R v VO [2000] NSWCCA 440

Reported Decision : 118 A Crim R 320

New South Wales Court of Criminal Appeal

CITATION : R v VO [2000] NSWCCA 440 FILE NUMBER(S) : CCA 60451/99 HEARING DATE(S) : 6/10/2000 JUDGMENT DATE : 6 October 2000

PARTIES : Regina Thi Do Vo JUDGMENT OF : Wood CJ at CL at 1; Dunford J at 39; Carruthers AJ at 40

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0901 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : P. Segal for Applicant D.G. Staehli for Crown SOLICITORS : Barber & Masssey C'wealth DPP

DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60451/99 WOOD CJ at CL DUNFORD J CARRUTHERS AJ FRIDAY 6 OCTOBER 2000 REGINA v THI DO VO

JUDGMENT

1 WOOD CJ: The applicant seeks leave to appeal against the severity of the sentence imposed on 28 July 1999 by Judge Howie QC, after she was found guilty by a jury of having been knowingly concerned in the importation of not less than a commercial quantity of a prohibited drug, in this case, heroin. The offence was created by s 233 B of the Customs Act and the maximum penalty available is penal servitude for life.

The Crown Case 2 On 23 April 1997, customs officers examined a container of eight hundred boxes of what purported to be cans of pineapple that arrived on a vessel "Sha Ha" from Hong Kong. Each box contained twenty-four cans of that substance. Each can weighed half a kilogram. The seven boxes in the container were distinctive in that they weighed less and were sealed with a different tape. Examination of their contents disclosed the presence of approximately seventy-eight kilograms of a substance which, when analysed, contained approximately fifty-four kilograms of heroin in its pure form. The value of that commodity was in excess of $14 million. 3 Enquiries revealed that the container had been consigned to Austviet Pty Ltd, a company in which the applicant and her partner Than To were office holders. The address of the consignee on the bill of lading was Unit 24, 33 to 35 Scrivener Street, Warwick Farm, premises which had been leased by the applicant under another name in October 1996. That lease was later terminated for non-payment of rent, but on 21 April 1997 the applicant rented different premises at 139 Hollywood Drive, Lansvale. 4 On 28 February 1997 the applicant went to the Westpac Bank at Cabramatta and arranged for the remittance by telegraphic transfer of US$21,800 to Guangzhou Medicine and Health Products, the consignor of the container shown in the bill of lading. 5 Prior to arrival of the container the applicant spoke to Mr Norman Daniels, the marketing manager of a customs agent, and asked him to carry out the necessary work to clear the goods through customs. After discovery of the drugs, arrangements were made for a controlled delivery. Before that occurred, the applicant made a payment to Mr Daniels of various amounts outstanding for earlier work undertaken by his company and of the monies needed to clear the present shipment. 6 The payment was made to Mr Daniels at a meeting at the McDonalds restaurant at Fairfield on 30 April 1997, attended by the applicant and by her co-accused Heeng Ung. This payment was effected by means of four postal orders that had been previously obtained by the applicant and handed to Ung. Mr Daniels was supplied with the Lansvale address for delivery. 7 On 2 May 1997 the containers were taken to that address and the boxes were there unloaded, under the supervision of the applicant and in the presence of an undercover Federal agent who was posing as the off-sider of the truck driver. For part of the time Ung was also present. He had arrived after the container was delivered and unpacking commenced. These operations were all the subject of electronic surveillance. When one of the boxes fell from the container and split open, the applicant was seen to pick up a can and to shake it. Later the applicant was observed to remark to Ung, who was engaged also in moving the boxes, "Too many, eh?" and "Hey, hey, you don't know which ones". Ung left the premises before the unloading was completed. 8 On 3 May 1997 the applicant returned to the Lansvale premises. Ung was also seen to be there waiting and watching at the rear door. No-one else arrived that day to collect the boxes. However, on the following day, while the applicant was alone in the premises, they were visited by two men. Tung Chew Hoong and Leung Yiu Man, who had not previously been seen by police. They took away the seven boxes containing the cans into which the heroin had been originally packaged, but which now contained a substitute material as well as some small amount of heroin. 9 The applicant left the premises soon after. The boxes were taken by the two men to a unit at Lakemba. The boxes and cans were found inside that unit by police. By that stage they had been opened.