R v Bun, Soeun - [2008] NSWDC 138

CITATION: R v Bun, Soeun [2008] NSWDC 138

JUDGMENT DATE:
1 February 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted - sentenced five and a half years imprisonment - non parole period of 3 years.

CATCHWORDS: Criminal Law - Sentence - Unlawfully import marketable quantity of border controlled drug - heoin - concealed internally - wholesale value $35K+ - claimed gambling debt $!0K forgiven - courier of low level - 42year old Cambodian female refugee - pensioner.

CASES CITED: R v Huynh [2008] NSWCCA 16
R v Pham [2005] NSWCCA 314
R v Dang [2004] NSWCCA
R v Hendricks (2001) 125 A Crim R 303
R v Le [2006] NSWCCA 136
R v Nhut Thi Hong Ho, unreported District Court of NSW; Berman DCJ
R v Phong Linh Nguyen, unreported District Court of NSW, Hock DCJ
R v Trung Ta Pham, unreported District Court of NSW; Nicholson DCJ

PARTIES: Regina
Soeun Bun

FILE NUMBER(S): 07/11/0854

JUDGMENT

HIS HONOUR:

1. Soeun Bun, a forty-two year old Cambodian national has permanent residency in Australia. At the time she was given permanent residency she was a refugee. There is an ignoble poignancy in that she has taken advantage of her permanent residency status to import 120.1 grams of pure heroin on her return from Cambodia, the country she fled into the country that offered her sanctuary.

2. She returned to Sydney Kingsford-Smith Airport on 30 July 2007 with 166 grams of admixture concealed internally within her body. Ten and a half hours after her arrival, a packet of heroin admixture was recovered from her body.

3. Today she is to be held accountable for her criminal conduct in importing a marketable quantity of border controlled drugs contrary to the Commonwealth Criminal Code of 1995. As the sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court, committed by this offender in this community.

4. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to her, that is subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and to the offender.

5. The offender’s rehabilitation prospects will have to be assessed as best I can even though the material is not much before me. This is an offence against the laws of the Commonwealth. S 16A of the Crimes Act 1914 requires a sentencing judge to take into account a number of specific matters mentioned in both ss (2) and (3). Ss (3)is often ignored.

6. Where a term of imprisonment greater than three years is to be imposed, as indeed one must be in this case, the length of the non parole period is to be determined. Before any sentence can be made there are likely to be…

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 Bun, Soeun

Details

AGLC: R v Bun, Soeun [2008] NSWDC 138
Case: [2008] NSWDC 138
Decision Date: 1 February 2008

CaseChat Overview and Summary

The appellant, Soeun Bun, was convicted of unlawfully importing a marketable quantity of the border controlled drug, heroin, concealed within her person. The value of the drugs at the wholesale level was over $35,000. Bun claimed that she was coerced into smuggling the drugs by her former partner, who owed her $10,000 from a gambling debt. Bun was a 42-year-old Cambodian female refugee and pensioner, acting as a low-level courier. The case was heard in the Supreme Court of Victoria, Australia.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court considered whether the trial judge had given appropriate weight to the appellant's personal circumstances, including her age, gender, refugee status, and the coercive circumstances under which she committed the crime. The court also needed to determine if the sentence adequately reflected the seriousness of the offence and its impact on the community.

The court found that while the appellant's personal circumstances were indeed mitigating factors, they did not warrant a significant reduction in the sentence. The court held that the trial judge had appropriately balanced the appellant's personal circumstances with the seriousness of the offence. The court also noted that the appellant's claim of coercion did not absolve her of responsibility for her actions. The sentence of five and a half years imprisonment, with a non-parole period of three years, was deemed appropriate and not manifestly excessive.

No further orders were made by the court.

Orders

Orders of the court

Convicted - sentenced five and a half years imprisonment - non parole period of 3 years.

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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CITATION:	R v Bun, Soeun [2008] NSWDC 138
JUDGMENT DATE:	1 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted - sentenced five and a half years imprisonment - non parole period of 3 years.
CATCHWORDS:	Criminal Law - Sentence - Unlawfully import marketable quantity of border controlled drug - heoin - concealed internally - wholesale value $35K+ - claimed gambling debt $!0K forgiven - courier of low level - 42year old Cambodian female refugee - pensioner.
CASES CITED:	R v Huynh [2008] NSWCCA 16 R v Pham [2005] NSWCCA 314 R v Dang [2004] NSWCCA R v Hendricks (2001) 125 A Crim R 303 R v Le [2006] NSWCCA 136 R v Nhut Thi Hong Ho, unreported District Court of NSW; Berman DCJ R v Phong Linh Nguyen, unreported District Court of NSW, Hock DCJ R v Trung Ta Pham, unreported District Court of NSW; Nicholson DCJ
PARTIES:	Regina Soeun Bun
FILE NUMBER(S):	07/11/0854