R v Tung Thanh Bui No. DCCRM-01-1243

[2001] SADC 185

R v Tung Thanh BUI
[2001] SADC 185

CRIMINAL
JUDGE DAVID SMITH

1. On the 26^th September 2001 Tung Thanh Bui pleaded guilty in the Magistrates Court at Port Adelaide to the following offence:-

   ·That on the 24^th day of January 2001 at Woodville Gardens you knowingly sold heroin a prohibited substance to another person, contrary to s32(1)(c) of the Controlled Substances Act, 1984. 

2. The maximum penalty for this offence is 25 years imprisonment or a fine of $200,000 or both. 

   Circumstances of offence

3. As at the 24^th January 2001 the defendant had been living at 108 Hanson Road, Woodville Gardens.  It was his brother’s house.  His brother was away in Vietnam.  As it happened, the police had the premises under surveillance.

4. At about 1pm on that day, Constable Ian Kilpatrick went to the front door.  He had a $50 note visible in his hand.  The defendant opened the screen door and Kilpatrick said to him:-

   “Police.  I’ll take the heroin”.

5. The defendant then handed Kilpatrick a small plastic package which contained white rock powder.  The white powder weighed 0.06 grams and on analysis was found to contain heroin.  Kilpatrick then apprehended the defendant.  Police then searched the defendant and the house.  The defendant had $390 in cash in his rear pocket.  There was no heroin found in the house.  Moreover, there was none of the usual indicia of an ongoing drug selling operation found such as scales, cutting agents, packaging, and customer lists.  When spoken to by police the defendant said that the $390 was a loan from a certain Mr Lee.  The police investigated that claim and the Crown do not contend that the money was part of a drug selling operation.

6. Section 4 of the Controlled Substances Act defines sale as including “offer or expose for sale”.  Accordingly, the plea has proceeded on the basis that when the defendant answered the door with the heroin in his hand it constituted a sale since he was then offering or exposing the powder for sale.

7. In particular, I am to sentence the defendant on the basis that he had purchased a $100 lot of heroin, used half of it himself, and was, when apprehended, attempting to sell the other half to recoup some of his outlay.  It is accepted that I should sentence the defendant not in the setting of a commercial profit making enterprise, but rather only on the basis that this sale took place against a background of him having supplied to two or three of his friends over a period of several days leading up to the commission of the offence by again buying a $100 lot of heroin and using half of it himself and then selling the other half.

   Circumstances of offender

8. The defendant was born in South Vietnam on the 2^nd March 1972.  He was the youngest of 12 children and was educated in Vietnam to a level which is equivalent to Year 10.  He immigrated with his family to Australia as a refugee in about 1990 at the age of 18 years.  Since then he has predominantly lived in Adelaide as have his family.  Upon arrival in Australia, he spent two years studying English and then sought employment.  He has been unable to sustain employment.  The longest period of work was for three years as a process worker.  The defendant blames his inability to obtain employment on his limited command of English.  He also has a severe stutter and that too is an impediment.  The report of the psychologist Mr Richard Balfour dated the 12^th December 2001 describes the events which led to the defendant’s addiction to heroin and the offending.  I set out hereunder the two pertinent paragraphs:-

   “Mr Bui is an introverted man whose social adjustment has been made difficult in Australia by his severe stutter and poor command of English.  He is shy and experiences difficulty socialising with women.  At the age of 23, while in Vietnam, he married a 20 year old Vietnamese woman.  This marriage was arranged by their families.  Mr Bui and his wife were very happy.  However, the Australian government rejected his application for her to immigrate to Australia to be with him.  He considered returning to Vietnam to be with her but did not want to desert his elderly parents in Australia.  He consoled himself by commencing a defacto relationship at the age of 24 with a 21 year old Vietnamese woman in Australia, but he left her after four years when he discovered that she was having an affair.  He had always maintained some hope that that (sic) Australian government would allow his wife in Vietnam to eventually join him in Australia.

   Mr Bui went to Vietnam during December, 1999, to visit his wife.  However, he became distraught and depressed when they were forced to divorce.  He then appeared to experience a significant grief reaction.  He has a history of headaches that are exacerbated by stress.  He was suffering from insomnia due to his feelings of grief and depression.  During March 2000, an associate introduced him to smoking cannabis and heroin to overcome his insomnia and to escape from his problems.  Mr Bui then became addicted to heroin and committed the current offence to support his addiction.”

9. The defendant acknowledges the wrongfulness of his action and in particular the harm selling heroin causes to the end user.  I accept that he is contrite and remorseful.  He lives at home with his parents and exists on unemployment benefits.  I accept that he has not used heroin since his arrest.  Dr Ting from the Rosewater Medical Clinic has been assisting him to rid himself of the addiction.  He is looking for work but as Mr Richard Balfour indicates he needs some assistance.

10. The defendant’s antecedent report discloses an offence of larceny on the 9^th August 1995 for which in the Port Adelaide Magistrates Court on the 3^rd October 1995 he was fined $100 without conviction.  There is one other traffic matter.  Accordingly, I propose sentencing the defendant on the basis that he is a first offender.

    Sentencing considerations

11. This is a serious offence.  The defendant has already acknowledged the misery and degradation brought about by heroin use and addiction, not to mention the anti-social and criminal behaviour it generates.  It is for those reasons that considerations of general as well as personal deterrence play a large part in sentencing.  A term of imprisonment is clearly warranted.

12. This is not a case where the offence is committed against a background of involvement in commercial trading or dealing.  This defendant is not a “street trader” in the sense discussed in Mangelsdorf (1995) 66 SASR 60, but rather his situation is not unlike that of the defence in R v Gjoka (unreported) Court of Criminal Appeal S6211 delivered 1^st July 1997.

13. Addiction is no ground for leniency; (see R v Henry (1999) 106 A Crim R 149; R v Terizakis (1986) 41 SASR 252).

14. The defendant is entitled to a discount for his early plea of guilty.  The sentence of the Court is that he be imprisoned for three years.  If it were not for his early plea, the period of imprisonment would have been four years.  I fix a non-parole period of 18 months. 

15. I now turn to whether there is “good reason” for suspending that term of imprisonment; (s38 Criminal Law (Sentencing) Act 1988).  I have had regard to the following matters:-

    ·The defendant’s youth;

    ·The lack of any significant history of previous offending;

    ·The difficult personal circumstances confronting the defendant in Australia as a refugee with a poor command of English and indeed with a stutter;

    ·The fact that the involvement in heroin followed in the wake of the trauma of the defendant’s marriage and divorce in Vietnam;

    ·The small amount of heroin the subject of the sale and the fact that the offending was not “street trafficking” in the full sense;

    ·The contrition and shame expressed by the defendant and evidenced by his early plea and frank disclosure to the police and the attendant likelihood that he will not re-offend;

    ·The fact that he has already undertaken steps to rehabilitate himself and in particular to cease using heroin; and

    ·The prospects of complete rehabilitation are favourable because the defendant is the only member of his large family who has been in conflict with the law and who has had a drug problem.

16. Accordingly, notwithstanding the seriousness of the offence, its prevalence and the need for deterrence I consider there is good reason for suspension.

17. Accordingly, I order the suspension of the term of imprisonment upon the defendant entering into a bond in the sum of $2,000, upon the conditions that he be of good behaviour for three years and that he be under the supervision of a probation officer.

18. I have in mind that whilst under the supervision of the probation officer the defendant will undertake the sort of programs advocated for him on pages 11 and 12 of Mr Balfour’s report.