Bui, R. v

Factual and Procedural Background

The Appellant was convicted after an eleven-day jury trial at Downpatrick Crown Court sitting in Belfast for offences including cultivation of cannabis, abstracting electricity, assisting unlawful immigration, and perverting the course of justice. The indictment related to the sourcing, equipping, and operation of three cannabis factories, each with counts reflecting cultivation and unlawful abstraction of electricity. Additionally, there were charges of assisting unlawful immigration of a worker and attempting to pervert the course of justice following discovery of the cultivation enterprise.

The Appellant was sentenced on 15 November 2021 by the trial judge to a total determinate custodial sentence of 15 years, split equally between custody and supervised licence. The sentence comprised 12 years for cannabis cultivation and related offences (concurrent sentences) and 3 years consecutive for perverting the course of justice.

The cannabis cultivation operation involved two residential properties and a large commercial unit, all rented and reconfigured by the Appellant. The enterprise was sophisticated, highly profitable, and involved substantial electricity theft and exploitation of an unlawful migrant worker. The estimated street value of the cannabis was between £750,000 and £2,250,000, with electricity abstracted valued at approximately £35,000 and property damage at £16,000.

The Appellant was described by the trial judge as the "lynchpin" and controlling mind of the criminal enterprise, running a sham business as a cover and manipulating co-accused even after arrest. The Appellant was a 44-year-old married man with two teenage children, originally from Vietnam, with no relevant prior convictions. He maintained innocence, claiming to be "stupid and naïve," and showed no remorse.

Legal Issues Presented

1. Whether the 12-year sentence for the cannabis factory related counts was excessive, considering the starting point and comparison with co-accused sentencing.
2. Whether the judge erred by improperly considering the Appellant’s previous acquittal on similar charges in sentencing.
3. Whether the imposition of a consecutive 3-year sentence for attempted perverting the course of justice rendered the total sentence manifestly excessive and breached the totality principle.

Arguments of the Parties

Appellant's Arguments

• The 12-year starting point for the cannabis cultivation offences was too high.
• The sentencing judge inappropriately considered the Appellant’s 2015 acquittal on similar cannabis cultivation charges, potentially inflating the sentence.
• There was an unjustified disparity in sentence between the Appellant and his co-accused, who received a lower sentence.
• The consecutive 3-year sentence for perverting the course of justice made the total sentence manifestly excessive and contrary to the principle of totality.

Prosecution's Arguments

• The Appellant’s organisational role justified a higher starting point than that of a single factory organiser, given the network of three sophisticated and profitable cannabis factories.
• The judge’s reference to the previous acquittal was contextualised as part of assessing the Appellant’s lack of remorse and denial, not as an improper aggravating factor.
• The disparity in sentencing between the Appellant and co-accused was justified by their differing roles and prior offending.
• The consecutive sentence for perverting the course of justice was appropriate and consistent with established authority, reflecting the gravity of undermining the justice system.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized that the Appellant played a central and controlling role in a large, sophisticated, and profitable network of cannabis cultivation operations, exceeding the role of an organiser of a single factory. The sentencing starting point of 12 years was supported by the scale of the enterprise and the aggravating factors, including electricity theft and exploitation of an unlawful migrant worker.

The court rejected the Appellant’s argument that the starting point should be 6-7 years as an organiser of a single operation, emphasizing the hierarchical sentencing structure and the existence of a higher bracket for those controlling multiple operations. It also found the disparity in sentencing between the Appellant and co-accused justified by their differing roles and prior offending.

Regarding the alleged improper consideration of the prior acquittal, the court held that the sentencing judge’s remarks were contextualized within the Appellant’s lack of remorse and persistent denial rather than an impermissible aggravating factor. The judge was entitled to form the view that the Appellant was a determined and committed criminal.

On the issue of totality, the court acknowledged the necessity and appropriateness of a consecutive sentence for perverting the course of justice but found that the three-year consecutive sentence made the total 15-year sentence manifestly excessive. The court concluded that a one-year consecutive sentence would better reflect the totality principle, resulting in a global sentence of 13 years.

Holding and Implications

The court granted leave to appeal and allowed the appeal to the limited extent of reducing the sentence for the perverting the course of justice offence from three years consecutive to one year consecutive. The total determinate custodial sentence was thus reduced from 15 years to 13 years.

This decision directly affects the Appellant’s sentence by reducing it but does not establish new precedent beyond applying established sentencing principles and the totality principle. The court reinforced existing hierarchical sentencing guidelines for cannabis cultivation and the principle that consecutive sentences for perverting the course of justice are generally appropriate but must not result in manifest excessiveness.