R (Cth) v Bui [2021] NSWDC 806

District Court New South Wales

Medium Neutral Citation: R (Cth) v Bui [2021] NSWDC 806 Hearing dates: 17 March 2021 Date of orders: 17 March 2021 Decision date: 17 March 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: See par [35] Catchwords: CRIME – SENTENCE – IMPORTATION OFFENCE – Possession of prohibited substance – Contrition and remorse – Offender sufficiently remorseful. Legislation Cited: Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Cases Cited: Ruben Botero (unreported, Court of Criminal Appeal, 24 June 1998) Texts Cited: Nil. Category: Sentence Parties: R (Cth) – Crown Defendant – Linh Bui Representation: Counsel: R - Kanagasabapathy Defendant – Grace, D. QC Solicitors: R (Cth) – Commonwealth Office of the Director of Public Prosecutions File Number(s): 2019/00330020 Publication restriction: Nil.

Judgment 1. HIS HONOUR: Linh Bui stands for sentence as a consequence of pleading guilty to a charge that between 4:30pm and 6:30pm on 21 October 2019 at Sydney, he attempted to possess a substance, the substance being unlawfully imported, the substance being a border controlled drug namely methylamphetamine, and the quantity possessed being a commercial quantity, contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth). That offence carries a maximum penalty of life imprisonment.

Facts 1. On 15 October 2019, the Australian Border Force ("ABF") intercepted an imported pallet of Sriracha, a condiment (chilli sauce), at Air Menzies International at 1A Hale Street, Botany. There were suspicions raised about the genuineness of contents of the chilli sauce bottles. The ABF enlisted the aid of the Australian Federal Police who then transferred the investigation of the matter to the New South Wales Police. The consignment was taken to the Sydney Police Centre and there was a deconstruction of the consignment. The consignment contained 64 boxes, each containing 12 bottles purporting to contain the chilli sauce. That is there was a total of 768 bottles. The police tested one bottle from each of the 64 boxes. Each test returned a positive result for the presence of methylamphetamine. The purity of the substance was found to be 41.5%. The total weight of the substance was 610.551 kilograms. The estimated pure weight of the methylamphetamine was 253.38 kilos. 2. The commercial quantity of methylamphetamine is 750 grams. The amount of pure methylamphetamine in the consignment was 337.84 times the commercial quantity threshold. It was a large importation. On 16 October 2019, the New South Wales Police substituted the consignment of bottles with other Sriracha sauce of bottles. On the following day, the consignment was taken by a white truck and delivered to a business address in Wetherill Park. An employee of the commercial premises, Pack and Send, used a forklift to move the consignment containing the sauce from the truck. 3. On 18 October 2019, at about mid-day, Kevin Lam attended the Pack and Send premises at Wetherill Park and took possession of the consignment. He loaded it onto a black Ford utility registered number DXC50C. He was the only occupant of the vehicle. Lam drove the consignment in the black utility to National Storage at 2 Zeleny Street, Michinbury. At the National Storage facility, Lam unloaded the consignment box by box and placed each into unit 4122, which was hired by him in his name. Lam left the National Storage facility and then travelled to Bossley Park. 4. From admissions made by the offender after his arrest, he was approached by another man named Kevin and offered a job on 19 October 2019 which required him to take over the consignment, whilst the drugs were at National Storage in Michinbury, The offender described "Kevin" as being a Vietnamese person of Chinese background aged in his late 40's who was 175cm tall. He was promised, for his part in the attempted importation, a reward of $10,000. The offender, however, needed money to play his part. For that purpose, he borrowed $2000 from his cousin, Trung Nguyen. He also enlisted his cousin to accompany him on his task. They flew to Sydney on Sunday 19 October 2019, arriving at 10:30pm. The flight and accommodation in Sydney were paid for by the offender with the money that he borrowed from his cousin. 5. They rented accommodation in Meriton Suites, Kent Street, Sydney. On 21 October 2019, a person driving a silver Mitsubish Outlander seven seater, registration number 1NX1OZ, unsuccessfully attempted to gain access to the National Storage facility, unit 4122, the one in which Kevin Lam had placed the replacement consignment. The person then driving the silver Mitsubishi Outlander made inquiries and found out that access to the unit in question was suspended due to late fees. The person who found that out provided a credit card number in order to pay the fees to allow access to the unit. 6. At 3:30pm, the offender and his cousin in the same vehicle attended the National Storage facility and gained access to the unit 4122. The offender and his cousin were captured on a listening device inside the storage unit. Much of the audio is indistinct but several statements were captured. In one, the offender said "He said just open… a box, have a taste." The offender's cousin is recorded as saying "This fucking looks real, man" and then later "This one is real." The cousin later is recorded as saying "Take a photo. Say we've opened and tasted it." The offender is then recorded as saying two things but at different times. The first is "This is like the real one at the shop. It doesn't look like..." The second thing attributed to the offender was "[k]ind of bitter. Numbing the tip of the tongue." 7. There were recorded on the offender's telephone certain messages which appeared to have passed between him and either Kevin who offered him the job, or somebody else in a criminal syndicate. This person is identified in the text messages as "King". It is clear that the offender had rented the Mitsubishi Outlander on his own initiative. He was told that he also needed to have bags in messages commencing at 8.41am. He said that he had rented a vehicle, but had not yet have purchased the bags. He indicated that his vehicle he had hired was a seven-seater car. King described this as a "minivan". The offender said "Yeah something like that". Eventually, the offender gave the details of the vehicle to King. 8. A further series of text messages commenced at 2.17pm on the same day, 21 October 2019. There was a discussion about opening hours of the facility, at Minchinbury, and tentative arrangements were made to do a pick-up at 5.30pm. King instructed the offender to "Go find bags" and "A lot of them" and then pointed out that "Hockey bags are best". A photograph of a bag was sent to King. The offender described it as being large enough to take two human bodies. King then said to the offender that it might be necessary to do two or three loads. That prompted the offender to reply whether there were one or two pallets. King then told the offender that there was one pallet. 9. There was then a discussion between them as to whether the vehicle could take the whole shipment in one load, and the offender indicated that it should be possible to take the whole consignment in one trip. Those text messages were all exchanged before the offender reached the unit in which the consignment had been stored. The text messages, like the overheard voices on the listening device, indicate that there was concern that the sauce bottles were genuine, and not ones that had been tampered with to take or accommodate some illegal substance. Towards the end of the text messages was this exchange: "BUI: U sure it the right stuff bro. KING: 1000%. BUI: Fk taste like real sauce but Okie feel a bit bitter now." Earlier, King had told the offender that the sauce when tasted should be "bitter as fuck." It would appear that the offender and his cousin believed that the consignment was not pure chilli sauce, but was adulterated with a bitter substance. That substance could only have been an illicit drug. 1. The offender and his cousin then drove the consignment in the Mitsubishi Outlander to the Meriton Suites at Kent St, Sydney. They went to Room 2310 on Level 23. They had arrived at the Meriton apartments at 4.51pm. At 6.10pm, the offender and his cousin returned to the carpark with a luggage trolley which they loaded with boxes of the chilli sauce. They took those boxes to a lift, and seven minutes later returned to the car park with an empty luggage trolley. It would appear that they had taken some of the boxes to their room, but returned with the empty luggage trolley to obtain a further load of boxes. 2. They were then arrested. New South Wales Police searched their car and found large canvas bags, box cutters, and gloves, presumably so that the bottles of sauce could be removed from the cardboard boxes and placed in the canvas bags. 3. There was a formal interview between the offender and the New South Wales Police. The offender admitted that he had picked up the chilli sauce from the storage facility. He admitted that he had hired the car at the airport. He admitted that a person had told him that he would pay him $10,000 to travel to Sydney, pick up the chilli sauce, and deliver them to an apartment. He admitted that he opened a chilli sauce bottle and tasted it, and it tasted like real chilli sauce, so he continued with the work that he was doing. 4. He identified the Kevin who had spoken to him. He had previously met him three times. Kevin was a Vietnamese person of Chinese background, aged in his late 40s, and was 175 cm tall. He made the admission that this Kevin offered him the job on 19 October 2019, leading to his flight to Sydney later that day. He admitted borrowing moneys from his cousins and recruiting his cousin into the job. He admitted that it was the Kevin that he knew who had told him to taste the sauce that was in the bottle, obviously to ascertain whether it was pure sauce or contaminated sauce. 5. The police also interviewed Nguyen but I shall not say anything about what he is alleged to have told the police. At the current time, Kevin Lam and Trung Nguyen are standing trial before Pickering DCJ and a jury. That trial commenced on 8 March 2021 and is due to conclude next Friday.