SUPREME COURT OF QUEENSLAND

CITATION:	R v Bui [2022] QCA 67	
PARTIES:	R
v
BUI, Minh-Son
(applicant)	
FILE NO/S:	CA No 240 of 2021
SC No 439 of 2013	
DIVISION:	Court of Appeal	
PROCEEDING:	Sentence Application	
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence, 5 November 2015 (Mullins J)	
DELIVERED ON:	Date of Orders: 5 April 2022
Date of Publication of Reasons: 10 May 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	5 April 2022	
JUDGES:	Sofronoff P and Boddice and Callaghan JJ	
ORDERS:	Date of Order: 5 April 2022
1.	Appeal allowed.
2.	Sentence of Mullins J on count 1, passed on 5 November 2015, is set aside.
3.	A sentence of 9 years is imposed on count 1.
4.	Parole eligibility date set at 5 April 2022.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of two grams and one count of supplying a dangerous drug – where the applicant was sentenced to 10 years’ imprisonment for the trafficking count and lesser concurrent periods for the remaining counts – where the applicant was declared as having been convicted of a serious violent offence – where the initial sentence represented a sound exercise of sentencing discretion – where the applicant successfully appealed a conviction for arson and related offences in 2020 – where that offending was referred to the Mental Health Court – where the Mental Health Court made findings that the proceedings for arson and related offences should be discontinued – where the findings of the Mental Health Court materially changed the applicant’s prior criminal history – where the setting aside of the applicant’s conviction for arson and related offences is a relevant significant factor to the imposition of any sentence – whether, in light of the new circumstances, the original sentence was manifestly excessive
R v Hart; Ex parte Director of Public Prosecutions (Cth) [2006] QCA 39, cited	
COUNSEL: 	C R Smith for applicant
S L Dennis for respondent	
SOLICITORS:	Legal Aid Queensland on behalf of the applicant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	SOFRONOFF P:  For the reasons given by Boddice J, I joined in the making of the Court’s orders on 5 April 2022.
[2]	BODDICE J: On 5 April 2022, the applicant was granted leave to appeal his sentence; and the appeal against the sentence imposed in respect of the count of trafficking on 5 November 2015 was allowed.  The Court ordered that the sentence of 10 years’ imprisonment be set aside, and that the applicant be sentenced to nine years’ imprisonment, with a parole eligibility date set at 5 April 2022.
[3]	These are my reasons for granting leave to appeal and making those orders.
Judgment
[4]	On 5 November 2015, the applicant pleaded guilty to an offence of trafficking in the dangerous drug heroin, between 19 April 2011 and 9 September 2011.  He also pleaded guilty to other drug offending.
[5]	The applicant was sentenced to 10 years’ imprisonment for the offence of trafficking in dangerous drugs, and lesser concurrent periods of imprisonment for the remaining offences.
[6]	The applicant relied on three grounds of appeal.  First, that the sentencing Judge erred in sentencing on the basis that the applicant had reoffended nine months after the end of his prior custodial period.  Second, that the sentence imposed is manifestly excessive, given the applicant’s criminal history following his successful appeal of his 1 November 2004 conviction.  Third, that the sentence imposed is manifestly excessive given the context of the applicant having served a period of three years, nine months and 24 days in custody, which is no longer attributable to any sentence.
Sentencing remarks
[7]	In imposing an effective head sentence of 10 years’ imprisonment, the sentencing Judge acknowledged the applicant’s plea of guilty observing that, whilst they were neither early nor timely, they evidenced cooperation with the administration of justice.  The sentencing Judge further observed that the applicant’s offending involved being a wholesale trafficker of heroin for just under five months, with an estimated supply in excess of 67 ounces of gross substance, from 1.87 kilograms of gross product.  An aggravating feature of the trafficking was that the applicant did not stop when the applicant’s customers were arrested by police.  Further, whilst the trafficking period ended when the applicant went overseas for four weeks, upon his return he contacted some former customers to seek to supply them with heroin.
[8]	After recording that the applicant was now 51 years of age, had children, and although not a drug addict had a significant gambling problem, and that the applicant had a diagnosis for schizophrenia, the sentencing Judge observed that the applicant also had a past criminal history for the offence of arson and related offending, for which he had been sentenced to seven years’ imprisonment.  The trafficking period commenced nine months after his release from prison for that offence.  Further, the applicant had unknown sources of funds during the trafficking period of approximately $155,000, although he had gambled a significantly larger sum during the same period.  The sentencing Judge accepted that his drug trafficking was commercially motivated as it was consistent with his gambling losses during the trafficking period.
[9]	The sentencing Judge found that, having regard to the applicant’s role as a wholesaler, the scale of his trafficking and the period of his trafficking, the applicant would have been sentenced to not less than at least 12 years’ imprisonment if he had proceeded to trial.  The pleas of guilty were reflected by setting the head sentence at 10 years’ imprisonment.  It was declared that he had been convicted of a serious violent offence.
Consideration
[10]	The applicant’s offending and a consideration of comparable yardsticks supports a conclusion that a sentence of 10 years’ imprisonment represented a sound exercise of the sentencing discretion, on the facts as known at the sentence hearing.  Accordingly, but for events which occurred subsequent to the sentence, there was no basis to conclude that the sentence imposed was manifestly excessive.
[11]	There was also no basis to conclude that the sentencing Judge erred in sentencing the applicant on the basis that he had reoffended nine months after the end of his prior custodial period.  Whilst the sentencing Judge did refer to the trafficking period as having commenced “some nine months after” the applicant’s release from prison, that observation was made immediately after the correct recording of the applicant’s earlier sentence of imprisonment having been completed on 8 July 2010, and immediately before the correct recording of the fact that the applicant had served the latter part of that sentence in the community on parole.
[12]	Events subsequent to the imposition of sentence did, however, give rise to a basis to grant leave to appeal and allow the appeal.
[13]	The applicant successfully appealed his conviction for arson and the related offences in 2020.  Whilst retrials were ordered, that offending was referred to the Mental Health Court which, on 14 September 2021, made findings with the consequence that the proceedings against the applicant were discontinued according to law.
[14]	The findings and orders of the Mental Health Court materially changed the applicant’s prior criminal history.  Had those circumstances been in existence at the time the applicant was sentenced for the trafficking count, he would have been sentenced on the basis he had one prior entry of limited relevance.
[15]	Further, the sentencing Court would have had to have regard to the fact that the applicant was to be sentenced in circumstances where he had served some three years nine months in custody in respect of offences which were subsequently discontinued.  That period of incarceration was “a relevant personal circumstance” upon which the applicant could properly rely for some mitigation of an otherwise appropriate penalty, especially in the context of a sentence which had the consequence of an automatic declaration of the conviction of a serious violent offence.
[16]	The setting aside of the applicant’s conviction of the offences of arson and related matters was a circumstance which did not exist at the time of the applicant’s sentence for the trafficking count.  That circumstance was relevant and significant to the imposition of any sentence.  It is likely that circumstance would have resulted in the imposition of a different sentence.
[17]	Once regard was had to that fresh circumstance, it was an inescapable conclusion that the sentence imposed for the offence of trafficking was unjust.  On that basis, the sentence of 10 years’ imprisonment for trafficking in dangerous drugs was set aside.
[18]	In re-exercising the sentencing discretion, it was relevant to have regard to the fact that whilst the applicant’s wholesale trafficking for a period of approximately five months for substantial commercial benefit warranted a sentence of 10 years’ imprisonment, even having regard to the cooperation shown by his pleas of guilty, such a sentence did not properly reflect that the applicant had served some three years nine months in custody in respect of unrelated, earlier criminal conduct, which was the subject of discontinuance.
[19]	Allowing for that time in custody, the Court ordered that the applicant be imprisoned for nine years in respect of the trafficking count.  Having regard to the time he had served in custody to date, his parole eligibility date in respect of that sentence was fixed at 5 April 2022.
[20]	CALLAGHAN J:  I agree with the reasons of Boddice J.