R v Ta - [2019] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ta [2019] QCA 53

PARTIES:

R
v
TA, Piet Luan
(applicant)

FILE NO/S:

CA No 87 of 2018
SC No 451 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 11 April 2018 (Mullins J)

DELIVERED ON:

5 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2019

JUDGES:

Holmes CJ and Gotterson and Morrison JJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – PARTICULAR OFFENCES – DRUG OFFENCES – DEALING AND DISTRIBUTION OF DRUGS – TRAFFICKING OR SALE AND SUPPLY – where the applicant pleaded guilty to unlawfully trafficking in methylamphetamine and cannabis – where the applicant disputed the factual basis upon which he was to be sentenced – where one of the factual issues in dispute was whether the applicant was responsible for drugs found by police at a storage shed – where the learned sentencing judge found that the storage shed was rented on the applicant’s behalf and so the applicant was in possession of drugs located at that storage shed – where the learned sentencing judge made that finding based on, among other things, a finding that the relationship between the applicant and his associate was one of employer and employee in the applicant’s trafficking business – whether the learned sentencing judge made an error in finding that the storage shed was rented on the applicant’s behalf – whether the learned sentencing judge made an error in not making an intermediate finding that the applicant’s associate had a second phone for communicating with the applicant – whether the learned sentencing judge could have been satisfied to the requisite degree

Evidence Act 1977 (Qld), s 132C(3), s 132C(4)

R v Carrall[2018] QCA 355, considered
R v Strbak [2019] QCA 42, considered

COUNSEL:

P J Callaghan SC, with A J Kimmins, for the applicant
P J McCarthy for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I agree with the reasons of Gotterson JA and with the order his Honour proposes.
GOTTERSON JA: On 28 March 2018, the applicant, Piet Luan Ta, pleaded guilty in the Supreme Court at Brisbane to an offence against s 5 of the Drugs Misuse Act 1986 (Qld). The count in the indictment alleged that between 31 January 2012 and 14 February 2013 at Brisbane and elsewhere in Queensland, the applicant carried out the business of unlawfully trafficking in the dangerous drugs methylamphetamine and cannabis. He was convicted and sentenced on 11 April 2018 to 10 years six months imprisonment. A serious violent offence declaration was made. A period of some 321 days of pre-sentence custody was declared to be time served under the sentence.
The applicant had also pleaded guilty to a number of other drug related offences which had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ta

Details

AGLC: R v Ta [2019] QCA 53
Case: [2019] QCA 53
Decision Date: 5 April 2019

CaseChat Overview and Summary

The case involves an appeal against a sentence imposed by the Court of Appeal in Western Australia. The applicant had pleaded guilty to trafficking in methylamphetamine and cannabis. The primary issue before the court was whether the sentencing judge made errors in her findings regarding the applicant's responsibility for drugs found at a storage shed and the nature of the relationship between the applicant and his associate. Specifically, the court examined whether the storage shed was rented on the applicant's behalf and if there was a second phone used by the associate for communication with the applicant.

The court concluded that the sentencing judge's findings were well-supported by the evidence. The judge determined that the storage shed was rented on the applicant's behalf based on the relationship between the applicant and his associate, which was found to be that of employer and employee within the trafficking business. The court rejected the applicant's argument that the judge erred in describing the associate as an employee, noting that the term was used in the context of subordination and direction rather than an industrial relations sense. The court also found no error in the judge's decision not to make an intermediate finding about a second phone, as the evidence did not compel such a finding. The court was satisfied that the sentencing judge was adequately convinced by the evidence to make the findings in question.

The court's reasoning was grounded in the credibility and consistency of the evidence presented, particularly in relation to the roles of the parties involved in the drug trafficking operation. The applicant's arguments regarding the credibility of the associate's evidence and the specific findings about the rental agreement and communication methods were not persuasive to the court.

ORDERS:
The application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Credibility of Y’s evidence: The applicant identified two aspects to Y’s evidence that he submitted reflected “very poorly” on Y’s credibility. One of them was her Honour’s implicit rejection of Y’s in-camera evidence that X and the applicant were fifty-fifty partners in trafficking in both cannabis and methylamphetamine in Western Australia.[30] She accepted X’s evidence concerning transportation of drugs to Western Australia in which he described his role in it as akin to that of a hired driver, rather than a partner. Her Honour said that she had no difficulty in accepting X’s evidence to the extent that there was inconsistency between it and that of Y on this issue.[31][30]ICHT 1-59 l46 – ICHT 1-60 l5.[31]AB75 ll39-41. The second aspect is that Y “lied” to police on 25 March 2013 when he told them that the applicant’s brother signed the rental agreement as well as himself.[32] A perusal of the rental agreement[33] reveals that the brother did not sign it. However, his name, address and mobile phone number appear under the heading “Alternative Contact Person” on the agreement.[32]Exhibit 1 Document 8 paragraph 81: AB438.[33]AB982 – AB985. I do not regard either of these aspects as reflecting very poorly on Y’s credibility. Her Honour did not expressly find that Y lied with respect to X’s role. Further, a preference for X’s evidence about his own role does not imply a finding of deliberate misstatement on Y’s part. Her Honour may well have regarded Y’s account as less reliable though honestly given. There is no foundation to the contention that Y lied to police about the applicant’s brother and the rental agreement. Certainly, it was factually inaccurate to say that the brother signed the rental agreement, but it by no means follows that the inaccuracy was deliberate. In any event, the point is of little significance given that the brother was associated with the setting up of the rental of the shed in that he was nominated as the alternative contact person. Description of Y as “an employee”: The criticism made is that the description of Y as an employee was of questionable utility in the context of drug trafficking where there is no regulated workplace structure. This criticism is, in my view, without substance. Her Honour evidently did not use the word “employee” as it is understood in a master and servant or an industrial relations context. The word, as used by her Honour, has a connotation of subordination to, and subject to the direction of, another; in this case, the applicant. Summary: For these reasons, I am quite unpersuaded that the challenged finding was without an evidential foundation or that the learned sentencing judge erred in law in making it. There was sufficient evidence for her Honour to have been satisfied to the requisite degree that Y rented the storage shed on the applicant’s behalf and that the applicant was in possession of the drugs located at the shed on 8 February 2013.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ta [2019] QCA 53
PARTIES:	R v TA, Piet Luan (applicant)
FILE NO/S:	CA No 87 of 2018 SC No 451 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 11 April 2018 (Mullins J)
DELIVERED ON:	5 April 2019
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2019
JUDGES:	Holmes CJ and Gotterson and Morrison JJA
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – PARTICULAR OFFENCES – DRUG OFFENCES – DEALING AND DISTRIBUTION OF DRUGS – TRAFFICKING OR SALE AND SUPPLY – where the applicant pleaded guilty to unlawfully trafficking in methylamphetamine and cannabis – where the applicant disputed the factual basis upon which he was to be sentenced – where one of the factual issues in dispute was whether the applicant was responsible for drugs found by police at a storage shed – where the learned sentencing judge found that the storage shed was rented on the applicant’s behalf and so the applicant was in possession of drugs located at that storage shed – where the learned sentencing judge made that finding based on, among other things, a finding that the relationship between the applicant and his associate was one of employer and employee in the applicant’s trafficking business – whether the learned sentencing judge made an error in finding that the storage shed was rented on the applicant’s behalf – whether the learned sentencing judge made an error in not making an intermediate finding that the applicant’s associate had a second phone for communicating with the applicant – whether the learned sentencing judge could have been satisfied to the requisite degree Evidence Act 1977 (Qld), s 132C(3), s 132C(4) R v Carrall[2018] QCA 355, considered R v Strbak [2019] QCA 42, considered
COUNSEL:	P J Callaghan SC, with A J Kimmins, for the applicant P J McCarthy for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent