Tago v The State of Western Australia - [2018] WASCA 59

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TAGO -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 59
CORAM:   BUSS P
BEECH JA
HALL J

HEARD:   2 FEBRUARY 2018
DELIVERED          :   2 MAY 2018
FILE NO/S:   CACR 118 of 2017
BETWEEN:   TIKERI TAGO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BRADDOCK DCJ
File Number             :   IND 565 of 2016

Catchwords:

Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply to another - Whether sentence of 9 years' immediate imprisonment manifestly excessive - Whether sentencing judge erred in finding that the appellant must have been aware from the nature of the operation that a significant quantity of drugs was involved - Where appellant a 'foot soldier' and not involved in packing, unpacking or handling of the drugs

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr S Watters
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Patti Chong Lawyer
Respondent	:	Director of Public Prosecutions for Western Australia

Case(s) referred to in decision(s):

Al Rafei v The State of Western Australia [2017] WASCA 4
Bond v The State of Western Australia [2011] WASCA 123
Chen v The State of Western Australia [2017] WASCA 114
Chen v The State of Western Australia [2017] WASCA 99
Galbraith v The State of Western Australia [2011] WASCA 70
Gaskell v The State of Western Australia [2018] WASCA 8
Hoang v The State of Western Australia [2015] WASCA 130
Kitis v The State of Western Australia [2013] WASCA 34
Mikulic v The State of Western Australia [2011] WASCA 127
Milenkovski v The State of Western Australia [2014] WASCA 48
Neumann v The State of Western Australia [2013] WASCA 70
Ozan v The State of Western Australia [2013] WASCA 27
Penney v The State of Western Australia [2011] WASCA 71
R v Olbrich (1999) 199 CLR 270
Ye v The State of Western Australia [2016] WASCA 103
Zanon v The State of Western Australia [2016] WASCA 91

JUDGMENT OF THE COURT:

The appellant was convicted after trial of being in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). For this offence he was sentenced to 9 years' imprisonment with eligibility for parole. He now seeks leave to appeal against that sentence.
The appellant was the driver of a vehicle that was used to transport 21 kg of high purity methylamphetamine from Sydney to Perth. He was recruited shortly before the trip and played no role in either packing or unpacking the drugs. He was accompanied by others, both in the car which he drove and in a second 'spotter' car. It was accepted at sentencing that he was low in the hierarchy and could properly be described as a 'foot soldier'.[1] The sentencing judge found that whilst the appellant was not aware of the exact quantity of drugs he must have been aware from the nature of the operation that a significant quantity was involved.
[1] Outline of State's Sentencing Submissions, 26 April 2017, par 50 (Appeal Book 63).
There are two grounds of appeal. The first ground alleges that the sentencing judge made an express error in finding that the appellant knew that there was a significant quantity of drugs involved. The second ground alleges that the sentence was in all of the circumstances manifestly excessive. For the reasons that follow we are of the view that neither of the grounds has a reasonable prospect of success. Accordingly leave in respect of each of the grounds must be refused and the appeal dismissed.

The facts

The unchallenged facts found by the sentencing judge are as follows.
On or about 15 July 2015 the appellant was contacted by his cousin, Sam Tago. Sam Tago asked the appellant to be a driver of a vehicle that was to be driven from Sydney to Perth. The job required the appellant to immediately fly from Brisbane, where he lived, to Sydney. Sam Tago stressed the urgency of the trip and assisted with arrangements for the appellant to travel to Sydney. This included arranging for the appellant to be met at Sydney Airport by a chauffeur driven car and for the driver of that car to hold a greeting board with a false name on it.[2]
[2] Sentencing ts 608 - 609.
The appellant travelled to Sydney as arranged and was driven to a hotel where he met with Sam Tago, Phillip Simons and Emma Walker.[3]
[3] Sentencing ts 608.
The following day the appellant and Sam Tago departed Sydney in a hired four wheel drive car headed for Perth. The appellant's role was to assist in the driving of that vehicle. For that role he was to be paid between $1,500 and $2,000. Mr Simons and Ms Walker drove a second vehicle, which was referred to as a spotter car. Both vehicles arrived in Perth on 19 July 2015.[4]
[4] Sentencing ts 608 - 609.
Contained in the four wheel drive vehicle driven by the appellant was a total of 21 kg of high purity methylamphetamine. On arrival in Perth all of the participants went to a resort in Karrinyup, where the drugs were unpacked.[5]
[5] Sentencing ts 609.
On the evening of 19 July 2015, 11 kg of the drugs were delivered by Phillip Simons and Sam Tago to Peter Kezkiropoulos.[6] Mr Kezkiropoulos is the subject of a separate appeal against sentence.
[6] Sentencing ts 609.
Later the same evening the appellant was arrested at the resort in Karrinyup. The remaining 10 kg of methylamphetamine was found in drawers in a unit that the appellant was to occupy.[7]
[7] Sentencing ts 609.

The finding as to the appellant's knowledge

The sentencing judge accepted that the appellant did not know the specific quantity or chemical composition of the drug, though she considered it to be highly likely that the appellant would have assumed it to be methylamphetamine. She accepted that the appellant had no part in the packing of the drug into the vehicle or the unpacking of it on arrival in Perth. She said that there was no evidence to suggest that the appellant had ever handled or touched the drug. However, she concluded that the appellant knew that a 'significant quantity' of drugs was involved.[8]
[8] Sentencing ts 609.
Her Honour relied upon the following facts in coming to her conclusion as to the appellant's knowledge that the quantity of drugs was significant:[9]
(1)The lengthy distance of the drive between Sydney and Perth;
(2)The scale of the operation, in that four people and two cars were involved;
(3)That all expenses on the trip were paid, including accommodation, fuel and food;
(4)That on arrival in Sydney the appellant was met by a driver with a sign displaying a false name; and
(5)That the appellant made no enquiries regarding the nature of the trip, either in the initial telephone calls with Sam Tago or subsequently.
[9] Sentencing ts 609 - 610.
Her Honour also noted that the appellant had denied any involvement with drugs when interviewed by the police and had claimed that he believed he was doing work for the Veterans Affairs Department. This was an explanation that was described as 'totally implausible' and was plainly rejected by the jury.[10]
[10] Sentencing ts 610.

Other sentencing remarks

Other than the finding in respect of the appellant's knowledge that a significant quantity of drugs was involved, it is not suggested that there was any error in the sentencing remarks. Accordingly it is not necessary to consider the balance of those remarks in detail. It is sufficient to summarise them.
Her Honour described the events as a very serious example of this type of offence. She said that the quantity of drugs was enormous and the value was possibly in excess of $4 million. She referred to the significant dangers to the community that would flow from the distribution of this quantity of drugs.[11]
[11] Sentencing ts 610 - 611.
Her Honour accepted that the appellant only played a minor part in the operation. His role was 'to drive or assist in the driving of the 4‑wheel drive and being around to help out on the way. So in a sense you were like a courier'.[12]
[12] Sentencing ts 611.
Her Honour found that the extent of benefit to the appellant was to be a payment of between $1,500 to $2,000. He had no financial interest in the drugs or in any profits that might have been made from them. His motivations were a relatively small financial reward and a desire to help his cousin.[13]
[13] Sentencing ts 611 - 612.
Her Honour noted that the appellant was drinking too much at the time and was in financial difficulties. He was recruited with some urgency and was placed under some pressure to assist. However, he was happy to have a break from matrimonial troubles at home.[14]
[14] Sentencing ts 612.
Her Honour took into account the appellant's efforts towards rehabilitation and assessed the likelihood of his reoffending in this particular way as very low. She noted that whilst the appellant had gone to trial, concessions had been made that resulted in a saving of time. Although personal deterrence was of lesser significance, Her Honour said that a significant term of imprisonment was required for reasons of general deterrence.[15]
[15] Sentencing ts 613 - 614.

Personal circumstances

The appellant was born in New Zealand and moved to Queensland as a 15 year old. He was described as having a 'disturbed youth' although he came from a good and strict upbringing. He was a good sportsman and average in academic terms. He left school after completing Year 11 and has since been in consistent employment.[16]
[16] Appeal Book 6.
At the time of sentencing the appellant was 44 years old. He is married with four children. There was some tension in his marriage at the time of the offence, at least in part due to the appellant's excessive use of alcohol. Following the appellant's arrest, and whilst he was on bail, he reduced his alcohol consumption, sorted out his differences with his wife and resumed attending church.[17]
[17] Sentencing ts 612 - 613.
The appellant has a criminal record, though it is of a relatively minor nature. The sentencing judge noted that whilst the appellant could not strictly be said to be of previous good character, the offences on his Queensland record had occurred a long time ago. Her Honour was prepared to accept that, generally speaking, the appellant had a history of taking a responsible attitude to his family and the community.[18]
[18] Sentencing ts 612 - 613.
The appellant has no significant health problems, no mental health problems and no problems with drug addiction.[19]
[19] Sentencing ts 612 - 613.

Grounds of appeal

The grounds of appeal are as follows:[20]
[20] Appeal Book 6.
1.It was not reasonably open for her Honour to find to the requisite standard that the appellant knew there was a 'significant quantity' (ts 609D) and/or a 'very significant amount' (ts 610C) of drugs involved.
2.The sentence imposed was, in all the circumstances, manifestly excessive;
Particulars
2.1The appellant's antecedents;
2.2The appellant's role in the offending and the criminality otherwise involved;
2.3Sentences imposed in, broadly, comparable cases.

Ground 1 - The appellant's knowledge

The finding that the appellant knew that a significant amount of drugs was involved in the operation was an aggravating factor. As such it could only be taken into account if Her Honour was satisfied that that factor was proven beyond reasonable doubt.[21]
[21] R v Olbrich (1999) 199 CLR 270 [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).
Knowledge on the part of an offender may be inferred from the surrounding circumstances. That is what the sentencing judge did here. However, the appellant submits that it was not open for Her Honour to find that the appellant's knowledge was proven to the necessary standard.
The sentencing judge did not specify what she meant by a 'significant quantity' or 'very significant amount'. The word 'significant' is a relative term and its meaning can vary according to the context. In the present context it is apparent that Her Honour meant some quantity of drugs that was proportionate to the effort that the appellant knew was expended to bring it to Perth. Even though this does not equate with any precisely quantifiable amount, it is a meaningful way to describe the type of operation in which the appellant was knowingly involved.
In written submissions the appellant referred to the fact that the appellant had no part in the packing of the drug into the vehicle or the unpacking of it, and that there was no evidence to suggest that he had ever handled or touched the drug. Reference was also made to the description of the role played by the appellant and to the small amount of money that he stood to make from his involvement.[22] All of these were things that were taken into account by the sentencing judge.
[22] Appeal Book 9 - 10.
On the hearing of the appeal counsel for the appellant placed particular emphasis on the amount of money the appellant was to receive. It was suggested that if the appellant knew he was involved in an elaborate operation to transport drugs worth $4 million he would expect to be paid more than $1,500 to $2,000. Reference was made to evidence of a telephone call with Sam Tago in which the appellant referred to the amount he was to be paid as 'peanuts'.[23]
[23] Appeal ts 2, 4 - 6. The evidence is reproduced at Appeal Book 84.
The amount the appellant was to be paid is a relevant fact to be taken into account, but not in isolation. When viewed in the context of all of the other circumstances it does not prevent an inference of knowledge that the amount of drugs was significant being drawn. In any event, the telephone conversation is open to being interpreted as meaning that the appellant was referring to what he usually earns as a delivery driver as being 'peanuts' compared to the $1,500 he expected to earn for four to five days work with Sam Tago. However, even if the appellant was referring to the $1,500 to $2000 as 'peanuts', it would not assist the appellant's argument. On that interpretation, it would show that the appellant was aware that the amount he was to earn bore no real comparison to the amount of risk that was involved.
There were other circumstances relevant to determining the appellant's state of knowledge. These include the fact that the appellant knew that he was to drive together with three other people in two cars from Sydney to Perth and that all fuel, accommodation and food expenses would be paid for by others. The appellant also knew that there was a degree of urgency and that the arrangements included having him met at Sydney Airport by a limousine driver holding a sign with a false name. It is inconceivable that such efforts would be made for a small quantity of drugs.
The conclusion reached by the sentencing judge that, whilst the appellant did not know the exact quantity or chemical composition of the drugs, he did know that a significant quantity was involved, was plainly open on the available evidence. There was ample evidence to support a conclusion that this was proven beyond reasonable doubt.
This ground of appeal has no prospect of success and leave in respect of it should be refused.

Ground 2 - Is the sentence manifestly excessive?

The general principles applicable to appeals on grounds that a sentence is manifestly excessive are well established. They were summarised recently by Mazza and Beech JJA in Gaskell v The State of Western Australia,[24] in the following terms:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
(2)A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind, and the personal circumstances of the offender.
(3)[paragraph 3 is not presently relevant as it related to the first limb of the totality principle]
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed incomparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
[24] Gaskell v The State of Western Australia [2018] WASCA 8 at [127].
The principal sentencing considerations for offences of dealing or trafficking in dangerous drugs are general and personal deterrence. The weight of the drugs is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations though they are not completely irrelevant.[25]
[25] See, eg, Gaskell [128].
At the time of sentencing, the maximum penalty for the offence of being in possession of methylamphetamine, with intent to sell or supply it to another, was 25 years' imprisonment or a fine of $100,000 or both.[26]
[26] Misuse of Drugs Act, s 34(1)(a).
The appellant relies on five cases that are said to be comparable. We will refer to each of those cases in more detail below. However, it should be noted at the outset that none of the cases involved a quantity of drugs that is anything close to the quantity involved here. It would appear that the cases have been chosen on the erroneous assumption that the quantity is irrelevant. Whilst the quantity and purity of a drug is generally not the most important factor in assessing an offender's criminality, it is always a relevant consideration, not least because the court needs to take into account the potential for harm.
It should also be noted that there are many cases relating to drug offences of this type, and the facts of the offences and personal circumstances of the offenders differ widely. To pick out a handful of cases that are only arguably comparable whilst ignoring many others that are at least equally, if not more, comparable, does not assist in determining whether the sentence imposed on the appellant is manifestly excessive.

The cases relied on by the appellant are as follows.
In Ye v The State of Western Australia,[27] the offender pleaded guilty to one count of supplying methylamphetamine and one count of possession of methylamphetamine with intent to sell or supply. The quantities involved were 137 grams at 80% purity and 1.014 kg at 74% to 88% purity. The offender was found in possession of items consistent with dealing. He was sentenced on the basis that, though he was not the owner of the drugs or the organiser of the enterprise, he was engaged at a high end in the chain of distribution. He was sentenced to 5 years' imprisonment on the first count and 8 years' imprisonment on the second count, those terms to be served concurrently. The individual sentences incorporated a 25% discount for pleading guilty at the earliest reasonable opportunity.
[27] Ye v The State of Western Australia [2016] WASCA 103.
In Kitis v The State of Western Australia,[28] the offender pleaded guilty to one count of attempting to possess methylamphetamine and one count of possession of methylamphetamine with intent to sell or supply. The pleas of guilty were entered at a very late stage. The attempt related to 4.983 kg of methylamphetamine at a purity ranging between 53% and 69%. The second charge related to 207.6 grams of methylamphetamine at a purity of 22%. The offender was found in possession of cash that was taken to be, at least in part, the proceeds of previous methylamphetamine sales, two sets of scales and a firearm. It was accepted at sentencing that the offender was part of a very significant drug enterprise. He was sentenced to a total effective sentence of 12 years' imprisonment. That sentence comprised 9 years' imprisonment on the first count and 3 years' imprisonment (reduced from 5 years for totality reasons) cumulative on the second count.
[28] Kitis v The State of Western Australia [2013] WASCA 34.
In Hoang v The State of Western Australia,[29] the offender pleaded guilty to two counts of possession of methylamphetamine with intent to sell or supply. The first count related to a total of 130.5 grams of methylamphetamine with purity of between 73% and 75%. The second count related to a total of 349.4 grams of methylamphetamine with a purity of between 69% and 81%. The offender's role was more than simply transporting drugs, but it was not possible to determine beyond reasonable doubt the precise role that he played. He was found to be close to the source of the drugs. He was sentenced to a total effective sentence of 9 years' imprisonment. That sentence comprised 2 years 6 months' imprisonment on the first count and 6 years and 6 months' imprisonment cumulative on the second count. The total sentence took into account a discount of 25% for an early plea of guilty.
[29] Hoang v The State of Western Australia [2015] WASCA 130.
In Bond v The State of Western Australia,[30] the offender pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply. He travelled from New South Wales to Western Australia in a car in which methylamphetamine was concealed. The total amount was 3.061 kg of methylamphetamine of between 3% and 7% purity. An appeal against the sentence on the ground that it was manifestly excessive was allowed having regard to, in particular, the plea of guilty (albeit, not at the earliest stage), the quantity of drugs involved, the acceptance by the sentencing judge that the appellant was a courier rather than a drug dealer, and the appellant's age and lack of relevant prior convictions. The sentence of 9 years' imprisonment was reduced to 7 years' imprisonment.
[30] Bond v The State of Western Australia [2011] WASCA 123.
In Galbraith v The State of Western Australia,[31] the offender pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply. He was found in possession of 971.6 grams of methylamphetamine of between 74% and 78% purity. It was accepted that he played a role as a courier. He had an extensive record of drug, weapons and traffic matters. A sentence of 9 years' imprisonment was described as high, but within the range of a sound exercise of the sentencing discretion.
[31] Galbraith v The State of Western Australia [2011] WASCA 70.
As I have noted earlier, none of these cases are truly comparable with that of the appellant. They involved quantities of drugs that were significantly less than the quantity which the appellant assisted in transporting. All of the cases involved pleas of guilty by the offenders concerned, whereas the appellant was convicted after a trial.
The respondent refers to other cases that are said to be more comparable with that of the appellant. In particular, reference was made to Zanon v The State of Western Australia,[32] in which McLure P referred to a number of cases in which sentences of between 9 and 12 years' imprisonment were imposed for quantities of prohibited drugs of around one kilogram. Her Honour also referred to several cases involving large quantities of drugs, although none as large as the quantity involved in this case. Those cases were Kitis, Ozan v The State of Western Australia;[33] Neumann v The State of Western Australia;[34] Penney v The State of Western Australia;[35] Mikulic v The State of Western Australia;[36] and Milenkovski v The State of Western Australia.[37] Reference was also made to Al Rafei v The State of Western Australia.[38] All of those cases except Al Rafei involved offenders whose role was more significant than that of the appellant but where the quantities of drugs involved were lesser, in most cases significantly so. Some involved single counts and others multiple counts. The sentences imposed in those cases ranged from 8 years 6 months' imprisonment (for a single count) in Al Rafei to 17 years' imprisonment (being the total effective sentence for two counts) in the case of Milenkovski.
[32] Zanon v The State of Western Australia [2016] WASCA 91 [174].
[33] Ozan v The State of Western Australia [2013] WASCA 27.
[34] Neumann v The State of Western Australia [2013] WASCA 70.
[35] Penney v The State of Western Australia [2011] WASCA 71.
[36] Mikulic v The State of Western Australia [2011] WASCA 127.
[37] Milenkovski v The State of Western Australia [2014] WASCA 48.
[38] Al Rafei v The State of Western Australia [2017] WASCA 4.
We have also considered Chen v The State of Western Australia[39] and Chen v The State of Western Australia.[40]
[39] Chen v The State of Western Australia [2017] WASCA 99.
[40] Chen v The State of Western Australia [2017] WASCA 114.
Whilst many of the cases referred to are different in significant respects from that of the appellant, when viewed collectively they do not support a conclusion that the sentence imposed in this case is inconsistent with sentences imposed in other cases.
As to the seriousness of the offending in this case, the role of the appellant was at the lower end of the hierarchy, but he nonetheless played an important and willing part in the transportation of a very large quantity of drugs to Western Australia. His involvement was not brief, rather it continued over a period of some 5 days. The quantity and purity of the drugs were both very high and the value was estimated to be approximately $4 million.
It has not been demonstrated that the sentence imposed was so clearly wrong or unreasonable that error can be inferred. Indeed, the sentence imposed was plainly open given the serious nature of this offending conduct. In our view, on a proper exercise of the sentencing discretion a higher sentence might have been imposed, and Her Honour's sentencing of 9 years' imprisonment can fairly be described as lenient. The sentence imposed properly reflected the objective features of the offending, including the role played by the appellant, as well as his personal circumstances.
Leave to appeal in respect of ground 2 should be refused.

Conclusion

Neither of the grounds of appeal has a reasonable prospect of succeeding. Leave to appeal should be refused with the consequence that the appeal is taken to be dismissed. The orders are as follows:
(1)Leave to appeal refused.
(2)Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL
26 APRIL 2018