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Court of Criminal Appeal 6 October 2000

R v VO

[2000] NSWCCA 440

Also reported as 118 A Crim R 320
Drugs

Citation: R v VO [2000] NSWCCA 440
Court: NSW Court of Criminal Appeal
Date: 6 October 2000
Judges: Wood CJ at CL, Dunford J, Carruthers AJ

Background

The applicant was convicted by a jury in the District Court of being knowingly concerned in the importation of a commercial quantity of heroin, contrary to s 233B of the Customs Act. The charge arose from a 1997 shipment concealed within cans in a container of purported pineapples, which arrived from Hong Kong. When the drugs were discovered, customs authorities arranged a controlled delivery, allowing police to observe the unloading and subsequent collection of the boxes.

The applicant was centrally involved in the logistics of the importation. She had remitted funds overseas as payment for the shipment, arranged customs clearance, leased the premises used for delivery and storage, supervised the unloading of the container, and provided access to persons who collected the boxes. The heroin weighed approximately 54 kilograms in pure form and was valued at more than $14 million.

At trial, the applicant denied any knowledge of the drugs. After conviction, she gave a different account, acknowledging she knew the premises would be used to store heroin but maintaining she was unaware of the quantity involved. The sentencing judge found she was a key participant in the importation and imposed a heavy sentence. She then sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge erred in characterising the applicant's role in the importation
  • Whether the sentence was disproportionate, including whether it was set too high as a starting point
  • Whether sentencing for drug importation offences should be determined by a mathematical formula proportionate to the quantity of drug involved
  • Whether the applicant's age at the time of sentencing warranted a reduction in the sentence imposed

Decision

The Court of Criminal Appeal rejected the argument that the sentencing judge had erred in his assessment of the applicant's role. Wood CJ found the judge was fully entitled, on the evidence, to conclude that the applicant was more than a mere conduit and occupied a key operational role both before and after the container arrived in Australia. No error of principle was identified in the sentencing judge's findings.

The Court also rejected the proposition that sentencing for drug importation offences should be conducted as a mathematical exercise proportionate to the quantity of drugs involved. Wood CJ confirmed, consistent with a line of Court of Criminal Appeal authority, that quantity and the offender's awareness of it remain relevant factors but are not the only considerations. Sentencing is not reducible to a formula anchored purely to drug quantity.

On the question of age, the Court held that the applicant's age provided no basis for reducing the sentence. Wood CJ reasoned that age neither excuses offending nor justifies leniency where the offence involves the importation of a very large quantity of heroin. The Court emphasised the importance of general deterrence in cases of this kind, describing a heavy sentence as the only available societal response to the trade in illicit drugs.

Because no error of principle was established and the judge's factual findings were open on the evidence, the arguments about disparity and the starting point also fell away. The Court was satisfied the sentence fell within a legitimate sentencing range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Sentencing for large-scale drug importation is not a mathematical exercise proportionate solely to drug quantity. Quantity and the offender's knowledge of it are relevant but form only part of a broader sentencing assessment.
  • The Court of Criminal Appeal confirmed that where a sentencing judge makes factual findings about an offender's role that are open on the evidence and disclose no error of principle, an appellate court has no basis to substitute its own assessment.
  • A conviction under s 233B of the Customs Act for being knowingly concerned in a commercial quantity drug importation attracts significant sentences, with general deterrence carrying substantial weight.
  • No error was established in the sentencing judge's characterisation of the applicant as a key participant rather than a mere conduit, given her involvement in financing, logistics, premises, customs clearance, and delivery.
  • An offender's age at the time of sentencing does not automatically warrant a reduction in sentence, particularly where the offence involves the importation of heroin at a very large commercial scale.

Legislation and Cases Referenced

Legislation:
- Customs Act, s 233B (offence of being knowingly concerned in the importation of a prohibited drug)

Cases:
- El Karhani (1990) 21 NSWLR 370
- Budiman (1998) 102 A Crim R 411
- Doan NSWCCA 27 September 1996
- Soonius NSWCCA 29 May 1998
- Bourel NSWCCA 11 December 1998
- Bimahendali (1999) NSWCCA 409
- Spillane (1999) NSWCCA 280