R v Do - [2008] VSCA 199

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 24 of 2007

THE QUEEN
	v.
MINH THANH DO

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JUDGES:	VINCENT and WEINBERG JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 October 2008
DATE OF JUDGMENT:	10 October 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 199

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Criminal Law – Sentence – Trafficking in MDA – Whether sentencing judge erred in sentencing appellant as a ‘principal’ rather than a ‘courier’ – Whether sentencing judge erred in ruling that ‘low purity’ of drugs not a mitigating factor – Appeal dismissed

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C Boyce	Victoria Legal Aid

VINCENT JA

WEINBERG JA
ROBSON AJA:

The appellant, Minh Thanh Do, was presented in the County Court on one count of trafficking in what was described as ‘not less than a large commercial quantity of MDA’. When arraigned, he pleaded not guilty to that count, but guilty to the lesser statutory alternative of trafficking in ‘not less than a commercial quantity of MDA’. He was ultimately acquitted on the more serious count and convicted on the lesser count.

MDA, sometimes known as the ‘love drug’, is an abbreviation for Methylenedioxamphetamine. It is a psychedelic, hallucinogenic drug, which is mainly used as a ‘recreational drug’. The literature suggests that it is often bought, sold and used in the form of tablets purporting to contain MDMA (ecstasy). While it has some similarity to MDMA, it is administered in different dosages and produces different effects.

The maximum penalty for the offence to which the appellant pleaded guilty was 25 years’ imprisonment. The learned sentencing judge imposed a term of five years and six months’ imprisonment with a minimum term of three years and six months.

The appellant relies upon three grounds in support of his challenge to the sentence. They are in substance:

1.The sentencing judge erred by sentencing the appellant upon the footing that he was a ‘principal’ rather than a ‘courier’;
2.The sentencing judge erred in determining that the low purity of the tablets was not a mitigating factor; and
3.Both the head sentence and non-parole period were manifestly excessive.

There was originally a fourth ground of appeal. However, that was expressly abandoned.

Circumstances surrounding this offence

The central issue at the trial was whether the Crown could prove the requisite mental state for trafficking in not less than a large commercial quantity. Ultimately, the jury were not satisfied that it could.

The appellant, together with three other persons, was arrested by police while driving a motor vehicle. A bag containing almost 5000 MDA tablets was found in the boot of the car. The appellant told the police at the scene that the drugs were ‘mine’. He repeated that statement in his record of interview.

At trial, the appellant gave sworn evidence. He told the jury that he was merely a ‘courier’ who had been offered $3000 to deliver the drugs from Sydney…

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.

Continue reading R v Do

Details

AGLC: R v Minh Thanh Do. [2008] VSCA 199
Case: [2008] VSCA 199
Decision Date: 10 October 2008

CaseChat Overview and Summary

The case of R v Do involved the appellant, Do, who was convicted for trafficking in a significant quantity of Methylenedioxyamphetamine (MDA). The appeal was heard in the court of appeal, which examined the sentencing decision made by the trial judge. The central issue was whether the sentencing judge erred in categorising Do as a principal offender rather than a courier, and whether the trial judge was correct in not considering the low purity of the drugs as a mitigating factor in sentencing.

The legal issues focused on the correct interpretation of the sentencing principles applicable to drug trafficking cases and the relevance of drug purity in determining the severity of the sentence. The appellant argued that the trial judge should have considered him a courier, which typically involves a lesser sentence, and that the low purity of the drugs should have been a mitigating factor. The prosecution maintained that the trial judge correctly identified Do as a principal offender based on the evidence presented and that drug purity was not a mitigating factor in this case.

In its decision, the court of appeal found that the trial judge correctly assessed the evidence and appropriately classified Do as a principal offender. The court held that the evidence did not support the appellant’s role as a mere courier and that the trial judge’s determination was consistent with the applicable legal standards. Furthermore, the court upheld the trial judge’s ruling that the low purity of the drugs was not a mitigating factor, as it did not reduce the seriousness of the offence or the appellant's involvement in the trafficking activity. The appeal was therefore dismissed, affirming the original sentence imposed by the trial judge.

Orders