Bui v R [2015] ACTCA 5

Court of Appeal (ACT)|2015-02-18|Before: Refshauge, Penfold and Perry JJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL - SENTENCING - Appeal against a sentence which is manifestly excessive - Appeal against a sentence which was unreasonable or unjust - Consistency in sentencing - Use of sentencing statistics

APPEAL - Trafficking in a controlled drug other than cannabis - Trafficking in a drug for profit

Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348

House v The King [1936] HCA 40; (1936) 55 CLR 499

Islam v The Queen [2013] ACTCA 10

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Roma v The Queen [2006] ACTCA 25

R v Campbell [2010] ACTCA 20

R v Hagen (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 82 of 2009, 18 May 2010).

R v Hagen [2014] ACTSC 129

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1. Trong Ruyen Bui, the Appellant, was arrested on 5 July 2012 after police, during their execution of a search warrant, found a quantity of heroin in his house.

2. Mr Bui was charged with certain offences and later committed for trial to the Australian Capital Territory Supreme Court. On the second day of the trial, he pleaded guilty to the two offences on the indictment, namely that between 5 April and 6 July 2012 he trafficked in a controlled drug other than cannabis, namely heroin, and the same offence, but for trafficking in methylamphetamine.

3. These offences are contrary to s 603(7) of the Criminal Code 2002 (ACT) and attract a maximum penalty of 1,000 penalty units (that is, at the time, a maximum fine of $110,000) and imprisonment for ten years.

4. On 2 July 2014, Mr Bui was sentenced for trafficking in methylamphetamine to imprisonment for four years and ten months, to commence on 1 April 2014, and for trafficking in heroin to imprisonment for fifteen months, to be served concurrently with the earlier sentence. A non-parole period of three years and two months was set to be served from 1 April 2014 to 31 May 2017.

5. Mr Bui has now appealed from the sentence. The grounds of the appeal were that:

(a) His Honour Justice Burns erred by imposing a sentence that is manifestly excessive.

(b) In the alternative, his Honour erred by imposing a sentence that is unreasonable or plainly unjust in the circumstances.

6. The Court dismissed the appeal and indicated that it would give its reasons later. These are those reasons.

7. A sentence is a discretionary decision and an appellant must show that the court imposing the sentence has made an error, such as acting upon a wrong principle, being affected by irrelevant considerations, mistaking the facts or failing to take into account a relevant consideration. The error may not be apparent but may be inferred if the sentence imposed is unreasonable or plainly unjust or manifestly excessive.

8. These principles were established by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 at 519-20. They have been followed many times in this Court. See, for example, Islam v The Queen [2013] ACTCA 10 at [77].

9. In respect of appeals against a sentence that is said to be manifestly excessive, this Court has set out in R v Campbell [2010] ACTCA 20, a summary of the task faced by such an appellant. In a passage (at [32]-[35]) cited many times, the Court said:

32. In Hawkins v Hawkins [2009] ACTSC 148; (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):

The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

10. In Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348, the High Court unanimously pointed out (at 354):

... a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances.

11. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Gleeson CJ and Hayne J said at 325-6; [6]:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

12. In this context, it is also relevant to recall the attention that the High Court has required sentencing courts to pay to the maximum penalties in assessing the seriousness with which an offence is to be regarded. Thus, in a passage frequently cited, the plurality of the High Court observed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]- [31]:

Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance ...

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

13. The facts were not set out comprehensively in the remarks on sentence of the learned sentencing Judge, even though there had been a hearing of evidence about the facts as the Crown's allegations were disputed.

14. From that evidence, however, and the remarks of the learned sentencing judge, the following facts can be stated.

15. A co-offender, John Stephen Lyons, met Mr Bui in about 2011 or 2012. Mr Lyons was a drug user. His drug of choice was methylamphetamine. In March 2012, Mr Bui came to Mr Lyons' house and told him that he could supply him with the drug that he "could get rid of". Mr Lyons agreed and he was supplied with about a gram of the drug which he then gave to someone else as a sample. As a result, Mr Bui then supplied Mr Lyons with an ounce of methylamphetamine which Mr Lyons sold to one of his friends for $10,000. He gave all the money to Mr Bui.

16. Mr Lyons said that both he and Mr Bui used methylamphetamine at the time.

17. As a result of the transaction, Mr Lyons obtained more of the drug from Mr Bui and sold it to four other people. He paid the proceeds to Mr Bui. Mr Bui also introduced Mr Lyons to another person to whom Mr Lyons supplied methylamphetamine.

18. Mr Bui made arrangements for Mr Lyons to avoid using mobile phones when making contact, as he said that the police would be listening to their conversations. As a result, Mr Bui gave Mr Lyons different phone numbers every couple of weeks with which to make contact. They did make contact using these telephone numbers, when arrangements were made for supply of drugs.

19. On 5 July 2012, Mr Bui rang Mr Lyons and told him he was sick so he could not obtain any drugs, even though Mr Lyons had given him $4,000. It is not clear from where Mr Lyons had obtained those funds. Mr Lyons gave Mr Bui some methylamphetamine and Mr Bui returned the money. He also gave Mr Lyons a small ball of heroin which Mr Lyons said he was going to smoke.

20. Mr Lyons estimated that he would have been supplied with about fifteen ounces of methylamphetamine by Mr Bui, at a cost of about $10,000 per ounce, over the twelve weeks of the arrangement.

21. The Court had a number of intercepted telephone calls before it. Transcripts were provided and recordings of the calls were played to the Court.

22. Mr Bui, in his evidence, admitted to supplying Mr Lyons with methylamphetamine which both of them knew as "Ice". He admitted that he did so from about April 2012 until his arrest. He said, however, that he supplied Mr Lyons with about 3.5 grams every two or three days. He agreed that he, Mr Bui, was a drug user himself. He said that he did not own a house or a car and that he had no savings. Since he had been on bail, he was, he said, presently on benefit payments through Centrelink, but before that he was unemployed for about six years. He was, however, a gambler. He went to the Canberra Casino frequently.

23. He said that the mobile phones he used had been supplied to him by the person who supplied the drugs to him.

24. Mr Bui's evidence was that Mr Lyons had paid him to obtain the methylamphetamines for him. The learned sentencing Judge did not accept that evidence. His Honour said in R v Bui [2014] ACTSC 182 at [4]- [6]:

... Having examined the intercepted telephone communications between yourself and Lyons, I am satisfied beyond a reasonable doubt that he was supplying methylamphetamine on your behalf. ... It is also relevant to take into account the fact that it was you who had the sources to obtain the methylamphetamine, suggesting that you are further up the supply chain than Lyons.

I am also satisfied beyond a reasonable doubt, based on the evidence of Lyons, that you supplied him with approximately 15 ounces of methylamphetamine, valued at approximately $150,000. In your evidence at the sentence hearing you suggested that you had only supplied Lyons with a much smaller quantity of methylamphetamine, but in my opinion the evidence of Lyons on this point is reliable. Lyons pleaded guilty to offences concerning his part in the supply of methylamphetamine and, in doing so, accepted that he had supplied 15 ounces. It is inherently improbable that Lyons would have pleaded guilty to supplying a quantity of methylamphetamine greater than that which he did supply.

I turn now to the charge of trafficking in heroin. On 5 July 2012 police executed a search warrant at your then residence in Macgregor. During the search police located a quantity of heroin, together with clip-seal bags and set of digital scales. The prosecution did not tender the analyst's certificate at the sentence hearing, so there is no evidence of the precise quantity of heroin located. The evidence given by Lyons also provided little information about your activity dealing [sic] in heroin other than the fact that you told him you sold heroin. I will proceed on the basis that you were involved in the supply of heroin on a small scale only.

25. Mr Bui was, at the time he was sentenced, 46 years of age. He was born in Vietnam and migrated to Australia in 1991. His parents and three of his five siblings remain in Vietnam. He has limited contact with them.

26. His wife and two daughters followed later. His wife died in 2005 and, until they were placed in care with their maternal aunt in 2008, he cared for his daughters.

27. Mr Bui has a brother who lives in Canberra and he has a cordial relationship with him.

28. Mr Bui started using drugs following the death of his wife. At the time of the offences, he was using a large amount of methylamphetamine and he became involved in the distribution of the drug to fund his habit. During supervision while on bail, he was subject to urinalysis on seven occasions but only one proved positive for methylamphetamine, though when remanded in custody on 1 April 2014, the mandatory urinalysis also proved positive for methylamphetamine.

29. Mr Bui's criminal history was not extensive. In 2000, he was convicted of using an offensive weapon and sentenced to two years imprisonment, which was wholly suspended. In 2004 he was convicted of assault occasioning actual bodily harm and placed on a recognizance to be of good behaviour for twelve months.

30. The learned sentencing Judge found that Mr Bui was not trafficking in drugs so as to obtain drugs for his own use but that he obtained a significant profit from the enterprises which he used to support himself and to fund his gambling.

31. The learned sentencing Judge allowed a discount of 15 per cent for the plea of guilty. His Honour found that Mr Bui had reasonable prospects of rehabilitation.

32. The real challenge on appeal was to the sentence for trafficking in methylamphetamine. Mr J Lawton, for Mr Bui, submitted that, on analysis, the sentence was "the largest sentence imposed for an offence of this kind" in the Territory.

33. He referred to a table of thirteen other sentences for trafficking in methylamphetamine, which had been imposed in the Territory between 2007 and 2014. The table showed that sentences imposed for the offence ranged from five years and six months to twelve months imprisonment, in some cases with a term of imprisonment being suspended or being served by periodic detention.

34. The amount of drug the subject of the offences in the table ranged between 1.030 grams to 85.470 grams. This compares with the 15 ounces which Mr Bui is said to have trafficked, which is 425.24 grams.

35. While the table also included information about the plea by each offender and a very brief summary of the offender's criminal history, it did not have further detail.

36. There is no doubt that consistency in sentencing is fundamental in a rational and fair system of criminal justice, as pointed out by Mason J in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610-1. Consistency, however, does not require numerical equivalence. See Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 535; [48]- [49] where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act. When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form.

37. There is, however, no prohibition on the use of sentencing statistics or, as in Roma v The Queen [2006] ACTCA 25, schedules of what are said to be comparable sentences. The use of this material, however, must be placed into its proper place.

38. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 606; [59]:

... recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.

39. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ also said in Hili v The Queen at 537; [54]:

In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour saidhttp://www.austlii.edu.au/au/cases/cth/HCA/2010/45.html - fn46: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, _and stand as a yardstick against which to examine a proposed sentence'_http://www.austlii.edu.au/au/cases/cth/HCA/2010/45.html - fn48 (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'.

(footnotes omitted)

40. More recently, in Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 at 379; [40]- [41] French CJ, Hayne, Kiefel and Bell JJ said:

The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.

41. Some principles that have been identified in the authorities concerning the sentencing of drug traffickers include:

(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at 50; [33].

(b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 at 438; [34].

(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly [2002] NSWCCA 300; (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.

42. Application of these principles shows that the culpability of Mr Bui was, on the facts as found by the learned sentencing Judge, of significant seriousness, warranting a severe sentence. None of the facts found by his Honour were challenged on this appeal.

43. The Appellant's submissions also made an error in calculation which affected the force of his submissions. It was submitted that the sentence before the discount for the plea of guilty was six years and six months. It was this that was said to be "the largest sentence imposed for an offence of this kind".

44. The discount applied by his Honour was 15 per cent for the plea of guilty, which must be seen as rather generous for a plea on the second day of the trial.

45. That discount, however, shows that the starting point for the head sentence was not six years and six months but a little over five years and eight months. This was, in fact, just a few months more than the discounted sentence imposed on Mr Hagen in R v Hagen (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 82 of 2009, 18 May 2010). An inspection of the sentencing remarks in that case shows that the starting point for the sentence there, before the discount for the plea of guilty, was six years. For the second sentence imposed for trafficking in methylamphetamine, R v Hagen [2014] ACTSC 129, the starting point for the sentence in that case before the discount for the plea of guilty, was six years and six months.

46. Accordingly, the factual basis for the submissions on behalf of Mr Bui was not substantiated.

47. In any event, for the reasons set out above, the principles applicable to the sentencing of Mr Bui do not disclose any basis for the ground of the appeal that the sentence was manifestly excessive or was unreasonable or was plainly unjust.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

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