Franchina v The State of Western Australia - [2017] WASCA 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FRANCHINA -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 56

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 3 MARCH 2017

DELIVERED : 27 MARCH 2017

FILE NO/S: CACR 3 of 2017

BETWEEN: GIUSEPPE FRANCHINA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :HERRON DCJ
File No  :IND 1703 of 2014

Catchwords:

Criminal law - Appeal against sentence - Possession of cannabis with intent to sell or supply - Whether sentence of 4 years' imprisonment manifestly excessive - Whether the court should depart from the sentencing approach set out in Lester v The State of Western Australia [2011] WASCA 128

Legislation:

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

Result:

Extension of time in which to appeal granted
Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr H Sklarz
Respondent: Mr J Scholz

Solicitors:

Appellant: Sklarz Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
Brown v The State of Western Australia [2008] WASCA 48
Gulyas v The State of Western Australia [2007] WASCA 263
Lester v The State of Western Australia [2011] WASCA 128
Rillotta v The State of Western Australia [2017] WASCA 55
Wheeler v The State of Western Australia [2007] WASCA 109
REASONS OF THE COURT:

Summary

The appellant was convicted after trial of one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another person, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act). He was sentenced to a term of 4 years' immediate imprisonment in respect of this offence. He now seeks to appeal against his sentence on the ground that it is manifestly excessive. The appellant also challenges the correctness of the approach to sentencing for cannabis offences reflected in Lester v The State of Western Australia[1] and subsequent authorities.
[1] Lester v The State of Western Australia [2011] WASCA 128.
For the following reasons, the appeal must be dismissed.

Circumstances of offending

The appellant was a customer of Roberto and Riccardo Rillotta, who jointly operated a business of sending significant quantities of cannabis from South Australia to Western Australia.
The appellant had a continuing relationship with Riccardo Rillotta for drug dealing purposes, and had previously received packages and a visit from Riccardo Rillotta on 2 and 3 August 2013, respectively.
The Rillotta brothers arranged for 50 pounds (about 22.7 kg) of cannabis to be delivered by a truck driver, Devin Zippel, from South Australia to Western Australia. On 16 August 2013, a truck driver based in Western Australia, Rodney Trouchet, delivered 30 pounds (about 13.6 kg) of cannabis in three different packages to the appellant's home. The appellant was expecting that delivery following a series of telephone calls with Riccardo Rillotta. Mr Trouchet arrived at the appellant's house on the evening of 16 August 2013, and departed shortly prior to 8.00 pm on that day.
After Mr Trouchet departed, the appellant called and arranged to meet a person in about 15 minutes. A few minutes later, the appellant called and arranged for another person to come to his house in a utility vehicle. These calls were made to people with whom the appellant had previously dealt in relation to the supply of drugs. The calls were made for the purpose of supplying 10 pounds of cannabis to each of the persons called.
Before the appellant left to attend his meeting, police executed a search warrant at the appellant's house. They located 30 pounds of cannabis at three locations in the appellant's house. One 10‑pound bag was located in the boot of the appellant's car. Another 10 pounds was found in a large garbage bag, and 10 pounds was located in a storeroom. Police located items commonly associated with drug dealing, such as scales, clipseal bags and a vacuum sealer machine. Police also located a little over $50,000 in cash, which was the proceeds of the appellant's drug dealing and was mostly to be used to pay Riccardo Rillotta for the drugs received on 16 August 2013.
The sentencing judge found that the appellant was persistent and active in seeking to be supplied with significant quantities of cannabis by the Rillotta brothers. The appellant was actively involved in drug dealing, and the offence of which he was convicted represented part of a continuing course of drug-dealing conduct. Although the sentencing judge did not find that the appellant was a regular customer of the Rillotta brothers, he was one of two major customers for the cannabis sourced by the Rillotta brothers in South Australia. The appellant played a crucial and integral role in the distribution of cannabis within Western Australia. The appellant's offending was premeditated and planned, and was a profitable venture for the appellant.

Personal Circumstances

The appellant was aged 68 at the time of sentencing. He immigrated to Australia from Sicily in 1967, and met his wife shortly thereafter. They had three adult children and five grandchildren. The appellant had limited schooling in Italy and only basic reading and writing skills. The appellant had limited English language skills. While he had no formal work qualifications, the appellant had been in full time employment since about the age of 14. The appellant had been a hardworking man throughout his life, which enabled him to accumulate significant assets.
The appellant did not have the mitigating benefit of a plea of guilty, and showed no remorse for his offending. The appellant had two prior convictions in September 2004, for possessing a prohibited drug and cultivating a prohibited drug, for which he was fined and received a spent conviction order.
The appellant had a number of serious health issues. He was diagnosed with diabetes in 2000, received a liver transplant in 2012 and underwent spinal fusion surgery in 2013. The appellant was required to take a significant amount of medication on a daily basis for his various medical conditions. The sentencing judge accepted that the appellant's relatively advanced age and poor health were likely to make imprisonment more difficult for the appellant than for a younger person in good health. The sentencing judge also accepted that the appellant's diabetes and his liver transplant impact on his life expectancy and the quality of the appellant's remaining years, although no precise calculation could be made as to what that impact would be.
The sentencing judge accepted that, because of age and ill‑health, the appellant was unlikely to reoffend on his release from prison.

The sentencing judge's approach

After referring to the above matters, the sentencing judge identified general deterrence as the main relevant sentencing factor. In relation to the sentencing considerations for cannabis, the sentencing judge adopted what he had just said in sentencing the Rillotta brothers. In sentencing the Rillotta brothers, the sentencing judge quoted the following passage from Lester:[2]
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 [21] - [22].
[2] Sentencing ts 21 - 22, 38.
The sentencing judge said he took account of the appellant's age and ill‑health in determining the appropriate sentence. He said that, while age was a factor to be taken into account in determining whether a sentence will be crushing for the purpose of totality, it could not justify a sentence that was not fairly proportionate to the offence. The sentencing judge saw the following comments made in Gulyas v The State of Western Australia,[3] in summarising Wheeler v The State of Western Australia,[4] as relevant to the appellant:
The court stressed that, in that case, it had been the offender's choice to embark upon his offending behaviour notwithstanding that he must have known that it would result in a long term of imprisonment if he was caught [19]. The court also said that the offender was a man from whom the community should be protected and that any weight his age might have carried in the sentencing process was overwhelmed by the seriousness of his offending behaviour and its sustained character.
[3] Gulyas v The State of Western Australia [2007] WASCA 263 [35].
[4] Wheeler v The State of Western Australia [2007] WASCA 109 [19].
The sentencing judge concluded that an immediate term of imprisonment was the only appropriate sentencing option. The sentencing judge referred to parity issues, stating that the circumstances of the appellant's offending were less serious than those of the Rillotta brothers because he was 'lower in the drug syndicate than they were'.[5] He said that the appellant's role was more serious than that of the truck drivers, Mr Zippel and Mr Trouchet, and was similar to that of Mr Adornetto. However, Mr Adornetto had been convicted of four offences on his plea of guilty, whereas the appellant had only been convicted of one offence.
[5] Sentencing ts 40.
The sentencing judge considered that a term of 4 years' immediate imprisonment was the appropriate sentence, taking into account all of the factors to which he referred including the appellant's age and ill‑health. That sentence was backdated to 11 March 2016 to take account of time spent in custody on remand. The appellant was made eligible for parole.

Grounds of appeal

The appellant seeks to appeal on the following two grounds:
1.The learned Sentencing Judge erred in law and fact in relying on [Lester] and subsequent authorities, when those authorities are erroneous.
2.The learned Sentencing Judge made an implied error of law and fact in imposing a sentence of four years' immediate imprisonment, which, in all the circumstances is manifestly excessive.
The appellant's application for leave to appeal on these grounds was referred to the hearing of the appeal.

Application for extension of time in which to appeal

The appellant was sentenced on 20 May 2016, but his notice of appeal was not filed until 9 January 2017. That is a considerable delay beyond the 21 days from the date of sentencing at which the time for appealing expires.[6] The appellant seeks an extension of the time within which he may appeal.
[6] Section 28(3) and s 28(4) of the Criminal Appeals Act 2004 (WA).
The appellant's solicitor has sworn an affidavit relaying difficulties which the appellant reported in obtaining assistance and documents from his former legal representatives. His current solicitors were instructed on 1 December 2016, and prepared the appellant's case concurrently with the notice of appeal.
The explanation for the appellant's delay in instituting the appeal is not entirely satisfactory. However, the appellant's appeal was ready for hearing on the same day as appeals by his co-offenders who were also sentenced on 20 May 2016 and who filed their appeal notices within time. In these circumstances, where the late filing of the notice of appeal has not delayed the ultimate disposition of the appeal, it is appropriate to grant an extension of time in which to appeal.

Disposition of ground 1 (Lester)

Although framed as a complaint about the sentencing judge's approach, this ground is in substance a challenge to the correctness of this court's decision in Lester and subsequent cases.
The only basis on which the appellant relies for contending that the approach in Lester is incorrect is a reference to, and interim report of, a legislative committee of the Australian Senate. On 25 June 2015, the Senate referred an inquiry to the Senate Economic References Committee (Committee) for report by 13 June 2016. The Committee's terms of reference relevantly required it to report on:
The economic and social impact of legislation, policies or Commonwealth guidelines, with particular reference to:
…
c.the sale and use of marijuana and associated products, including any impact on the health, enjoyment and finances of users and non-users;
The Committee published an interim report on this aspect of its terms of reference in May 2016. The Interim Report described a number of submissions which the Committee had received which either supported deregulation and decriminalisation of marijuana or supported continued criminalisation of marijuana. The interim conclusion and recommendation of the majority of the Committee was expressed in the following terms:
Committee view and recommendation
3.17The committee notes the diversity of views on recreational marijuana use, from those in favour of continued prohibition to those who recommend complete deregulation.
3.18The committee accepts that marijuana is not innocuous and that consumption, as with alcohol and tobacco, can have serious adverse consequences on certain individuals.
3.19The committee notes that relaxation of laws in relation to marijuana would be more difficult to achieve at a Commonwealth level rather than by the States, given Australia's adoption of a number of international treaties.
3.20The committee notes that despite personal consumption being virtually legal in practical terms as a consequence of state policies, production, distribution and sale remain a major focus of law enforcement.
3.21The committee notes that this enforcement comes at a considerable cost to the community.
3.22The committee notes that predictions of negative consequences of deregulation of marijuana should be relatively easy to assess, given the number of countries and states that have already legalised it.
Recommendation 1
3.23The committee recommends that the Australian Government, in conjunction with the states and territories, undertake an objective assessment of prohibition, decriminalisation, limited deregulation and legalisation, including a full cost‑benefit analysis, based on the outcomes of these options in other parts of the world.
The Committee's inquiry lapsed on the dissolution of the Senate on 9 May 2016. The inquiry has not been reinstated, and a final report was never completed.
The appellant submits that this court's approach to sentencing for cannabis‑related offending 'sits in contrast with currently trending views of Australian legislators'.[7] The appellant contends that the fact of referral by the Senate of an inquiry to the Committee, and the views and recommendations expressed in the Committee's interim report, are relevant to the court's assessment of community standards and expectations relating to cannabis. The appellant invokes an extra‑curial statement of Sir Anthony Mason that, in taking judicial notice of public opinion:[8]
The judge may also be entitled to have regard to responsible expressions of opinion in the Parliament so long as it appears that they reflect a broad consensus of opinion.
[7] Appellant's submissions, par 30.
[8] A Mason, 'The Courts and Public Opinion' (2002) NSW Bar Association Journal 30, 36.
The appellant submits that the 'very formation of the Committee, the evidence as to the percentage of Australians who consume cannabis, and the views and recommendation of the Committee are all indicative of the fact that prevailing community standards do not hold cannabis as a serious drug'.[9]
[9] Appellant's submissions, par 38.
These submissions should be rejected for a number of reasons.
First, the establishment of the inquiry does not indicate any expression of view by the Senate as to the punishment of drug offenders. The terms of reference are expressed in neutral terms.
Secondly, if account were to be taken of the establishment of the inquiry then it would also be necessary to take account of the fact that the current Senate has not seen fit to reinstate the inquiry after the dissolution of the Senate, to enable the Committee to prepare a final report.
Thirdly, a far better guide to the attitude of the Commonwealth Parliament to this kind of offending, to any extent that is relevant, are the laws which Parliament enacts. Cannabis is a 'controlled drug' for the purposes of the Criminal Code 1995 (Cth). More than 250 g is a trafficable quantity of cannabis for the purposes of the Code, more than 25 kg is a marketable quantity and more than 125 kg is a commercial quantity.[10] The maximum term of imprisonment for trafficking a controlled drug is 10 years, which increases to 25 years for a marketable quantity and life imprisonment for a commercial quantity.[11] Unlike the Drugs Act, the Commonwealth Criminal Code does not provide for different penalties for trafficking cannabis as opposed to other controlled drugs such as methamphetamine, and specific offences relating to cannabis plants carry equivalent penalties.[12]
[10] Section 301.1, s 301.2 and s 301.10 - s 301.12 of the Criminal Code 1995 (Cth) read with reg 5A of, and sch 3 (item 50) to, the Criminal Code Regulations 2002 (Cth).
[11] Section 302.2 - s 302.4 of the Commonwealth Criminal Code.
[12] See s 303.1 - s 304.3 of the Commonwealth Criminal Code.
In Adams v The Queen,[13] the High Court rejected the idea that judges sentencing for offences under the Criminal Code should apply a judicially constructed harm‑based gradation of penalties. Such an approach was seen to cut across the legislative scheme in which, by applying the same penalties to different quantities of controlled drugs, Parliament had made its own judgment as to the appropriate penal response to involvement in the trade of illicit drugs. Irrespective of the kind of drug involved in the offence, the primary consideration remained deterrence.
[13] Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143 [10] ‑ [11] (in relation to a comparison between heroin and MDMA).
The provisions of the Criminal Code identify the attitude taken by the Commonwealth Parliament to trafficking in significant quantities of cannabis.
Fourthly, it is relevant to note that the Western Australian Parliament has provided a lesser maximum penalty for offences against s 6(1) and s 7(1) of the Drugs Act which involve only cannabis.[14] That reflects the judgment which this State's Parliament has made about the relative seriousness of offences concerning cannabis and other prohibited drugs. However, while these cannabis offences are treated less seriously by the Drugs Act, the maximum penalties remain substantial. The State Parliament has taken a serious view of this kind of offending, reflected in the provisions of the Drugs Act which this court is required to apply until such time as Parliament decides that they should be amended or repealed.
[14] Section 34(2) of the Drugs Act.
Fifthly, the Committee's interim report does not disclose a 'broad consensus of opinion' of the kind to which Sir Anthony Mason referred. To the contrary, the interim report identifies a diversity of views and the Committee does not prefer one group over the other.
Sixthly, the Committee's interim report addresses the prohibition of recreational drug use. It is not directed to the appropriate response to commercial dealing in very significant quantities of cannabis.

We have not been able to detect, from the Committee's interim report or otherwise, any shift in community standards which demands a more lenient treatment of dealers in very substantial quantities of illicit drugs, be they cannabis or other illicit drugs. Nothing raised by the appellant's submissions provides any grounds for doubting the correctness of the approach taken in Lester and the cases which follow it. There is no merit in this ground of appeal.

Manifest excess

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 it 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 the 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 broadly 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.

Disposition of ground 2 (manifest excess)

Maximum penalty

The maximum penalty for an offence against s 6(1)(a) of the Drugs Act relating only to cannabis is a fine of $20,000 and a term of 10 years' imprisonment.

Customary sentencing standards

The current sentencing practice in relation to offences against s 6(1) and s 7(1) of the Drugs Act is considered in Rillotta v The State of Western Australia.[15]
[15] Rillotta v The State of Western Australia [2017] WASCA 55 [21] ‑ [31].
The appellant made particular reference to Brown v The State of Western Australia.[16] The appellant contended that Brown was convicted after trial of possessing approximately 13 kg of cannabis with intent to sell or supply it to another, and received a term of 2 years 5 months' immediate imprisonment. However, as McLure P noted in Lester,[17] the cannabis in Brown was wet material which would weigh approximately 3 kg when dry. That was a significantly lesser amount than the approximately 13.6 kg of cannabis delivered to the appellant. The fact that Brown was decided prior to Lester also reduces its value as an indicator of current sentencing practice.

Seriousness of offending

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

[17] Lester [15].

On the unchallenged findings of the sentencing judge,[18] this was a serious example of an offence against s 6(1) of the Drugs Act involving cannabis. The appellant was a major customer for the cannabis sourced by the Rillotta brothers, and played a crucial and integral role in its distribution in this State. The appellant's offending was not fleeting, isolated or impulsive, but was premeditated and planned. At sentencing, the appellant's counsel and the sentencing judge accepted that he was a 'wholesaler' who received cannabis from interstate, intending to immediately supply the cannabis, packaged in the same way as he had received it, to dealers below him in the chain of supply. He obtained a significant quantity - 30 pounds or 13.6 kg - of cannabis. The appellant was able to arrange to immediately on‑sell two of the three packages delivered to him.

Appellant's personal circumstances

[18] The appellant accepts the accuracy of the summary of the sentencing judge's findings in par 4 of the respondent's written submissions.

The appellant's personal circumstances are noted above. The most significant factor, which the sentencing judge took into account, was the appellant's age and ill‑health.
In Gulyas,[19] Steytler P, with whom McLure and Miller JJA agreed, identified the following broad general principles ordinarily applicable in a case involving aged offenders in ill‑health:
(1)Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.
(2)Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.
(3)Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.
(4)Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.
[19] Gulyas [54].
This is not a case where the sentence imposed destroys any reasonable expectation which the appellant may have of useful life after release from prison. The appellant will be eligible for parole in March of next year, and his sentence will expire in March 2020. It is the case, as the sentencing judge found, that the appellant's age and ill‑health will make his imprisonment more arduous than would ordinarily be the case. However, the extent to which that is the case should not be overstated. The medical information provided to the sentencing judge indicated that the appellant's diabetes and liver transplant required him to take medication daily, and his spinal fusion had a positive outcome. The material also indicated that the appellant's medical issues were capable of management while the appellant was in the general prison population.[20]
[20] Report of Dr C H Tan dated 9 April 2015 and report of Dr C Fitzclarence dated 16 May 2016.
The mitigating effect of the appellant's age and ill‑health is also reduced by the circumstance that the appellant chose to engage in a planned and premeditated course of offending while suffering from these health issues, in circumstances where he must have known that a substantial term of imprisonment was inevitable if he was caught.
The appellant's age and ill‑health are properly taken into account in determining an appropriate sentence. However, the predominance of deterrence as a sentencing consideration and the matters referred to above limit the weight to be given to the appellant's age and ill‑health.

Conclusion as to manifest excess

Having regard to all relevant sentencing principles and all the circumstances of the case (including those personal to the appellant) we are not satisfied that the sentence of 4 years' immediate imprisonment was manifestly excessive. In our view, the sentence was not unreasonable or plainly unjust. This ground must therefore be dismissed.

Orders

For the above reasons, the following orders should be made in the appeal:
1.The time for the appellant to appeal against his sentence be extended to 9 January 2017.
2.Leave to appeal on proposed ground 1 is refused.
3.Leave to appeal on proposed ground 2 is granted.
4.The appeal is dismissed.