CHENG-PIN v The State of Western Australia - [2025] WASCA 104

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHENG-PIN -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 104
CORAM:   MAZZA JA
VAUGHAN JA
HALL JA

HEARD:   15 MAY 2025
DELIVERED          :   7 JULY 2025
FILE NO/S:   CACR 58 of 2024
BETWEEN:   HUNG CHENG-PIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WALLACE DCJ
File Number            :   IND 279 of 2023

Catchwords:

Criminal law - Appeal against sentence - Drug offences - Possession and cultivation of cannabis - Large scale commercial operation - Appellant a worker with some responsibility acting as an intermediary with principals - Whether sentence for cultivation manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 41(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 7(1)(a), s 34(2)(a)(i)
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2, 3 and 4
Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	E Zillessen
Respondent	:	J Whalley SC

Solicitors:

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

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

Greenfield v The State of Western Australia [2019] WASCA 29
Harvey v The State of Western Australia [2017] WASCA 149
Lee v The State of Western Australia [2019] WASCA 137
Lyons v The State of Western Australia [2022] WASCA 81; (2022) 100 MVR 420
Nguyen v The State of Western Australia [2021] WASCA 198
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32
Truong v The State of Western Australia [2020] WASCA 177

JUDGMENT OF THE COURT:

On the morning of 5 January 2023, police executed a search warrant at a rural property in Kokeby, near Beverley.[1] A large commercial cannabis growing operation was discovered. The operation included tents set up as hydroponic greenhouses and a drying shed. Many cannabis plants and a large quantity of dried cannabis was seized.[2] The appellant and four other men were arrested and charged for their involvement with the plantation.
[1] ts 38.
[2] ts 39 - 40.
The appellant was subsequently convicted on his pleas of guilty of one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (count 1); and one count of cultivating a prohibited plant, namely cannabis, with intent to sell or supply contrary to s 7(1)(a) of the Misuse of Drugs Act (count 2).[3] The maximum penalty for each of those offences is 10 years' imprisonment or a fine not exceeding $20,000 or both.
[3] WAB 31.
The appellant was sentenced to 20 months' imprisonment on count 1, and 6 years 2 months' imprisonment on count 2.[4] Those terms were ordered to be served cumulatively. Accordingly, the total effective sentence was 7 years 10 months' imprisonment.[5] The appellant seeks leave to appeal against his sentence.
[4] ts 140.
[5] ts 142.
The appellant was sentenced on 1 February 2024. The last day for appealing was 22 February 2024. The appeal notice was not filed until 19 July 2024 and, thus, an extension of time is required. An affidavit from the appellant's counsel explains the delay as largely being due to her work commitments, illness and annual leave.[6] This does not explain the whole of the delay but, unsatisfactory as the explanation is, that part of the delay is not attributable to the appellant but rather to his counsel. However, an extension can also be granted if not to do so would result in a miscarriage of justice. Thus, whether an extension should be granted depends on the merits of the appeal.
[6] WAB 4 - 5.
There are four grounds of appeal.[7] The first ground alleges that the sentence of 6 years 2 months' imprisonment imposed for count 2 is manifestly excessive. The second ground alleges that the total effective sentence of 7 years 10 months' imprisonment is disproportionate to the overall criminality. The third ground alleges that the sentencing judge erred in fact by making an adverse finding that the appellant was more criminally culpable than one of his co‑offenders. The fourth ground alleges that the total effective sentence imposed on the appellant breached the parity principle when compared to sentences imposed on two of the other co‑offenders.
[7] WAB 7.
For the reasons that follow, we are satisfied that the sentence on count 2 was unreasonable or plainly unjust. This outcome means that ground 1 succeeds and the appeal must be allowed, and the appellant must be resentenced. In these circumstances, it is unnecessary to determine grounds 2 and 4. Ground 3 fails because the impugned finding was a characterisation of the seriousness of the offence, rather than a finding of fact.

The facts

At about 10.45 am on 5 January 2023, police executed a search warrant at a rural property in Kokeby (the property).[8] The property consists of open fields, a dwelling and several sheds. The appellant and four other men, Karwai Lau (Lau), Tony Kittu (Kittu), Kaki Ko (Ko) and Kam Soo (Soo) were present at the property at the time of the search. All were arrested and interviewed, with the assistance of interpreters.[9]
[8] ts 38.
[9] ts 38.
Police searched a shed on the property and found several large drying racks, which contained a significant quantity of cannabis head material that was being dried by industrial fans.[10] Dried cannabis head material was also found in and around the house. Police seized 134.82 kg of cannabis from the drying shed, 2.496 kg of cannabis from a room in the house, and 154.93 g of cannabis from a patio area.[11] The total amount of dried cannabis head material was 137.5 kg.[12] This was the subject of count 1 on the indictment,[13] the charge of possessing a prohibited drug, namely cannabis, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act.
[10] ts 39.
[11] ts 39.
[12] ts 39.
[13] WAB 47.
Police followed a gravel track to the rear of the property and there located six large tents.[14] The tents had been converted to greenhouses for the purpose of growing cannabis. The tents were serviced by a generator and a hydroponic system. Police seized 2,023 cannabis plants from the tents.[15] Tents 1 ‑ 3 contained large mature plants. Tent 1 had 251 plants; tent 2 had 241 plants; and tent 3 had 234 plants. Each of those tents was lit with 30 fluorescent lights. Tent 4 had 1,297 smaller juvenile plants lit with 32 LED lights. Tent 5 contained empty planter pots. Tent 6 appeared to have fire damage and contained no plants.[16] Various containers of fertiliser and several large water containers were located nearby.
[14] ts 40.
[15] ts 40.
[16] ts 40.
The estimated value of the dried cannabis head material was approximately $1.26 million. The estimated value of the 2,023 plants and seeds was $4.427 million. Accordingly, the total combined value of the cannabis head material and plants was $5.69 million.
Mobile telephones were seized from the appellant, Lau, Kittu, and Soo. On analysis, those mobile telephones were found to contain photographic images of cannabis plants and video recordings of the operation.[17] A video recording on the appellant's mobile telephone showed the appellant constructing a framework for a tent and a photograph taken on 20 June 2022 depicted the cleared land where the tents were later located.[18]
[17] ts 40 - 41.
[18] ts 41.
The appellant's mobile telephone also contained numerous photographic images of cannabis plants inside the tents, cannabis material, thermometers on cannabis plants and a photograph of chemicals matching the items located at the rear of the property.[19]
[19] ts 41.
The appellant's mobile telephone also contained an incoming message, 'Call David to take a photo of room 2 ‑ 4 for me'. Another incoming message read, 'I want to see the bud grow' and the outgoing message reply was, 'Okay'.[20]
[20] ts 41.
Lau's mobile telephone contained photographic images of the cannabis crop inside a tent taken on 26 October 2022; photographic images of a thermometer near the cannabis crop taken on 26 October 2022; and video recordings from October 2022 showing a large water tank being dragged through the property with the assistance of Kittu and Soo. There were also multiple photographic images ranging from September 2022 ‑ December 2022, showing the growth of seedlings to adult cannabis plants, equipment, tents and reticulation configurations.[21]
[21] ts 41.
Kittu's mobile telephone contained a video recording taken of a trailer located at the drying shed that was filled with cannabis material and situated near the tents.[22] There was also a video recording taken in October 2022 showing a large water tank being dragged through the property with the assistance of Lau and Soo. There were also multiple photographic images ranging from October 2022 ‑ December 2022, depicting the growth of seedlings to adult cannabis plants, equipment, tents and reticulation configurations.[23]
[22] ts 41.
[23] ts 41.
Soo's mobile telephone contained a video recording showing the tents and cannabis plants in the background.[24] The video recording also showed fire damage to one of the tents. There were also multiple photographic images ranging from September 2022 ‑ December 2022 depicting the growth of seedlings to adult cannabis plants, equipment, tents and reticulation configurations.[25]
[24] ts 41 - 42.
[25] ts 42.
The prosecutor stated that Kittu did not know the full extent of the operation but did know that the watering, maintaining and trimming of the large amounts of cannabis plants at the property was done for his employer, who was going to sell the cannabis.[26]
[26] ts 43.
The prosecutor said that Ko and Lau were equally unaware of the full scale of the operation but were aware that they were playing the role of crop‑sitters and were responsible for separating out waste product from the cannabis. They understood that this was done for their employer, who was going to sell the cannabis.[27]
[27] ts 43.
The appellant and the co‑offenders were interviewed by police and each denied supplying or selling the cannabis.[28] Each stated that they were paid in cash to trim and dry what they referred to as Chinese medicine plants. The appellant, Lau, Kittu and Ko all maintained that they had no knowledge of the tents located at the rear of the property.[29]
[28] ts 43.
[29] ts 43.
In his interview, the appellant stated that he had been recruited to cultivate a 'Chinese herb medicine'.[30] He had stayed on the property for a while and planted vegetables and fed the chickens. He said that he had been doing this for two to three days. He said that he did not know it was illegal to grow the cannabis plants. He did cut, tidy and trim them. He said it was not his job to take care of the cannabis plants.[31]
[30] ts 43.
[31] ts 43 - 44.
Each of the other offenders gave similar answers. They each referred to being paid $2,000 per week in cash for their work.[32]
[32] ts 44 - 45.
The appellant and the co‑offenders were taken to the Northam Police Station, where they were charged and remanded in custody.[33]
[33] ts 45.

Personal circumstances

The appellant was 30 years old at the time of the offending and 31 years old when he came to be sentenced.[34] He was born and raised in Taiwan, where his family still reside.
[34] ts 132.
The appellant travelled to Melbourne on a working holiday visa.[35] He obtained employment at a meatworks, where he was working until he travelled to Western Australia. Whilst residing in Melbourne, he experienced some financial hardship. He obtained a loan from a friend in the amount of $3,000 and that amount was outstanding at the time he was offered the job in Western Australia.[36]
[35] ts 132.
[36] ts 132.
The appellant was raised in a loving and supportive home environment and his family members remain supportive of him.[37] He completed high school in Taiwan and then commenced study at university. He has limited English‑speaking skills but speaks fluent Mandarin.[38]
[37] ts 132.
[38] ts 133.
The appellant is currently not in a relationship. He has no dependants.[39]
[39] ts 133.
The appellant had never engaged in any illegal activity prior to the subject offending. He has a number of prosocial friendships, both in Australia and Taiwan. He is in good physical and mental health, and has never used any form of illicit substance.[40]
[40] ts 133.
The appellant has no prior criminal record. The pre‑sentence report noted that his current bridging visa will likely be cancelled, and he will be liable to deportation on completion of his sentence.[41]
[41] Pre-sentence report, dated 11 April 2023, 1; ts 59.

The role of the appellant

At the sentencing proceedings, the prosecutor referred to the role of each of the offenders in the following terms:[42]
Each of the co‑offenders had similar roles with some slight differences in taking on a more active leadership role than others in looking after and maintaining the cannabis, and cultivating the storage of the cannabis. Each co‑offender provided a similar story consistent with their role of maintaining the property as crops‑sitters and described the nature of their work to cut, trim leaves.
[The appellant] and Lau claimed that they were recently arrived in the country and worked at the property for just a few days. [The appellant] and Lau informed police that a friend or an acquaintance contacted them for a job. They discussed the arrangements with the personal organiser to manage the property and receive free accommodation. [The appellant] and Lau said they expected payment for their services, rendered in the amount of $2,000 per week. They believed their job was to cultivate a herb medicine.
[The appellant] and Lau were employed with others to grow cannabis and provide it to the organiser of this plantation so that it could be sold to the broader community for the intended purpose. [The appellant] and Lau are both operators, facilitators in the large commercial enterprise. [The appellant] and Lau facilitated in the growing of the cannabis by watering, fertilising and maintaining the health of plants for the distribution of the product. Their other functions involved the trimming and drying of the cannabis.
[The appellant] and Lau also participated in the constant development of the operation with the implementation of the cannabis hydroponic setup and cultivation. Following inquiries, police ascertained that [the appellant] and Lau had been in the country for several months and operated the property location during this period.
Kittu facilitated in the growing some of the plants so that some of the cannabis for the organiser by watering and maintaining the health of plants for the distribution of the product. His other functions also involved the trimming and drying of the cannabis. From inquiries, police ascertained that Kittu had been in the country since September 2022 and on the property since 6 October 2022.
Ko's role was assisting with the growing of the cannabis plants. Ko's role also identified as consisting of separating out the cannabis from the waste product, and then disposing of the waste product. A video from Soo's mobile phone download showed a male matching in appearance to Ko emptying a black container [sic] located in the drying shed, into the bushland that contains cannabis leaves. That was on 24 December 2022.
Soo's function consisted of maintaining the plants and trimming the cannabis from the plants. Numerous images from Soo's mobile phone download depicted the consistent development along with the implementation of the cannabis hydroponic operation and cultivation.
A photograph obtained from [the appellant's] phone showed Ko and another male inside the homestead at 130 Bellrock Road in Kokeby. This photograph was dated 28 June 2022 and that was Ko. There's also other photos on 2 June 2022 of Ko and [the appellant] holding a (indistinct) on the property.
[42] ts 38 - 39.
The prosecutor returned to the issue of the role of each of the co‑offenders later in his account of the facts:[43]
[43] ts 42 - 43.
Both [the appellant] and Soo's intention with respect to the cannabis was to supply it to their employer to sell the drugs for profit in a large scale commercial drug dealing operation. The roles for [the appellant] and Soo were sort of a supervisory role, based on their role in the operation and the communications with the unidentified bosses.
They would attend daily to the growing of the cannabis through watering, providing nutrients and maintaining the plants. Furthermore, their role was to cut and dry the plants for the sale of cannabis by their employer. All of these tasks were done by them and others.
Specifically in relation to [the appellant], his conduct as a supervisor intermediary was as follows. (1) He obtained a gas bill in the name for the property on 13 June 2022. Secondly, [the appellant] is playing a central role in the erection of the greenhouses on 22 July 2022. Thirdly, [the appellant] pays $4,500 for Bing Zhi(?) on 2 September 2022 for the property for something.
(4) Images of the property such as the cannabis plants and the thermometer of the property [are] being sent to senior members of the syndicate in conjunction with the communications with Soo. Just for your Honour's reference, Bing Zhi is the owner of the property and has got present charges before the court.
In relation to Soo as a supervisor for the group, the State relies on the following. (1) He is in the Star Boys new list(?) as 'Me' with Hung, referring to [the appellant] and other identified members of the drug syndicate relating to the property. (2) On 20 December 2022, a member is informing Soo, referred to as 'Uncle,' to inform the other workers, co‑offenders, of their job for the day at the property.
(3) On 23 December 2022, Soo is liaising with senior members who organise shopping or food for the co‑offenders at the property. (4) On 23 December 2022, funds were provided to Soo for purchasing food for the co‑offenders working on the property.
(5) On 28 December 2022, senior members are inquiring with Soo as to the quality of the cannabis plants and whether the drying trays are getting completed and Soo replies that the weather has been too hot. (6) On 30 December 2022, senior members instruct Soo to feed the rooms and to:
[sic] fertilise the greenhouses and take off the bamboo from the cannabis plants.
(7) On 30 December 2022, Soo is informing the senior members to buy some gloves, spring water, screws and drip clean and then Soo sends images of the drying rack, the mesh and the screws to the senior member.
On 1 and/or 2 January 2023, senior [member] is informing Soo to feed one day and one day off, referring to the plants and lastly, on 3 or 4 January 2023, Soo is informing the senior member that they have been binding and topping and de‑leafing for the last week and the cannabis is growing very well and the senior member responds, Regarding the black plastic covering for the greenhouse is not closing properly,' and Soo responds with, 'The power converting machine is not working but he has now changed it recently.'
Counsel who appeared for the appellant in the sentencing proceedings accepted the facts but disputed the suggestion that the appellant was 'more of a supervisor'.[44]
[44] ts 48 - 49.

The appellant's sentencing submissions

Counsel for the appellant said that prior to being recruited, the appellant was residing in Melbourne and working at a meatworks.[45] He was approached at the casino in Melbourne whilst he was gambling by a man who was with the co‑offender Soo. The man told him about a job that was available in Western Australia.[46] He was given some details in regard to flights and what he would be paid.
[45] ts 48.
[46] ts 48.

Counsel said that at the time the appellant was approached he was working with Ko. The appellant told Ko about the job. Ko flew over to Perth first.[47] The appellant flew over sometime later with Soo. They were taken to a Vietnamese restaurant in Malaga and introduced to a man there. It was explained to them where the property was, and they were directed to go there. Ko and Soo went to the property first, but the appellant went soon after. They were instructed to start erecting the tents.[48]
[47] ts 49.
[48] ts 49.
Counsel submitted that the appellant was directed to take and send photographs and was asked about what was going on at the property.[49] The appellant accepted that he had responded to those requests. It was accepted that some of the messages indicated that when Soo was not available, the external supervisors had turned to the appellant.[50]
[49] ts 49.
[50] ts 50.
Counsel said that her instructions were that at the time the appellant came over from Melbourne, he was unsure whether the project was going to be illegal or not.[51] However, he was aware when things commenced that it was not a legal enterprise. He denied having a higher role than his co‑offenders.
[51] ts 50.
Counsel said that the appellant accepted that at the time he was recruited, he had a debt of $3,000 to a friend.[52] The appellant denied the suggestion in the pre‑sentence report that this was a gambling debt. It was a loan, but he accepted that he was not in a position to repay it at the time because he was not earning much at the meatworks. The appellant accepted that his flights were paid for, accommodation and food was provided, and that he was promised a payment in cash. The sentencing judge referred to an amount of $2,000 as the payment and counsel did not disagree with that suggestion.[53]
[52] ts 50.
[53] ts 51.
As regards the payment of the gas bill and the transfer of $4,500 into the account of the owner of the property, counsel said that the appellant undertook these tasks because his English was slightly better than the others.[54] Whilst it was accepted that in hindsight this involved some level of trust, the appellant was just doing as he was told. The appellant maintained that he was acting under instruction at all times. It was submitted that 'there [were] some things he was directed to do that he didn't want to do and some things that he refused to do'.[55]
[54] ts 52.
[55] ts 49.
The appellant was initially answering to a man named Danny. On the occasion when money was transferred, he had been given cash by Danny to transfer to the owner of the property.[56] He understood that this money may have been for rent. There was an argument, and the appellant refused to do this type of transaction again because he 'didn't want that responsibility'.[57] It was said that Soo essentially took over the supervisor role from Danny thereafter. It was accepted that the appellant did some tasks that were 'above and beyond just tending the crops'.[58] He was described as being an intermediary who was liaising with those higher up, but had no responsibility for directing the other co‑offenders.[59] The appellant had no financial interest in the crop and would not have received any of the profits.[60]
[56] ts 49.
[57] ts 49.
[58] ts 53.
[59] ts 54 - 55.
[60] ts 80.
Later in the sentencing hearing, the prosecutor produced a banker's affidavit that showed that there had been four deposits of $4,500 into the account of the owner of the property.[61] These had occurred on 1 June 2022, 23 July 2022, 1 July 2022 and 2 September 2022. On taking instructions from the appellant, counsel then confirmed that the appellant accepted that he had deposited those monies and that he understood that it was rent money.[62] On each occasion, he would drive to the bank deposit machine, deposit the cash, and then transfer it. He said this occurred on a monthly basis for four months and that he performed this task at the direction of another person. He made no profit from these transactions. Counsel accepted that this task involved a level of trust but continued to dispute the characterisation of the appellant as a supervisor.[63]
[61] ts 83.
[62] ts 80.
[63] ts 82.
The prosecutor referred to Soo as having a 'slightly elevated role than the others'.[64] However, the prosecutor later said that the appellant had a greater role, though it was not a 'leader role'.[65] The prosecutor also accepted a proposition put by the sentencing judge that the appellant had the highest culpability, followed by Soo and then the other three men.[66] Defence counsel responded by saying it was the first time it had been suggested that the appellant was the most culpable of the five. She asked for a further opportunity to take instructions from the appellant as to this suggestion.[67]
[64] ts 111.
[65] ts 114.
[66] ts 117.
[67] ts 120.
On resumption, defence counsel said her instructions were that the appellant was to receive $2,000 a month and that he had seen himself as part of the team acting under instructions.[68] He was not to receive any bigger benefit than any other members of the team. The sentencing judge said that she accepted that there was nothing to suggest that the appellant would receive any greater benefit than the other men. However, her Honour said that it did appear that the appellant had a more trusted role. Counsel accepted that to be the case, but only insofar as the appellant was instructed to deposit the money.[69]
[68] ts 122.
[69] ts 122.

Sentencing remarks

The sentencing judge said that none of the offenders had been involved in this kind of illegal activity previously, and she accepted that personal deterrence was not a relevant factor in sentencing in this case.[70]
[70] ts 123.
After summarising the facts, the sentencing judge turned to the role of the offenders:[71]
In relation to each of you, [the appellant] and Mr Soo, your intention with respect to the cannabis was to supply it to those higher in the chain so that, of course, then it could be sold for profit in a large scale commercial drug dealing operation. In relation to your roles, in respect of the amended statement of material facts, the State also alleged that each of you acted as a supervisor, based on your role [in] the operation and your communications that you had with those who were higher up in the chain.
In relation to you, [the appellant], you disputed that you were a supervisor. Your counsel used the word intermediary, you accepted that you were an intermediary. And I accept that that is so.
In relation to you, Mr Soo, I'll come to this more fully in a moment, but I do accept the State's position in relation to your supervisory role and engaging in certain activities elevated insofar as comparing (inaudible) the other co offenders other than [the appellant], and I'll come to that in a moment. Both of you would attend daily, of course, to the growing of the cannabis and you engaged in a variety of activities in that respect, including watering, providing the plants with nutrients, and maintaining them.
Each of your role also included to cut and dry the plants for sale of that cannabis. All of these tasks were done by you individually or together with others, including your co‑offenders.
Whilst you, Mr Kittu, did understand or potentially not know the full exact scale of the operation, you did know that your acts of watering, maintaining and trimming the large amount of cannabis plants on the property was done for your employer, or those higher up in the hierarchy, who were then going to, of course, sell the cannabis.
Mr Ko and Mr Lau, you were also equally unaware, perhaps, of the full large scale of the cannabis operation, but both of you were aware of your involvement as, effectively, a crop sitter. And some of your role involved, for example, separating out the waste product from the cannabis. And that was done to assist those higher in the chain, or the hierarchy, who were then going to on sell that cannabis.
The indicia seized by police is also consistent with the distribution of illicit drugs. Police interviewed each of you regarding the matter, each of you denied selling or supplying the cannabis, stating that you were paid in cash to trim and dry the Chinese medicine plants. [The appellant], Mr Lau, Mr Kittu and Mr Ko, each of you maintained that you had no knowledge of the cannabis grow tents located behind the property, that was when you were speaking with police.
[71] ts 127 - 128.
As to the seriousness of the offending, the sentencing judge referred to the size and sophistication of the operation.[72] Her Honour said it involved what appeared to be a very professional hydroponic setup, which was effectively the conversion of part of a rural property for the cultivation of cannabis. The professional hydroponic setup included six greenhouses, fluorescent and LED lights, drying racks, fertiliser, and a generator. She said that the quantity of plants and cannabis head material indicated the seriousness of the offending. She described it as an 'extremely large and sophisticated operation'.[73] She said that the seriousness was also reflected in the approximate value of the plants and the cannabis head material as being over $5.5 million.
[72] ts 129.
[73] ts 129.
The sentencing judge said that each of the offenders had engaged in the illegal activity for the purpose of financial gain, and that included the provision of free accommodation and food.[74] Her Honour said that there was persistence in the offending as it occurred over a number of months. The involvement of the offenders could not be described as transitory, one‑off or isolated in nature.[75] Although the period of time may differ as between the offenders, the offending was nonetheless persistent in its nature for each of them.
[74] ts 129.
[75] ts 129.
The sentencing judge then returned to the roles of the offenders and said:[76]
[76] ts 129 - 131.
In relation to your roles, clearly none of you are principals in the larger scale cannabis operation. That is, none of you would have received a percentage of the profits which would have been derived had the cannabis been sold within the community. Nevertheless, in my view, each of you played a significant and integral role in the enterprise and, indeed, these enterprises can only ever come into fruition with those such as yourselves being willing to perform the essential duties of the day to day operation and tending to the cannabis plants.
In relation to where each of you sits, in respect to your roles, in my view the roles are as reflected by the State's submissions to the court, in that I find Mr Kittu, Mr Ko and Mr Lau, you were [in] the terminology used by the court [sic] effectively crop‑sitters. That's my categorisation of each of (inaudible). So for the purposes of sentencing I accept that you were not in direct contact with anyone higher up in the hierarchy. I accept that you didn't know the exact scale and size of the operation.
And other than tending to the plants, you didn't take on any more significant role than that. Although each of you clearly knew at some stage, shortly after arriving no doubt, that you were engaging in illegal activity and each of you understood that those higher up in the chain would be selling that cannabis for profit.
So although I categorise each of the three of you as crop sitters, make no mistake - given the scale of the operation and the essential and integral role that each of you played, and the fact that you engaged in that behaviour over a number of months for commercial gain, does reflect on the serious nature of your offending.
I accept the position put by the State that you, [the appellant], and you, Mr Soo, had somewhat elevated roles in relation to the other three co offenders. That's evident by the exhibits before the court, so firstly, it's clear that each of you was cataloguing what was happening on the cannabis plantation from time to time and were passing that information on to those higher up in the chain, and communicating directly with those higher up in the chain. You were both involved from what appears to be an early stage.
And [appellant], you were clearly heavily involved in setting up some of the equipment and actively involved in activities beyond simply attending to plants. Indeed, [appellant], you paid a gas invoice quite early on for the property. That was in June. And I understand that that was in your name.
And you also were given cash, provided cash, on four occasions, which you paid to someone who is higher up in the chain. You say it was for payment for rent in relation to the property, but in any event, those payments were each in the amount of $4,500 and were being paid on what appears to be regular basis from at least July 2022.
So that reflects on you having a more significant involvement as compared with a crop‑sitter and holding an entrusted role. Your instructions to your counsel were that you were doing as you were instructed. But you also communicated through your counsel that at times, you were able to disagree or refuse to do things asked of you by those higher up in the chain, which again, to my mind, evidences that you had an elevated role insofar as your ability to do that.
Mr Soo, I find consistent with the submissions made by the State also had an elevated role beyond what could be described as a crop‑sitter. Although, not at the same level of the role of [the appellant], so consistent with how it's been described and submitted to the court. (emphasis added)
The sentencing judge accepted that the appellant's pleas of guilty had been entered at the first reasonable opportunity.[77] However, her Honour took into account that the State case was strong, and in those circumstances she gave the appellant a 20% discount pursuant to s 9AA of the Sentencing Act 1995 (WA).[78] After referring to personal factors, her Honour noted that none of the offenders had a prior criminal history and that there had been 'some low‑level cooperation with law enforcement'.[79] Her Honour also accepted that as each of the offenders was a foreign national and away from his family, sentences of imprisonment would be harsher for them. This also included the fact that the offenders had a limited ability to speak English. Her Honour accepted that each of the offenders had expressed remorse.[80]
[77] ts 132.
[78] ts 132.
[79] ts 136.
[80] ts 136.
The sentencing judge said that the different degrees of culpability had to be taken into account in sentencing. She then said:[81]
Based on my earlier remarks, it's very clear, hopefully to you, that [the appellant] and Mr Soo, I have found that you have a greater [culpability] than a crop‑sitter. That is, the activities that each of you engaged in extended beyond those of the other three co‑offenders.
[The appellant], you have, in my view, the greatest culpability, and I've already said that earlier in the reasons. You had a more entrusted role. You were given higher level tasks. You were heavily involved right from the beginning. So from a parity perspective, you ought to receive a higher sentence than the others, including Mr Soo.
Although, Mr Soo, you also have a higher degree of culpability compared to the crop‑sitters, if I can put it that way, and that's because of what I identified earlier. The cataloguing and recording of what was happening in order to obviously pass onto others in the hierarchy, the direct contact with those higher in the hierarchy, receiving those instructions and directions and passing them onto others in a supervisory‑type role.
Certainly not as elevated as [the appellant], because he was being given large amounts of money to pass on, and so that's very entrusted. So [the appellant] has the greatest culpability and that sets him aside. Mr Soo has greater culpability than a crop‑sitter but somewhat less than [the appellant]. Although Mr Soo has a slightly lower discount for his plea as compared with [the appellant] - okay - which needs to be reflected. (emphasis added)
[81] ts 139 - 140.
The sentencing judge identified the individual sentences, before taking into account the totality principle, as follows:[82]
1.The appellant: count 1, 5 years 2 months' imprisonment; count 2 6 years 2 months' imprisonment.
2.Soo: count 1, 4 years 6 months' imprisonment; count 2, 5 years 4 months' imprisonment.
3.Lau: count 1, 3 years 6 months' imprisonment; count 2, 3 years 10 months' imprisonment.
4.Kittu: count 1, 3 years 8 months' imprisonment; count 2, 4 years' imprisonment.
5.Ko: count 1, 3 years 8 months' imprisonment; count 2, 4 years' imprisonment.
[82] ts 140 - 141.
Her Honour then said that, having regard to the totality principle, the sentences on count 1 in each case would be reduced.[83] In the case of the appellant and Soo, the sentences on count 1 were reduced to 20 months' imprisonment. In the case of Lau, Kittu and Ko, the sentences on count 1 were reduced to 16 months' imprisonment. In each case, her Honour ordered that the sentences on counts 1 and 2 be served cumulatively. Her Honour stated that the total effective sentence for each of the offenders was as follows:[84]
1.The appellant: 7 years 10 months' imprisonment.
2.Soo: 6 years 2 months' imprisonment.
3.Lau: 5 years 2 months' imprisonment.
4.Kittu: 5 years 4 months' imprisonment.
5.Ko: 5 years 4 months' imprisonment.
[83] ts 141 - 142.
[84] ts 142.
In fact, the sentencing judge's calculations were incorrect. As was pointed out by counsel for Soo, his total effective sentence would in fact have been 7 years' imprisonment.[85] It would appear that what her Honour did in Soo's case was add the reduced 20‑month imprisonment sentence on count 1 to the original sentence on that count, rather than adding the 20 months to the sentence on count 2.
[85] ts 143.
This was not the outcome that the sentencing judge sought to achieve. Accordingly, her Honour then sought to produce the desired outcome for Soo by reducing the sentence on count 1 further to 10 months' imprisonment. This produced the anomalous result that Soo's sentence on count 1 was less than that of any of the co‑offenders. Generally speaking, reductions for totality should not be used to create relativity between offenders. Any such relativity should be reflected in the primary sentences, before any reductions for totality are taken into account. Those relativities will be preserved by an appropriate application of the totality principle. However, it is unnecessary to say more about this as the focus of the appeal is on the sentence imposed on the appellant on count 2 and on his total effective sentence.

Grounds of appeal

The grounds of appeal are as follows:[86]
[86] WAB 7.
1.The sentence imposed for count 2 is manifestly excessive having regard to the circumstances of the offence, the personal circumstances of the appellant and sentencing standards.
2.The total sentence of 7 years and 10 months imposed on the appellant is disproportionate to the total criminality having regard to the circumstances of the offending, the personal circumstances of the appellant and sentencing standards.
3.The learned sentencing judge erred in fact by making a finding adverse to the appellant (i.e. that the appellant is shown to have a role materially more criminally culpable than his co‑offender Mr Soo) that was either inconsistent with the State sentencing case or that was disputed by the appellant and not proven beyond a reasonable doubt on the evidence, contrary to R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27].
4.The learned sentencing judge erred in the application of the parity principle when sentencing the appellant in that:
(i)The disparity between the total sentences imposed on the appellant and the co‑offender Soo was not open in the exercise of the sentencing discretion, and/or
(ii)The disparity between the total sentences imposed on the appellant and the co‑offender Ko was not open in the exercise of the sentencing discretion, and/or
(iii)The lack of marked disparity between the s 9AA discount afforded to the appellant and the co‑offender Ko was not open in the exercise of the sentencing discretion.

Ground 4(iii) was abandoned at the appeal hearing.[87]
[87] Appeal ts 11 - 12.
As ground 3 alleges an express error, it is appropriate to commence with that ground.

Ground 3 - appellant's submissions

The appellant submits that the final amended statement of material facts, as read out by the prosecutor at the sentencing hearing, did not include a reference to the appellant being the most culpable offender.[88] The only reference to the difference in the roles of the offenders was to there being slight differences between them. There was a dispute as to whether the appellant could properly be characterised as a supervisor. This was resolved by an acceptance that the appellant could be described as an intermediary.[89]
[88] WAB 16 - 17.
[89] WAB 19; ts 54 - 55.
The appellant submits that the additional information regarding the additional deposits of cash resulted in the State revising its position to place the appellant at a slightly higher position of culpability than Soo. However, the appellant did not concede that he was more culpable than his co‑offenders. The appellant submits that this did not justify a finding that the appellant had a more elevated role than Soo, who her Honour accepted had a supervisory role.[90]
[90] WAB 21.
At the hearing of the appeal, appellant's counsel identified the passages referred to at [46] and [48] above as the relevant passages in the sentencing judge's reasons. In particular, appellant's counsel relied on references to the appellant having an elevated and entrusted role, and having the greatest culpability.[91]
[91] Appeal ts 11.

Ground 3 - respondent's submissions

The respondent submits that the sentencing judge's findings as to the appellant's culpability were amply justified. The respondent says that the crucial difference between the appellant and Soo was that the appellant was the only one of the offenders who was entrusted with significant sums of money, which he passed on to those above him. When making those payments, he was plainly aware that he was involved in a criminal enterprise, and that the payments were part of that enterprise. Even if the appellant believed that the payments were rent, he knew that they were necessary for the continuation of the operation.[92] He also had some latitude as to what tasks he did and, on his account, was able to refuse on occasions.[93]
[92] WAB 42.
[93] WAB 43.

Ground 3 - disposition

The passages in the sentencing remarks that the appellant relies on are, essentially, the sentencing judge's assessment of the relative seriousness of the appellant's offending conduct. As this court has previously said, a sentencing judge's characterisation of the seriousness of an offender's offending involves an evaluative judgment, not a finding of fact. Often, as in the present case, a challenge to that characterisation is better viewed as a particular of a ground alleging manifest excess.[94]
[94] Lyons v The State of Western Australia [2022] WASCA 81; (2022) 100 MVR 420 [67].
In any event there was no dispute as to what the appellant did. It was accepted that he had, in addition to assisting with the cultivation of the cannabis, obtained and paid for gas bottles, and deposited and transferred cash. The only issue was how, in light of those activities, the appellant's role should be characterised. In the event that another ground succeeds, and the appellant is resentenced, this court exercises the sentencing discretion afresh and is not bound by the sentencing judge's assessment of the seriousness of the offences.
Ground 3 fails.

Ground 1 - appellant's submissions

The appellant submits that the sentence of 6 years 2 months' imprisonment imposed on count 2, after a plea of guilty for which a 20% discount was allowed, exceeds most, if not all, sentences imposed in other cases for cultivating cannabis. The appellant submits that the sentence is not consistent with the fact that he was not a principal or in an elevated position in the criminal hierarchy. It also does not reflect the appellant's personal circumstances and absence of need for personal deterrence.
The appellant accepts that there are few cases involving comparable large quantities of cannabis plants, however, he does point to Truong v The State of Western Australia.[95] The appellant submits that Truong involved a considerably larger operation and an offender whose conduct and role was substantially more serious.[96] The sentence of 6 years' imprisonment imposed after a successful appeal in Truong is said to be inconsistent with the sentence imposed on the appellant.[97]
[95] Truong v The State of Western Australia [2020] WASCA 177.
[96] WAB 12 - 13.
[97] WAB 13.
The appellant also refers to Nguyen v The State of Western Australia,[98] and Lee v The State of Western Australia.[99]
[98] Nguyen v The State of Western Australia [2021] WASCA 198.
[99] Lee v The State of Western Australia [2019] WASCA 137.

Ground 1 - respondent's submissions

The respondent submits that there are relatively few cases in which sentences for large‑scale commercial cultivation of cannabis have been considered. A small number of cases cannot establish the range of sentences customarily imposed, nor the outer limits of any appropriate range.[100]
[100] WAB 36.
The sentence in Truong was reduced from 7 years' imprisonment to 6 years' imprisonment. That occurred in circumstances where the offender had pleaded guilty, had received a 20% discount, and had good personal antecedents.[101] The court in that case concluded that, prior to reductions for mitigating factors, the starting point must have been close to the statutory maximum, although no finding that the case fell within the worst category of offending of its kind had been made by the sentencing judge. The relatively modest reduction in that case was explained by the degree of compression of sentences that occurs as the maximum is approached.[102]
[101] WAB 36 - 37.
[102] WAB 37.
The respondent accepts that the number of plants in the present case was less than in Truong but suggests that the appellant has downplayed his role.[103] The respondent says that the appellant was communicating with those higher in the hierarchy and forwarding cash to them, and this is an indication of the degree to which he was trusted.[104]
[103] WAB 37.
[104] WAB 37.
The respondent acknowledges that a comparison of the present case with Truong suggests that the sentence imposed on the appellant was high, but submits that the outcome in one case does not demonstrate that error can be implied from the sentencing outcome in the present case.[105] The respondent also says that Nguyen and Lee are not useful comparators. Nguyen was a case of an offender who was sentenced for his role in several cultivations which collectively involved fewer plants than the present and where the challenge on appeal was confined to totality.[106] Lee was a case where the offender played a greater role in the enterprise, but that enterprise was on a substantially smaller scale than the present case.
[105] WAB 37 - 38.
[106] WAB 38.
The respondent submits that the sentence of 6 years 2 months' imprisonment is high, but does not manifest error having regard to: the appellant's role in a sophisticated, large‑scale cannabis growing enterprise; the duration of his offending; and, the importance of general deterrence in cases of this kind.[107]
[107] WAB 38.

Ground 1 - relevant legal principles

The general principles governing appeals contending that a sentence is manifestly excessive are well established:
(1)A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of 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 in question, and the personal circumstances of the offender.
(2)The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because this court would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in that particular case miscarried.
(4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
(5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
General and personal deterrence are the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction. The weight of the drugs in question is not, generally, the predominant 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 enterprise 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.
In R v Olbrich,[108] the High Court said that the use of shorthand descriptions such as 'courier' or 'principal' may be useful to refer to different kinds of participation in a single enterprise and the different level of culpability of offenders. However, the use of such terms must not obscure the assessment of what the offender did. Very often prosecuting authorities will have only limited and imperfect information about how it was that an offender came to commit an offence.[109] Categorisation of an offender as being in a particular classification may not be possible.
[108] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [19] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).
[109] Olbrich [16] ‑ [18] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).

Ground 1 - disposition

The maximum statutory penalty for cultivating a prohibited drug, namely cannabis, with intent to sell or supply it to another, is a fine not exceeding $20,000 or imprisonment for a term not exceeding 10 years, or both.[110]
[110] Misuse of Drugs Act 1981 (WA), s 7(1)(a), s 34(2)(a)(i).
As regards the standards of sentencing customarily observed with respect to the offence, the case law in respect of sentencing for large‑scale commercial cultivation of cannabis was summarised in Rillotta v The State of Western Australia:[111]
[111] Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [21] ‑ [31]; adopted in Harvey v The State of Western Australia [2017] WASCA 149 [21]; Greenfield v The State of Western Australia [2019] WASCA 29 [30]; and Lee [22].
In Lester v The State of Western Australia, McLure P observed:
'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.'
In McRobb v The State of Western Australia, Buss JA, with whom other members of the court agreed, endorsed those observations. McLure P's observations were also endorsed by the court in HNA v The State of Western Australia.
In Lester, McLure P, with whom other members of the court agreed, reviewed a number of sentences for offences under s 6(1) and s 7(1) of the [Misuse of Drugs Act 1981 (WA)] involving cannabis. The reviewed total effective sentences ranged between 1 year 4 months' immediate imprisonment and 2 years 8 months' immediate imprisonment. In many cases, the offending concerned significantly lower weights than the approximately 22.7 kg of cannabis which the appellants sold. However, some of the cases reviewed in Lester concerned significant amounts of cannabis. Trajkoski v The State of Western Australia concerned a sophisticated cultivation involving plants with a total value of about $250,000, and the offender was sentenced to 2 years 8 months' imprisonment. Eacott v The State of Western Australia involved possession of over 51 kg of dried cannabis from a bush crop, and the offender was sentenced to 2 years 3 months' imprisonment. It must be borne in mind that Trajkoski and Eacott were appeals by the offenders and not by the State.
Two cases decided since Lester reflect a firmer approach than that taken in Trajkoski and Eacott.
The first case is The State of Western Australia v Malone, where a total effective sentence of 7 years 6 months' imprisonment was imposed by this court in a State appeal against sentence. In that case the offender was the sole distributor in Western Australia for a syndicate involved in distributing large quantities of cannabis grown in South Australia to Western Australia and Queensland. Malone was charged with 16 counts, each involving between 10 and 40 kg of cannabis. The total estimated weight of the cannabis involved in Malone's offending was 330 kg, and its estimated street value was about $2.9 million. Malone pleaded guilty shortly after committal to the District Court, and received a 15% discount under s 9AA of the Sentencing Act 1995 (WA). Malone was 33 years old at the time of sentencing, and had a dysfunctional upbringing but stable employment history. While he had a criminal record, it did not involve prior serious criminality. Malone had limited remorse and insight into his offending. Psychological testing indicated that Malone had an impaired capacity to communicate ideas and understand problems. Malone had a number of health problems.
In considering Malone, it is important to bear in mind the well‑established principle that, when this court allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range.
The second case is McRobb, which involved an appeal by one of Malone's customers, who took possession of cannabis in one pound packages and on‑sold them at prices between $4,400 and $4,800 per pound. McRobb was charged with two counts of possession of cannabis with intent to sell or supply it to another, in relation to three 10 kg boxes of cannabis received from Malone. McRobb was also convicted of conspiring to sell or supply cannabis to others, contrary to s 6(1)(c) and s 33(2) of the [Misuse of Drugs Act 1981 (WA)], for which the maximum penalty was 20 years' imprisonment and a fine of $75,000. McRobb was convicted of three offences after trial, and did not show any remorse. He was 29 years old at the time of sentence, had a stable employment history, ran his own construction business and had no prior convictions. McRobb had no history of drug use, and carried on his drug dealing business purely for commercial purposes. McRobb's total effective sentence of 6 years' imprisonment was upheld on appeal.
A number of other cases decided since Lester may also be noted, while recognising that they concerned much lesser degrees of seriousness of offending than the present case.
HNA involved an offender who participated in a large‑scale and sophisticated hydroponic cannabis cultivation operation. However, the offender in that case played only a minor low‑level role in the operation, assisting in the harvesting of cannabis head material. His sentence of 9 months' immediate imprisonment for one count of cultivating cannabis plants with intent to sell or supply to another was upheld on appeal.
Also since Lester, a number of cases have considered lower level offences of possession of cannabis with intent to sell or supply to another. Sentences of 12 months' immediate imprisonment were upheld by this court in Sandwell v The State of Western Australia and Rodi v The State of Western Australia [No 2]. Both cases involved significantly different circumstances to the present. Sandwell concerned the possession of about 2.5 kg of cannabis and 147 cannabis seedlings by an offender who was not a commercial dealer of cannabis and intended to use the cannabis himself and distribute it to a small number of friends. Rodi involved possession of less than 1 kg of cannabis by an offender sentenced on the basis that he was a mid‑level dealer. In Miles v The State of Western Australia, a total effective sentence of 22 months' immediate imprisonment was upheld in respect of possession of about 421 g of cannabis with intent to sell or supply, together with dexamphetamine tablets and possession of $27,500 in cash reasonably suspected of being unlawfully obtained.
Lester and the subsequent decisions demonstrate a firming up of sentences for offences involving trafficking in significant quantities of cannabis. Of the cases decided by this court since Lester, only two - Malone and McRobb - involved a substantial operation of the kind considered here. The range of sentences imposed in the past does not fix the boundaries within which future sentences must be passed. Rather the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle. Sentences imposed in a few cases do not define the sentencing range, and are not sufficient in number to provide a sentencing pattern. At best they are representative of particular aspects of the spectrum of seriousness. (citations omitted)
This court summarised more recent appellate sentencing decisions concerning cultivation of cannabis in Lee, as follows:[112]
In Rillotta, the two offenders (who were brothers) were jointly operating a well‑established business involving sending significant quantities of cannabis from South Australia to Western Australia. They arranged for 50 pounds (about 22.7 kg) of cannabis to be delivered by a truck driver from South Australia to Western Australia and then delivered by a different truck driver to two of their customers. They were each convicted after trial of two counts of selling or supplying cannabis (one count in respect of each customer), and were each sentenced to a total effective sentence of 6 years 3 months' imprisonment. The trial judge in that case would have imposed individual sentences of 5 years' immediate imprisonment on each count, prior to the application of the totality principle. Their appeals against those sentences, on totality grounds, were dismissed.
One of the Rillotta brothers' customers, Franchina, received 30 pounds (about 13.6 kg) of the cannabis referred to above. He was convicted after trial on one count of possessing cannabis with intent to sell or supply, and received a sentence of 4 years' immediate imprisonment. He was characterised as a 'wholesaler' of cannabis who played a 'crucial and integral role' in the distribution of large quantities of cannabis within Western Australia. His appeal against sentence was dismissed in Franchina v The State of Western Australia.
In the present appeal, particular reference was made to My v The State of Western Australia and Nguyen v The State of Western Australia. Those two appeals concerned the same hydroponic cannabis operation in which Mr My, Ms Nguyen and her son were jointly engaged. Police located a total of 207 cannabis plants at two grow houses, about 8 kg of cannabis packaged for sale and a significant quantity of cash reasonably suspected of being unlawfully obtained. Mr My entered a plea of guilty (for which he received a discount of 20% under s 9AA of the Sentencing Act), had shown remorse and accepted responsibility for the offending and was of prior good character. He was the junior partner in the enterprise. His total effective sentence of 5 years' immediate imprisonment (including for a breach of bail offence and offences of fraudulent appropriation of power) was upheld on appeal. Individual sentences for cultivating and possessing cannabis ranged from 1 year 8 months' imprisonment to 2 years 2 months' imprisonment. Ms Nguyen, who was also sentenced for a firearms offence, received a total effective sentence of 6 years 6 months' imprisonment after trial. Individual sentences for cultivating and possessing cannabis ranged from 2 years 6 months' imprisonment to 3 years' imprisonment. She had previously been sentenced for her involvement in a large heroin importation operation. Her sentence was also upheld on appeal.
The nature of the offending in My and Nguyen was broadly similar to the appellant's offending in the present case. Both were large scale cannabis growing operations and, although hydroponics operations in My and Nguyen had been established at two different premises, the number of plants involved was about half of the number cultivated by the appellant. Senior counsel for the appellant submits that, even once that conclusion is reached, the sentence imposed in the present case is comparatively high, particularly having regard to the fact that Ms Nguyen was convicted after trial. So much may be accepted, but that does not compel a conclusion that the sentence imposed in this case was unreasonable or plainly unjust. Individual cases do not fix an upper limit on the range of permissible sentences. Further, My and Nguyen involved the rejection of offender appeals and establish only that the sentences appealed against were not unreasonable or plainly unjust. Those decisions do not identify the sentence this court would have imposed had it resentenced the offenders.
Recently, in Ha v The State of Western Australia, this court considered cumulative sentences of 2 years 6 months' immediate imprisonment imposed on each of two counts, one of cultivating cannabis and one of possessing cannabis with intent to sell or supply. The individual sentences were upheld, but the total effective sentence was reduced from 5 years' to 3 years 3 months' immediate imprisonment. The offender was arrested at a house equipped for the sole purpose of cultivating cannabis plants using hydroponic equipment. There were 112 plants (the subject of the cultivation charge), and about 30 kg of cannabis buds which had been harvested from the plants (the subject of the possession charge). The offender undertook to participate in the cultivation of the cannabis in return for a payment of $500 per week (which he ultimately never received). He had worked for about three to four weeks prior to being apprehended. He was involved in packaging the cannabis when arrested. The offender had not set up the cultivation of the cannabis and was not participating in the profits of the enterprise. The 51‑year‑old Vietnamese offender pleaded guilty and received a 20% discount under s 9AA of the Sentencing Act.
In Ha, the court observed that Rillotta, Nguyen and My
'involved the 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. Those cases do not establish any upper limit of the appropriate sentencing range for offenders at the upper end of the scale of seriousness of offending of this kind.'
(citations omitted)
[112] Lee [23] - [28].

In Lee, the offender was convicted of one count of cultivating cannabis with intent to sell or supply, for which he was sentenced to 5 years' immediate imprisonment. In that case, the offender was the lessee of a house which he had converted into a sophisticated cannabis grow house. He planted a total of 431 cannabis plants. The offender was involved in a carefully planned operation for financial reward and intended to participate in the profits resulting from the operation. He pleaded guilty at the first reasonable opportunity, for which his sentence was discounted by 25% under s 9AA of the Sentencing Act. His plea of guilty was the only significant mitigating factor. This court dismissed a ground of appeal asserting that the sentence of 5 years' immediate imprisonment was manifestly excessive, holding that it was broadly consistent with the customary sentencing standards reflected in the cases referred to above.
The only case we have identified in which a sentence of more than 5 years' imprisonment has been imposed for a single count of cultivating cannabis with intent to sell or supply is Truong. That case involved a sophisticated, large‑scale hydroponic operation that had been set up on a farm property. Seven structures within two large greenhouses contained a total of 7,567 cannabis plants at various stages of maturity. The operation included lighting, water tanks and a large generator. The estimated street value of the plants was $17 million and the estimated wholesale value was about $10.02 million. The offender in that case had leased the farm property for five years in a false name by using false identification documents. The owner of the property was led to believe that it would be used for growing strawberries and vegetables for sale to a supermarket. The offender had also deposited $7,152 cash at a bank and purchased a commercial grade generator for $17,000 cash. He was present when his partner hired a truck from a rental business to transport the generator to the farm property. He was arrested attempting to board a flight to Adelaide. He was with his partner and was carrying a suitcase with all his personal belongings.
The offender in Truong was 32 years old when he was sentenced. He had come to Australia from Vietnam on a student visa, having done a degree in engineering in Vietnam. He had a child and an ex‑wife in Vietnam. Little was known about his conduct and circumstances in the years leading up to the commission of the offence. He did not speak English. He had no record of prior offending, though it was noted that it was difficult to attach much weight to that as he had been on a student visa, and avoiding authorities for some years. He pleaded guilty at an early opportunity and a 20% discount was given.
The sentence of 7 years' imprisonment in Truong was found to be manifestly excessive and a sentence of 6 years' imprisonment was substituted. Mazza and Beech JJA said that, notwithstanding the serious elements of the offending, the sentence of 7 years' imprisonment exceeded the sentence that was reasonably open to the sentencing judge in the proper exercise of his discretion. In coming to that conclusion, their Honours took into account that the starting point of the sentencing judge - before making allowances for the plea of guilty and other mitigating factors - must have been close to the statutory maximum penalty. Such a starting point was not justified by the objective seriousness of the offence. Furthermore, the State had not submitted at sentencing that the case fell within the 'worst category' such as would justify a starting point at or close to the maximum penalty. Mazza and Beech JJA noted that, whilst the offending involved a sophisticated operation and a large quantity of cannabis with an enormous value, the gravity of the offence could not be solely or chiefly assessed by the weight or quantity of the drug involved. Other factors were referred to, such as: the nature of the enterprise, the role of the offender, the offender's motivation, whether the offender pleaded guilty, and the offender's personal circumstances.
Truong was not referred to in sentencing submissions by the State or defence counsel, or by the sentencing judge. That is regrettable as it is plainly comparable to the present case. Although a single case cannot set a range, Truong provides a useful guide to the length of sentence that will be appropriate in circumstances like those of the appellant.
The offender in Truong was more culpable than the appellant. His conduct in leasing the property in a false name indicates a more significant role than that of the appellant. In addition, he deposited cash, purchased the generator and was present when arrangements were made to hire a truck to transport the generator. Furthermore, the number of plants was more than double that in the present case and the value of those plants was between two and four times that of the present case. The personal circumstances of the appellant and the offender in Truong were comparable. Making every allowance for sentencing discretion, it would be expected that the appellant would have received a lesser sentence than that of the offender in Truong.
As regards the seriousness of the present offence, this was plainly a very serious offence. It involved a sophisticated, large‑scale commercial cannabis growing operation. The estimated value of the plants gives an indication of the size of the operation and the likely profits. However, it was accepted that the appellant's reward for his involvement was to be comparatively small, and that he was not a principal who would share in the profits. His role was described as an intermediary. This was on the basis that he communicated with supervisors via mobile telephone and sent updates on request regarding the progress of the crop. He also purchased some gas bottles and made four cash deposits, totalling $18,000. However, his primary responsibility was to assist in the care of the plants.
As regards the appellant's personal circumstances, he had no prior criminal record, had expressed remorse and had pleaded guilty at an early stage. As the sentencing judge correctly noted, there was nothing to indicate that any sentence needed to incorporate an element of personal deterrence.
In all the circumstances, evaluated against the yardstick of the maximum penalty of 10 years' imprisonment, locating the offence on the spectrum that extends from the least serious instances of the offence to the worst category, and taking into account the appellant's plea of guilty and the other mitigating factors, it must be concluded that the sentence imposed was unreasonable or plainly unjust.
Ground 1 succeeds.

Grounds 2 and 4

Given the success of ground 1 and the need to resentence the appellant, it is unnecessary to determine grounds 2 and 4.

Resentence

The facts of the offence and personal circumstances of the appellant have been referred to earlier in these reasons. No additional information has been provided.
As to the appellant's degree of culpability, we would accept that the appellant performed some activities that required a degree of trust, in particular the deposit of amounts of $4,500 cash on four occasions. However, in the overall scheme these were comparatively small amounts and there was nothing to indicate that the appellant was a principal. His degree of culpability was greater than that of the other offenders, but not to a significant degree.
Like the sentencing judge, we would give a 20% discount for the appellant's plea of guilty pursuant to s 9AA of the Sentencing Act. A further reduction should be allowed for other mitigating factors, including the appellant's remorse and prior good character. In our view the appropriate sentence on count 2 is 5 years' imprisonment.
Where a sentence is varied on appeal, this court may vary any other sentence that was imposed at the same (or a later) time and that took into account the first sentence.[113] In this case that means it is open to vary the sentence imposed on count 1. In that regard it is necessary to consider the totality principle. In our view a total effective sentence of 5 years 10 months' imprisonment would be proportional to the overall criminality of the offending. Accordingly, we would vary the sentence imposed by the sentencing judge on count 1 by imposing a sentence of 10 months' imprisonment, acknowledging that that sentence has been reduced from what would otherwise be appropriate to take into account totality considerations.
[113] Criminal Appeals Act 2004 (WA), s 41(2).
We acknowledge that the resentencing of the appellant may have the result that the sentences of the other offenders, at least arguably, do not conform to the parity principle. However, the sentences imposed on the other offenders are not before the court on this appeal and the possible creation of disparity is not a factor that can properly be taken into account in resentencing the appellant.

Orders

For the above reasons, we would make the following orders:
1.An extension of time is granted.
2.Leave to appeal on grounds 2, 3 and 4 is refused.
3.Leave to appeal on ground 1 is granted.
4.The appeal is allowed.
5.The sentences imposed on counts 1 and 2 are set aside and in lieu:
a.The appellant is sentenced to 10 months' imprisonment on count 1 and 5 years' imprisonment on count 2.
b.Those sentences are to be served cumulatively.
c.The total effective sentence is 5 years 10 months' imprisonment.
d.That sentence is taken to have commenced on 5 January 2023.
e.The appellant is eligible for parole.
6.The drug trafficker declaration made by the sentencing judge is unaffected.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Research Associate to the Hon Justice Hall
4 JULY 2025