Brown v The State of Western Australia - [2008] WASCA 48

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BROWN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 48

CORAM: WHEELER JA
McLURE JA
MILLER JA

HEARD: 18 DECEMBER 2007

DELIVERED : 4 MARCH 2008

FILE NO/S: CACR 2 of 2007
CACR 49 of 2007

BETWEEN: HEATHER MICHELLE BROWN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 1645 of 2005

Catchwords:

Criminal law - Appeal - Conviction - Possession of cannabis with intent - Expert evidence - Police officer - Effects of cannabis

Criminal law - Appeal - Sentence - Turns on own facts

Legislation:

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

Result:

Appeals dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
Anderson v The Queen (1992) 64 A Crim R 312
Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403
Marchesano v The Queen [2000] WASCA 225; (2000) 116 A Crim R 237
Marinovich (1990) 46 A Crim R 282
Noble v The Queen [2003] WASCA 83
R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440
Wong v The Queen (2007) CLR 584

WHEELER JA: The appellant appeals against her conviction and sentence in relation to one count of possessing cannabis with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).

The background

The background to the appeals is as follows. On 26 May 2005, police officers drove past the appellant's residence and detected the smell of cannabis. They obtained a search warrant, entered the house and found two large black plastic bags. One of the bags contained over 8 kilos of cannabis head material. The other contained approximately 4 kilos of cannabis stem and leaf material. The cannabis was "wet", having been relatively recently harvested. The evidence was that, once dried, the weight of the cannabis would be reduced to about 25% of the original weight.
The evidence was that the appellant's garage contained a relatively sophisticated hydroponic set‑up. There were two cannabis plants in there and pots which did not at that time contain plants. The set‑up included pH testers, extractor fans, rollers underneath the pots, and lights at the side of the plants as well as at the top. The purpose of lighting in a hydroponic set‑up is to force the plants to grow faster.
A search of the appellant's home led police to $9,550 in $50 notes in the microwave. There was no cannabis in a usable state found in the house. Her evidence was that there were, however, "rollie" papers of the type used to roll tobacco or cannabis cigarettes.
The appellant was charged with her then partner, Mr Watson. He, at that time, occupied a different house and in his house there was also a hydroponic set‑up with characteristics similar to the set‑up at the appellant's house. Further, it was the evidence of the police that he had been seen carrying one of the bags of cannabis at the appellant's residence and that his hands appeared to have cannabis residue on them. The plants at his residence were not the subject of any counts in the indictment, but were the subject of evidence since it was suggested that he and the appellant had been, in effect, jointly engaged in a commercial enterprise involving both of their residences. He was acquitted at trial.
The appellant was also acquitted at trial of one count of cultivation of the two plants in the garage with intent to sell or supply, but convicted of the offence of cultivation of those plants.
It was the appellant's evidence that the cannabis was for her own use. She said that she was a person who liked to use cannabis and alcohol every night at the relevant time, and that she had been at that time a user of cannabis for over 20 years. She said that she used it in effect to "self‑medicate" since it stopped her thinking about things that depressed her. It was her evidence that she wished to have access to a large supply of cannabis so that she would not have to purchase any for a considerable time. She was planning, once the cannabis was dried, to either bury it in the garden or freeze it. She was not an experienced cannabis grower and had intended to produce only a large quantity, rather than any particular quantity. She said that the $9,550 in the microwave was payment which she had received, either as cash or as cash cheques, from her work as a self‑employed carpenter/renovator.
So far as the cannabis in the bags was concerned, it was the appellant's evidence that she had harvested it all from two plants which had been growing in the empty pots in the garage. The witness Howard, a police officer with considerable experience in relation to drug offences, said that in his view there was far too much cannabis in the bags to have been harvested from just two plants. So far as the leaf and stem material was concerned, the appellant said that she was going to throw that away and that you would not smoke it unless you were "desperate". Howard said that the leaf had some value, although the concentration of the active ingredient in the head or bud material was double or triple that in the leaf.
The appellant was 41 years of age with prior traffic convictions and one very minor disorderly conduct conviction. She was at the time of trial the mother of a 4‑month‑old child and had been a self‑employed carpenter/renovator for some years. There was evidence from a number of witnesses who regarded her as a person of good character.

The appeal against conviction

The sole ground of appeal relates to the admission of certain evidence of the witness Howard, in re‑examination. In order to put it in context, it is desirable to refer to the course of Mr Howard's evidence in some detail.
It appears that prior to trial the appellant and her co‑accused were on notice that the State proposed to lead, from Mr Howard, evidence to the effect that the quantity of cannabis found and the hydroponic set‑ups at the appellant's and at Mr Watson's houses indicated a cannabis‑producing enterprise of a commercial scale. There was a voir dire in relation to the admissibility of evidence of that kind.
At the voir dire, the evidence was that Howard had been for 17 years a police officer and 11 years a detective. He had gained considerable knowledge of cannabis from his 17 years of policing and described himself as having extensive knowledge "in respect of how cannabis is grown, how it's processed, how it's harvested, how it's used, how it is bought and also how it is sold". He had completed an accredited course in drug investigation and also a clandestine laboratory investigation course.
He also said that he had read reports and journals. However, the only example of a journal given was the Australian Police Journal and there does not appear to have been any evidence of a familiarity with refereed scientific material, much less a systematic study of such material. He also had a qualification, prior to his entry into the police force, in relation to electrical engineering; that was of some peripheral relevance because of the electrical components involved in, and heavy power usage required by, a hydroponic growing enterprise.
The learned trial judge ruled that it was open to Mr Howard to give evidence that the amount of cannabis found was ''way in excess'' of the needs of a user, and as to the relative sophistication of the hydroponic set‑up. That ruling is not the subject of appeal.
In evidence‑in‑chief, Mr Howard gave extensive evidence, which is also not challenged in this appeal, as to the difference between male and female plants, parts of the plants in which the highest concentration of active ingredient is found, the way in which cannabis is usually grown and sold, its preparation for sale, and sale prices. He also gave unchallenged evidence that a regular user of cannabis would use approximately 10 grams per week and that a heavy user could generally use about an "ounce" or 28 grams, per week. He qualified this evidence by saying that "it's extremely subjective. It could be higher or lower". Converting that to an annual amount, he agreed that a heavy user could use approximately 1½ kilos per year. That was plainly significant evidence, since the appellant had in her possession cannabis head material which, when dried, would have weighed somewhere in excess of 2 kilos. It was also his evidence that hydroponic cannabis plants would yield approximately 300 to 600 grams of dried cannabis bud per plant (so that the two growing plants would yield over a further ½ kilo). He explained in some detail why he regarded the hydroponic set‑up at the appellant's house as being a relatively sophisticated one, although not the best that he had seen.
Cross‑examined by counsel for the appellant, Howard explained how a person wanting to buy cannabis would go about doing so. He was asked:
[F]rom the experience you've had and the literature you've read and so on would you be able to summarise the sort of effect it is supposed to have or expected to have for the person who is actively seeking it out to use it? (ts 219)
His answer to that was that he was "stepping outside the bounds of [his] expertise". However, he was then asked "Have you spoken to police [sic: presumably, people?] who use it?" and agreed that he had. He was asked if he had had an indication from those sort of people why they used it and there was then some evidence, elicited by counsel for the appellant, about the sorts of effects that users said that cannabis had upon them. He was cross‑examined about the desirability of leaf as opposed to stem material and hydroponic as opposed to naturally grown material.
In re‑examination there occurred the evidence which is the subject of this appeal. Howard was asked:
[HENDERSON, MR:] Based upon your research and your expertise, if one were to smoke more than 28 grams per week regularly, as a regular user, what would the person be like?
BOWDEN, MR [Counsel for Watson]: I don't know whether, with respect, the witness has given evidence as to his expertise in the effects of cannabis. I thought his answers to my learned friend indicated that he wasn't .
YEATS DCJ:   Yes. Is this within your expertise, Mr ‑ ‑ ‑?‑‑‑I'm certainly aware of - in relation to excessive cannabis consumption and over a long period of time I'm certainly aware of how it affects people because I deal with some of those people.
I think I will allow him to answer the question based on that.
HENDERSON, MR: Thank you, your Honour.
YEATS DCJ:   So he's saying
HENDERSON, MR: I will ask some more specific questions, your Honour.
YEATS DCJ:   Yes.
HENDERSON, MR: If a person regularly consumed 28 grams per week as a regular user, could they hold down a job?‑‑‑Well, first of all, I'd consider them to be a heavy user if they were using that much cannabis. The cannabis would be affecting their whole life in relation to that amount of consumption. I would find it difficult that they'd be holding down a - some sort of full time employment with that level of cannabis and the problem you have is with the THC. It's not like alcohol, it doesn't get - it doesn't get processed by the body through the liver and disappear. It stays in fatty tissue and it stays there for a very long period of time. The more you smoke, the more that builds up, then it affects the person that's involved. I would consider that person - by law, they'd be incapable of driving a motor vehicle. I could give that evidence. In other words, they would be over a certain level that they couldn't operate machinery. They'd lie around the house all day.
Does that accord with your observations of Mr Watson on the video?‑‑‑I didn't see enough to form an - I don't think, to form an opinion. I thought - my opinion of him was he appeared normal.
In your view, if Mr Watson was smoking that amount of cannabis, would he be able to perform in complex employment?‑‑‑No, and another thing is that you'd notice a distinct change in his speech pattern of slurring of the words and speaking rather - like that, slowly, and I didn't detect that - and I'm talking about extended use. I'm talking over 10, 20 years, ounce a week.
You mentioned that you didn't get that much of a look of Mr Watson. How about the accused Brown?‑‑‑Of the same opinion for her. (ts 225)
The submission is made on behalf of the appellant that all of the evidence concerning the likely effects of long‑term cannabis use - the inability to hold down a job and to drive, and the likelihood of a person lying around the house all day - was evidence which Howard was not qualified to give.
The principle in issue in this appeal does not seem to be in dispute. In respect of the evidence of a detective, gained through the course of his lengthy experience with drug users, Wallwork J cited with approval, in Marchesano v The Queen [2000] WASCA 225; (2000) 116 A Crim R 237 [21] ‑ [22], the following passages from Anderson v The Queen (1992) 64 A Crim R 312 (at 324 ‑ 325, Olsson J):
As is pointed out by the learned author P Gillies, 'Law of Evidence in Australia' (2nd Edition 1991), at pp 377 to 379, whilst the classic field of expertise is that which relates to an organised branch of knowledge which is identifiable as a discipline in the social or physical sciences, fields of expertise, for the purposes of the law of evidence, are not so confined. A person may be viewed as relevantly being an expert in an area of skill or knowledge by virtue of nothing more than his or her practical experience in a field which may not necessarily have been reduced to organised, documented knowledge.
…
The courts have, in any event, long held that (as in Weal v Bottom) a person may be classified as having relevant expert status by virtue of formal training, or through mere practical experience or informal study in appropriate circumstances … the credentials required depend fundamentally on the field of expertise in question. The basic principle involved is that the person must, through knowledge, however acquired, have reliable knowledge and/or skill reaching beyond that in the possession of the trier of fact (generally see the comments of Young J in his article headed 'Quasi experts', contained in (1992) ALJ 379.)
Applying those principles to the present case, the operations of the market in illicit drugs, the method of cultivation of cannabis, and patterns of consumption, all appear to me to be capable of being viewed as an area of skill or knowledge in respect of which lengthy experience as a police officer investigating drug offences would result in an appropriate level of expertise for the purpose of giving expert evidence. The question in relation to the effect of cannabis seems to be whether Howard would have been able to be regarded as having "reliable" knowledge and/or skill. It would be my view that, in respect of some portions of that evidence which he gave, he could be regarded as having such knowledge or skill. There may be room for doubt in relation to others.
So far as the physiological effects of THC are concerned - that is, its storage in fatty tissue, and its build‑up over time - this does not appear to be a matter of experience, but rather an appropriate field for medical expertise, which Howard did not possess. While in that respect he went beyond his expertise in answering the question, that portion of the answer appears to be of no evidentiary significance, if considered apart from his answers about the practical effects of cannabis upon an individual. That is, the knowledge that THC builds up in fatty tissue, if it does so, would not have assisted the jury one way or the other in determining whether the appellant had the cannabis in the large bag solely for her own use.
The evidence that a person who regularly consumed 28 grams per week would be a "heavy" user seems to me to be evidence which a police officer, familiar with patterns of purchase and consumption, would be well able to give. It seems to me that it must also be open to a police officer who deals regularly with heavy users of cannabis to say that in his experience it was likely that such a person would speak in a slurred way. That is an objective sign capable of being observed by the police officer dealing with such a person.
Without more, I would have difficulty in accepting that a police officer would be able to give "reliable" evidence about the inability of a heavy user of cannabis to hold down a job, and the likelihood of such a person doing no more than lying round the house all day. Evidence of that kind can only be based upon repeated hearsay. While expert evidence may often include some elements of hearsay (as was pointed out, in the context of evidence relating to illicit drug use, in Marinovich (1990) 46 A Crim R 282; at 301 per Malcolm CJ and Kennedy J), it seems to me that questions about the reliability of such evidence may well arise in relation to the experience of a police officer. Police officers, necessarily, deal with only a particular segment of the cannabis‑using population, being the segment which is the subject of investigation and charge. It is possible that that segment of the cannabis‑using population is, for reasons which are not necessarily related to their cannabis use, the less organised, and perhaps less intelligent, section of that population. More importantly, there is a motivation for those persons who are arrested by police for cannabis‑related offences to exaggerate the extent of their dependence and of their disorganisation. It is likely to be generally known in the illicit drug‑using population that, for sentencing purposes, it is better to be seen as a hapless and disorganised addict than as a person who, clear‑sightedly and in a premeditated way, seeks commercial advantage from the distribution of drugs. In that context, it is at least possible that a number of those who tell police that they are unable to do anything more than "lie around the house all day" are not being truthful.
Although I have some reservations about Mr Howard's expertise in relation to the effect of long‑term cannabis use in the respects indicated, it does not appear to me, however, in the context of this trial, that the learned trial judge was in error in admitting the evidence the subject of complaint.
The questioning of Mr Howard by counsel for this appellant assumed that he had expertise about the reasons why people used cannabis, and about the sorts of effects likely to be subjectively experienced by cannabis users. Although those questions related to shorter term rather than longer term effects, the point is that both the cross‑examination by the appellant's counsel and the re‑examination dealt with the subjective experiences of a cannabis user. The evidence in cross‑examination and in re‑examination cannot, in my view, be relevantly distinguished. The appellant's counsel sought to rely upon the witness' expertise in the line of cross‑examination which she pursued. Although the addresses of counsel are not before us, it appears from her Honour's direction to the jury, that counsel for the appellant had referred to Mr Howard as a "cautious and careful expert".
Further, although there was an objection by counsel for the co‑accused, raising the question of Howard's expertise in relation to the effects of use at a level of more than 28 grams per week, there was no objection by counsel for the appellant. Counsel for Watson's objection was not pressed by reference to any of the considerations I have mentioned, so that Howard's expertise was not completely explored. There was no application for the reopening of cross‑examination, and no suggestion that the re‑examination did not arise out of matters dealt with during cross‑examination.

In summary, it is my view that the evidence given by Howard, to which objection is taken on this appeal, is capable of being the subject of expert evidence. Counsel for the appellant at trial sought to establish Howard's expertise in this area and to rely upon it. While there may be reasons to consider that a fuller investigation of the basis of Howard's expertise might have led to a view that he was not qualified to go so far as he did in giving evidence about the reasons for use of cannabis and the effects of cannabis use, that further examination did not occur. I would therefore dismiss the appeal against conviction.

The appeal against sentence

The appellant was sentenced to 2 years 5 months' imprisonment with parole eligibility.
So far as the appeal against sentence is concerned, there are four grounds of appeal. Only one in my view has any substance. I refer first to the three which do not.
Ground 1 contends that her Honour was in error in failing to suspend the sentence of imprisonment, having regard to a variety of factors including the appellant's previous good character and work history, her role as the sole carer of an infant son, her history of depressive illness and her personal history of cannabis use. There is a misstatement in the assertion in this ground that the appellant was the "sole carer" of an infant son. The co‑accused Watson was the son's father and there was nothing before the learned sentencing judge to indicate that he would be unable properly either to care for the child or to make appropriate arrangements for the child's care while he was at work. The appellant was at the relevant time breastfeeding the child, it appears, but the information before her Honour was to the effect that it was likely that the appellant and her child would be able to be together for at least some part of the appellant's sentence while the appellant was in prison.
There was nothing to suggest that the appellant's depressive illness and physical injury, to the extent that there was material concerning them before her Honour, had played a part in the appellant's decision to possess cannabis for sale, rather than her decision to use cannabis for her own purposes. Her previous good character and work history were of course relevant, although the weight to be afforded them in the context of a commercial decision to possess cannabis for sale was necessarily limited.
The short answer to ground 1, then, is that, while all of the matters referred to in the particulars to that ground (save for the likely forfeiture of the appellant's property) were relevant matters to take into account in mitigation, they neither individually nor collectively were such as to suggest that suspension of the sentence of imprisonment was open, let alone required.
Ground 4 raises a matter which is also referred to in the particulars to ground 1, it being an assertion that her Honour erred in failing to find, on the balance of probabilities, that the appellant's assets which were liable to forfeiture had been lawfully acquired by her. Her Honour had warned counsel for the appellant that she had formed an adverse view of the appellant's credibility, and that she would require evidence before she would consider forming a view that the two houses in question had been lawfully acquired. There were some income tax returns put before her Honour. They did not reveal a particularly high level of income. Her Honour doubted whether the level of income would have been sufficient to support mortgage payments on the two properties, at the same time as the appellant had also apparently managed to set aside some $67,000 in an investment account. There was no reason, based on the materials before her, to consider that her Honour must inevitably have been persuaded that the property to be forfeited was lawfully acquired. It was open to her to reach the conclusion, as she apparently did, that it was likely that at least some part of it was acquired through the use of drug‑related moneys.
By ground 3, it is submitted that her Honour was in error in forming the conclusion that the appellant was not a heavy user of cannabis. It is then asserted that "consequent upon that error, [her Honour] erred in not sentencing the appellant on the basis that some of the cannabis would have been for personal use". The latter part of this ground does not follow from the former. It does not appear to me that her Honour rejected the proposition that some of the cannabis would have been for the appellant's personal use. Based on the verdict of the jury, her Honour was required to sentence on the assumption that at least some portion of the cannabis was being possessed for sale or supply. The exact proportion to be used by, as opposed to supplied by, the appellant, could never be known. It was open to her Honour, based on the whole of the evidence, to form the view that the appellant was a cannabis user but was not a user to the extent that she had asserted in her evidence, so that it was likely that a very significant proportion of the amount which she possessed would eventually be destined for others. In any event, there would be only a marginal difference to the sentence if a very significant proportion of it were to be used by the appellant personally.
The only ground which has any substance is ground 2, which is an assertion that the sentence is manifestly excessive having regard to the amount of cannabis, the appellant's personal circumstances and the overall scale of the enterprise in which she was involved.
Her Honour obviously gave careful consideration to the sentence, and referred to all relevant factors during her sentencing remarks. The only aspect of them which causes me concern is the emphasis on the quantity of the cannabis. The quantity of cannabis is relevant because the mischief at which the Misuse of Drugs Act is aimed is of course the ultimate distribution and consumption of prohibited drugs within the community. It can be presumed that the greater the quantity, the more widespread the consequences of such distribution and therefore the greater the culpability of the distributor. That is why, for example, courts often distinguish between what are called "backyard" and "commercial" enterprises.
In the present case, her Honour referred to the "extraordinarily large" amount of cannabis at one point in her sentencing remarks, to the "very large quantity" at another, and to the "large quantity" at another. However, looking at cannabis cultivation and possession cases, it appears that this is by no means an extraordinarily large quantity. So far as I can discern, quantities of approximately 1 to 5 kilograms of dried material are significant, but cases dealing with much larger quantities can be found. For example R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440 concerned a quantity of almost 8 kilograms. The sentence imposed in that case was equivalent to only 1 year 8 months after converting it to take account of the transitional provisions. Although it followed a fast‑track plea, the offence was committed solely for profit and both offenders had criminal histories. A significantly greater quantity of material could also have eventually been harvested in Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403, since there were in that case 109 plants, all being cultivated in what was effectively an entire house devoted to a hydroponic cannabis factory. The sentence imposed in that case, following a plea of guilty, would have been equivalent to 4 years, after the application of the transitional provisions. It should be noted however, that in Day, both Steytler and Miller JJ were of the view that it was appropriate to "firm‑up" sentences relating to the cultivation or possession of significant quantities of cannabis for commercial gain.
Of the later cases (that is those which post‑date Day), the appellant refers to Noble v The Queen [2003] WASCA 83 and Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186. In the first of those two cases, Noble was convicted after trial of two counts of cultivation with intent to sell or supply, one relating to a "grow house". He was 51 years of age and had no prior convictions. The quantities of plants were 48 plants and 36 plants in each of two places, as well as what was referred to as 850 grams of "rubbish". For that cultivation on a moderate commercial scale, he received a total effective sentence of 2 years' imprisonment. Abbott was sentenced after trial for possession with intent to sell or supply 2.2 kilos (apparently already dried) almost precisely the amount which would have resulted from the head material which the appellant would have achieved from the "wet" cannabis in her possession. He had, at the time of the commission of the offence, been on a suspended sentence for cultivation with intent and had another prior conviction for possession with intent. He received a sentence of 2 years for the possession with intent of the 2.2 kilograms, and was required to serve 8 months of the suspended sentence for cultivation with intent.
It can be seen that the sentence of 2 years 5 months imposed upon the appellant is more severe than that imposed upon either of Noble or Abbott, although their offences involved somewhat larger quantities of cannabis and, in Abbott's case, there was less available to him by way of mitigation for previous good character.
Even accepting that her Honour properly formed a view adverse to the appellant concerning her credibility, so that it was likely that a very significant portion of the cannabis which she had would be sold or supplied to others, it appears to me, with respect, that her Honour erroneously considered the enterprise to be one of a very large commercial operation, rather than a middle range operation (albeit one involving reasonably sophisticated equipment). I would for that reason

allow the appeal, and would substitute for the sentence of 2 years 5 months' imprisonment, one of 2 years' imprisonment.

I do not intend of course to indicate that a sentence of 2 years is the most which can be imposed in respect to even a moderate sized enterprise of cannabis production and/or sale. In this case, it is a sentence which takes account of the appellant's previous good character, her rehabilitation (to the extent of abstaining from cannabis for a considerable time at the date of trial) and the effect of her imprisonment upon her child, in that either she will be caring for her child in the more difficult surroundings of a prison, or she will be separated from the child for a time.
I would allow the appeal, set aside the sentence imposed by her Honour in respect of the offence of possession with intent to sell or supply, and impose in lieu thereof a term of 2 years' imprisonment backdated to 1 December 2006, with eligibility for parole.

McLURE JA: I would dismiss the appeal against conviction for the reasons given by Wheeler JA. I agree with Miller JA for the reasons he gives that the sentence is not manifestly excessive and that the appeal against sentence should also be dismissed.
MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Wheeler JA. I agree with Wheeler JA that the appeal against conviction should be dismissed.
Wheeler JA has concluded that the appeal against sentence should be allowed and the sentence of 2 years 5 months' imprisonment should be quashed and a sentence of 2 years' imprisonment imposed in lieu.
There were four grounds of appeal against sentence. I agree with Wheeler JA that grounds 1, 3 and 4 should be dismissed. I regret that I am unable to agree with Wheeler JA that ground 2 should be allowed because the sentence of 2 years 5 months was manifestly excessive in the circumstances.
Wheeler JA considers that the trial judge over‑emphasised the quantity of cannabis which was involved in this case. The trial judge referred to the quantity as 'extraordinarily large' and '[a] very large quantity'. Wheeler JA is of a view that, by comparison with other cases, it was not an extraordinarily large quantity. Her Honour says that quantities of approximately 1 to 5 kilograms of dried material are significant, but there are cases in which much larger quantities have been involved.

Reference is made in Wheeler JA's reasons to a number of cases. One is Day v The Queen [2001] WASCA 284, where 109 cannabis plants were found in a house which was being used for the unlawful cultivation of cannabis by a hydroponic method. The plants were been tended with scientific precision. Seedlings were reticulated and there were banks of overhead lights which had been installed to encourage and accelerate the growth of the plants. It was described by Kennedy J (with whom Steytler and Miller JJ agreed on this point) as 'literally a factory for the cultivation of cannabis on a commercial scale'.
The appellant was sentenced to imprisonment for 6 years, being a reduction from a 'starting point' of 8 years. The reduction took account of the appellant's plea of guilty and 'the issue of the care of [the appellant's] son'. Kennedy J (with whom Steytler J agreed) considered that the 'starting point' for the sentence should have been one of 5 years, from which there should have been a deduction of 1 year for the plea of guilty and small allowances for remorse and delay. A further deduction of 6 months was made 'having regard to the need of [the appellant's] child'. The ultimate sentence imposed was, thus, 3 years 6 months. This was prior to the application of the transitional provisions contained within the Sentencing Legislation Amendment and Repeal Act 2003 (WA) and today represents a sentence of 2 years 4 months' imprisonment.
The process by which the sentence was reviewed is no longer the appropriate basis upon which to sentence. That is, 'starting points' and precise discounts for pleas of guilty, and other mitigating factors, are today inappropriate: Wong v The Queen (2007) CLR 584, particularly per Gaudron, Gummow and Hayne JJ, [76].
In Day, Steytler J said:
I would add only one comment in relation to the second ground of appeal, which refers to the range of sentences commonly imposed for offences of this nature. This Court has, more recently, taken a more serious view of the threat which the trade in cannabis poses than has previously been the case. (See Kennedy v R, unreported; CCA SCt of WA; Library No 980145; 3 April 1998, per Malcolm CJ at 13 and 14). That fact, together with the increasing prevalence of commercial trafficking in cannabis, requires that there be some firming up of the sentences imposed on offenders who fall into the category of drug traffickers. (See R v Lyon [2001] WASC 120, per Anderson J at par 36, with whom the other members of the Court were in agreement). That being so, it should not be assumed that the existing range of sentences continues to provide a reliable guide. [38]
I agreed with those observations (at [45]). Although I was prepared to allow the appeal and reduce the sentence, I was not prepared to reduce it below 4 years 6 months' imprisonment. After application of the transitional provisions, that would be a sentence of 3 years' imprisonment.
Other cases to which Wheeler JA has made reference are Noble v The Queen [2003] WASCA 83 and Abbott v The State of Western Australia [2005] WASCA 42, in which cases sentences of 2 years' imprisonment were imposed on two counts of cultivation with intent to sell or supply and 2 years for possession with intent respectively. Wheeler JA thus thought that the sentence of 2 years 5 months imposed upon the appellant was more severe than the sentences imposed upon either of Noble or Abbott, notwithstanding that their offences involved somewhat larger quantities of cannabis and, in one case, there was less available to the offender by way of mitigation than there was available to the appellant.
Noble's case was one in which 48 cannabis plants were found to be growing hydroponically in a bedroom cupboard in the appellant's house. Thirty‑six cannabis plants were being grown hydroponically in another property where the appellant had set up paraphernalia associated with the cultivation of cannabis. There were 850 grams of cannabis material also found at that location, although the sentencing judge accepted the proposition that most of it could be described 'colloquially as "rubbish"'. The effective sentence of 2 years' imprisonment was considered to be within the appropriate range. Wheeler JA referred (at [17]) to Day and to the observations in that case that sentences for cultivation of cannabis by hydroponic means should be significantly firmed‑up. Her Honour appreciated that the circumstances in Day were different from those in Noble and involved a much more serious type of cultivation. It does not therefore seem to me that the decision in Noble really influences the outcome of the present case.
Abbott was an appeal against the severity of a sentence of 2 years 8 months' imprisonment imposed for possession of cannabis with intent to sell or supply (2 years) and 8 months' imprisonment (cumulative) in relation to a suspended sentence of imprisonment previously imposed in October 2001. A total of 2,232.07 grams of cannabis were involved. There were different quantities of cannabis found in different parts of the appellant's house. It does not appear to have been a case in which the appellant was responsible for the cultivation of cannabis. It was the earlier suspended sentence imposed in October 2001 which related to cultivation. The effective sentence of 2 years 8 months' imprisonment was said by Roberts‑Smith JA (with whom Steytler P and Pullin JA agreed) (at [129]) to be in no way disproportionate to the appellant's overall criminality, particularly having regard to the fact that the appellant had two prior convictions for similar offences and, at the time of commission of the offence in December 2002, he was subject to a suspended sentence of imprisonment. I do not see the case as particularly relevant to the appellant's situation.
The fact is that in Day it was made clear that the trade in cannabis is a serious threat to society and the increase in prevalence in commercial trafficking in cannabis is such that firming‑up of sentences is called for. In those circumstances, I find it difficult to see how the sentence of 2 years 5 months' imprisonment imposed on the appellant in the present case can be said to be manifestly excessive.
The appellant's cultivation of cannabis was substantial. In general terms, the larger the quantity of cannabis involved, the higher the offender's level of participation in the cultivation and the greater the offender's knowledge and expectations of reward, the higher the sentence will be (see Wong per Gaudron, Gummow and Hayne JJ at [64] (observations relating to importation, but equally applicable to cultivation)). The appellant's operation was undoubtedly commercial and the value of the hydroponic head material which was seized by police was between $50,000 and $70,000 if sold by the gram and over $28,000 if sold by the ounce. Further, the appellant had $57,000 in cash, which, in all the circumstances, left open the inescapable inference that it was derived from the sale of large quantities of cannabis. She was considered to have a high level of knowledge, experience and ability in relation to the cultivation of cannabis.
Notwithstanding such matters as could be said in her favour, the appellant was involved in an enterprise of production and sale of cannabis of a substantial quantity. A sentence of 2 years 5 months' imprisonment was well within the range of sentences that she could have expected and I do not consider that it could be said to be manifestly excessive. I would therefore dismiss the appeal against sentence.