Manh Dao v The Queen

MANH DAO
v
THE QUEEN
[2015] HCASL 19
M48/2014

The applicant pleaded guilty before the County Court of Victoria (Judge Tinney) to trafficking in drugs of dependence (heroin and methylamphetamine) in a quantity not less than the large commercial quantity.
The quantity of drugs the subject of the charge was in excess of 30 times the "large commercial quantity"[1]. Judge Tinney sentenced the applicant upon a view that this was a most serious offence. His Honour sentenced the applicant to a term of 18 years' imprisonment with a non-parole period of 13 years.
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 70, Sched 11.
The applicant appealed unsuccessfully to the Court of Appeal of the Supreme Court of Victoria (Nettle, Redlich and Priest JJA) against the severity of that sentence.
The applicant applies for special leave to appeal from the orders of the Court of Appeal. His proposed ground of appeal asserts error in failing to find that Judge Tinney "misconceived the correct approach … in determining the appropriate sentence … in light of the evidence that was referable to the [a]pplicant's role" in the offending. The burden of the applicant's complaint is with Judge Tinney's failure to sentence him upon acceptance that the evidence did not establish that he was more than "an emergency courier". The applicant did not give evidence and Judge Tinney was unable to determine what role the applicant played in the enterprise. Nettle JA observed, "the most that could be said was that there were any number of mitigatory possibilities of which none was more likely than not"[2].
[2]Dao v The Queen [2014] VSCA 93 at [18].
No question of sentencing principle suitable for the grant of special leave is identified. If special leave to appeal were granted, there are insufficient prospects that the appeal would succeed.
The application is dismissed.
Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
5 March 2015
S.J. Gageler

CaseChat Overview and Summary

In the case of Manh Dao v The Queen, the applicant, Manh Dao, pleaded guilty to trafficking in a large commercial quantity of drugs of dependence, including heroin and methylamphetamine. He was sentenced to 18 years in prison with a non-parole period of 13 years by Judge Tinney of the County Court of Victoria. Dao appealed the severity of the sentence to the Court of Appeal of the Supreme Court of Victoria, but the appeal was dismissed. Dao now seeks special leave to appeal to the High Court of Australia, arguing that Judge Tinney misconceived the appropriate sentencing approach by failing to consider the evidence that suggested he was only an "emergency courier" in the drug trafficking operation.

The legal issues in this case revolve around the appropriate sentencing approach for drug trafficking offences and whether the trial judge erred in not considering the mitigating evidence that the applicant might have played a minor role in the drug trafficking enterprise. The Court was required to determine whether the applicant's proposed ground of appeal identified a question of sentencing principle suitable for the grant of special leave and whether there were sufficient prospects of success if the appeal were to proceed.

The High Court dismissed the application for special leave to appeal. The Court found that the applicant's proposed ground of appeal did not identify a question of sentencing principle that warranted special leave. Additionally, the Court held that even if the appeal were to proceed, there were insufficient prospects of success. The Court of Appeal had already thoroughly considered the evidence and concluded that the sentence imposed was appropriate, given the nature and seriousness of the offence. The High Court therefore dismissed the application, and the orders of the Court of Appeal remain in place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established