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4
Court of Criminal Appeal 1 August 2025

R v Bui

[2025] NSWCCA 114

Drugs
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE MATTERS PLACED ON SCHEDULES RESIDUAL DISCRETION NOT EXERCISED SENTENCE

Citation: R v Bui [2025] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 1 August 2025
Judges: Leeming JA at [1]; Free JA at [8]; N Adams J at [9]

Background

The respondent was a participant in a drug syndicate that imported commercial quantities of methylamphetamine and marketable quantities of cocaine on multiple occasions in 2022. He was also charged with supplying 1,4-butanediol, a prohibited drug under NSW law. Five additional charges were placed on schedules under the applicable Commonwealth and State legislation.

At first instance, Hanley SC DCJ in the District Court sentenced the respondent on two Commonwealth drug importation and trafficking offences and one State supply offence. The aggregate Commonwealth sentence was 5 years imprisonment, the State offence attracted 3 years, and after allowing for two years of concurrence and one year of accumulation, the overall effective sentence was 6 years with a non-parole period of 3 years and 4 months.

The Crown appealed, contending that both the Commonwealth aggregate sentence and the State sentence were manifestly inadequate, and that the overall effective sentence was also manifestly inadequate. The Crown also sought leave on an additional ground challenging a factual finding about the respondent's position in the syndicate hierarchy relative to his co-offender.

  • Whether the aggregate sentence for the Commonwealth offences was manifestly inadequate
  • Whether the sentence for the State supply offence was manifestly inadequate
  • Whether the overall effective sentence was manifestly inadequate
  • Whether the sentencing judge erred in finding that the respondent occupied a similar hierarchical role to his co-offender in relation to the primary Commonwealth offence
  • Whether the residual discretion to decline intervention, even where error is established, should be exercised
  • Whether there exists an unresolved conflict in the authorities regarding the standard for appellate error in challenges to factual findings at sentence

Decision

Ground 1: Commonwealth offences. The Court of Criminal Appeal found the indicative sentence of 4 years for the primary Commonwealth offence (Sequence 1) was manifestly inadequate. The court identified several factors pointing to a more substantial sentence: the maximum penalty of life imprisonment, the substantial quantity of methamphetamine, the respondent's criminal history, and the matters placed on the s 16BA schedules under the Crimes Act 1914 (Cth). The Court also found that sufficient differences existed between the respondent's offending and that of his co-offender to mean that increasing the sentence would not give rise to unjustifiable disparity.

Ground 2: State offence. The sentence of 3 years for the State supply offence was also found manifestly inadequate. The Court pointed to the maximum penalty of life imprisonment, the standard non-parole period of 15 years, the sentencing judge's own characterisation of the offending as "quite serious," the quantity of drugs, the Form 1 matter, and comparable cases as supporting a higher sentence.

Ground 1A: Factual finding on hierarchy. Leave was granted but the Court (N Adams J, with Free JA agreeing; Leeming JA declining to decide) was not satisfied that it was "not open" to the sentencing judge to find the respondent performed a broadly similar role to his co-offender. However, the Court did not adopt that finding on re-sentence, instead proceeding on the basis that the respondent sat above his co-offender in the hierarchy by virtue of performing more physical acts and reporting to higher-ranking members.

Residual discretion. The Court declined to exercise its residual discretion to withhold intervention despite finding error. Increasing the non-parole period would not create disparity with the co-offender. There was no Crown delay in bringing the appeal, no Crown conduct caused the inadequate sentence, and the respondent's rehabilitation would not be critically undermined by additional time in custody.

Conflict in the authorities (Leeming JA). Leeming JA noted a persisting and unresolved conflict in Court of Criminal Appeal decisions about the circumstances in which appellate error can be established on a challenge to a factual finding at sentence. His Honour observed the point was not argued in this appeal and therefore left it for determination on a future occasion, suggesting that an enlarged bench may be appropriate when the issue is squarely raised.

Orders Made

  • The Crown appeal was allowed.
  • The sentence for the State offence (Sequence 4, with Sequence 5 taken into account) was quashed and replaced with 4 years and 6 months imprisonment (starting point 6 years, with a 25% plea discount), with a non-parole period of 3 years commencing 21 September 2022. The non-parole period expires 20 September 2025 and the head sentence expires 20 March 2027.
  • The aggregate Commonwealth sentence was quashed and replaced with an aggregate of 7 years and 6 months imprisonment, with a non-parole period of 4 years commencing 21 September 2023. The non-parole period expires 20 September 2027 and the head sentence expires 20 March 2031.
  • The total effective sentence is 8 years and 6 months commencing 21 September 2022 and expiring 20 March 2031.
  • The effective non-parole period is 5 years, expiring 20 September 2027.

Key Takeaways

  • Both the aggregate Commonwealth sentence and the State supply sentence were held manifestly inadequate, warranting appellate intervention and complete re-sentencing.
  • Where an offender is involved in a commercial drug importation syndicate, the Court of Criminal Appeal confirmed that the maximum penalty, volume of drugs, criminal history, and schedule matters under s 16BA of the Crimes Act 1914 (Cth) are all relevant considerations when assessing whether a sentence is manifestly inadequate.
  • A sentencing judge's factual finding about an offender's position in a syndicate hierarchy may withstand appellate challenge even where the appellate court ultimately approaches re-sentence on a different factual basis, provided the original finding was not "not open."
  • In declining to exercise the residual discretion, the Court confirmed that an impending release date and ongoing rehabilitation do not, of themselves, justify withholding intervention where a sentence is manifestly inadequate.
  • Leeming JA identified an unresolved conflict across several Court of Criminal Appeal decisions regarding the standard for appellate error on factual finding challenges under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), flagging that the question may warrant consideration by an enlarged bench when it is squarely argued.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A(2), 16BA
- Criminal Code Act 1995 (Cth), ss 302.2(1), 302.3(1), 307.1(1), 307.2(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 33, 53A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), (2)

Key cases cited:
- AB v R [2014] NSWCCA 339
- Aiga v R [2024] NSWCCA 175
- Aoun v R [2011] NSWCCA 284
- Azzopardi v R [2019] NSWCCA 306
- Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18
- Boulette v R [2024] NSWCCA 217
- Bugmy v The Queen (2013) 249 CLR 571
- Clarke v R [2015] NSWCCA 232
- CMB v Attorney General for the State of NSW (2015) 256 CLR 346
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
- DL v The Queen (2018) 265 CLR 215
- Hordern v R [2019] NSWCCA 138
- *O