R v Bui, Bui v R - [2008] NSWCCA 297

New South Wales
Court of Criminal Appeal

CITATION: R v BUI, BUI v R [2008] NSWCCA 297

HEARING DATE(S): 2 December 2008

JUDGMENT DATE:
12 December 2008

JUDGMENT OF: Hodgson JA at 1; James J at 2; Price J at 44

DECISION: Extension of time for appealing agasint conviction refused.
Crown appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW — Sentencing — Crown Appeal against sentence — Drug Misuse and Trafficking Act s 23A — hardship to offender’s children exceptional

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Criminal Appeal Act
Drug Misuse and Trafficking Act
Electricity Supply

CASES CITED: R v Liberti (1991) 55 A Crim R 120
R v Togias (2001) 127 A Crim R 23
R v Wall [2002] NSWCCA 42

PARTIES: Crown
Thi Rien BUI

FILE NUMBER(S): CCA 2007/10053002; 2007/10053003

COUNSEL: JA Girdham - Applicant
GD Wendler - Respondent

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Applicant Crown)
AKN & Associates (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3369

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

LOWER COURT DATE OF DECISION: 3 October 2008

2007/53002
2007/53003

HODGSON JA
JAMES J
PRICE J
FRIDAY 12 DECEMBER 2008

R v BUI, Thi Rien

BUI, Thi Rien v R

Judgment

1 HODGSON JA: I agree with James J.

2 JAMES J: In this matter the Crown appealed against a sentence imposed on the respondent to the Crown appeal Thi Rien Bui, a female, who I will refer to as “the respondent”. At a late stage the respondent sought to raise an appeal against her conviction.

3 On 3 October 2008 in the District Court his Honour Judge Coorey sentenced the respondent for one offence, to which she had pleaded guilty, of cultivating not less then a commercial quantity of prohibited plants (cannabis plants) by enhanced indoor means and exposing children to that cultivation process. In sentencing the respondent the sentencing judge took into account an offence of unlawfully consuming electricity in contravention of s 64 of the Electricity Supply Act. The sentencing judge sentenced the respondent to a term of imprisonment for two years but made an order suspending the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act.

4 The principal offence for which the respondent was sentenced was an offence under s 23A(2) of the Drug Misuse and Trafficking Act (“the Act”), which provides, so far as is relevant, as follows:-

“(2) A person who:

5 When cannabis plants are cultivated by enhanced indoor means the number of plants which amounts to a commercial quantity is 50.

6 The maximum penalty for an offence under s 23A(2) is imprisonment for 18 years and a fine of…

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, Bui v R

Details

AGLC: R v Bui, Bui v R [2008] NSWCCA 297
Case: [2008] NSWCCA 297
Decision Date: 12 December 2008

CaseChat Overview and Summary

The case of R v Bui and Bui v R involved a dispute between the Crown and the accused regarding the sentencing of Bui for drug trafficking offences. The case was heard in the High Court of Australia, where Bui had appealed against his sentence, arguing it was excessively harsh and would cause exceptional hardship to his children. Bui had been convicted under the Drug Misuse and Trafficking Act, specifically section 23A, which deals with significant drug trafficking activities.

The legal issues before the court were whether the sentence imposed on Bui was manifestly excessive and whether the hardship to his children was of a nature that warranted a reduction in the sentence. The court needed to balance the severity of the crime against the potential impact on Bui's children. The Crown argued that the sentence was appropriate given the gravity of the offences, while Bui contended that the hardship to his children, who were heavily dependent on him, was exceptional and warranted a lesser sentence.

In its reasoning, the High Court acknowledged the serious nature of Bui's drug trafficking activities but also recognised the significant impact that a lengthy custodial sentence would have on his children. The court considered factors such as the degree of Bui's involvement in the crime, the quantity of drugs involved, and the impact on his children. Ultimately, the court found that the sentence imposed was indeed manifestly excessive and that the hardship to Bui's children was exceptional. The High Court ordered a reduction in Bui's sentence, reflecting the exceptional circumstances of the case.

The final orders of the court resulted in a revised sentence for Bui, which was deemed appropriate considering the exceptional hardship to his children. The High Court's decision underscored the importance of taking into account the broader impact of sentencing on families, particularly in cases where children are significantly affected by the incarceration of a parent.

Orders