Manh Dao v The Queen

[2015] HCASL 19

MANH DAO

v

THE QUEEN

[2015] HCASL 19
M48/2014

1. 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. 

2. 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.

3. 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.

4. 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].

5. 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.

6. The application is dismissed.

7. 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