Bui v R

Court of Criminal Appeal (NSW)|2008-10-24|Before: McClellan CJ, Simpson J, Clellan CJ

CITATION: Bui v R [2008] NSWCCA 343

HEARING DATE(S): 24 October 2008 JUDGMENT OF: McClellan CJ at CL at 27; Nettle AJA at 2; Simpson J at 28

DECISION: Grant leave to appeal but dismiss the appeal.

Customs Act 1901 (Cth) LEGISLATION CITED: Criminal Code 1995 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) Crimes Act 1914 (Cth)

Markarian v R (2005) 228 CLR 357 R v Gallagher (1991) 23 NSWLR 220 CASES CITED : R v Mo (2007) 169 A Crim R 60 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Pham (1991) 55 A Crim R 128

PARTIES: Hoang Anh Bui (applicant) The Crown

COUNSEL: G D Wendler (Applicant) W J Abraham QC (Crown)

SOLICITORS: AKN & Associates (Applicant) Commonwealth Director of Public Prosecutions

LOWER COURT FILE NUMBER(S): 06/11/0672 06/21/0159

IN THE COURT OF CRIMINAL APPEAL 2007/4531

McCLELLAN CJ at CL NETTLE AJA SIMPSON J

FRIDAY 24 OCTOBER 2008 BUI, Hoang Anh v R Judgment

1 McCLELLAN CJ at CL: The court is in a position to deliver judgment. I will ask Nettle AJA to deliver the first judgment. 2 NETTLE AJA: On 15 August 2006, the applicant pleaded guilty to one count of aiding, abetting, counselling and procuring the importation of a commercial quantity of a prohibited import (namely, 34.8065 kilograms of methylamphetamine) contrary to s 11.2(1) of the Criminal Code 1995 (C'th) and s 233B(1)(a)(ii) of the Customs Act 1901 (C'th) and on 5 May 2006 he pleaded guilty to one count of supplying an indictable quantity of a prohibited drug (namely, 3.64 grams of MDMA) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). In each case the plea was entered at the first available opportunity. 3 After hearing a plea in mitigation of penalty, on 5 October 2007, Judge Freeman sentenced the applicant:

(a) On the Commonwealth offence to 16½ years' imprisonment with a non-parole period of 10 years to commence on 15 February 2007, with the applicant thus to be eligible for parole on 14 February 2017; and (b) On the State offence to two years and three months' imprisonment with a non-parole period of 20 months to date from 15 February 2006 (being the date on which the applicant was arrested).

The Facts 4 The facts of the State offence, as they appear in the judge's sentencing remarks, were as follows. On 3 September 2005, the applicant was standing outside the Homebush State Sports Centre in an admissions line awaiting admission when he attracted the attention of a drug detection dog. He was asked by the officer attending the dog whether he had any prohibited substances and he replied, 'Yeah, I've got three or four'. He was then handed over to police and repeated that answer to their questions. He was thus taken to a designated search area where he reached into his underwear and removed a number of small violet coloured tablets and a piece of rolled up tissue. There were twelve violet coloured tablets which upon analysis were found to contain MDMA. Other tablets in the rolled up tissue also contained MDMA and another couple of them contained methylamphetamine. The total weight of the MDMA was 3.64 grams. The applicant also had in his possession the sum of $780 which was not explicable by reference to his known financial circumstances - he being unemployed - and his explanation that he had received the money for work at the fish market was rejected as demonstrably false. After being charged, he was released on bail. 5 The Commonwealth offence was committed while he was released on bail. The applicant was acquainted with a person known as 'Uncle' who had lived adjacent to him in Vietnam where he was born. Following his release on bail the applicant travelled to Vietnam and met Uncle. Uncle proposed that the applicant assist him in obtaining delivery of a boat, which according to Uncle had already arrived in Australia, although in fact it did not arrive until 12 October 2005. The applicant understood that the boat was a means of bringing a prohibited substance into Australia. There was a series of plastic bags secreted in its hull which contained a total of 34.8 kilograms of pure methylamphetamine with a gross weight of 46 kilograms, of which the minimum wholesale value was $5 million. 6 Uncle gave the applicant the documents necessary to clear the boat through Customs. Fearing, however, that his English was not up to the task, the applicant engaged the assistance of a co-offender who thereafter took an active role in dealing with Customs agents for the Customs clearance of the boat and recruiting other persons to take physical possession of the boat. There was a deal of communication between the applicant and To and Uncle in Vietnam, and ultimately the consignee of the boat, who it was said was a person with a Vietnamese name in a Catholic Girls College in the Australian Capital Territory, signed over such interest as they may have had in the boat to To who thus became entitled to take delivery. Sums of money totalling more than $60,000, of which more than $45,000 was identified as coming from Uncle, were then paid into the account of the Customs agents. The applicant was active in checking on To's progress and making decisions as to how the boat was ultimately to be delivered in a shipping container and in recruiting persons whose homes were to be used to house the container after its arrival. 7 In the result, the judge characterised the applicant as a principal in Australia in recruiting To, supervising To, making other arrangements and being a very high level player in the importation.

Ground 1 - Two stage sentencing process 8 In the course of his sentencing remarks, the judge observed in relation to the Commonwealth offence: "Now, there is a certain tension, at least in my mind, between the concept of intuitive sentencing and the requirement that some mathematical calculations be revealed as to how this intuition has been played out. For that reason, I indicate that I would have started with a sentence of twenty-seven and a half years. I apply a 40 per cent discount, that being the combination of the discount applicable in respect of his plea and his assistance." 9 Under cover of ground 1, the applicant contends that the judge thereby erred in law by taking a mathematical or two stage approach to the sentencing process rather than the intuitive synthesis approach mandated by the High Court in Markarian v R (2005) 228 CLR 357. In particular, counsel submitted that the judge was bound in relation to the Commonwealth offence to have regard to such of the factors set out in s 16 A of the Crimes Act 1914 (C'th) as were relevant to the applicant, and to weigh them all together, whereas what the judge appeared to have done in fact was to separate out the discount for the plea of guilty and cooperation and deal with it discretely. In effect, in counsel's submission, the same was also true of the State offence: the decision in Markarian bound the judge to synthesise all of the relevant sentencing considerations together rather than separating out the discount for plea and cooperation and dealing with it individually. 10 In my view that submission is not persuasive. There is no question of the judge failing to take into account any of the relevant sentencing considerations. It is plain from his Honour's thorough and carefully constructed sentencing remarks that he had regard to all relevant considerations. The only thing which might be said to be a problem is that his Honour quantified the amount of the discount; and in the circumstances of this case, I do not consider that Markarian prevented him from adopting that course. 11 Markarian laid down as a matter of general principal that: "So long as the sentencing judge must or may take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features distorts the already difficult balancing exercise which the judge must perform." 12 Such a statement of principle does not sit easily with the encouragement offered to sentencing judges in R v Thomson & Houlton (2000) 49 NSWLR 383 to quantify the guilty plea discount. Hence, as Barr J put it in R v Mo (2007) 169 A Crim R 60 at 64, such encouragement should not be seen as amounting to a requirement. 13 But that said, as the High Court itself noted in Markarian, there are cases in which some indulgence in what they called the arithmetical process will better serve the ends of accessible reasoning; and I do not consider that the judge was wrong to approach this case on the basis that it was one of them. 14 Relatively speaking, the combined discount for the applicant's plea of guilty and assistance to the authorities was the single most important mitigative consideration in his Honour's sentencing process and therefore something in which the victims, the parties, this Court and the public would be likely to have considerable interest. Further, although the case as such might not be described as simple, the identification and quantification of the discount was in this case just that. And nothing which I have heard in the course of argument suggests that there was anything artificial in ascribing a value to it. (Compare R v Gallagher, (1991) 23 NSWLR 220 at 226 to 230). 15 Accordingly, I would reject ground 1.

Ground 2 16 Under ground 2, counsel for the applicant argued that the judge erred in the formulation of the discount of 40 per cent by ascribing 25 per cent to the plea of guilty and thus only 15 per cent to the applicant's assistance and undertaking to give evidence. Especially was that so, it was submitted, given that the judge found that the applicant's assistance to the police was 'very significant'. 17 What his Honour said about the level of discount, and whether he ascribed a figure of 25 per cent to the plea of guilty for the purposes of the Commonwealth offence, is debatable. But assuming that his Honour did do what is alleged, in my view there was no error. For accepting that his Honour attributed 25 per cent to the discount for the plea of guilty and 15 per cent to the cooperation with the authorities, to my way of thinking the discount of 40 per cent allowed in this case belies the notion that he did not give full credit for the 'very significant' value of the assistance given to the police in relation to the Commonwealth offence. Granted that there is no fixed tariff for assistance to the authorities - it reflects a number of considerations that impact upon the sentence to be imposed - current sentencing practices suggests a range of somewhere between 20 per cent and 50 per cent for the combined discount for plea of guilty and assistance to the police and that a discount of more than 40 per cent should only very exceptionally be granted, and ordinarily only then where there is evidence that the offender will serve his or her sentence, or a substantial part of it, in more onerous conditions than the general prison population. In this case there is no evidence of that kind and, on that basis, a discount of 40 per cent was, in my view, about as much as the applicant could have hoped to achieve. 18 To that may be added that where, as in this case, the judge does give a specific discount, the question on appeal is not so much one of numeric value ascribed to the discount, as whether, after all the relevant matters have been taken into account, the sentence is appropriate. For the reasons which follow I consider that it is.

Ground 3 - Manifest excessiveness, State offence 19 Under the heading of 'Manifest Excessiveness', counsel for the applicant argued that the sentence of two years and three months' imprisonment imposed on the State count of supplying an indictable quantity of MDMA was beyond the range, given that the quantity was only 3.64 grams in the form of only 18 ecstasy tablets and that the applicant had no prior criminal history concerning illicit drugs. In counsel's submission, if the applicant had stood for sentence on that offence alone he would have been unlikely to receive a full-time custodial sentence, let alone a full-time sentence of two years and three months. It was more likely, it was said, that he would have received a wholly or partially suspended sentence or a sentence to be served by way of periodic detention. Additionally, it was contended, the judge had not taken into consideration s 23 of the Crimes Sentencing Procedure Act 1999 (NSW) which warranted a lesser penalty having regard to the high degree to which the applicant had assisted the law enforcement authorities and undertook to assist them in the future. 20 I accept those submissions up to a point. Given the relatively modest quantity of the drug involved and the applicant's antecedents, the sentence may appear to be stern. As the judge disclosed in his sentencing remarks, the starting point was a sentence of three years, from which he then deducted the 25 per cent discount allowed for the applicant's plea of guilty. Other things being equal, a sentence of three years for the kind of offence in question could be viewed as being towards the upper end of the range. But that said, I am certainly not persuaded that the sentence of two years and three months was beyond the range. For despite the relatively small quantity of the drug involved, it was enough in combination with the cash found on the applicant to put the offence into a category which Parliament regards as so serious as to warrant a maximum penalty of 25 years' imprisonment. And contrary to the tenor of the submissions put on behalf of the applicant, the offence could not be regarded as isolated in light of the subsequent Commonwealth offence.

Ground 4 - Manifest excessiveness, Commonwealth offence 21 Finally, counsel for the applicant argued that the starting point of 27½ years adopted in relation to the sentence of 16½ years imposed in relation to the Commonwealth offence was manifestly excessive and informed by an error on the part of the judge in attributing too much weight to the sentence of 25 years' imprisonment imposed on the applicant's co-offender, To. It was submitted that, given the applicant's level of objective criminality, early plea of guilty and the high value of his assistance to law enforcement authorities, compared to the level of To's objective criminality, his defence of the charge and his lack of assistance to authorities, the applicant's sentence should have been very much less than To's. 22 That submission should be rejected. As it appears from the judge's sentencing remarks, the sentence imposed on To was rightly regarded by both defence counsel and the Crown as the single most important indication of the sentence to be imposed. As the judge put it: "I do not regard the fixing of the twenty-five years as being an ironclad direction to this court but I do regard it as the single most important indicator, since it is common ground between counsel for the prisoner and the Crown that it would be difficult to distinguish in any meaningful way between the criminal culpability demonstrated by To, on the one hand, and by this prisoner, on the other. Their roles may have been somewhat different. It might be thought that this prisoner Bui was somewhat higher up the chain but, on the other hand, To was the more completely involved in facilitating the handling of the importation, and so on in any event. Parity is a powerful argument in favour of me approaching the sentence of this prisoner conformably with the sentence imposed by the Court of Criminal Appeal in relation to To." 23 But as the judge went on to observe, the fact that the applicant had offended while an bail aggravated the offence significantly and led as his Honour put it to a starting point somewhat higher than the sentence imposed on To: "Certainly this was not the most aggravating factor one could imagine but it is nonetheless, in my view, a significant aggravating factor because it involves the supply of drugs, on the one hand, and the attempted importation obviously for the ultimate purpose of supply of drugs, on the other." 24 With respect, I consider that his Honour's approach was correct. This was a serious example of a particularly serious offence in which the applicant was properly characterised by the judge as playing a principal role more or less comparable in terms of objective criminality of that played by To. The gravity of the offending was then aggravated by the fact that it was committed while on bail, and it is recognised that offences committed while on bail require severely deterrent sentences. (See R v Pham (1991) 55 A Crim R 128 at 134.) Thus, as the judge rightly observed, this offence deserved condign punishment. 25 Given all that, and the substantial discount of 40 percent allowed for the applicant's plea of guilty and cooperation with the authorities, I am unable to perceive any lack of parity with respect to To or any other sentencing considerations sufficient to put the sentence beyond the acceptable range. 26 In the result I would grant leave to appeal but dismiss the appeal. 27 McCLELLAN CJ at CL: I agree with Nettle AJA. 28 SIMPSON J: I also agree. 29 McCLELLAN CJ at CL: Accordingly the orders of the court are as proposed by Nettle AJA. **********

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Crimes Sentencing Procedure Act 1999(NSW)

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