regular financial contributions to the community in his home town in Vietnam. However, Mr Bui told the pre-sentence report author that his primary motivation for the commission of the current offences was to raise money to pay medical expenses for his mother and brother who still live in Vietnam. Mr Bui's evidence was that his mother had had a stroke and his brother had liver cancer.
The pre-sentence report author reported:
Although [Mr Bui] displayed a tendency to justify his behaviour, he exhibited some awareness and insight into the destructive impact of his behaviour on the community and accepted responsibility for the seriousness of his offending behaviour.
As already mentioned, Mr Bui's character references also report that Mr Bui expresses regret, remorse and shame for having committed the offences.
Rehabilitation
There is no suggestion that Mr Bui is a drug addict or even a user, and there is no other obvious rehabilitation need for which he might be expected to seek treatment.
The pre-sentence report author assessed Mr Bui as unsuitable for community service due to his advice that, because of his employment obligations, he could only do community service on the weekends. Mr Bui gave evidence that since then, his employer had said that he could make himself available for community service on a weekday. However, counsel reported advice they had jointly received from ACT Corrective Services to the effect that ACT supervision orders could be transferred to New South Wales where Mr Bui lives, but community service orders would not be supervised by New South Wales.
Other sentencing considerations
Counsel noted that a forfeiture order had been made in relation to both the $20,000 and the other money found in Mr Bui's possession when he was arrested.
Mr Bui has pleaded guilty to these offences, but only shortly before his scheduled trial. There will be a sentencing discount.
Other matters
Several possibly comparable cases were drawn to my attention by counsel, being:
(a)R v King [2017] ACTSC 119;
(b)R v Visser [2016] ACTSC 261;
(c)R v Slater [2016] ACTSC 198;
(d)R v Le Clair; R v Yeboah [2016] ACTSC 126 ; and
(e)R v Hoang [2015] ACTSC 138.
An extract from the sentencing database indicates that although most people sentenced for this offence receive a prison sentence, more than half of them serve no custodial time.
In my view, the significant features of this matter are Mr Bui's relatively low-level role in the cannabis distribution, his motivation for the offending, and his long period without offending since the earlier cannabis offences.
General deterrence
While general deterrence is significant, and a prison term is necessary, it is not in my view necessary for Mr Bui to serve any more immediate custodial time, having regard to the 37 days of pre-sentence custody already mentioned.
Sentence
Mr Bui, please stand. I record a conviction on one charge of trafficking in a trafficable quantity of cannabis. I also note the scheduled offence of possessing money suspected of being the proceeds of crime, and I have taken it into account in sentencing for the trafficking offence.
I now sentence you to imprisonment for 10 months, reduced from 12 months, for your plea of guilty.
The sentence will be backdated to 22 July 2017 to take account of 37 days pre‑sentence custody, and so it will run until 21 May 2018.
The sentence will be suspended with immediate effect, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months, subject only to the core conditions. You will be given a written copy of the good behaviour order and it will be read to you by the court officials. In short, it means that for the next 12 months you need to keep out of trouble.
If you commit another offence during that time, or if you otherwise breach your good behaviour undertaking, you may find yourself back before this Court to be re-sentenced for this offence, and depending on exactly how you've breached the undertaking, especially if you have re-offended, you could well find yourself serving some or all of the remaining just under nine months of this sentence in full-time custody.
If you have any particular questions, Mr Bui, you might ask Mr Maher while you're waiting to sign your documents.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true edited extract of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 29 September 2017 |
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