R v BUI [2014] ACTSC 182

1. Trong Ruyen Bui, on 1 April this year you entered pleas of guilty to one count of trafficking in a controlled drug other than cannabis, namely heroin, between 5 April 2012 and 6 July 2012 (CC12/6162); and one count of trafficking in a controlled drug other than cannabis, namely methylamphetamine, between the same dates (CC13/1041).

2. These pleas were entered on the second day of your trial for these offences. Each offence carries a maximum penalty of 10 years' imprisonment. The evidence establishes that over the period specified in the charges you purchased methylamphetamine and provided it to John Lyons, who then sold it.

3. Despite your pleas of guilty, two matters remained in dispute, being:

1. First, whether you were using John Lyons in order to supply methylamphetamine to others on your behalf, or whether he used you to secure the methylamphetamine which he then on-sold on his own behalf; and
2. Secondly, the amount of methylamphetamine which you sourced and supplied to Lyons.

4. When he was arrested, Lyons was found to be in possession of $10,000 cash, whereas you were not in possession of any significant sum of money, and there is no suggestion that you are in possession of any significant assets. While this may suggest that Lyons was the principal and you were merely his agent, I note that you were a frequent gambler, which would explain your apparent lack of assets. 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. In these conversations he reports to you how much methylamphetamine he has in his position from time to time, which he would not need to do if you were merely acting as his agent in purchasing the drug. He provides you with details about proposed purchases from him, which, again, he would not need to do if your role was simply to purchase the drug at his behest. 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.

5. 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.

6. 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 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.

7. You have a criminal history, although it is not particularly significant for the present purposes. In October 2000 you were convicted of an offence of using an offensive weapon and sentenced to a suspended sentence of two years' imprisonment. In January 2004 for you were convicted of an offence of assault occasioning actual bodily harm and placed on a recognisance for a period of 12 months.

8. A Pre-Sentence Report was prepared for the sentence hearing. I note that you are 46 years old and that you were born in Vietnam and migrated to Australia in 1991. Your family followed later. You reported that your wife died in 2005, and following this time you were the sole carer for your two daughters. In 2008 your daughters were placed in the care of their maternal aunt. Whilst you are one of five children and your parents and three of your siblings continue to reside in Vietnam, you have only limited contact with them. You have a closer relationship with a brother who resides in the ACT and with your two daughters. Prior to being remanded in custody on 1 April this year you were in receipt of government benefits.

9. You told the author of the Report that you started using illicit substances at the time of the death of your wife. You said that you were using large quantities of methylamphetamine at the time of these offences and you were involved in its distribution in order to fund your own habit. The author of the Report states that you gave contradictory accounts of your use of methylamphetamine, such that it was difficult to determine the exact extent of your use of that substance. During supervision by ACT Corrective Services between September 2012 and September 2013, you provided seven samples for urinalysis with only one sample providing a positive test for methylamphetamine.

10. When remanded in custody on 1 April this year you provided a sample for urinalysis that returned a positive preliminary result for methylamphetamine. The author of the Report, I note, assessed you as being at medium risk of reoffending. I note that the CADAS Assessment states that you reported smoking between one and five points of methylamphetamine per day over the two years prior to the beginning of April this year. I accept that you have made some attempts to identify and apply to an appropriate drug rehabilitation facility whilst you have been remanded in custody, but your poor English skills have made it difficult. There is nothing, however, that suggests that the facilities within the Alexander Maconachie Centre designed to address drug addiction would be inappropriate for you, or in some way less effective than an external program.

11. For the purposes of sentencing, I accept that you were a user of methylamphetamine at the time of these offences. However, I reject the proposition that you were only involved so as to obtain drugs for your own use. I am satisfied beyond a reasonable doubt that you obtained a significant profit from the sale of drugs, in particular methylamphetamine, which you used to support yourself and also to fund your gambling.

12. I note that prior to being arrested for these offences you were unemployed for a number of years and in receipt of no government benefits. You had no income from which to fund your personal needs and your gambling habit. There is no suggestion that you had any assets that you were able to utilise to fund your personal needs and your gambling during that period. The inevitable inference is that you funded your day-to-day needs and your gambling habit through the profits from the sale of drugs.

13. I consider this offence of trafficking in methylamphetamine to fall within the mid-range of offences of this nature. I take into account your pleas of guilty, although they were not early pleas. The case against you was strong, although not overwhelming. I accept that your pleas demonstrate a degree of remorse and I'm satisfied that they also have some utilitarian value. I will reduce by 15 per cent the sentences that would otherwise have been appropriate. Based upon your relatively minor criminal history and age, I am satisfied that you have reasonable prospects for rehabilitation. Appropriate programmes addressing drug abuse and gambling addiction would increase your prospects of rehabilitation.

14. On the charge of trafficking in methylamphetamine (CC13/1041), I record a conviction, and you are sentenced to four years and 10 months' imprisonment, commencing on 1 April this year and expiring on 31 January 2019. On the charge of trafficking in heroin (CC12/6162), I record a conviction, and you are sentenced to 15 months' imprisonment concurrent with the sentence for trafficking in methylamphetamine (CC13/1041). I've set a non-parole period of three years and two months, commencing on 1 April this year and expiring on the 31 May 2017.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.