Eacott v The State of Western Australia
[2009] WASCA 112
•25 JUNE 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EACOTT -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 112
CORAM: WHEELER JA
PULLIN JA
MILLER JA
HEARD: 8 JUNE 2009
DELIVERED : 25 JUNE 2009
FILE NO/S: CACR 143 of 2008
BETWEEN: MAXWELL JOHN EACOTT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
File No :IND 1354 of 2007, IND 1520 of 2007, IND 1549 of 2007
Catchwords:
Criminal law - Sentence - Possession of cannabis with intent to sell or supply - Receiving - Sentence of 3 years 9 months' imprisonment not excessive
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bowman v The Queen (Unreported, WASCA, Library No 930356, 18 June 1993)
Brown v The State of Western Australia [2008] WASCA 48
Cunningham v Walsh [2000] WASCA 201
Day v The Queen [2001] WASCA 284
Fazari v The Queen (Unreported, WASCA, Library No 960651, 10 September 1996)
Hobson v The Queen (Unreported, WASCA, Library No 930715, 17 December 1993)
Jarvis v The Queen (1993) 20 WAR 201
Macri v The State of Western Australia [2006] WASCA 63
Mignacca v The Queen (Unreported, WASCA, Library No 930348, 23 June 1993)
Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)
WHEELER JA: This is an application for leave to appeal against sentence, referred to be heard together with the appeal. The sole ground of appeal alleges a breach of the "totality" principle. On 3 October 2008, Goetze DCJ sentenced the appellant to a total of 3 years and 9 months' imprisonment backdated to 26 August 2008, with eligibility for parole, for five offences of receiving and one of possessing cannabis with intent to sell or supply. The individual sentences were: possession of cannabis, 2 years 3 months; receiving, on indictment 1520 of 2007, 5 months; and on indictment 1354 of 2007, 9 months, 6 months, 9 months, and 3 months. Each of the 9‑month sentences were cumulative upon each other and upon the sentence in respect of the cannabis.
Possession with intent
The appellant and another man, Steven Smith, planted a number of cannabis plants around Waroona in September 2006. These were harvested in March 2007, and the two men dried the plants, placed the dried product in large plastic tubs, and concealed those tubs in the bush. A Mr Haese then became involved, and some of the cannabis was trimmed at the appellant's house. This involved removing the buds from the branches, and placing them in bags. Mr Haese, who was to give evidence at the appellant's trial had it gone ahead, was "paid" one ounce of cannabis for his work.
In February 2007, while he was driving a Land Cruiser that had been loaned to him by a Mr Bury, the appellant was pulled over by police. While the vehicle was at the Mandurah police station, police fitted a GPS tracking device, and the vehicle was then tracked, from that day until 19 April 2007, to various locations. On 19 April 2007, police attended the Lake Clifton area, as the GPS tracking device indicated that the vehicle had entered a pine plantation in the area. Smith was found carrying tubs of cannabis from a hidden location. The appellant was not found, although his mobile phone and cigarettes were on the dashboard of the car. Smith was arrested. On 19 April 2007, police searched the appellant's home and located $7,000 behind a desk in his office, maps of the area in which the cannabis was located, and tubs and string similar to that found at the pine plantation.
The appellant was in hiding until 4 May 2007, at which time he attended Mandurah police station with his solicitor.
The cannabis located by police was found to weigh 51.47 kg; this was, as I have noted, after drying. Depending on the market, the quality of the drug, and the amounts in which it might have been sold, the cannabis was valued at between $268,000 and $403,000.
The appellant was listed to stand trial on charges of cultivation and possession with intent to sell or supply on 25 August 2008. On that day, he indicated, through counsel, that he would plead guilty to possession with intent to sell or supply in full satisfaction of the indictment. The following day, 26 August 2008, the State confirmed that this would be acceptable, and the appellant pleaded guilty.
Smith had pleaded guilty on a fast‑track plea, on an earlier occasion, and was given a 12‑month sentence, suspended for 12 months. There was an additional, and significant, mitigatory factor in Smith's case, which was not present here, so no issue of parity is, or could be, raised. Mr Haese was not charged in relation to this matter.
Receiving offences
The offence the subject of indictment 1520 of 2007 involved a Toyota Land Cruiser, one of four stolen from the holding yard of New Town Toyota in December 2006. On 28 December 2006, police attended the appellant's property to execute a Misuse of Drugs Act 1981 (WA) search warrant, and found this vehicle. It was worth approximately $50,000 and had been at the appellant's house since on or before 19 December 2006. Specialised mining equipment, which had been fitted to the vehicle, including special tyres and a roof rack containing sirens, safety lights and an orange flag, was located in a garage on his property.
The first count on the other indictment involved a Mitsubishi Cantor truck. This truck, loaded with equipment and fitted with a Hiav hoist, was stolen from a locked yard at the Shire of Boyup Brook in May 2006. In February 2007, while on bail for the earlier receiving offence, the appellant drove this vehicle to a property in West Coolup and left it there with people he knew.
The second count involved another Toyota Land Cruiser worth approximately $15,000. This vehicle was stolen from a business in Welshpool on 25 May 2006. The appellant replaced this vehicle's licence plates with those of a vehicle he owned which was unserviceable. He drove it from 4 July 2006 to 28 December 2006, the date police executed a search warrant on his home and found the first‑mentioned Land Cruiser. He was not at home at the time, but became aware that police were looking for him, and left the vehicle at the property in West Coolup at which he later left the Cantor truck.
The third count on this indictment involved an Isuzu truck that was stolen from a building site on 5 April 2007. The appellant came into possession of this truck on 10 April 2007, that is, while on bail, and left it at the West Coolup property. It was worth approximately $58,000.
The final count on this indictment involved a Shindaiwa brush cutter, stolen, along with other items to a total value of $4,695, from the City of Mandurah Works depot in January 2005. This item, worth approximately $660, was located by police on the appellant's property on 19 April 2007.
The appellant entered a fast‑track plea of guilty on indictment 1520 of 2007, and an early plea of guilty to the other receiving indictment.
The appropriate sentencing ranges
The appellant does not, in either the sole ground of appeal or in written submissions, appear to dispute the individual sentences imposed. There are however, a number of what the appellant places under the heading "Comparative Sentencing Cases" included in submissions. I turn first to consider the receiving offences, as a group, then the cannabis offence, and then consider the totality issue.
Three "comparative sentencing cases" are provided for the offence of receiving: Cunningham v Walsh [2000] WASCA 201, in which a sentence totalling 32 months was imposed for offences including eight counts of receiving a stolen motor vehicle, for which a sentence of 18 months was imposed; Mignacca v The Queen (Unreported, WASCA, Library No 930348, 23 June 1993), in which a sentence of 22 months (pre‑transitional, 1 year, 2 months, 18 days post‑transitional) was imposed for six offences of receiving stolen property to a total of over $15,000; and Hobson v The Queen (Unreported, WASCA, Library No 930715, 17 December 1993), in which an effective sentence of 2 years 6 months (pre‑transitional, 20 months post‑transitional) was imposed for nine offences of receiving stolen property to a total of $5,391. I accept that these cases reflect the usual range, to the extent that there is one. I would add, however, that it is not easy to discern a clear "range" for offences of this type. That is in part because they are often part of a series of offences, in which totality considerations may be important, and in part because both the value of the property, and the way in which the receiver comes to possess the property, vary widely.
As I have noted, the appellant received a total sentence of 18 months' imprisonment for five offences of receiving vehicles worth in excess of $170,000. Two of these offences were committed while the appellant was on bail. The sentence, in aggregate, while not lenient, could be described as moderate. Receiving is regarded as a very serious crime, it having often been said that if there were no receivers, there would be fewer thieves.
In relation to the cannabis offence, three cases are again referred to by the appellant: Fazari v The Queen (Unreported, WASCA, Library No 960651, 10 September 1996) in which a sentence of 3 years 6 months (pre‑transitional, 2 years 4 months post‑transitional) was imposed for possession of over 13 kg of cannabis with intent to sell or supply; Day v The Queen [2001] WASCA 284 which involved charges of cultivation, not possession; and Bowman v The Queen (Unreported, WASCA, Library No 930356, 18 June 1993) in which a total sentence of 7 years (pre‑transitional, 4‑years 9 months post‑transitional) was imposed for a number of offences, including one count of possession of cannabis with intent to sell or supply, for which a sentence of 4 years (2 years 8 months post‑transitional) was imposed.
Again, the cases provided by the appellant suggest that the sentence imposed on the appellant for possession of cannabis was moderate, particularly given the quantity of cannabis involved. In one respect, his Honour treated the appellant's offence with unwarranted leniency. He took into account, as a mitigating factor, the fact that certain property belonging to the appellant would be confiscated pursuant to the Criminal Property Confiscation Act2000. However, there does not seem to have been before his Honour any material justifying a positive conclusion that all, or a substantial portion, of that property had been lawfully acquired: Macri v The State of Western Australia [2006] WASCA 63 [15] ‑ [17].
Totality
It is submitted on behalf of the appellant that, while the appellant's offending was serious and his antecedents not good, the total sentence imposed infringed the totality principle, having regard to his pleas of guilty and the circumstances of the offending. There are two "limbs" to the totality principle. The first requires the court to review the aggregate sentence in order to determine whether the sentence imposed is a just and appropriate measure of the total criminality involved in all of the offending. The second requires the court to ensure that the sentence imposed is not "crushing". "Crushing" in this context connotes the destruction of any reasonable expectation of useful life after release: Jarvis v The Queen (1993) 20 WAR 201; Vlek vThe Queen (Unreported, WASCA, Library No 990153, 29 March 1999).
The learned sentencing judge was clearly aware of the requirements of the totality principle, stating:
In looking at cumulation or concurrence of the various penalties, I am required to consider totality because there is, obviously, sentencing for more than one offence, and I need to make sure that the penalties I impose are just and proportionate to the totality of your criminal offending, and are not crushing sentences. (ts 22 ‑ 23)
His Honour then explained the appellant's sentence to him, and went on to say:
Now, I'll then have a last look at those sentences, and on the basis of what I've done it seems to me that there's no requirement for any further adjustment that is required. (ts 23)
The appellant is now aged 44. It can hardly be said that a sentence of 3 years 4 months with parole eligibility destroys any expectation of a useful life after release. It is not "crushing".
As to total criminality, the appellant was in possession of a large quantity of cannabis, having a street value in the hundreds of thousands of dollars. Quantities of up to 5 kg have been described as "significant", while the cannabis here was 10 times that quantity. In Brown v The State of Western Australia [2008] WASCA 48, in which the appellant was charged with possession of 12 kg of wet cannabis, equivalent to 3 kg of dried cannabis, I noted, at [38]:
[L]ooking at cannabis cultivation and possession cases, it appears that this is by no means an extraordinarily large quantity. So far as I can discern, quantities of approximately 1 to 5 kilograms of dried material are significant, but cases dealing with much larger quantities can be found. For example R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440 concerned a quantity of almost 8 kilograms.
The appellant's was plainly, then, a very serious case of possession of cannabis with intent. Further, the offences of receiving, some of which were committed while on bail, involved property worth a significant amount of money. The appellant's motivation can only have been financial gain, although he was not in need, being employed full‑time and owning a home worth $1,500,000, with a mortgage of only $50,000. While he has never before been sentenced to imprisonment, and the references tendered to the court show him to have some good qualities, the appellant has a reasonably lengthy criminal history involving mainly minor drug‑related offences. It is plain from the materials tendered to the sentencing judge that the appellant's imprisonment will cause hardship to
his family, and it is impossible not to sympathise with them. However, the hardship is no greater than that inevitably experienced by the families of most imprisoned offenders, and cannot reduce what would otherwise be a just and appropriate sentence.
The sentences imposed on the appellant, both individually and in total, demonstrated no error. I would refuse leave, and therefore dismiss the appeal.
PULLIN JA: I agree with Wheeler JA.
MILLER JA: I agree with Wheeler JA.
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