Vo v the Queen S262/2000

[2001] HCATrans 604

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S262 of 2000

B e t w e e n -

THI DO VO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 2.26 PM

Copyright in the High Court of Australia

MS M.M. CINQUE:   If it please the Court, I appear for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

KIRBY J:   There is no appearance for the applicant, is there?

MS CINQUE:   No, your Honour.

KIRBY J:   This is a matter which will be dealt with on the papers and the Court has considered the written submissions of both parties.  What I now say is said on behalf of Justice Hayne and myself.

The applicant, Thi Do Vo, was convicted of an offence against the Customs Act 1901 (Cth) s 233B, namely being knowingly concerned in the importation of not less than a commercial quantity of a prohibited drug, heroin. The maximum penalty upon conviction is life imprisonment. She was sentenced in the District Court of New South Wales by Judge Howie to 22 years imprisonment to date from 4 May 1997. His Honour fixed a non‑parole period of 14 years. An appeal to the New South Wales Court of Criminal Appeal was dismissed.

The applicant seeks special leave to appeal to this Court.  She is not legally represented.  However, she has filed written submissions.  So has the prosecution.  This Court has considered those submissions.

The applicant’s submissions include some assertions suggesting that her conviction was unsafe and unsatisfactory and that her guilt was not proved beyond reasonable doubt.  As the only grounds of appeal to the New South Wales Court of Criminal Appeal, and to this Court, relate to the severity of the sentence, it is appropriate to disregard the arguments directed to the conviction.

The applicant complains that the sentence imposed on her was equivalent to a notional sentence of 33 years and thus to life imprisonment.  She submits that she has been sentenced as the “mastermind” of the importation, whereas, she claims, this was her then de facto husband, Tan Tu.  He departed Australia just before the importation.  He has not returned, nor has he been apprehended.

In the Court of Criminal Appeal counsel for the applicant expressly abandoned the complaint based on parity principles, and rightly so.  Co‑offenders Ung and Tung were respectively sentenced to 16½ years, 11 years non‑parole, and 14 years, 9 years non‑parole.  In the case of Tung, the difference may be explained by a plea of guilty and assistance to authorities.  In the case of Ung, the evidence suggested that he played a much less significant role than the applicant.

The heroin in question comprised the equivalent of 54.5 kilograms in pure form with an estimated value of over $A14 million.  The evidence showed that the applicant paid for the cans of pineapple in which the heroin was secreted, helped to arrange customs clearance, under a false name hired a depository, attended to received the goods, was filmed making inculpating statements and thereafter maintained vigilance at the premises. 

As the Court of Criminal Appeal found, it was well open to the sentencing judge on this objective material to conclude that the applicant’s part in the importation was a leading one.  Upon that basis, for such a very large quantity of heroin, it was open to hold that the sentence imposed was within the range of available sentences.

The applicant complains about the disadvantages that she says she suffered by having given evidence in broken English.  No doubt there are disadvantages when a person gives evidence other than in a native tongue.  However, an interpreter was present at all times when the applicant gave the evidence, both at the trial and in the sentencing proceedings.  No miscarriage of the sentencing process is shown in this ground. 

The sentence was indeed a very heavy one.  However, the offence carried the highest penalty known to the law and the quantity of the prohibited imports was extremely high.  No error in sentencing principle has been demonstrated to warrant the grant of special leave to appeal.  It is, accordingly, refused.

AT 2.31 PM THE MATTER WAS CONCLUDED