Ha v The State of Western Australia
[2019] WASCA 69
•3 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 69
CORAM: BUSS P
BEECH JA
PRITCHARD JA
HEARD: 8 FEBRUARY 2019
DELIVERED : 3 MAY 2019
FILE NO/S: CACR 67 of 2018
BETWEEN: CHIEN T HA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: O'NEAL DCJ
File Number : IND 2006 OF 2017
Catchwords:
Criminal Law - Sentencing - Cultivation and possession of cannabis with intent to sell or supply - Appellant employed to cultivate cannabis as part of a sophisticated and extensive commercial operation - Whether the sentence imposed bore a proper relationship to the overall criminality of the appellant's offending - First limb of the totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31
Misuse of Drugs Act 1981 (WA), s 6(1), s 7(1), s 34(1), s 34(2)
Sentencing Act 1995 (WA), s 9AA, s 88
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Ms H Prince |
| Respondent | : | Ms KC Cook |
Solicitors:
| Appellant | : | Helen Prince |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Biruta v The State of Western Australia [2019] WASCA 52
Franchina v The State of Western Australia [2017] WASCA 56
Halmi v The State of Western Australia [2013] WASCA 229
HNA v The State of Western Australia [2016] WASCA 165
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lester v The State of Western Australia [2011] WASCA 128
My v The State of Western Australia [2018] WASCA 1
Nguyen v The State of Western Australia [2009] WASCA 8
Nguyen v The State of Western Australia [2017] WASCA 195
Rillotta v The State of Western Australia [2017] WASCA 55
Roffey v The State of Western Australia [2007] WASCA 246
JUDGMENT OF THE COURT:
The appellant was convicted, on his pleas of guilty, of two offences, both committed on 12 July 2017, namely one count of cultivating a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) and s 34(2)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act) (count 1) and one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) and s 34(1)(a) of the Drugs Act (count 2).
The appellant was sentenced to 2 years and 6 months' immediate imprisonment on count 1, and 2 years and 6 months' immediate imprisonment on count 2. The sentencing judge, O'Neal DCJ, in effect ordered that the individual sentences be served cumulatively. The total effective sentence was therefore 5 years' immediate imprisonment. The total effective sentence was backdated to commence on 12 July 2017.[1] A parole eligibility order was made. The appellant was also declared to be a drug trafficker.[2]
[1] The certificate of final outcome (AB 32 ‑ 33) appears to contain an error in that it indicated that each sentence was to commence on 27 November 2016, whereas in the orders orally pronounced by the learned sentencing judge, his Honour made clear that the sentence would begin on 12 July 2017 (AB 45). The parties accepted, in effect, in their written submissions that the certificate contained that error.
[2] AB 39.
The appellant now appeals against the sentences imposed. At the hearing of the appeal, only one ground of appeal was advanced, namely:
The learned sentencing judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct having regard to all relevant circumstances including matters referable to the appellant personally.
Leave to appeal was granted in respect of that ground prior to the hearing of the appeal.[3]
[3] Order of Mazza JA on 27 July 2018 (AB 4).
For the reasons set out below, we would allow the appeal, set aside the sentences imposed by the learned sentencing judge and re‑sentence the appellant. We would not alter the length of the terms of imprisonment imposed in respect of counts 1 and 2, and would therefore impose a term of immediate imprisonment of 2 years and 6 months in respect of count 1, and a term of 2 years and 6 months' immediate imprisonment on count 2. However, we would order that the sentence on count 2 be served partly concurrently with the sentence for count 1, so that the sentence for count 2 should commence after the appellant has served 9 months of the sentence on count 1. That would result in a total effective sentence of 3 years and 3 months' immediate imprisonment. The sentence on count 1 should be backdated to commence on 12 July 2017. The appellant should be made eligible for parole.
Circumstances of the offending
The facts concerning count 1 were as follows. At about 10.30 pm on 12 July 2017, the appellant was apprehended by police at a house in Stirling, in company with a co‑accused. The house had been fully equipped for the sole purpose of cultivating cannabis plants using hydroponic equipment. Five rooms in the house had been equipped with operating lights and an irrigation system for 112 potted cannabis plants. Those plants comprised 67 mature plants approximately 1 m tall, and 45 immature plants about 15 cm ‑ 20 cm tall. The appellant was at the house for the purpose of cultivating cannabis plants with the intention of harvesting them for supply to others.[4]
[4] AB 38 ‑ 39.
Turning to count 2, at the time of his apprehension by police, the appellant was harvesting the cannabis plants inside the house. A large number of the buds had been removed from the plants and placed into plastic bags for supply to others. A total of 29.8 kg of cannabis buds was seized, together with 1.91 kg of cannabis stick and leaf material, and a further 37 g of stick and leaf material.[5]
[5] AB 39, 42.
The appellant and three co-accused were prosecuted for these offences. The co-accused were also charged with cultivating cannabis at another three houses in Perth. They pleaded not guilty.[6] At the date of the appellant's sentencing, the co-accused had not been tried for those offences.
[6] AB 39, 42.
The State's case was that the appellant was part of a sophisticated and extensive commercial cannabis growing enterprise.[7] Apart from the fact that the house had been completely converted for the purpose of cannabis cultivation, the State contended that the number of plants and the weight of the harvested cannabis material demonstrated that this was a significant commercial operation.[8]
[7] AB 42.
[8] AB 42.
The appellant's personal circumstances
The appellant is 51 years of age. He was 50 years of age when he committed the offences.
The appellant is a Vietnamese citizen. He was born and raised in Vietnam, and has a large family, all of whom reside in Vietnam. The appellant speaks little English. He had little education and his previous employment was as a general labourer.
The appellant denies any involvement with the misuse of drugs and does not consume alcohol.
The appellant has been married for about seven years, and he and his wife have a child of about 6 or 7 years of age. The appellant also has two adult children from an earlier marriage. His wife and young child are living in Vietnam. The appellant remains in contact with them. They have experienced financial hardship and difficulties as a result of his absence and incarceration in Australia.
The appellant anticipates that when he is released from prison, he will be deported to Vietnam, and he wishes to be deported as soon as possible in order to be reunited with his family.[9]
[9] AB 41.
The appellant came to Australia on a business visa in September 2016, for the purpose of earning money to send back to his family in Vietnam. However, he had difficulty finding work here. The appellant initially went to Victoria, but after having no success in finding work there, made his way to Perth in June 2017.
Shortly after the appellant arrived in Perth, one of the co‑accused offered the appellant work in cultivating the cannabis the subject of the offences. The appellant worked for three to four weeks before he was apprehended. He was to be paid $500 per week for doing so, however was never in fact paid for the work.
When the appellant was arrested, he was spoken to by police through a Vietnamese interpreter. He declined to be interviewed.
There was no dispute that the appellant entered his plea of guilty at the earliest opportunity.[10] According to the pre-sentence report, the appellant had expressed remorse for his actions.
[10] AB 43.
The appellant had no record of any prior convictions in Australia or in Vietnam, and the State accepted that he was a person of prior good character.[11]
[11] AB 43.
In her plea in mitigation at the sentencing hearing, counsel for the appellant accepted that the appellant 'was not just simply a crop‑sitter, and … that his involvement was a little bit more than that', but submitted that 'he was not on the higher levels of this entire enterprise'.[12] In addition, counsel for the appellant submitted that while the appellant had initially claimed that he did not realise that cannabis was illegal in Australia, he subsequently changed his instructions, and he accepted that what he did was wrong.[13]
[12] AB 40.
[13] AB 43.
On the other hand, counsel for the State submitted that while the appellant was 'a cog in the machine', his role in tending to, and harvesting, the cannabis plants was nevertheless an important one in the whole enterprise.[14] Counsel for the State submitted that while the appellant had claimed that he did not know that cannabis was illegal in Australia, the fact that the whole house had been converted for the purpose of its cultivation, and the fact that the appellant was to be paid $500 per week for a modest amount of work, should have alerted the appellant to the fact that what he was doing was illegal.
[14] AB 42.
The sentencing judge's approach
The learned sentencing judge began by making an assessment of the seriousness of the offending. He noted the maximum penalty for each count was imprisonment for 10 years, or a fine of $20,000, or both. His Honour then observed that while the appellant was 'at a relatively low level in this organisation it was a very sophisticated one'.[15] His Honour found that the seriousness of the offending was aggravated by the degree of sophistication and scale of the cannabis cultivation organisation, and by the very substantial amount of cannabis bud that was located.[16] The learned sentencing judge concluded that the appellant was 'a part of a sophisticated commercial operation' and that the appellant's conduct involved very serious offending.[17]
[15] AB 44.
[16] AB 44.
[17] AB 45.
The learned sentencing judge also took into account matters of mitigation. These were the appellant's early pleas of guilty, the fact that the appellant was of prior good character, and the fact that imprisonment would be a greater burden on the appellant by reason of his lack of English skills and by virtue of being such a distance from his home.[18]
[18] AB 44.
The learned sentencing judge gave the appellant a discount of 20% for his early pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act). He accepted that those pleas came at an early opportunity, but noted that the appellant was, 'in effect, caught red‑handed'.[19]
[19] AB 44.
There was no dispute that terms of imprisonment were the only appropriate sentences for the offending.[20]
[20] AB 45.
The learned sentencing judge concluded that a sentence of 2 years and 6 months' immediate imprisonment should be imposed in respect of each count. Section 88(2) of the Sentencing Act provides that an offender sentenced at the one time to one or more fixed terms of imprisonment is to serve those terms concurrently, unless the court makes an order under s 88(3). By s 88(3), relevantly, if at the time an offender is sentenced to a fixed term the offender is then also sentenced to serve another fixed term, the court may order that the fixed term is to be served cumulatively on the other fixed term or the fixed term is to be served partly concurrently with the other fixed term. In the present case, his Honour imposed the individual sentences for each count and then said:
that the totality principle does not require any further adjustment. The sentence of five years [is] the appropriate measure of the criminality involved here.[21]
It is apparent from his Honour's sentencing remarks, considered as a whole, and from the certificate of final outcome which his Honour signed, that his Honour, in effect, ordered that the individual sentences be served cumulatively.
[21] AB 45
The total effective sentence was backdated to commence on 12 July 2017, to take into account the time the appellant had spent on remand. The appellant was made eligible for parole.
Relevant sentencing principles
The following principles in relation to sentencing appeals, including on grounds concerning a breach of the totality principle, are well established:[22]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(5)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (that is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (that is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
(7)The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up.
[22] See, for example, Biruta v The State of Western Australia [2019] WASCA 52 [34] (Buss P & Beech JA), and Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26] (McLure JA, Steytler P & Miller JA agreeing).
The parties' contentions
Counsel for the appellant submitted that the aggregate sentence imposed 'did not bear a proper relationship to the overall criminality of the appellant's conduct having regard to all relevant circumstances'.[23] She submitted that:
[T]he sentence imposed on count 2 should have been ordered to run concurrently with the sentence imposed on count 1 consistent with the first limb of the totality principle. This would also be consistent with the manner in which the sentences subject to appeal have been imposed in identical circumstances.[24]
[23] Appellant's submissions [28].
[24] Appellant's submissions [30].
Counsel for the appellant also submitted that in those cases where growing plants were found alongside quantities of harvested or packaged cannabis material, the sentences imposed for the offences of cultivation, and for possession with intent to sell or supply, would ordinarily be ordered to be served concurrently.[25]
[25] Appellant's submissions [15].
In contrast, counsel for the State submitted that:
By willingly participating in what was clearly a flourishing, extensive, sophisticated and lucrative cultivation enterprise, the appellant rendered those in the distribution chain an essential service. His participation, as with all 'gardeners', 'crop sitters', or by analogy, couriers in the drug trade, allowed those higher up in the chain to operate at arm's length from the stage of production most vulnerable to detection by the authorities. His services were essential to the creation of the marketable product, namely cannabis.[26]
[26] State's submissions [37].
At the hearing, counsel for the State acknowledged that the 'total effective sentence in this case would be … evidence, as it were, of the dispositions in this type of offending firming up'.[27] She also accepted that the total effective sentence was 'high' but submitted that the scale of the operation, and the importance of the appellant's role in it - notwithstanding that he was at the 'coalface of the operation' - were important considerations.[28] She emphasised that an aggravating factor was that the appellant was prepared to engage in the conduct which he knew to be an illegal operation for payment, and that what set him apart from other offenders was the scale and sophistication of the operation, and the importance of the appellant's role in it.[29]
[27] Appeal ts 4.
[28] Appeal ts 4 - 5.
[29] Appeal ts 5.
Cases relied upon by the appellant for comparative purposes
Counsel for the appellant submitted that the case law distinguished
between high level commercial dealers and producers of cannabis for wide scale distribution both within Western Australia and across Australian State borders and those who provide their labour in the actual cultivation and harvesting of cannabis crops (in common parlance 'gardeners' or 'crop sitters') for a small financial 'wage'. The appellant's offending falls within the latter category.[30]
[30] Appellant's submissions [13] - [14].
Counsel for the appellant referred to a number of cases in support of these submissions, namely Rillotta v The State of Western Australia,[31] Franchina v The State of Western Australia,[32] Nguyen v The State of Western Australia,[33] Nguyen v The State of Western Australia,[34] HNA v The State of Western Australia[35] and Lester v The State of Western Australia.[36]
[31] Rillotta v The State of Western Australia [2017] WASCA 55.
[32] Franchina v The State of Western Australia [2017] WASCA 56.
[33] Nguyen v The State of Western Australia [2017] WASCA 195.
[34] Nguyen v The State of Western Australia [2009] WASCA 8.
[35] HNA v The State of Western Australia [2016] WASCA 165.
[36] Lester v The State of Western Australia [2011] WASCA 128.
In determining whether a total effective sentence breaches the totality principle, reference to comparable cases may identify a sentencing range for offences of the kind in question. However, the fact that a sentence is within or outside that range does not necessarily establish that the sentence involved an appropriate, or erroneous, exercise of the sentencing discretion.[37]
[37] Halmi v The State of Western Australia [2013] WASCA 229 [33].
Rillotta and Nguyen[38] and the more recent decision in My v The State of Western Australia[39] (which involved one of Nguyen's co-offenders) 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.
[38] Nguyen v The State of Western Australia [2017] WASCA 195.
[39] My v The State of Western Australia [2018] WASCA 1.
In contrast, Lester, and the authorities reviewed in Lester by McLure P, provide an indication of the range of sentences imposed for offending at the lower end of the scale for offences involving the cultivation, or possession, of cannabis with intent to sell or supply. Generally speaking, that review indicated that sentences for the cultivation of cannabis involving modest numbers of plants or seedlings, or possession of amounts of cannabis head or other loose cannabis material in the order of between 2 kg and 8 kg, tended to fall within a relatively narrow sentencing range of 1 year and 4 months', and 2 years and 8 months', immediate imprisonment. The facts and sentence imposed in Lester itself were regarded as broadly consistent with these comparable cases. However, as McLure P noted, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion.[40]
[40] Lester [23].
Counsel for the appellant also referred to HNA. In that case, the appellant was convicted of one count of cultivating cannabis with intent to sell or supply. He was unemployed, and was recruited to trim cannabis buds. He was to be paid about $500 per day for doing so. He did so on one occasion only, when he spent about 12 hours harvesting buds of cannabis at a house which had been converted for a hydroponic cannabis growing operation. A total of 270 plants were being grown at the house, and 4.46 kg of saleable cannabis head was located at the house in sealed bags. The appellant knew the scale of the illegal commercial operation. Before he was able to undertake further work, police apprehended those involved in the cannabis growing operation, and the appellant was subsequently arrested. The appellant had no ongoing involvement in the cannabis growing operation, and was not well acquainted with those who engaged him to trim the buds. The appellant pleaded guilty at the first opportunity. He cooperated with the police by identifying a co-offender. There were a number of mitigating factors arising from the appellant's personal circumstances.
The appellant in HNA was sentenced to 9 months' immediate imprisonment. His contention on appeal - that the term of imprisonment ought to have been suspended or conditionally suspended - was dismissed, on the basis that the scale of the commercial operation in which he had knowingly participated for financial reward, and the number of plants, demanded an immediate custodial term.[41] However, the fact that the appeal was dismissed says nothing about the correctness of the term of imprisonment imposed, because the length of the term was not ultimately challenged in the appeal. Further, the term of imprisonment imposed was described by this Court as 'significantly less than would otherwise have been required' on account of the various mitigating factors relating to the offender's personal circumstances.[42] For that reason, the length of the term of imprisonment imposed in HNA provides no guidance for sentencing in other cases.
[41] HNA [43], [55].
[42] HNA [45].
The cases to which counsel for the appellant referred, and which are discussed above, focused on offending at the upper and lower ends of the scale for the cultivation or possession of cannabis with intent to sell or supply it to others. Ordinarily at least, the proper exercise of the sentencing discretion in respect of offenders whose criminality is regarded as greater than that of mere 'gardeners', but who are not at the very top of a cultivation and distribution enterprise, might be expected to result in a sentence located along the scale between the range of sentences for those two extremes. By way of example, in Franchina the appellant was a major customer of the Rillottas (whose appeal was discussed above), who was supplied with about 13.6 kg of cannabis. He was convicted after trial of one count of possession of cannabis, with intent to sell or supply it to another person. He was characterised as a 'wholesaler' of cannabis, who played a 'crucial and integral role' in the distribution of large quantities of cannabis.[43] The appeal against his sentence of 4 years' immediate imprisonment was dismissed.
[43] Franchina [42].
Having regard to the submission by counsel for the appellant that the learned sentencing judge should have ordered that the sentences for counts 1 and 2 be served concurrently, it is appropriate to add that there is no general rule that sentences imposed for the cultivation, and for the possession, of cannabis, with intent to sell or supply to others, and which were committed on the same occasion, must be made concurrent in order to give effect to the first limb of the totality principle, or to the so-called 'one transaction' rule. Instead, the question in each case is whether the aggregate sentence is proportionate to the overall criminality of the offending, having regard to the maximum penalties for the offences involved, to general sentencing patterns for offending of this kind, to the circumstances of the offending, and to the offender's personal circumstances.
Why the appeal should be allowed
None of the cases to which counsel for the appellant referred are factually comparable to the present case.
In the context of drug offences like those involved in this case, important factors in identifying the criminality of an offender's conduct are the quantity of drugs or plants involved, the nature of the offender's participation within a particular organisation or generally, and whether the offence was committed for commercial gain.[44]
[44] HNA [37]; Lester [21] - [22] (McLure P).
Clearly the appellant's offending was not at the upper end of the scale for offending of this kind. The appellant had not set up the production of the cannabis, and was not participating in the profits of the enterprise.
However, the appellant's involvement in the cultivation and distribution of cannabis was not confined to that of a mere 'gardener' either. He undertook the cultivation of the cannabis on the understanding that he would be paid for doing so, and thus for commercial gain. He was involved in that role for three to four weeks. In that respect, there was clearly a level of trust placed in the appellant. It must have been apparent to him that the cultivation enterprise was a large and sophisticated one: the whole house had been converted for the hydroponic cultivation of cannabis plants. In excess of 100 plants, and a very large quantity of cannabis buds and other cannabis material were located at the house. While the appellant's role in the cultivation was to provide labour, the significance of that role to the enterprise as a whole should not be understated. His role was integral to the entire enterprise. Without the appellant's willingness, as a trusted party, to tend to the cannabis over a sustained period of its growing cycle, the cultivation and supply enterprise could not be sustained.
In any event, the appellant's role was not confined to the cultivation of the plants. When he was apprehended, he was engaged in packaging the cannabis for supply to others. Counsel for the appellant at the sentencing hearing acknowledged that the appellant's role went beyond that of a mere 'crop-sitter', albeit that he was not involved at the higher levels of the enterprise.
In our respectful view, having regard to the facts and circumstances of the offending, and all relevant sentencing principles, and giving full weight to the latitude afforded to the sentencing judge in the exercise of the sentencing discretion, the total effective sentence of 5 years' immediate imprisonment did not properly reflect the overall criminality involved in the appellant's offending, considered as a whole, and a total effective sentence materially lower than 5 years' immediate imprisonment should have been imposed.
We are therefore satisfied that the total effective sentence was unreasonable or plainly unjust, so that the result of the exercise of the sentencing judge's discretion permits an error of principle to be inferred. That implied error in the exercise of the sentencing discretion justifies and requires appellate intervention, consistently with the principles in House v The King.[45]
[45] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ).
The appeal should therefore be allowed.[46] As the learned sentencing judge's discretion miscarried in respect of the total effective sentence, which resulted from the individual sentences imposed for each offence, the sentences imposed by his Honour must be set aside and the appellant resentenced. As this Court has all of the material necessary to re-sentence the appellant, it should do so.[47]
[46] Criminal Appeals Act 2004 (WA) s 31(4)(a).
[47] Criminal Appeals Act s 31(5)(a), s 31(6)(a).
Re-sentencing of the appellant
In considering the proper exercise of the sentencing discretion in this case, we have borne in mind the observation made by McLure P in Lester,[48] in a passage cited many times since then, that
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 sentence 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 our view, that statement remains as pertinent today as it was in 2011 when her Honour made it.
[48] Lester [21] - [22].
Having reviewed all of the relevant facts and circumstances of the case, including the appellant's personal circumstances, we would, like his Honour, afford a 20% discount pursuant to s 9AA of the Sentencing Act for the appellant's early pleas of guilty. We would also, like his Honour, impose a sentence of 2 years and 6 months' immediate imprisonment for each of counts 1 and 2.
In our view, a total effective sentence of 3 years and 3 months' immediate imprisonment would properly reflect the overall criminality involved in these offences, considered as a whole, having regard to all of the circumstances of the case, including those referable to the appellant personally, and all relevant sentencing factors.
In order to achieve that outcome, the sentence for count 2 should commence after the appellant has served 9 months of the sentence on count 1, and thereafter the sentences should be served concurrently. The sentence for count 1 should be backdated to commence on 12 July 2017. The appellant should be eligible for parole.
The orders which should be made are as follows:
1.The appeal is allowed;
2.The sentences imposed on the appellant are set aside and in lieu thereof the following sentences are imposed:
(a)on count 1, 2 years and 6 months' immediate imprisonment;
(b)on count 2, 2 years and 6 months' immediate imprisonment;
(c)the sentence for count 1 is backdated to commence on 12 July 2017;
(d)the sentence for count 2 is to commence after the appellant has served 9 months of the sentence for count 1, and thereafter the sentences are to be served concurrently;
(e)the total effective sentence is therefore 3 years and 3 months' immediate imprisonment; and
(f)the appellant is eligible for parole.
The sentencing judge's declaration that the appellant is a drug trafficker, which was not part of the sentence, is unaffected by these orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FP
Associate to the Honourable Justice Pritchard3 MAY 2019
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