Harvey v The State of Western Australia
[2017] WASCA 149
•11 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HARVEY -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 149
CORAM: BUSS P
MITCHELL JA
HALL J
HEARD: 31 JULY 2017
DELIVERED : 11 AUGUST 2017
FILE NO/S: CACR 111 of 2017
BETWEEN: CHRISTOPHER PETER HARVEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :IND 2043 of 2016
Catchwords:
Appeal against sentence - Attempted possession of cannabis with intent to sell or supply to another - Whether manifestly excessive - Whether suspended or conditionally suspended sentence appropriate
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr A Robson
Respondent: Ms K C Cook
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Adornetto v The State of Western Australia [2017] WASCA 57
Corbett v The State of Western Australia [2016] WASCA 97
Franchina v The State of Western Australia [2017] WASCA 56
Gallager v The State of Western Australia [2016] WASCA 54
HNA v The State of Western Australia [2016] WASCA 165
Lester v The State of Western Australia [2011] WASCA 128
Noble v The Queen [2003] WASCA 83
R v Lyon [2001] WASCA 120
Rillotta v The State of Western Australia [2017] WASCA 55
Rodi v The State of Western Australia (No 2) [2014] WASCA 233
Sandwell v The State of Western Australia [2012] WASCA 15
REASONS OF THE COURT:
Summary
The appellant was convicted, on his plea of guilty, of attempting to possess a prohibited drug, namely cannabis, with intent to sell or supply it to another. That is an offence contrary to s 6(1)(a) and s 33(1) of the Misuse of Drugs Act 1981 (WA). He attempted to purchase a total of 909 g of cannabis for $8,000 from another offender, who was under police surveillance. The appellant was sentenced to 2 years' immediate imprisonment. He now appeals against that sentence on the ground that it was manifestly excessive, both as to the type of sentence and the length of the term of imprisonment. The appellant contends that he should have received a sentence of suspended or conditionally suspended imprisonment, and the term of imprisonment should have been less than 2 years.
We do not accept the submission as to the type of sentence imposed, but agree that the sentence is manifestly excessive as to length. For the following reasons, the appeal should be allowed, the sentence of 2 years' immediate imprisonment set aside and a sentence of 12 months' immediate imprisonment substituted.
Circumstances of offending
On 21 January 2016, police officers executed a search warrant at the house of Gerald Traversari in Casuarina. They located two packages of cannabis weighing 451 g and 458 g (or approximately a pound each), being a total of 909 g. Telephone intercepts revealed that the appellant had arranged to purchase this cannabis from Mr Traversari for $8,000. The appellant contacted Mr Traversari on a number of occasions during January and discussed the supply of cannabis, referring to the cannabis packages as 'skip bins'. The appellant had previously purchased cannabis from Mr Traversari on at least one other occasion, about a fortnight before the date of the present offence.
The appellant drove past Mr Traversari's house two times at about 4.00 pm on 21 January 2016. Police stopped the appellant's vehicle. They found $10,500 in cash, with which the appellant intended to purchase the cannabis found in Mr Traversari's house and pay money owing from his last purchase of cannabis. Police also located a set of scales, a box of clip-seal bags and a list of addresses in the appellant's vehicle. The appellant was arrested and interviewed, but did not make any admissions.
In submissions in mitigation, the appellant's counsel said that the appellant was going to keep approximately 2 ounces (or about 57 g) of the cannabis for himself. Counsel indicated that the appellant would also have sold the cannabis 'within his own social circle'. Counsel indicated that the money from the sale 'would have been fed back into future purchases of cannabis.'[1] Counsel accepted that the appellant made a profit from the cannabis he sold.[2]
[1] Sentencing ts 7-8.
[2] Sentencing ts 11 - 12, 19.
Personal circumstances
The appellant had just turned 24 at the date of his arrest, and was 25 years old at the time of sentence. He had left school in Cunderdin after completing year 10. The appellant attempted an apprenticeship as a motor mechanic, but this ceased after a year. After his arrest, the appellant moved back to Cunderdin. Shortly prior to sentencing, he had found stable employment with Cooperative Bulk Handling Ltd (which required him to undergo regular drug testing). The appellant was married to a woman with whom he had a relationship for over 6 years.
The appellant had experienced difficulties with childhood learning, and may have suffered from an undiagnosed ADHD condition. He started using cannabis heavily in his teens to assist with anxiety and sleep. At the time of sentencing the appellant suffered from anxiety and depression.
The appellant's prior criminal record contained only traffic offences, although there was one conviction for driving under suspension.
The appellant pleaded guilty to the offence at a committal mention, about 11 months after he was charged.
Sentencing judge's approach
After referring to the circumstances of the offending and the appellant's personal circumstances, the sentencing judge noted the steps which the appellant had taken towards his rehabilitation. The sentencing judge said:[3]
There's no doubt that being charged with this offence was cathartic in the sense that it's made you realise there was a need to change. You enjoy, as I said, the strong support of your family and friends and it's apparent that they've played an important role in your life and continue to do so.
[3] Sentencing ts 29.
The sentencing judge noted that the appellant had minimised his involvement by denying any financial gain when interviewed by a psychologist charged with preparing a pre-sentence report. The sentencing judge noted that the appellant now accepted that there was some commerciality in the transaction and that he was selling and in so doing making a profit on the drug he had purchased.[4] After referring to positive character references and a letter the appellant had written to the court, the sentencing judge observed:[5]
All of these people speak well of you and I accept that the offence you've committed is one that's out of character with the person who originally left Cunderdin and travelled to Perth and perhaps fell in with the wrong mob.
[4] Sentencing ts 30.
[5] Sentencing ts 30.
The sentencing judge said that the appellant was still 'a relatively naïve young person' who had not 'reached full maturity at the time of this offending.' He said that youthfulness reflects upon his maturity and prospects for rehabilitation, and justified a lower sentence than might otherwise be indicated.[6]
[6] Sentencing ts 31.
The sentencing judge accepted that the appellant's plea of guilty was indicative of an acceptance of responsibility and a willingness to facilitate the course of justice. His Honour reduced the sentence that would otherwise be imposed by 15% in order to recognise the benefits to the State and to the witnesses resulting from the plea, under s 9AA of the Sentencing Act 1995 (WA).[7]
[7] Sentencing ts 31.
The sentencing judge recognised that he could not impose a term of imprisonment unless he was satisfied that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. In deciding to sentence the appellant to a term of 2 years' imprisonment, the sentencing judge said:[8]
In sentencing you, I take into account not only your personal circumstances, but the need to punish you by a punishment that is just, the need to protect the community and the need for some public denunciation of your offending, also the need to deter others who might be like-minded from committing similar offences and the need to specifically deter you, although I accept in this case the issue of personal deterrence is not high. I also consider your rehabilitation.
Cannabis and the sale of cannabis poses a risk to society. There is a risk correlation between the use of cannabis and mental illness and the progression to higher drugs is a familiar theme in sentencing materials in recent times.
Deterrence is the main consideration for sentencing for all drugs, including cannabis, and matters personal to an offender such as yourself are accorded correspondingly less weight. In this case, it was an attempt to purchase a very significant quantity of drug, two pounds or over 900 grams in all, of material as part of a significant dealing.
The quantity of money involved simply highlights the size of the transactions that were involved. It's accepted that there was some commercial aspect to it.
Having regard to the matters raised in mitigation by your counsel, matters in the pre-sentence report, the psychological report and your plea and also to the matters detailed in the references and the steps that you have taken in a very positive way to address the matters, I remain of the view that the seriousness of the offending is such that the only appropriate disposition is a sentence of imprisonment of two years.
[8] Sentencing ts 32.
The sentencing judge revisited these issues when considering whether the sentence of imprisonment should be suspended. His Honour recognised that a term to be served immediately should not be imposed unless he was satisfied that a suspended sentence is not appropriate.[9] The sentencing judge said:[10]
It is a difficult task. Rehabilitation is an important feature, but … the discretion to suspend is not confined to considerations of rehabilitation and mercy and the objective features of the offence might be such that they outweigh those considerations.
As I said it's difficult. You're now 25 years of age, you have not previously served a term of imprisonment and it's a grave step to send any offender to prison for the first time, particularly someone as young as you, who is identified as having a lack of consequential thinking skills and seemingly the maturity to recognise and avoid negative peer influence.
The courts consistently recognise that it's a serious step to send a person to prison. Section 39 of the Sentencing Act says that it's a sentence of last resort. Imprisonment carries a high risk of further corruption and distortion of character.
You seemingly enjoy a good reputation in the community and you have since acquired stable employment. You have seemingly recognised the need to avoid the use of drugs as a way in which you might otherwise cope with matters.
That said, however, the fact remains that it is a very serious offence and having reviewed the circumstances, notwithstanding the mitigating factors in your favour that have been identified, in my view the appropriate disposition is a term of imprisonment to be served immediately is the only appropriate disposition having regard to the very serious nature of the offending.
To allow suspension, even though that's the penultimate sentence in the sentencing wouldn't adequately demonstrate the community's concern for and condemnation for such offences. The sale of illicit drugs in the community causes great harm in the community and to impose a sentence other than immediate imprisonment would not adequately demonstrate the community's condemnation of such offences.
[9] Sentencing ts 33.
[10] Sentencing ts 33 ‑ 34.
The sentencing judge then imposed the sentence of 2 years' immediate imprisonment, with eligibility for parole.
Ground of appeal
The appellant appeals against the sentence on the ground that it is manifestly excessive, having regard to the circumstances of the offence, the personal circumstances of the appellant and sentencing standards. Manifest excess is alleged to relate to both the type of sentence and the length of sentence. The appellant submits that a shorter sentence of imprisonment ought to have been imposed, and that it ought to have been suspended or conditionally suspended.
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.
In HNA v The State of Western Australia,[11] this court addressed the application of these principles to a sentence for a cannabis offence which the offender contended ought to have been suspended or conditionally suspended. In such a case, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that suspended or conditionally suspended imprisonment were not appropriate options.
[11] HNA v The State of Western Australia [2016] WASCA 165 [23] ‑ [32].
Disposition of appeal
Maximum penalty
The maximum penalty for an offence against s 6(1)(a) and s 33(1) of the Drugs Act relating only to cannabis is a fine of $20,000 and a term of 10 years' imprisonment. This compares to a maximum penalty of a fine of $100,000 and 25 years' imprisonment for the same offence in respect of prohibited drugs other than cannabis.
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 Lester v The State of Western Australia[12] and Rillotta v The State of Western Australia.[13] We adopt the analysis contained in those cases without repeating it.
[12] Lester v The State of Western Australia [2011] WASCA 128.
[13] Rillotta v The State of Western Australia [2017] WASCA 55 [20] ‑ [34]; see also Franchina v The State of Western Australia [2017] WASCA 56 and Adornetto v The State of Western Australia [2017] WASCA 57.
There does not appear to be any case considered by this court where a suspended or conditionally suspended term of imprisonment has been imposed on a person involved in a commercial cannabis operation of significant scale. In Sandwellv The State of Western Australia,[14] the court rejected an argument of express error in a refusal to suspend a sentence of 12 months' imprisonment. In HNA and Noble v The Queen,[15] the court rejected arguments that error was to be inferred from a failure to suspend sentences of imprisonment relating to the hydroponic cultivation of commercial quantities of cannabis. In R v Lyon,[16] the Court of Criminal Appeal allowed a State appeal against a suspended sentence in respect of a substantial commercial cannabis cultivation operation on grounds of manifest inadequacy.
[14] Sandwell v The State of Western Australia [2012] WASCA 15.
[15] Noble v The Queen [2003] WASCA 83.
[16] R v Lyon [2001] WASCA 120.
As was noted in HNA:[17]
The harm caused by illicit drugs, including cannabis, and the need for general deterrence have led this court to express the view that, generally, as a matter of fact, 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, as a matter of fact, result in a penalty of immediate imprisonment. (citations omitted)
[17] HNA [39].
However, the length of the sentence imposed in this case does appear to be significantly more severe than the sentences imposed in comparable cases decided by this court.
In Rodi v The State of Western Australia,[18] the offender, a mature man without criminal record, was sentenced to 12 months' immediate imprisonment after trial for possessing about 925 g of cannabis as part of a 'fairly lucrative cash business'. In that case the sentencing judge had been mistaken as to the applicable maximum penalty. This court regarded a term of 12 months' immediate imprisonment as an appropriate sentence having regard to the quantity of cannabis possessed, that it was possessed for the purpose of commercial dealing and that the appellant was found to be a mid-level dealer. Rodi's appeal was dismissed on the basis that, despite the sentencing judge's error of law, there was no basis for concluding that a different sentence should have been imposed.[19] That is, the court did not merely decide Rodi on the basis that the sentence imposed was not manifestly excessive.[20]
[18] Rodi v The State of Western Australia (No 2) [2014] WASCA 233.
[19] Rodi [35].
[20] Compare Gallager v The State of Western Australia [2016] WASCA 54 [82]; Corbett v The State of Western Australia [2016] WASCA 97 [109].
In Lester, a mature offender who established a relatively sophisticated cultivation operation, and was found in possession of 2 kg of cannabis head material, received a sentence of 18 months' immediate imprisonment. Like the appellant, Lester was a regular cannabis user. He had a minor record of simple drug related offences, and pleaded guilty at the first reasonable opportunity.
In Sandwell, the offender received a 12 month sentence of immediate imprisonment, on a plea of guilty, for possessing about 2.5 kg of cannabis and 147 cannabis seedlings. He was sentenced on the basis that he cultivated and possessed the cannabis with the intention of using it himself and distributing it to a small number of his friends. While Sandwell was not engaged in a commercial enterprise, he was in possession of a much larger quantity of cannabis than the appellant, and was responsible for its cultivation.
Although he played only a very minor role in harvesting a hydroponic crop, the offender in HNA received a 9 month sentence of immediate imprisonment.
In Miles v The State of Western Australia,[21] a total effective sentence of 22 months' immediate imprisonment was upheld in respect of possession of about 421 g of cannabis with intent to sell or supply, together with possession of dexamphetamine tablets and $27,500 in cash reasonably suspected of being unlawfully obtained. The sentence imposed for the cannabis offence was 11 months' immediate imprisonment. The impact of the totality principle means, however, that the individual sentence for the cannabis offence needs to be treated with some caution.
[21] Miles v The State of Western Australia [2016] WASCA 138.
Decisions prior to Lester also indicate a lower range of sentences in broadly comparable cases. Those decisions must be viewed with caution, given the firming up of sentences for trafficking in cannabis since Lester, as noted in Rillotta.[22] The following observation in Rillotta is also relevant to the present appeal:[23]
The range of sentences imposed in the past does not fix the boundaries within which future sentences must be passed. Rather the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle. Sentences imposed in a few cases do not define the sentencing range, and are not sufficient in number to provide a sentencing pattern. At best they are representative of particular aspects of the spectrum of seriousness.(citations omitted)
Seriousness of offending
[22] Rillotta [31].
[23] Rillotta [31].
The seriousness of the appellant's offending is aggravated by the significant quantity and value of the cannabis which he attempted to purchase. In the parlance of the drug trade, he was going to buy two pounds of cannabis at the rate of $4,000 per pound. The appellant was obviously well aware of what he was purchasing. He was operating his own cannabis supply business for profit in order to fund his own illicit drug use. The appellant was in regular contact with Mr Traversari, and the incident was not isolated.
Personal circumstances
As has been noted on many occasions, 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 present case there were significant mitigating factors. After a period of 'going off the rails', the appellant appeared to have taken steps to get back on track. He had returned to Cunderdin, found stable employment and engaged in a positive way with his local community. The drug testing in the employment which the appellant gained with Cooperative Bulk Handling suggested that the appellant had ceased his regular cannabis use. He was in a stable relationship. Apart from his drug dealing, the appellant was a person of generally good character without any relevant prior convictions.
While considerations of personal and general deterrence meant that these personal factors were to be given less weight than may be accorded for other offences, they remain relevant. The appellant is a young man with promising prospects of rehabilitation, who has taken positive steps toward turning his life around.
Conclusion
Having regard to all relevant sentencing principles and considerations and all of the circumstances of the offence and the appellant, it was open to the sentencing judge to conclude that the seriousness of the offence and the need for general deterrence outweighed the mitigating factors and made inappropriate any sentence other than immediate imprisonment. The amount and value of the cannabis which the appellant attempted to possess, the significant commercial element to the operation and the need for general deterrence formed a proper basis for the sentencing judge to be positively satisfied that suspended and conditionally suspended imprisonment were not appropriate sentencing options.
However, we are satisfied that the sentence imposed was manifestly excessive as to its length. Having regard to the maximum penalty for the offence (which is lower than that provided for prohibited drugs other than cannabis), the circumstances of the offence, the current customary sentencing standards and practice and all other relevant sentencing considerations, including matters of mitigation, we are of the view that a sentence of 2 years' immediate imprisonment was unreasonable or plainly unjust.
Having regard to all of the circumstances of this case, we would resentence the appellant to a term of 12 months' immediate imprisonment. The appellant remains eligible for parole, and the sentence is backdated to 12 May 2017 to take account of time already served.
In imposing this sentence we have reduced the notional head sentence which would otherwise have been imposed, before taking other mitigating factors into account, by 15% in order to recognise the benefits to the State and to the witnesses resulting from the plea, under s 9AA of the Sentencing Act.
Orders
For the above reasons, we make the following orders:
1.Leave to appeal is granted on the sole ground of appeal.
2.The appeal is allowed.
3.The sentence imposed by the District Court of Western Australia in IND 2043 of 2016 is set aside and there is substituted a sentence of 12 months' immediate imprisonment with eligibility for parole.
4.The sentence imposed by order 3 is taken to have begun on 12 May 2017.
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