Bui v The State of Western Australia
[2019] WASCA 186
•21 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BUI -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 186
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 14 NOVEMBER 2019
DELIVERED : 21 NOVEMBER 2019
FILE NO/S: CACR 59 of 2019
BETWEEN: VAN THANH BUI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BOWDEN DCJ
File Number : IND 2273 of 2018
Catchwords:
Criminal law - Sentencing - Cultivation of cannabis with intent to sell or supply to another - Possession of cannabis with intent to sell or supply to another - Whether total effective sentence of 4 years 6 months' immediate imprisonment infringes the first limb of the totality principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 7(1)(a)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | D N Ryan |
| Respondent | : | L M Fox |
Solicitors:
| Appellant | : | Chelmsford Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ha v The State of Western Australia [2019] WASCA 69
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Kabambi v The State of Western Australia [2019] WASCA 44
Lester v The State of Western Australia [2011] WASCA 128
My v The State of Western Australia [2018] WASCA 1
Nguyen v The State of Western Australia [2017] WASCA 195
Rillotta v The State of Western Australia [2017] WASCA 55
Roffey v The State of Western Australia [2007] WASCA 246
Tran v The State of Western Australia [2016] WASCA 37
Trompler v The State of Western Australia [2008] WASCA 265
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
JUDGMENT OF THE COURT:
Summary
On 18 April 2019, the appellant was convicted on his pleas of guilty of:
(1)one count of cultivating a prohibited plant, namely cannabis, with intent to sell or supply it to another; contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act); and
(2)one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another; contrary to s 6(1)(a) of the Drugs Act.
The offences involved the operation of a cannabis grow house in which 237 cannabis plants were under cultivation, and the possession of a total of 16.57 kg of cannabis material packaged into 37 one pound bags ready for sale.
The appellant was sentenced to 3 years' immediate imprisonment for the cultivation offence and 18 months' immediate imprisonment for the possession offence. The sentences were ordered to be served cumulatively, so that the total effective sentence was 4 years 6 months' immediate imprisonment. The sentences were backdated to commence on 4 September 2018, to take account of time spent in custody.
The appellant now appeals against his sentence on the sole ground that the total effective sentence of 4 years 6 months' imprisonment infringes the first limb of the totality principle. He does not challenge the sentences for the individual counts, or the conclusion that sentences of immediate imprisonment were the only appropriate sentencing option.
For the following reasons, while leave to appeal should be granted, the ground is not established and the appeal should be dismissed.
Circumstances of offending
At 12.15 pm on 4 September 2018, officers of the Organised Crime Squad executed a search warrant at a house in Hilbert, apprehending the appellant and his co‑accused in the process. The house had been converted into a large scale sophisticated cannabis grow house. Seven rooms had been converted to cannabis grow rooms and contained grow lights, transformers and extractor fans. Electricity had been bypassed to the house. A total of 237 cannabis plants, the subject of the cultivation charge, were under cultivation. Many of the plants were mature and in the late stages of growth.[1]
[1] Primary ts 11, 21.
Police located 37 one pound (454 g) bags of packaged cannabis material, weighing a total of 16.57 kg, in the lounge room of the house. This packaged cannabis was the subject of the possession charge.[2]
[2] Primary ts 12, 20.
The appellant's role was to water and fertilise the plants, cut them, dry them and package them into one pound bags. The appellant was paid $15,000 - $20,000 for each crop, which was grown over a three month period. He was also responsible for giving instructions to his co‑accused. It was not suggested that the appellant had set up the grow house, had organised the scheme or was the main person to benefit from it. The appellant was a paid worker who had an important role in the cultivation and possession of the cannabis.[3]
[3] Primary ts 12 - 13, 20 - 21.
Personal circumstances
The appellant was 28 years old at the time of sentence. He had no prior convictions. He was born in Vietnam and came to Australia in 2009. He was an Australian citizen at the time of sentence and was married to a woman with whom he had two young children. The appellant had worked as a stone mason in Sydney and worked as a baker for a period of time after moving to Perth.[4]
[4] Primary ts 14, 20 - 21.
In 2018, the appellant's parents-in-law became ill and required surgery in Vietnam. The appellant felt under pressure to try to find money to fund that surgery. He attended a casino for that purpose, and was approached by someone who offered him work at the grow house.[5]
[5] Primary ts 14, 20 - 21.
Sentencing judge's approach
The sentencing judge allowed a discount of 25% under s 9AA of the Sentencing Act 1995 (WA) for pleas of guilty entered at the first reasonable opportunity.[6]
[6] Primary ts 20.
The sentencing judge said that he did not consider it necessary to impose a sentence that would deter the appellant, as he had no criminal record and was not likely to be involved in any future offending. His Honour also saw the appellant as having good prospects of rehabilitation. However, the sentencing judge said that the offence was so serious that imprisonment was appropriate, observing:[7]
The whole aim of the law is to stop people from cultivating and possessing cannabis. And you were prepared to be involved in that for no other reason than to make money for yourself. It was a large scale operation and the law must send a clear message to people, not to be involved in the possession and cultivation of cannabis.
In my view, what's relevant here is the total sentence to be imposed, must adequately reflect the criminality in the offending and in your personal circumstances, and should be no more than is needed to achieve just punishment, retribution and deterrence. Because I'm going to order the sentences to be served cumulatively, I have reduced both sentences below what I would otherwise have imposed.
[7] Primary ts 21 - 22.
The sentencing judge then imposed the sentences referred to above.
General principles
McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[8]
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)
[8] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
The following general principles are also well established:[9]
(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 a sentencing discretion differently.
(2)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 in comparable cases reveal and reflect.
(3)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.
(4)The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.
[9] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Appellant's submissions
The appellant's submissions in support of his ground focus on this court's decision in Ha v The State of Western Australia.[10]
[10] Ha v The State of Western Australia [2019] WASCA 69.
Ha concerned a 50-year-old offender with prior good character who was apprehended at a cannabis grow house in which 112 potted cannabis plants (67 mature and 45 immature) and 29.8 kg of cannabis buds were seized. Like the appellant, the offender was convicted of cultivating and possessing cannabis with intent to sell or supply to another. Similarly to the appellant, the offender was born in Vietnam, he was married with a young child and he took part in the criminal activity when in financial difficulty. The offender in Ha worked in cultivating the cannabis for three to four weeks before being apprehended, and was engaged in packaging the cannabis for sale to others when apprehended. He was to be paid $500 per week for doing so, but was never actually paid for the work. He pleaded guilty and received a discount of 20% for early pleas of guilty under s 9AA of the Sentencing Act.
Mr Ha received a total effective sentence of 5 years' immediate imprisonment. He appealed to this court on totality grounds. This court upheld the appeal and reduced the total effective sentence to 3 years 3 months' immediate imprisonment.
The appellant submits that his case was comparable to that of Ha, in that he was a paid employee who was not at the very top of the cultivation and distribution enterprise. He submits that the total effective sentence of 4 years 6 months' immediate imprisonment is unreasonable and plainly unjust, so that error is to be inferred in the exercise of the sentencing judge's sentencing discretion.
Disposition
There are similarities between the present case and Ha. The antecedents of the offenders are broadly similar, as is the scale of the cannabis growing operations. While the offender in Ha was involved in cultivating about half as many plants as the appellant, the offender in Ha was in possession of about twice the amount of packaged cannabis. However, the role played by the appellant in his cannabis growing operation was greater in several respects than the role of the offender in Ha. First, the appellant assumed what was, to some extent, a managerial role in the operation. The appellant gave instructions to his co-accused. Although there was no specific factual finding made by the sentencing judge, the common position of the parties in the appeal was that the appellant paid the co-offender for his work. The appellant was not at the lowest level of the hierarchy of the organisation conducting the operation. Secondly, the appellant's involvement in the operation ranged over months rather than weeks. Thirdly, while the appellant was not the main beneficiary, his expected level of reward was in the range of $15,000 - $20,000 per crop. He therefore had a much greater financial stake in the crop than the offender in Ha. The greater role played by the appellant in the cannabis growing operation leads to the view that his overall criminality was greater than that involved in Ha, having regard to all of the circumstances of both cases.
It is also a mistake to focus only on the circumstances in one decision. A single case or indeed a small number of cases cannot establish the range of sentences customarily imposed nor the appropriate range.[11] However, the general sentencing patterns in the other cases discussed in Ha are relevant, bearing in mind that the consistency which is sought in a sentencing appeal is consistency in the application of relevant legal principles, not some numerical or mathematical equivalence.[12]
[11] Trompler v The State of Western Australia [2008] WASCA 265 [37].
[12] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [18], [47] - [49].
In Ha this court referred to decisions in Rillotta v The State of Western Australia,[13] Nguyen v The State of Western Australia,[14] and My v The State of Western Australia[15] as involving:[16]
[T]he imposition of total effective sentences of 5 - 6 years, or more, on offenders convicted of multiple offences of cultivating cannabis or selling or supplying cannabis or possessing cannabis with intent to sell or supply, who were involved at the upper end of cannabis growing or distribution enterprises, or in the cultivation and distribution of very large quantities of cannabis for commercial purposes.
[13] Rillotta v The State of Western Australia [2017] WASCA 55.
[14] Nguyen v The State of Western Australia [2017] WASCA 195.
[15] My v The State of Western Australia [2018] WASCA 1.
[16] Ha [36].
This court in Ha referred to a review of cases in Lester v The State of Western Australia,[17] as providing an indication of the range of offences committed at the lower end of the scale:[18]
Generally speaking, that review indicated that sentences for the cultivation of cannabis involving modest numbers of plants or seedlings, or possession of amounts of cannabis head or other loose cannabis material in the order of between 2 kg and 8 kg, tended to fall within a relatively narrow sentencing range of 1 year and 4 months', and 2 years and 8 months', immediate imprisonment.
[17] Lester v The State of Western Australia [2011] WASCA 128.
[18] Ha [37].
This court in Ha later said that:[19]
Ordinarily at least, the proper exercise of the sentencing discretion in respect of offenders whose criminality is regarded as greater than that of mere 'gardeners', but who are not at the very top of a cultivation and distribution enterprise, might be expected to result in a sentence located along the scale between the range of sentences for those two extremes.
[19] Ha [40].
However, as this court noted in Ha,[20] and as was emphasised in Lester,[21] the range of sentences customarily imposed does not establish the range of a sound sentencing discretion. Further, as McLure P observed in Lester, in a passage endorsed by later decisions:[22]
The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.
Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need.
[20] Ha [37].
[21] Lester [23].
[22] Lester [21] - [22]; Rillotta [21] - [22].
In Rillotta, this court endorsed the following observations made in Tran v The State of Western Australia: [23]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. 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, but they are not completely irrelevant.
This court then identified the factors which inform an assessment of the overall criminality involved in a series of commercially driven drug offences as including the quantity of drugs involved, the offender's knowledge about the drugs involved, the offender's role in the operation and the reward which the offender anticipated receiving.[24]
[23] Rillotta [33], quoting Tran v The State of Western Australia [2016] WASCA 37 [29].
[24] Rillotta [34], citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [64].
In the present case, the quantity of cannabis involved was significant (237 plants and 16.57 kg of packaged cannabis material). The appellant knew very well what was involved in the cannabis growing operation, and he managed the cultivation and packaging of the crop, providing instructions and making payment to his co-offender. The appellant received a significant reward ($15,000 - $20,000 per crop) for his participation in a crucial role in the operation.
Having regard to the maximum penalties for the offences of which the appellant was convicted, the customary sentencing standards discussed in Ha, the appellant's pleas of guilty at the earliest opportunity, his prior good character and his prospects for rehabilitation, the sentence imposed in this case may be regarded as high. However, particularly having regard to the whole of the appellant's conduct and his financial stake in the operation, in our view, the length of the total effective sentence does not reach the point of being unreasonable or plainly unjust. In our view, the ground of appeal is not established.
Orders
For the above reasons, we would make the following orders:
(1)Leave to appeal is granted on the sole ground of appeal.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell21 NOVEMBER 2019
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