SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 24 of 2007
MINH THANH DO
JUDGES: VINCENT and WEINBERG JJA and ROBSON AJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 2 October 2008
DATE OF JUDGMENT: 10 October 2008
MEDIUM NEUTRAL CITATION:  VSCA 199
Criminal Law – Sentence – Trafficking in MDA – Whether sentencing judge erred in
sentencing appellant as a ‘principal’ rather than a ‘courier’ – Whether sentencing judge
erred in ruling that ‘low purity’ of drugs not a mitigating factor – Appeal dismissed
APPEARANCES: Counsel Solicitors
For the Crown Mr C Ryan SC Mr S Ward, Acting Solicitor for
For the Appellant Mr C Boyce Victoria Legal Aid
Court of Appeal 9603 2404
459 Lonsdale Street, Melbourne, Vic 3000
1 The appellant, Minh Thanh Do, was presented in the County Court on one
count of trafficking in what was described as ‘not less than a large commercial
quantity of MDA’. When arraigned, he pleaded not guilty to that count, but guilty to
the lesser statutory alternative of trafficking in ‘not less than a commercial quantity
of MDA’. He was ultimately acquitted on the more serious count and convicted on
the lesser count.
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
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
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
5 There was originally a fourth ground of appeal. However, that was expressly
R v Do 2 THE COURT
Circumstances surrounding this offence
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
1 See definition of ‘traffick’ in s 70 of the Drugs, Poisons and Controlled Substances Act 1981.
R v Do 3 THE COURT
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
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
R v Do 4 THE COURT
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
that he had been driving the car at the time of its interception;
R v Do 5 THE COURT
that the bag containing the tablets was his;
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
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
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.
R v Do 6 THE COURT
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 Olbrich3 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
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’.
3 (1999) 199 CLR 270.
4  1 VR 359.
R v Do 7 THE COURT
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
34 Ground 1 must therefore fail.
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
R v Do 8 THE COURT
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 Downing7 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’Dea9 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.
41 Ground 2 must also fail.
5 (2002) 135 A Crim R 232, 234.
6 (2001) 127 A Crim R 339, .
7  VSCA 154, .
8  VSCA 37, .
9 (2006) 14 VR 269, -.
R v Do 9 THE COURT
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.
44 Ground 3 must therefore fail.
45 It follows that the appeal must be dismissed.
R v Do 10 THE COURT