DPP v Dao and Tran (Unreported, County Court of Victoria, Judge Tinney, 27 June 2013)
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CRIMINAL LAW – Sentencing – Trafficking in large commercial quantity of drugs of dependence (heroin and methyl amphetamine) – Whether total effective sentence of 18 years with a non–parole period of 13 years manifestly excessive – Offence committed on single day – Vast quantity of more than 30 times large commercial quantity – Plea of guilty made late – Whether appellant’s role in hierarchy ‘limited’ – Insufficient evidence adduced as to extent of appellant’s role – Whether offence correctly characterised as ‘most serious example of most serious offence’ – Verdins principles not enlivened – Whether sentence ‘crushing’ – Appeals dismissed – Wong v The Queen (2001) 207 CLR 584; Mokbel v The Queen [2013] VSCA 118; Rizzo v The Queen [2013] VSCA 146; Kumova v The Queen [2012] VSCA 212; Gonzales v The Queen [2013] VSCA 118 and R v Vaitos (1981) 4 A Crim R 238 referred to.
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APPEARANCES:
Counsel
Solicitors
For the Appellant Dao
Mr C B Boyce with Mr M D Stanton
Lethbridges
For the Appellant Tran
Mr P J Morrissey SC
Turnbull Lawyers
For the Crown
Ms K Argiropoulos
Mr Craig Hyland,
Solicitor for Public Prosecutions
NETTLE JA:
These are appeals from sentences of 18 years’ imprisonment with non-parole periods of 13 years imposed on each of the appellants on pleading guilty to one charge of trafficking in a quantity of a drug of dependence of more than 30 times a large commercial quantity.
The facts
The judge summarised the facts as follows:
… as a result of what was a routine uniform divisional van patrol, you were each arrested in the early hours of 13 July 2011 at the Jensen Reserve car park in Maribyrnong. It was about 4.20 am. Police observed each of you to be in close proximity to a black BMW sedan and another vehicle, a Toyota, parked alongside it, and each of you behaved suspiciously, walking away from the vehicles when the marked police van came into sight.
You each gave to the police either an unsatisfactory account or no account at all as to your presence at the scene, and later back at the police station, you each answered questions then with the aid of an interpreter upon being formally interviewed by the police, interviews which you each sought to exclude in this pre-trial application before me that I have mentioned to date.
The BMW was registered to your mother in law, Mr Dao. It was searched at the scene, and it contained what was a massive quantity…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Dao v The Queen [2014] VSCA 93
Case
[2014] VSCA 93
Decision Date
CaseChat Overview and Summary
The case of Dao v The Queen involves an appeal against sentencing by the appellant, who was convicted of trafficking in large commercial quantities of drugs, specifically heroin and methyl amphetamine, on a single day. The appellant was sentenced to a total effective term of 18 years with a non-parole period of 13 years. The appeal centred on whether this sentence was manifestly excessive, given the nature and extent of the offence, and the appellant's role within the criminal hierarchy.
The primary legal issues before the court were whether the sentence imposed was excessively harsh considering the appellant's limited role in the drug trafficking operation, the sufficiency of evidence to substantiate the appellant's role, and whether the offence deserved characterisation as the most serious example of the most serious offence. The court was also required to consider if the principles set out in Verdins applied and if the sentence could be considered 'crushing' under the circumstances.
The court determined that the sentence was not manifestly excessive. It found that the appellant's role, although described as limited, was not definitively proven to be as minor as claimed. The court also held that the offence was correctly characterised as the most serious example of the most serious offence due to the vast quantity of drugs involved, more than 30 times the large commercial quantity. The Verdins principles were not considered applicable in this instance. The court concluded that the sentence, while severe, was proportionate to the gravity of the offence and the appellant's role in it.
The appeals were dismissed, and the original sentence was upheld. The court referred to several precedents, including Wong v The Queen, Mokbel v The Queen, Rizzo v The Queen, Kumova v The Queen, Gonzales v The Queen, and R v Vaitos, to support its decision. The final orders confirmed the maintenance of the original sentence, with the non-parole period remaining at 13 years.