R v Bui - [2022] QCA 67

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bui [2022] QCA 67

PARTIES:

R
v
BUI, Minh-Son
(applicant)

FILE NO/S:

CA No 240 of 2021
SC No 439 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence, 5 November 2015 (Mullins J)

DELIVERED ON:

Date of Orders: 5 April 2022
Date of Publication of Reasons: 10 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2022

JUDGES:

Sofronoff P and Boddice and Callaghan JJ

ORDERS:

Date of Order: 5 April 2022

1.   Appeal allowed.

2.   Sentence of Mullins J on count 1, passed on 5 November 2015, is set aside.

3.   A sentence of 9 years is imposed on count 1.

4.   Parole eligibility date set at 5 April 2022.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of two grams and one count of supplying a dangerous drug – where the applicant was sentenced to 10 years’ imprisonment for the trafficking count and lesser concurrent periods for the remaining counts – where the applicant was declared as having been convicted of a serious violent offence – where the initial sentence represented a sound exercise of sentencing discretion – where the applicant successfully appealed a conviction for arson and related offences in 2020 – where that offending was referred to the Mental Health Court – where the Mental Health Court made findings that the proceedings for arson and related offences should be discontinued – where the findings of the Mental Health Court materially changed the applicant’s prior criminal history – where the setting aside of the applicant’s conviction for arson and related offences is a relevant significant factor to the imposition of any sentence – whether, in light of the new circumstances, the original sentence was manifestly excessive

R v Hart; Ex parte Director of Public Prosecutions (Cth)[2006] QCA 39, cited

COUNSEL:

C R Smith for applicant
S L Dennis for respondent

SOLICITORS:

Legal Aid Queensland on behalf of the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: For the reasons given by Boddice J, I joined in the making of the Court’s orders on 5 April 2022.
BODDICE J: On 5 April 2022, the applicant was granted leave to appeal his sentence; and the appeal against the sentence imposed in respect of the count of trafficking on 5 November 2015 was allowed. The Court ordered that the sentence of 10 years’ imprisonment be set aside, and that the applicant be sentenced to nine years’ imprisonment, with a parole eligibility date set at 5 April 2022.
These are my reasons for granting leave to appeal and making those orders.
Judgment
On 5 November 2015, the applicant pleaded guilty to an offence of trafficking in…

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 [2022] QCA 67
Case: [2022] QCA 67
Decision Date: 10 May 2022

CaseChat Overview and Summary

The applicant, who had pleaded guilty to trafficking in dangerous drugs and other related offences, appealed against his sentence. The original sentence was 10 years' imprisonment for the trafficking count and lesser concurrent periods for the remaining counts. The appeal was based on the argument that the sentence was manifestly excessive, given the applicant's criminal history following his successful appeal of his 2004 conviction for arson and related offences, and the fact that he had already served a period of three years, nine months and 24 days in custody. The court had to decide whether, in light of these new circumstances, the original sentence was manifestly excessive.

The court found that the original sentence represented a sound exercise of sentencing discretion, based on the facts as known at the time of sentencing. However, the court noted that events subsequent to the imposition of sentence gave rise to a basis to grant leave to appeal and allow the appeal. The applicant's successful appeal of his conviction for arson and related offences in 2020, and the subsequent findings of the Mental Health Court that the proceedings should be discontinued, materially changed the applicant's prior criminal history. Had those circumstances been in existence at the time of sentencing, the applicant would have been sentenced on the basis that he had one prior entry of limited relevance, and the sentencing court would have had to take into account the fact that the applicant had already served some time in custody for offences which were subsequently discontinued. The court concluded that the setting aside of the applicant's conviction for arson and related matters was a circumstance which did not exist at the time of the applicant's sentence for the trafficking count, and that this circumstance was relevant and significant to the imposition of any sentence.

The court allowed the appeal, set aside the original sentence, and imposed a new sentence of 9 years' imprisonment on count 1, with a parole eligibility date set at 5 April 2022.

Orders

Orders of the court

Date of Order: 5 April 2022

1. Appeal allowed.

2. Sentence of Mullins J on count 1, passed on 5 November 2015, is set aside.

3. A sentence of 9 years is imposed on count 1.

4. Parole eligibility date set at 5 April 2022.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

These are my reasons for granting leave to appeal and making those orders.Judgment On 5 November 2015, the applicant pleaded guilty to an offence of trafficking in the dangerous drug heroin, between 19 April 2011 and 9 September 2011. He also pleaded guilty to other drug offending. The applicant was sentenced to 10 years’ imprisonment for the offence of trafficking in dangerous drugs, and lesser concurrent periods of imprisonment for the remaining offences. The applicant relied on three grounds of appeal. First, that the sentencing Judge erred in sentencing on the basis that the applicant had reoffended nine months after the end of his prior custodial period. Second, that the sentence imposed is manifestly excessive, given the applicant’s criminal history following his successful appeal of his 1 November 2004 conviction. Third, that the sentence imposed is manifestly excessive given the context of the applicant having served a period of three years, nine months and 24 days in custody, which is no longer attributable to any sentence.Sentencing remarks In imposing an effective head sentence of 10 years’ imprisonment, the sentencing Judge acknowledged the applicant’s plea of guilty observing that, whilst they were neither early nor timely, they evidenced cooperation with the administration of justice. The sentencing Judge further observed that the applicant’s offending involved being a wholesale trafficker of heroin for just under five months, with an estimated supply in excess of 67 ounces of gross substance, from 1.87 kilograms of gross product. An aggravating feature of the trafficking was that the applicant did not stop when the applicant’s customers were arrested by police. Further, whilst the trafficking period ended when the applicant went overseas for four weeks, upon his return he contacted some former customers to seek to supply them with heroin. After recording that the applicant was now 51 years of age, had children, and although not a drug addict had a significant gambling problem, and that the applicant had a diagnosis for schizophrenia, the sentencing Judge observed that the applicant also had a past criminal history for the offence of arson and related offending, for which he had been sentenced to seven years’ imprisonment. The trafficking period commenced nine months after his release from prison for that offence. Further, the applicant had unknown sources of funds during the trafficking period of approximately $155,000, although he had gambled a significantly larger sum during the same period. The sentencing Judge accepted that his drug trafficking was commercially motivated as it was consistent with his gambling losses during the trafficking period. The sentencing Judge found that, having regard to the applicant’s role as a wholesaler, the scale of his trafficking and the period of his trafficking, the applicant would have been sentenced to not less than at least 12 years’ imprisonment if he had proceeded to trial. The pleas of guilty were reflected by setting the head sentence at 10 years’ imprisonment. It was declared that he had been convicted of a serious violent offence.Consideration

Ratio Decidendi

Legal Principle Established

The sentencing Judge found that, having regard to the applicant’s role as a wholesaler, the scale of his trafficking and the period of his trafficking, the applicant would have been sentenced to not less than at least 12 years’ imprisonment if he had proceeded to trial. The pleas of guilty were reflected by setting the head sentence at 10 years’ imprisonment. It was declared that he had been convicted of a serious violent offence.Consideration The applicant’s offending and a consideration of comparable yardsticks supports a conclusion that a sentence of 10 years’ imprisonment represented a sound exercise of the sentencing discretion, on the facts as known at the sentence hearing. Accordingly, but for events which occurred subsequent to the sentence, there was no basis to conclude that the sentence imposed was manifestly excessive. There was also no basis to conclude that the sentencing Judge erred in sentencing the applicant on the basis that he had reoffended nine months after the end of his prior custodial period. Whilst the sentencing Judge did refer to the trafficking period as having commenced “some nine months after” the applicant’s release from prison, that observation was made immediately after the correct recording of the applicant’s earlier sentence of imprisonment having been completed on 8 July 2010, and immediately before the correct recording of the fact that the applicant had served the latter part of that sentence in the community on parole. Events subsequent to the imposition of sentence did, however, give rise to a basis to grant leave to appeal and allow the appeal. The applicant successfully appealed his conviction for arson and the related offences in 2020. Whilst retrials were ordered, that offending was referred to the Mental Health Court which, on 14 September 2021, made findings with the consequence that the proceedings against the applicant were discontinued according to law. The findings and orders of the Mental Health Court materially changed the applicant’s prior criminal history. Had those circumstances been in existence at the time the applicant was sentenced for the trafficking count, he would have been sentenced on the basis he had one prior entry of limited relevance. Further, the sentencing Court would have had to have regard to the fact that the applicant was to be sentenced in circumstances where he had served some three years nine months in custody in respect of offences which were subsequently discontinued. That period of incarceration was “a relevant personal circumstance” upon which the applicant could properly rely for some mitigation of an otherwise appropriate penalty,[1] especially in the context of a sentence which had the consequence of an automatic declaration of the conviction of a serious violent offence.[1]R v Hart; Ex parte Director of Public Prosecutions (Cth) [2006] QCA 39 at [81]. The setting aside of the applicant’s conviction of the offences of arson and related matters was a circumstance which did not exist at the time of the applicant’s sentence for the trafficking count. That circumstance was relevant and significant to the imposition of any sentence. It is likely that circumstance would have resulted in the imposition of a different sentence.

CITATION:	R v Bui [2022] QCA 67
PARTIES:	R v BUI, Minh-Son (applicant)
FILE NO/S:	CA No 240 of 2021 SC No 439 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence, 5 November 2015 (Mullins J)
DELIVERED ON:	Date of Orders: 5 April 2022 Date of Publication of Reasons: 10 May 2022
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2022
JUDGES:	Sofronoff P and Boddice and Callaghan JJ
ORDERS:	Date of Order: 5 April 2022 1. Appeal allowed. 2. Sentence of Mullins J on count 1, passed on 5 November 2015, is set aside. 3. A sentence of 9 years is imposed on count 1. 4. Parole eligibility date set at 5 April 2022.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of two grams and one count of supplying a dangerous drug – where the applicant was sentenced to 10 years’ imprisonment for the trafficking count and lesser concurrent periods for the remaining counts – where the applicant was declared as having been convicted of a serious violent offence – where the initial sentence represented a sound exercise of sentencing discretion – where the applicant successfully appealed a conviction for arson and related offences in 2020 – where that offending was referred to the Mental Health Court – where the Mental Health Court made findings that the proceedings for arson and related offences should be discontinued – where the findings of the Mental Health Court materially changed the applicant’s prior criminal history – where the setting aside of the applicant’s conviction for arson and related offences is a relevant significant factor to the imposition of any sentence – whether, in light of the new circumstances, the original sentence was manifestly excessive R v Hart; Ex parte Director of Public Prosecutions (Cth)[2006] QCA 39, cited
COUNSEL:	C R Smith for applicant S L Dennis for respondent
SOLICITORS:	Legal Aid Queensland on behalf of the applicant Director of Public Prosecutions (Queensland) for the respondent