Ford v The Queen
[1999] WASCA 2
•5 MAY 1999
FORD -v- R [1999] WASCA 2
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 2 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:186/1998 | 7 APRIL 1999 | |
| Coram: | PIDGEON J WALLWORK J PARKER J | 5/05/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave is refused | ||
| PDF Version |
| Parties: | PETER DUDLEY FORD THE QUEEN |
Catchwords: | Criminal law Sentence Cannabis cultivation Possession of cannabis Applicant fined $5,000 on each of two counts Whether fines excessive Applicant able to pay Maximum penalty was $20,000 for each offence or imprisonment for 10 years, or both Held, fines within range Application refused |
Legislation: | Misuse of Drugs Act 1981 s34(2) Sentencing Act 1995 s6(2)(a), 53(1) |
Case References: | Hanbury (1979) 1 Crim R (S) 243. Kennedy, unreported; CCA SCt of WA; Library No 980145; 3 April 1998. Rickard, unreported; CCA SCt of WA; Library No 82 of 1989, 6 September 1989. Asjes v Little, unreported; CCA SCt of WA; Library No 920588; 13 November 1992 Australian Coal v Commonwealth (1953) 94 CLR 621 Bruyn v R, unreported; CCA SCt of WA; Library No 930582; 27 October 1993 Cheshire v R (1994) 76 A Crim R 261 Collins v R (1993) 67 A Crim R 104 Cotic v R (1984) 12 A Crim R 208 Donald Foss Collins v R (1993) 67 A Crim R 104 Fazari v R, unreported; CCA SCt of WA; Library No 960651, 14 November 1996 Grant Philip Taylor v R, unreported; CCA SCt of WA (Malcolm CJ) ; Library No 980152 House v The King (1936) 55 CLR 499 Ibbs v R [1987] 74 ALR 1 Mill v R (1988) 166 CLR 59 R v Cobby, unreported; CCA SCt of WA; Library No 4863; 18 April 1983 R v Oktugen (1992) 8 A Crim R 262 R v Wright, unreported; CCA SCt of WA; Library No 8208; 20 April 1990 Stol v R (1989) 44 A Crim R 137 Weng Keon Chan (1989) 38 A Crim R 337 Winkler v Cameron (1981) 33 ALR 663 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : FORD -v- R [1999] WASCA 2 CORAM : PIDGEON J
- WALLWORK J
PARKER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Cannabis cultivation - Possession of cannabis - Applicant fined $5,000 on each of two counts - Whether fines excessive - Applicant able to pay - Maximum penalty was $20,000 for each offence or imprisonment for 10 years, or both - Held, fines within range - Application refused
Legislation:
Misuse of Drugs Act 1981 s34(2)
Sentencing Act 1995 s6(2)(a), 53(1)
- Result: Application for leave is refused
(Page 2)
Representation:
Counsel:
Applicant : Mr L M Levy
Respondent : Mr R E Cock QC & Ms F K Zempilas
Applicant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Hanbury (1979) 1 Crim R (S) 243
Kennedy, unreported; CCA SCt of WA; Library No 980145; 3 April 1998
Rickard, unreported; CCA SCt of WA; Library No 82 of 1989, 6 September 1989
Case(s) also cited:
Asjes v Little, unreported; CCA SCt of WA; Library No 920588; 13 November 1992
Australian Coal v Commonwealth (1953) 94 CLR 621
Bruyn v R, unreported; CCA SCt of WA; Library No 930582; 27 October 1993
Cheshire v R (1994) 76 A Crim R 261
Collins v R (1993) 67 A Crim R 104
Cotic v R (1984) 12 A Crim R 208
Donald Foss Collins v R (1993) 67 A Crim R 104
Fazari v R, unreported; CCA SCt of WA; Library No 960651, 14 November 1996
Grant Philip Taylor v R, unreported; CCA SCt of WA (Malcolm CJ) ; Library No 980152
House v The King (1936) 55 CLR 499
Ibbs v R [1987] 74 ALR 1
Mill v R (1988) 166 CLR 59
R v Cobby, unreported; CCA SCt of WA; Library No 4863; 18 April 1983
(Page 3)
R v Oktugen (1992) 8 A Crim R 262
R v Wright, unreported; CCA SCt of WA; Library No 8208; 20 April 1990
Stol v R (1989) 44 A Crim R 137
Weng Keon Chan (1989) 38 A Crim R 337
Winkler v Cameron (1981) 33 ALR 663
(Page 4)
1. PIDGEON J: I have read the reasons of Wallwork J. I agree with those reasons and the orders proposed.
2. WALLWORK J: On 17 November 1998 at Perth the applicant was fined $5,000 for each of two offences to which he had pleaded guilty on the fast track system. The first offence was that between 19 August 1998 and 26 August 1998 at Yokine he had cultivated a quantity of cannabis plants with intent to sell or supply cannabis to another. The second was that on 26 August 1998 at Yokine he had in his possession a quantity of cannabis with intent to sell or supply it to another. The applicant has applied for leave to appeal against the amount of the fines.
3. At the hearing of the application counsel for the applicant submitted that although the offences had clearly merited fines and the applicant had assets approaching the $1,000,000 mark, the fines were manifestly excessive for the two offences involved.
4. The facts given to the learned sentencing Judge were that on Wednesday, 26 August 1998 detectives had attended at the applicant's home in Yokine. During a search, a hydroponic growing system had been located in a rear shed at the premises. Five cannabis plants were growing there. They were approximately 30cm tall.
5. The applicant had admitted to the police officers that the plants were his and that he had assembled the hydroponic equipment and had tended to the plants. He had admitted that it was his intention to supply cannabis to other persons. During the search an additional 980 grams of cannabis material were located in two separate bags drying in the shed adjacent to the growing system.
6. A number of glowing references were submitted to the learned Judge from people who knew the applicant. They attested to the fact that he had been a worthwhile member of the community for 27 years. He had always been employed by one organisation. He had served in Vietnam for two years.
7. Counsel submitted that at the age of 52 he was wholly ashamed to be appearing before the Court. It was said that he had made full admissions to the offences when he had been apprehended. At his first appearance in the Court of Petty Sessions he had pleaded guilty. The Court was told that he was in a position to pay a fine. The learned sentencing Judge remarked that the applicant was actually a very wealthy person.
(Page 5)
8. Pursuant to s34(2)(a) of the Misuse of Drugs Act 1981, the maximum penalty available for each offence was a fine not exceeding $20,000 or imprisonment for a term not exceeding 10 years, or both.
9. When sentencing the applicant the learned Judge said that he had obviously had a very successful career. References to his character went back over a period of 27 years. His Honour noted that the applicant had retired at an early age with a substantial number of assets. He said it was difficult to understand why a person of the applicant's age would get involved with the growing of cannabis. His Honour said that the amounts involved were not sufficient to require the matter to be dealt with by way of a term of imprisonment. Nevertheless the Court had to be seen to be imposing fines which provided for both general and personal deterrence. His Honour noted that in the applicant's case he clearly had the ability to pay. He said that in his view the total fine in respect of the matter should be a sum of $10,000. He allocated $5,000 in relation to each count.
10. At the hearing of this appeal counsel relied on the decision in Rickard, unreported; CCA SCt of WA; Library No 82 of 1989, 6 September 1989 where initially a $10,000 fine had been imposed on an applicant who had in his possession a quantity of cannabis with intent to sell or supply it to another. The quantity in that case was just over 1 kilogram. There had been 967 grams of damp green leaf material and another 105 grams of dry cut leaf material.
11. The applicant in that case had also been charged with simple possession of cannabis. That charge related to approximately 20 grams of cannabis which had been located on a kitchen stove. That was said to be for the applicant's personal use. There were also two small cannabis plants found in the backyard which were likewise accepted to be for the applicant's personal use. In respect of the two last mentioned offences the applicant had been fined $400 in the Court of Petty Sessions, subsequently to having been fined $10,000 in respect of the indictable matters.
12. In the Rickard casethe applicant was said to be a family man with a stable record of employment. The learned Chief Justice said that the fine of $10,000 which had been imposed had been manifestly excessive. He said the only evidence of "trafficking", if one could use that expression, was the applicant's own admission that from time to time he would share the cannabis with friends who visited his home; or when he took cigarettes containing the substance to his place of employment. In that case the applicant was a painter and decorator. He was earning take home pay of $356 per week.
(Page 6)
- "From that he was required to maintain a mortgage payment and run a motor vehicle, as well as support his wife and child. He had no savings to speak of and apart from the house, the only relevant assets were a motor vehicle and personal effects."
13. The Chief Justice remarked that the applicant's wife had been pregnant at the time the applicant had come before the sentencing Judge. His Honour said that in all the circumstances he was of the opinion that a fine of $2,000 would have been appropriate. Wallace and Brinsden JJ agreed with the learned Chief Justice.
14. It was submitted for the applicant in this case that there was little or no distinction to be drawn between that decision and the present one.
15. One thing to note about that proposition is that the applicant in Rickard had to borrow the money to pay the fine. He was earning $356 per week "take home pay". He was supporting a wife and an 8 year old child. His wife was pregnant.
16. In Kennedy, unreported; CCA SCt of WA; Library No 980145; 3 April 1998 Malcolm CJ with whom Kennedy and Ipp JJ agreed, said at p14 of his reasons:
"It is also relevant that in the last few years the connection between the abuse of cannabis and progression to more dangerous drugs has become clearer, so that the seriousness of the threat which the trade in cannabis poses is more keenly appreciated than it was, say five years ago. Consequently, sentences imposed five to 10 years ago can no longer be regarded as a reliable guide."
17. It was further submitted that in this case the learned sentencing Judge appeared to have been swayed by the applicant's financial wealth. It was said that what his Honour should have done was to arrive at an appropriate fine and then look at the applicant's antecedents and ability to pay. It was submitted that it was not proper to increase the amount of a fine because an offender was wealthy.
18. In "Sentencing State and Federal Law in Victoria", Professor Fox and Professor Freiberg stated at p136:
"The courts have also generally taken the view that a fine heavier than that warranted by the gravity of the offence should not be imposed upon a person of wealth even though such action would
(Page 7)
- result in achieving an equivalent correctional impact on offenders of differing means but equal culpability."
19. The authority for the proposition is given as Hanbury (1979) 1 Crim R (S) 243.
20. Accepting that to be the law, in my view there is no reason to assume that the learned Judge in this case was "swayed" by the applicant's wealth as suggested or that his Honour increased the amount of the fine because the applicant was wealthy.
21. These were serious offences. The applicant was fined one quarter of the maximum fine available on each offence. In the most serious types of these cases, a person would be liable to a maximum fine of $20,000 and a maximum term of imprisonment of 10 years, or both, on each charge.
22. I am not persuaded that in this case there was any error on the part of the learned sentencing Judge. I would refuse the application.
23. PARKER J: I am in agreement with the reasons published by Wallwork J.
24. In my view this was a case where the personal circumstances of the offender meant that the learned sentencing Judge had no need to mitigate what were otherwise appropriate financial penalties out of concern for the capacity of the offender to pay the fines.
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