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. The Applicant's Case 10 At her trial the applicant gave evidence of having formed a relationship with Than To, after her husband's death and of becoming an office holder in Austviet at his request. She similarly said she had negotiated the lease of the Warwick Farm and Lansvale premises at Than To's request and that she had been asked by him to help Ung with the paperwork for "stuff" that Ung was to import. She said that in February 1997 Ung asked her for advice as to the manner in which payment could be made for a shipment. She also said that he gave her the cash which she then remitted overseas via the Westpac Bank and that he told her that he was involved in the importation of foodstuffs. She said that Ung also gave her the monies that Mr Daniels had requested. 11 The Lansvale premises she said she had leased for Than To for some other shipments and that as they were not being used, she was able to offer them temporarily to Ung for his shipment. She claimed to have been at the Lansvale premises at Ung's request on 3 and 4 May, in the expectation that some restaurant men would come to look at the pineapples that had been imported. Although Ung was not there on 4 May, she said that she allowed the two men to take the boxes away, because they said that they had his permission to do so. 12 She denied, in effect, at the trial all knowledge of heroin or anything illicit being contained in any of the boxes. The evidence she gave was clearly disbelieved by the jury. 13 After having been convicted, the applicant returned to the witness box and gave a very different account. She said on this occasion that Than To had told her in late 1996, early 1997 that he wanted them to be involved in heroin and that he pressured her to join him in that endeavour. She repeated the line that Than To had asked her to help Ung, whom he had recruited, with the paperwork and that Ung had given her the funds that were sent overseas. She said that she had rented the Lansvale premises at Ung's request and that she had attended there at the relevant times, also at his request. She acknowledged that she knew those premises were to be used to store heroin, but she denied that she knew how much was to be imported. 14 Initially she said that the first occasion on which she knew that heroin was coming into Australia via the pineapple consignment was when the Chinese men came to collect the boxes. Later she revised that account by saying that she first acquired such knowledge when the money was sent overseas. She denied any expectation or promise of payment for her role. Her reason for involvement she attributed to her love for Than To and her concern that her family would have a problem if she did not assist. Findings by the Sentencing Judge 15 His Honour commenced the sentence exercise by observing, appropriately, that it was for the Crown to establish beyond reasonable doubt what the applicant's role was in the importation. After noting the effect of the evidence led in the trial, his Honour observed: "... the jury had presented to them, in my view, an overwhelming circumstantial case of the accused's involvement, knowingly, in the importation of this heroin. That involvement appeared to have commenced well before Ung came onto the scene and embraced her attempts to secure the premises to which the container was to be sent; sending money as part of a payment for the drugs; arranging for the clearance of the container by Mr Daniels; securing the new premises for the storage of the drug; taking delivery of the container; directing its unloading; and finally, giving access to the premises to those persons who took delivery of the cartons containing heroin. Although not perhaps at the top of the organisation involved in importing this drug, I would have thought that on the material before the jury, she could be seen to be a key participant in the importation, both before the container arrived in this country and thereafter. On that material, she was more than a mere conduit, such as Ung appeared to be." 16 His Honour then proceeded to note the evidence that the applicant gave on the sentencing hearing, having previously observed that the departure from her earlier evidence amounted to an acceptance that she had previously lied to the jury. The submission advanced to his Honour by counsel then appearing for the applicant was that he should find her to have been no more culpable in the importation than Ung. Upon that basis, it was submitted that he should pass exactly the same sentence upon her as that imposed upon Ung, namely a sentence of sixteen and a half years with a non-parole period of eleven years, a sentence that was confirmed subsequently on appeal. Heeng Ung (2000) NSWCCA 195. 17 That submission, his Honour observed, was "deceptively simple", noting that Solomon DCJ, had found Ung's role to have been confined to facilitating the transfer of heroin from the wharf to Lansvale. Tung, his Honour noted, had been found by Solomon DCJ when he was sentenced to imprisonment for fourteen years with a non-parole period of nine years, to have had a greater role than that of Ung, it having been his duty to retrieve the heroin from the cartons and to prepare it for distribution. His case was, however, significantly different, since he had pleaded guilty and he had offered assistance. For completion I note that of the other two suspected offenders, Than To had left the country prior to the importation and accordingly he has never appeared for trial and sentence; while Leung, who absconded after arrest, was later extradited and is still awaiting trial. 18 His Honour observed that it was necessary when sentencing the applicant to have regard to these other sentences in order to achieve parity between the various participants in the importation "according to their role and culpability". 19 In establishing the role and culpability of the applicant, his Honour made the following findings: "Clearly, there must be considerable doubt about the credibility of the evidence given by the prisoner on sentence. She had been prepared to lie on her oath to the jury when, in effect, she told them that she was unaware that heroin was to be brought into this country, or that there was any heroin in the cans of pineapples when she supervised the delivery and storage of them at Lansvale. Having been convicted of that offence by the jury, she then sought before me to minimise her involvement in the matter by asserting that she was threatened by the person, Than To, and that her role was merely to offer minor assistance as necessary to Mr Ung. I reject the suggestion that she was not a voluntary participant in the importation. The video taken of her directing operations for the removal of the cartons and the storage of them at the shop, in my view, contradicts any suggestion that she was acting under any fear for her personal safety or that of her family, or was other than a willing participant in the venture. She is casual, jovial and chatty, but she is clearly in charge of the workers helping to unload the cartons. In my view the prisoner is no dupe of any other person. I cannot determine precisely what was the nature of her involvement, or the full extent of it, and that of Than To, but I have no doubt at all that they were operating together in this importation. The fact that Than To has not returned to this country and left the prisoner to face sentence before this court, is not surprising at all. I also find that she was more involved in the importation than was the man, Ung. I am satisfied beyond reasonable doubt that she played a part in all aspects of this importation from an early time in the venture, and certainly before the heroin left Hong Kong. As I have indicated, she was involved in trying to secure the premises at Scrivener Street, to which the goods were originally to be delivered according to the bill of lading. She secured the services of Daniels to clear the importation through customs and he dealt solely with her until the meeting at McDonalds. She was involved in financial matters associated with the importation, including the transferring of money to the supplier of the drugs, and in obtaining the money orders to be paid to Daniels in order that the importation could proceed. I reject any suggestion that she was merely, and begrudgingly offering assistance to Ung. The conversations with Daniels left him with the impression that she was a party to this importation, and I am convinced that this impression was accurate. There was nothing that she did that Ung could not have been quite capable of doing for himself. In my opinion it was quite unnecessary for the persons behind this importation to have risked the involvement of the prisoner if she had not been a participant on her own account. In my view it is very significant that she was the person trusted with the responsibility for obtaining and controlling the premises in which the cartons were stored, and she was present alone when the cartons containing the drugs were identified and removed. However, it is clear that like Ung, she was unaware in which cartons the drugs were contained and she was not privy to the way that these cartons could be identified from the others. But I do not find it surprising that a person can play a very significant role in a major importation of drugs, yet lack the particular knowledge to be able to appropriate the drugs or part of them, for himself or herself. It is quite possible that there is no honour amongst drug suppliers or drug importers. It seems to me clear that the prisoner, Ung, and probably the persons who collected the drugs, were employees or operatives of a cartel which had the wherewithal and the significant financial recourses to organise such a large scale importation of heroin. I cannot find, on the evidence before me, the prisoner was a principal in that cartel, but I have no doubt that she knowingly and voluntarily played a crucial role in attempting to bring that importation to a successful conclusion. I can only assume that she did so with a promise of a significant financial gain to herself and Than To." 20 Based upon these findings, after appropriately directing himself in relation to each of the matters specified in the Crimes Act (Commonwealth) s 16A, and in relation to the need to allow for the absence of remissions as required by s 16G of the Act, and having noted that there were no subjective circumstances operating in mitigation of sentence, his Honour sentenced the applicant to twenty-two years imprisonment, to date from 4 May 1997, with a non-parole period of fourteen years. The Application for Leave to Appeal 21 The applicant's case on appeal implicitly accepts, subject to an argument as to the age of the applicant, that the sentence was within range, if the findings made by his Honour concerning the role of the applicant and her knowledge of the quantity of heroin imported, were justified. It was, however, submitted that his Honour erred in the following respects: (a) in sentencing the applicant upon the basis that she had minimised her role when giving evidence on sentence; (b) in not correctly assessing her role relative to that of Ung; (c) in sentencing her upon the basis that she acted out of greed; and (d) in sentencing her upon the basis that she knew that an enormous amount of heroin was being imported. 22 If these submissions were made good, then it was advanced that she should have been sentenced to a lesser term of imprisonment than that imposed upon Ung, both because her objective criminality was reduced and because of an application of the principles of parity as explained in Lowe (1984) 154 CLR 606 and Postiglioni (1997) 189 CLR 295. Involved in that submission was the associated proposition that the starting point which his Honour selected prior to the s 16G exercise was too high. 23 In dealing with this submission, it needs to be stated that this court is a court of error. It does not undertake a review of factual findings, unless it is shown that the sentencing judge has misdirected himself or herself concerning the manner in which the fact finding exercise was undertaken, or unless it is shown that the findings were not open upon the evidence; Kelly (1993) 30 NSWLR 64. 24 Although Mr Segal has said everything possible that could be said in favour of the applicant, I am not persuaded that any of the matters advanced has been made good. 25 As to points (a) and (b), his Honour was not bound to accept the applicant's evidence tendered in the sentencing proceedings as to the limited nature of her role, or as to her reasons for complicity. Nor was his Honour bound to sentence her upon a basis that he did not believe; see Olbrich (1999) 73 ALJR 1550 at 1554. His Honour was fully justified, in my view, to regard the applicant as a witness whose credibility was significantly flawed by the circumstance that she had lied to the jury on oath. 26 In those circumstances, he was also fully entitled to determine the extent and nature of her role by reference to the objective evidence which, in my view, was such as to leave each and every one of the findings of his Honour noted above, well open to him. That this was so, is supported by the close analysis to which his Honour subjected the evidence, as appears from those passages which I have extracted. 27 It follows that his Honour was entitled to have reached the conclusion that the applicant had endeavoured to minimise her role and to reject the notion that she acted as she did out of fear. There is no sensible basis, upon a fair reading of his Honour's remarks, to assume that he imposed any additional punishment upon her for having lied ,or for having attempted to minimise her role. Rather, the relevant observations were passed in the course of the findings that his Honour was bound to make in relation to her role in the importation. 28 A somewhat disingenuous argument was advanced to the effect that by having failed to called Ung, who had already been convicted and sentenced, and as such was a compellable witness, that a Jones v Dunkel inference should have been drawn adversely to the Crown. The absence of merit in that submission is two-fold: First, as appears from the remarks on sentence of Solomon DCJ, Ung had given evidence in his sentencing proceedings that if called as a witness in the applicant's trial, he would refute any evidence that she might give to the effect that he had paid for the shipment or that he had arranged to lease the premises to which the heroin was to be delivered. Independently, as a matter of commonsense, it might have been thought extremely unlikely that, in circumstances where the Crown could still have appealed against the leniency of the sentence, or indeed could have charged him with perjury had he departed from his evidence before Solomon DCJ, that he would have given evidence suggesting that his role was greater than that upon the basis of which he had been sentenced. 29 As to matter (c), the submission advanced somewhat overstates the significance of the relevant passage in the reasons. The relevant observation followed upon the statement of his Honour's conclusion that the applicant had knowingly and voluntarily played a crucial role in attempting to bring the importation to a successful conclusion. The assumption which his Honour stated as to her reason for being involved, was that she had done so with an expectation or promise of significant financial gain to "herself and Than To". It would have flown in the face of reality for his Honour to have found other than that the applicant acted in the way that she did, for any reason other than an expectation of significant financial gain to her partner and lover Than To. 30 The case is not one, therefore, where there was any prospect of his Honour approaching her participation as having been occasioned by need, for example, to acquire a drug for personal use. This was clearly a commercial importation designed to produce a financial return, at least for her lover and partner. The fact that she may have acted as she did out of loyalty or love for him does not, to my mind, offer any legitimate basis for a reduction of her criminality. 31 As to matter (d), it is true that his Honour made no specific finding that the applicant knew of the precise quantity of heroin involved. Sight must not, however, be lost of the circumstance that the quantity of heroin in respect of which importation offences attract a maximum sentence, is fixed at 1.5 kilograms. The applicant fell to be sentenced upon the basis of the jury finding that she knew that at least this quantity of heroin was involved. 32 Error can enter into the sentencing process if an attempt is made thereafter to graduate sentences by some mathematical exercise referable to the precise quantity involved or known by the offender to have been imported; see Wong & Leung (1999) NSWCCA 420 and see also the series of decisions which have similarly rejected the proposition that sentencing should take place by reference to a mathematical exercise of the kind suggested, reflected in Doan NSWCCA 27 September 1996; Soonius NSWCCA 29 May 1998; Bourel NSWCCA 11 December 1998; Bimahendali (1999) NSWCCA 409 and Spillane (1999) NSWCCA 280. 33 The quantity of the drug involved and extent to which the offender was aware of it, do remain relevant, but they are not the only considerations, nor can a sentencing exercise be undertaken upon a basis that is simply proportionate to those considerations. 34 In the present case his Honour was fully entitled to proceed upon the basis that a very large quantity of a narcotic drug was expected by the applicant, particularly having regard to the elaborate precautions taken for its shipment, storage and delivery. 35 In the absence of any conclusion that his Honour erred in point of principle, or that he made findings concerning the nature and extent of the applicant's role that were not open upon the evidence, I am unpersuaded the application has been made good. 36 It follows that there is no occasion for this court to review the sentence upon the basis that the role of the applicant was otherwise than that found by his Honour. It follows equally that any argument of disparity and any argument that his Honour set a starting point that was too high, fall away. The applicant's criminality was such as to attract a significant sentence, for the reasons explained by his Honour and as stated by this court in decisions such as El Karhani (1990) 21 NSWLR 370; and Budiman (1998) 102 ACrimR 411. 37 The sentence clearly fell within a legitimate sentencing range, and the age of the applicant at the time of sentencing does not lead me to any different view. Age provides no excuse for offending, nor should it in a case such as the present, involving the importation of a vast quantity of heroin, provide any reason for reducing the sentence. Only one outcome was here available - a heavy sentence that reflected a very significant element of general deterrence. Neither the law nor the community has any weapon available to it to restrict the pernicious trade in drugs, with its potentially devastating effects, other than to require significant sentences for offences of the kind that were before the court. 38 For these reasons I would grant leave to appeal, but I would propose that the appeal be dismissed. 39 DUNFORD J: I agree. 40 CARRUTHERS AJ: I also agree. 41 WOOD CJ: The order of the Court will accordingly be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.