Tago v. The state of western australia

Australia

02.05.2018

Criminal

Sentencing is a discretionary exercise; an Appellate Court can intervene, only if, Appellant demonstrates either an express or implied material error

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 Section 6(1)(a) of the Misuse of Drugs Act 1981. 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'.

Knowledge on the part of an offender may be inferred from the surrounding circumstances. The word 'significant' is a relative term and its meaning can vary according to the context. In the present context, it is apparent that, Judge 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.

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.

The general principles applicable to appeals on grounds that, a sentence is manifestly excessive are well established. They were summarised recently in Gaskell v The State of Western Australia, holding that, 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. A ground of appeal alleging that, a sentence is manifestly excessive asserts an implied error.

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.

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. 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.

Tags : Offence Knowledge Sentence Quantum

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