Griffin v The State of Western Australia - [2020] WASCA 17

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GRIFFIN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 17
CORAM:   BUSS P
MITCHELL JA

HEARD:   6 DECEMBER 2019
DELIVERED          :   14 FEBRUARY 2020
FILE NO/S:   CACR 172 of 2019
BETWEEN:   DARRIN HUGH GRIFFIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAVRIANOU DCJ
File Number             :   IND 1411 of 2018

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of cultivating cannabis with intent to sell or supply and possession of cannabis with intent to sell or supply - Manifest excess - Totality

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 7(1)(a)
Sentencing Act 1995 (WA), s 4(4), s 6(4), s 39, s 76, s 81

Result:

Application for an extension of time within which to appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	No Appearance

Solicitors:

Appellant	:	In Person
Respondent	:	Director Of Public Prosecutions (WA)

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bui v The State of Western Australia [2019] WASCA 186
Cartwright v The State of Western Australia [2010] WASCA 4
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Greenfield v The State of Western Australia [2019] WASCA 29
Ha v The State of Western Australia [2019] WASCA 69
Harvey v The State of Western Australia [2017] WASCA 149
HNA v The State of Western of Australia [2016] WASCA 165
Lester v The State of Western Australia [2011] WASCA 128
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
My v The State of Western Australia [2018] WASCA 1
Nguyen v The State of Western Australia [2017] WASCA 195
Nguyen v The State of Western Australia [2019] WASCA 149
Rodi v The State of Western Australia [2014] WASCA 233
Sandwell v The State of Western Australia [2012] WASCA 15
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Yeates [2018] WASCA 232
Truscott v The State of Western Australia [2016] WASCA 58

JUDGMENT OF THE COURT:

The appellant has applied for leave to appeal against sentence.
The appellant was charged on indictment with two counts. Count 1 alleged that on 7 February 2018, at Beckenham, the appellant cultivated a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). Count 2 alleged that, on the same date and at the same place, the appellant had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA.
On 15 May 2019, the appellant was convicted, after a trial before Stavrianou DCJ and a jury, on both counts. [1] At trial, the only issue was whether in each case the appellant intended to sell or supply the cannabis.[2]
[1] ts 114.
[2] ts 131.
On 9 August 2019, the trial judge sentenced the appellant to 2 years' immediate imprisonment on each count, to be served concurrently. Therefore, the total effective sentence was 2 years' immediate imprisonment. A parole eligibility order was made.
The appellant has appealed against sentence on three grounds. Ground 1 alleges that the sentence of 2 years' immediate imprisonment on count 1 was manifestly excessive as to the type of sentence. Ground 2 alleges that the sentence of 2 years' immediate imprisonment on count 2 was manifestly excessive as to the type of sentence. Ground 3 alleges that the total effective sentence of 2 years' immediate imprisonment offends the first limb of the totality principle.
The appellant requires an extension of time in which to appeal, and has filed an affidavit sworn 29 October 2019 in support of his application. On 25 November 2019, Buss P referred the application to the hearing of the appeal.
We are satisfied that none of the grounds of appeal has a reasonable prospect of success. Consequently the application for an extension of time should be dismissed, leave to appeal should be refused and the appeal should be dismissed.

The facts and circumstances of the offences

On 7 February 2018, police executed an MDA search warrant at the appellant's home address. The appellant was present during the search. Police located and seized 10 mature cannabis plants in two separate hydroponic growing systems in a shed, and 10 small cannabis plants in another hydroponic growing system in a small cupboard in the shed. The system for the growing of the plants included insulation, lighting, fertiliser, fans, timers and reticulation. Police also seized 1.874 kg of cannabis material, including head, leaf and stem material.
The appellant participated in an electronically recorded interview with police during the search. The appellant said that he stored and smoked the cannabis himself, and that he did not sell or supply it to anyone. After stating that he did not sell cannabis, the appellant then said, 'I blow out mates, but you know'. Later in the interview, the appellant was asked what he meant by that statement, to which he replied 'Oh, they come over, I go there, and we have big sessions'.
At trial, the appellant gave evidence that he smoked cannabis with his friends, but did not give them any of his cannabis.[3] At trial, the appellant admitted that he had been growing cannabis during the previous 12 months.[4] He accepted that there was 'a lot of cannabis there… but [the] majority of that is… not high quality'.[5]
[3] ts 72 - 73.
[4] ts 66.
[5] ts 66.
The State's case at trial was that the appellant was either selling or supplying the cannabis. The appellant admitted to cultivating the 20 cannabis plants and possessing the 1.874 kg of cannabis. Pursuant to s 11, read with sch V of the MDA, the appellant was deemed to have intent to sell or supply the drugs, unless the contrary was proven. There were no common indicia of drug dealing found at the appellant's home.[6] It was suggested by the State at trial that the quantity of plants and loose cannabis material showed that the appellant was cultivating more cannabis than he could use himself,[7] and that it had significant commercial value.[8] Further, the State relied on the appellant's statement to police that he would 'blow out mates'.[9]
[6] ts 124, 128.
[7] ts 66.
[8] ts 56 - 57.
[9] ts 70 - 73.
The appellant's case was that the cannabis was for his personal use. He smoked cannabis to self-medicate his depression and lack of sleep due to tinnitus resulting from an ear injury.[10]
[10] ts 61 - 64.
By returning verdicts of guilty, the jury must have accepted that the appellant intended either to sell or supply at least a portion of the cannabis.[11]
[11] ts 126.

The trial judge’s sentencing remarks

After summarising the facts and circumstances of the offending, the trial judge made other findings and observations in his sentencing remarks, including in relation to the appellant's personal circumstances, as follows.
The appellant was aged 53 at the time of the offending and 54 when sentenced. He had been working as a handyman for a number of years.[12]
[12] ts 132.
The appellant had a history of offending, but his most recent conviction occurred 13 years previously. Whilst some of his prior convictions were for prohibited drug offences, the appellant had never been convicted of an offence involving actual or intended sale or supply of a prohibited drug. Although his criminal record was not an aggravating feature, the appellant was not entitled to any leniency for good character.[13]
[13] ts 132.
His Honour accepted that the appellant had been a user of cannabis for many years, which began essentially after the appellant suffered an injury at a young age.[14]
[14] ts 132.
The trial judge referred to a pre-sentence report and a psychological report that had been prepared and provided to his Honour for the purpose of sentencing. The author of the pre-sentence report noted that the appellant had continuing issues with cannabis use, although the appellant claimed that he had reduced his use significantly since the time of the offences and had been attempting to abstain completely.[15]
[15] ts 133.
The psychological report referred to the appellant's use of cannabis as a coping strategy as well as an escape. The psychological report noted that the appellant reported a history of significant depression which had begun in his mid-20s. The appellant described to the author of the psychological report an incident of intentional overdose on anti-depression medication shortly after that time. The appellant was admitted to Graylands Hospital for three weeks, and a diagnosis of manic depression (Bipolar Disorder) was made.[16]
[16] Psychological report, p 4.
His Honour referred to the deleterious effect on the community of the use of cannabis, including the correlation between the use of cannabis and mental illness and the progression to harder drugs.[17] His Honour referred to the high value of the cannabis, both the crop and the harvested material. Evidence was given at trial that the value of the harvested cannabis material was approximately $42,760, and the value of the cannabis plants was approximately $30,000 to $50,000.[18] However, his Honour sentenced the appellant on the basis that there were no indicia relating to commercial dealing in cannabis.[19]
[17] ts 133, citing Lester v The State of Western Australia [2011] WASCA 128, [21] (McLure P; Newnes JA & Hall J agreeing).
[18] ts 132.
[19] ts 132.

The grounds of appeal

As we have mentioned, the appellant relies on three grounds of appeal. Ground 1 alleges manifest excess in relation to the type of sentence for count 1, ground 2 alleges manifest excess in relation to the type of sentence for count 2, and ground 3 alleges that the total effective sentence infringed the first limb of the totality principle. Ground 3 cannot be made out unless the individual sentence for count 1 or count 2 was manifestly excessive, his Honour having ordered the individual sentences to be served concurrently.

The appellant’s submissions

The appellant submits that each of the individual sentences was manifestly excessive as to type. It was not open to the trial judge to be satisfied that suspended imprisonment or conditionally suspended imprisonment was an inappropriate sentencing option having regard to the appellant's entrenched cannabis use, which he had significantly reduced after the offending; the lack of commerciality in the offending; the fact that the cannabis material could not be adequately broken down into head and leaf material to assess the quantity of the more valuable cannabis head material in the appellant's possession; and the absence of a prior criminal record for drug dealing.
At the sentencing hearing, the prosecutor submitted to his Honour that Lester v The State of Western Australia[20] was similar to the facts of the present case. In particular, the appellant and the offender in Lester were of a similar age, were long-term cannabis users who had suffered an injury in the past, and had a relatively minor criminal history, including simple drug offences. The offender in Lester had 24 cannabis plants and 3.68 kg of loose cannabis material, of which approximately 2 kg was head material. There was a deliberate commercial aspect to the operation. The offender in Lester pleaded guilty on the fast-track system. He received a total effective sentence of 18 months' immediate imprisonment.
[20] Lester v The State of Western Australia [2011] WASCA 128, [21] (McLure P; Newnes JA & Hall J agreeing).
The appellant in the present case emphasised some distinguishing features between his offending and that in Lester. In particular, the appellant noted that the offender in Lester had double the quantity of cannabis and the criminal enterprise was for commercial gain.
The appellant also cited other cases including Nguyen v The State of Western Australia,[21] Harvey v The State of Western Australia[22] and Sandwell v The State of Western Australia[23] in support of his submission that the individual sentence for each count was manifestly excessive.
[21] Nguyen v The State of Western Australia [2019] WASCA 149.
[22] Harvey v The State of Western Australia [2017] WASCA 149.
[23] Sandwell v The State of Western Australia [2012] WASCA 15.

The merits of the appeal

The appellant does not challenge any of the trial judge's findings of fact or allege that his Honour made any other express error.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of 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.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact 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 a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offending 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.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court’s decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia[24]; The State of Western Australia v Doyle[25].
[24] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[25] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[26]
[26] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance. 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. See Lowndes v The Queen.[27]
[27] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
At all material times, the maximum penalty for possessing cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA, and the maximum penalty for the offence of cultivating cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the MDA, has been 10 years' imprisonment or a fine of $20,000 or both.
In the present case, the trial judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA).
By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
Section 76 of the Sentencing Act provides, relevantly:
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of the whole of the term or terms, or part of the term or terms.
The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[28] Fogg v The State of Western Australia.[29] The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen.[30]The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
[28] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA).
[29] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P; Mazza J agreeing).
[30] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] – [85] (Kirby J).

The principles applicable to suspended sentences for serious drug offences were explained by McLure P (Owen & Wheeler JJA agreeing) in Cartwright v The State of Western Australia[31] as follows:
Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].
However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].
However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].
[31] Cartwright v The State of Western Australia [2010] WASCA 4 [8] – [10].
Where a sentence of immediate imprisonment is alleged to be manifestly excessive as to type, the issue for this court is whether it was reasonably open to the sentencing judge, upon proper application of the relevant sentencing principles and in all the circumstances of the particular case, to be positively satisfied that, relevantly, it was not appropriate to suspend or conditionally suspend the term of imprisonment. See HNA v The State of Western of Australia.[32]
[32] HNA v The State of Western of Australia [2016] WASCA 165 [30] (Buss P, Mazza & Mitchell JJA).
In Lester, 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 [21] ‑ [22].
So, ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for a serious drug offence. In other words, the imposition of a suspended term of imprisonment is, as a matter of fact, exceptional. See The State of Western Australia v Johnson;[33] Truscott v The State of Western Australia.[34]
[33] The State of Western Australia v Johnson [2010] WASCA 187 [15] - [25] (McLure P; Newnes JA & Mazza J agreeing).
[34] Truscott v The State of Western Australia [2016] WASCA 58 [20] (Buss & Mazza JJA).
We have had regard to the sentencing dispositions in a range of cases including Lester; Sandwell; Rodi v The State of Western Australia;[35] Harvey; Nguyen v The State of Western Australia;[36] My v The State of Western Australia;[37] The State of Western Australia v Yeates;[38] Greenfield v The State of Western Australia;[39] Ha v The State of Western Australia;[40] Nguyen (2019); and Bui v The State of Western Australia.[41] It is unnecessary to repeat the relevant facts and circumstances in those cases or the sentences imposed. There are some comparable features between some of those cases and the present case but there are also distinguishing features. For example, although some objective characteristics of the offending in Lester (in particular, the number of plants under cultivation and the quantity of harvested cannabis material) were more serious than in the present case, the offender in Lester, unlike the appellant in the present case, had the significant mitigation of pleas of guilty on the fast‑track system.
[35] Rodi v The State of Western Australia [2014] WASCA 233.
[36] Nguyen v The State of Western Australia [2017] WASCA 195.
[37] My v The State of Western Australia [2018] WASCA 1.
[38] The State of Western Australia v Yeates [2018] WASCA 232.
[39] Greenfield v The State of Western Australia [2019] WASCA 29.
[40] Ha v The State of Western Australia [2019] WASCA 69.
[41] Bui v The State of Western Australia [2019] WASCA 186.
In the present case, the appellant's offending was serious. His offending was not fleeting or impulsive. It was premeditated and sustained. The value of the cannabis plants was significant. The value of the harvested cannabis material was also significant. Although the trial judge sentenced the appellant on the basis that there were no indicia relating to commercial dealing in cannabis, his supply of cannabis to others facilitated and reinforced the consumption of an illicit drug by others in the community.
The mitigating factors to which the trial judge referred were appropriately brought to account in the length of each term of imprisonment he imposed.
The facts and circumstances of the offending, having regard to the mitigating factors and the matters raised by the appellant in his submissions, did not outweigh the considerations of personal and general deterrence which ordinarily, as a matter of fact, require the imposition of sentences of immediate imprisonment.
After evaluating the sentence of imprisonment for each of counts 1 and 2 in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scale of seriousness, and the appellant's personal circumstances and all other mitigating factors, we are of the opinion that it was reasonably open to the trial judge to conclude that the seriousness of each offence and the need for personal and general deterrence outweighed the mitigating factors and made inappropriate any sentence other than immediate imprisonment. His Honour was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend the term of imprisonment for count 1 or count 2. Neither of the individual sentences was unreasonable or plainly unjust.
Neither ground 1 nor ground 2 has a reasonable prospect of success. It follows that ground 3 has no reasonable prospect of success.

Conclusion

In our opinion, the absence of merit in each of the grounds of appeal makes it inappropriate to grant the appellant an extension of time within which to appeal.
The application for an extension of time should be dismissed, leave to appeal should be refused and the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
14 FEBRUARY 2020