R v Do [2008] VSCA 199

2 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.

3 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.

4 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.

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

6 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.

7 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.

8 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 to Melbourne. As previously indicated, he was acquitted of the count of trafficking in not less than a large commercial quantity. He was convicted of the count of trafficking in a commercial quantity on his plea of guilty. In the undisputed circumstances surrounding the appellant's apprehension, his guilty plea involved an admission that he was 'in possession for sale' of the relevant drugs.[1]

9 On the plea, it was submitted on the appellant's behalf that the jury's verdict meant that they had accepted his evidence, and regarded him as nothing more than a modestly paid courier. The Crown challenged that submission. It contended that the acquittal meant only that the jury were not satisfied that the appellant knew that the drugs exceeded one kilogram, the amount necessary in the context of MDA to constitute a large commercial quantity.

10 It should be noted that the MDA tablets weighed a total of 1080.7 grams, just over the statutorily prescribed amount of one kilogram.

11 It should be further noted that a commercial quantity of MDA is not less than 500 grams, but up to and including one kilogram.

12 The sentencing judge said that he would give effect to the jury's verdict on the count involving a large commercial quantity by sentencing the appellant as though the weight of the drugs did not exceed one kilogram, though plainly enough it did.

13 On the plea, the Crown initially accepted that the appellant could be viewed as a 'courier in a commercial setting' of the clandestine trafficking in drugs. The sentencing judge made it plain that he was not necessarily prepared to accept that interpretation of the evidence. He said that he had reservations as to the appellant's being regarded as a 'courier', and indicated that the evidence suggested rather that he should be viewed as a 'principal'.

14 Counsel for the appellant responded by submitting that his Honour could not be satisfied beyond reasonable doubt that the appellant was, indeed, a 'principal'. He submitted that the appellant's statement to the police at the scene ('the drugs are mine') should be understood as nothing more than the appellant's acknowledgment that the passengers who were with him in his car were not involved in any way with the drugs. The statement should not be understood literally as an assertion by the appellant that the drugs were in fact his.

15 The Crown replied by modifying its original position and submitting that his Honour would be entitled, on the evidence, and in line with the jury's verdict, to sentence the appellant upon the footing that he was, indeed, a 'principal'.

16 In the course of the plea, counsel for the appellant argued that what he submitted was the 'low purity' of the tablets (0.2 per cent) should be treated as a mitigating factor.

17 It was submitted before this Court that the sentencing judge could not properly have been satisfied beyond reasonable doubt that the appellant was a 'principal'. It was further submitted that the acquittal by the jury on the count of trafficking not less than a large commercial quantity supported that contention. If the jury were not satisfied that the appellant knew the precise amount of MDA that he had in his possession, this was a powerful indication that he was, as he claimed, no more than a courier.

18 Counsel for the appellant also submitted that the sentencing judge had erred in treating his client's statement at the scene as an admission against interest, capable of being used to support the finding that the appellant was no mere courier. It was submitted that all that he was saying was that his passengers were innocent of any wrongdoing. They had just come along for the ride.

19 In developing that submission, counsel for the appellant argued that the sentencing judge had set up a false dichotomy between whether the appellant was a 'courier' or whether he was a 'principal'. Another possibility, logically available, was that his Honour might not be in a position to say. He might reject the appellant's evidence that he was a courier, but not be satisfied beyond reasonable doubt that he was a 'principal'. Counsel submitted that had such a finding been made, a lesser sentence than that imposed would have been warranted.

20 It is necessary, in dealing with this ground of appeal, to pay close attention to the sentencing judge's approach to this issue. His Honour noted that the Court was required to determine the facts upon which the appellant was to be sentenced. He said that the issue to be determined was whether he was satisfied beyond reasonable doubt that the drugs in the appellant's possession were his, and that he was a principal offender, or, alternatively, whether he should be satisfied on the balance of probabilities that the appellant was a courier who was to be paid a relatively modest sum to transport the drugs.

21 The sentencing judge then turned to the evidence available regarding this issue. He noted that the appellant had been interviewed at the scene of the arrest, and that that interview had been video-recorded and tendered as an exhibit. He summarised what the appellant had said during the course of that initial interview as follows:

• that he had been driving the car at the time of its interception;

• that the tablets were in fact ecstasy;[2]

• that he had been asked by police whether anyone else in the car had handled the tablets and had replied, 'No, they are just mine'; and

• that he had been asked 'How many are there' and had replied 'Nearly 4,000 something'.

22 His Honour then referred to the record of interview which had been conducted later that day. He noted that the appellant had acknowledged having said earlier 'It's my bag' in answer to the question 'Is this your bag?'.

23 The sentencing judge then turned to the appellant's evidence given at trial. The appellant told the jury that a man in Sydney had asked him to deliver the tablets to Melbourne, that he had never touched the bag, and that when he arrived in Melbourne he drove to Springvale in accordance with his instructions. He said that in Sydney he had been told that there were about 4000 tablets in the bag. He said that he did not know the weight of the tablets, and that the subject of their weight had never crossed his mind.

24 The appellant also told the jury that the reason he had told the police that the tablets were his was in order to protect his friends in the car. Under cross-examination, he said that he knew that the tablets were to be eventually sold. He refused to disclose the name of the man in Sydney who had supplied him with them, and he told the jury that he did not know the name of the man in Melbourne to whom they were to be delivered. All he had was a mobile telephone number, which he was by that stage unable to recall.

25 His Honour said that he had observed the appellant closely, both in giving evidence in-chief and under cross-examination. He rejected the submission that he was bound to accept the appellant's evidence as there was no other evidence to contradict it. He also rejected the submission that he would fall into error if he were to sentence the appellant as a 'principal'.

26 The sentencing judge concluded that the acquittal by the jury on the more serious count did not mean that they had accepted the appellant's version of events, or that they believed that he was nothing more than a courier. The verdict might simply have meant that the jury were not satisfied beyond reasonable doubt that the appellant intended to traffic in MDA in not less than a large commercial quantity.

27 His Honour considered that the correct approach to be taken regarding this issue was that set out by the High Court in R v Olbrich[3] and by this Court in R v Storey.[4] Applying that approach, his Honour stated that he did not accept the appellant as having been a witness of truth as regards his role.

28 The sentencing judge gave detailed reasons for that conclusion. He relied upon his own observations of the appellant. He found that the appellant had told the truth when first interviewed at the scene, and again in his record of interview, but not when he gave evidence at his trial. He regarded that evidence as unconvincing and implausible. He noted that the appellant did not offer the explanation that he was merely a courier until he gave evidence at the trial. He regarded that explanation as nothing more than an attempt on the part of the appellant to minimise his culpability in relation to the charge to which he had pleaded guilty.

29 His Honour said that he was satisfied beyond reasonable doubt that the tablets belonged to the appellant and that they were in his possession purely for the purposes of sale. He said that he was satisfied that the appellant was not a mere 'courier' but a 'principal'.

30 In our view, his Honour was entitled to make these findings. He was entitled to regard the appellant's initial answers to the police as truthful, and as meaning exactly what they said. When the appellant said that the drugs were his, he meant nothing more and nothing less than that. His admission to that effect was not intended, in the way his counsel had suggested, merely to exculpate the passengers in his vehicle.

31 Counsel for the appellant, as we understood his submissions, did not challenge his Honour's right to find that the appellant's evidence before the jury had been untruthful. He submitted, however, that it did not follow that the sentencing judge was entitled positively to conclude that the appellant was a 'principal'.

32 Whatever force there may be in that submission, it seems to us to make little difference in the context of this case. Once his Honour was satisfied that the appellant played a significantly greater role in this enterprise than that of 'courier', the description that he attributed to that role was of no real consequence.

33 It must be remembered that his Honour reasoned from a finding that the drugs belonged to the appellant, and that he proposed to sell them, to a conclusion that he was therefore a 'principal'. He did not reason in the reverse manner. The label is less important than the finding that the drugs were those of the appellant. That finding was clearly open on the evidence, and able to be reached to the requisite standard.

35 As indicated, this ground contends that the sentencing judge erred in rejecting counsel's submission that the appellant should receive a lesser penalty because of the 'low purity' of the tablets. His Honour said in his reasons for sentence that he was not persuaded that this was a mitigating factor. He said that he had given counsel the opportunity to provide him with any authority to support the proposition for which he contended, but counsel had been unable to do so.

36 Before this Court, it was submitted that there were in fact a number of cases in support of the contention that low purity was a mitigating factor. Counsel referred to R v Mahasay,[5] R v Zane,[6] Director of Public Prosecutions v Downing[7] and R v Adams.[8] He conceded, however, that Mahasay was the only case which adverted to the matter directly. In the others, the matter had only been raised in passing.

37 The Crown submitted that to treat the low level of purity of a drug as a mitigating factor would run directly counter to the rejection by this Court in R v Pidoto & O'Dea[9] of a harm-based system of classification of drug offences.

38 Whether, and if so to what extent, the cases upon which counsel for the appellant now relies in support of ground 2 survive Pidoto is a question which we need not consider, or resolve, in this appeal.

39 The difficulty for the appellant lies in the underlying premise of his argument. He asserts that 0.2 per cent purity MDA is a 'low level'. He supports that assertion by referring to cases such as Adams, where the level of purity was more than 40 per cent. However, that ignores the fact that Adams concerned MDMA, and not MDA.

40 There was no attempt, before the sentencing judge, to adduce evidence in support of the assertion regarding the supposedly low level of purity of the drug. His Honour was left with nothing but that bald assertion, unsupported in any way, that this was a low level of purity, and therefore less likely to do harm. That submission was wholly speculative. His Honour was entitled to decline to speculate.

42 Once it is accepted that his Honour was entitled to find that the appellant was no mere 'courier', but played a more significant role in this venture, it becomes difficult to say that this sentence, severe though it may have been, fell outside the proper limits of his Honour's sentencing discretion. The figures with which we were provided by the Crown indicate that a sentence of five and a half years is within the range of sentences typically imposed for trafficking in commercial quantities of drugs. It must be remembered that the quantity in this case in relation to which the appellant was sentenced was at the absolute upper level of a commercial quantity. It must also be remembered that the appellant had a substantial number of prior convictions. They may not have been drug related, but they were nonetheless very serious convictions indeed.

43 There is nothing to suggest that his Honour failed to give appropriate weight to such mitigating factors as were present. These were carefully identified and fully considered in the reasons for sentence.

[1] See definition of 'traffick' in s 70 of the Drugs, Poisons and Controlled Substances Act 1981.

[2] He was in fact wrong in that regard. Indeed, much of the plea was conducted upon the footing that the MDA equated to ecstasy. Plainly, it does not.

[3] [1999] HCA 54; (1999) 199 CLR 270.

[4] [1998] 1 VR 359.

[5] [2002] WASCA 336; (2002) 135 A Crim R 232, 234.

[6] [2001] VSCA 72; (2001) 127 A Crim R 339, [6].

[7] [2007] VSCA 154, [12].

[8] [2007] VSCA 37, [11].

[9] [2006] VSCA 185; (2006) 14 VR 269, [2]-[6].