HNA v The State of Western Australia
[2016] WASCA 165
•27 SEPTEMBER 2016
HNA -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 165
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 165 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:109/2016 | 9 SEPTEMBER 2016 | |
| Coram: | BUSS P MAZZA JA MITCHELL JA | 27/09/16 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | HNA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Alleged manifest excess as to type of sentence Cultivation of cannabis with intent to sell or supply Where appellant employed to harvest cannabis as part of a highly sophisticated commercial hydroponics operation Whether open to sentencing judge to be satisfied that it was not appropriate to suspend sentence of 9 months' imprisonment |
Legislation: | Misuse of Drugs Act 1981 (WA), s 7(1), s 34(2) Sentencing Act 1995 (WA), s 39(3), s 76, s 81 |
Case References: | Collins v The State of Western Australia [2007] WASCA 108 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Fenton v The State of Western Australia [2015] WASCA 255 Gok v The Queen [2010] WASCA 185 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lester v The State of Western Australia [2011] WASCA 128 R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440 Sandwell v The State of Western Australia [2012] WASCA 15 Tapper v The State of Western Australia [2016] WASCA 140 The State of Western Australia v Baldini [2015] WASCA 39 The State of Western Australia v Malone [2015] WASCA 188 Trajkoski v The State of Western Australia [2008] WASCA 130 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HNA -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 165 CORAM : BUSS P
- MAZZA JA
MITCHELL JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BOWDEN DCJ
File No : IND 421 of 2016
Catchwords:
Criminal law - Appeal against sentence - Alleged manifest excess as to type of sentence - Cultivation of cannabis with intent to sell or supply - Where appellant employed to harvest cannabis as part of a highly sophisticated commercial hydroponics operation - Whether open to sentencing judge to be satisfied that it was not appropriate to suspend sentence of 9 months' imprisonment
Legislation:
Misuse of Drugs Act 1981 (WA), s 7(1), s 34(2)
Sentencing Act 1995 (WA), s 39(3), s 76, s 81
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr A E Eyers
Respondent : Mr J C Whalley
Solicitors:
Appellant : Anthony Eyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Collins v The State of Western Australia [2007] WASCA 108
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fenton v The State of Western Australia [2015] WASCA 255
Gok v The Queen [2010] WASCA 185
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lester v The State of Western Australia [2011] WASCA 128
R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440
Sandwell v The State of Western Australia [2012] WASCA 15
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v Malone [2015] WASCA 188
Trajkoski v The State of Western Australia [2008] WASCA 130
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- REASONS OF THE COURT:
Summary
1 The appellant has been granted leave to appeal against a sentence of 9 months' immediate imprisonment imposed for cultivating cannabis plants with intent to sell or supply cannabis to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). He argues that the term of imprisonment ought to have been suspended or conditionally suspended. The appellant contends that it was not open to the sentencing judge to be satisfied that suspended and conditionally suspended imprisonment were not appropriate sentencing options. For the following reasons, the appeal must be dismissed.
Circumstances of offending
Recruitment of the appellant
2 In late 2014, the appellant received a call from a friend who, a few years earlier, had introduced him to a person to whom the appellant referred as 'the Boss' but would not identify to police. He understood that 'the Boss' may be 'tied in with the Italian mafia'. The friend asked if the appellant was interested in 'trimming buds for money'. The appellant understood this to mean that he would be cutting buds off cannabis plants for payment. The appellant, who was unemployed at the time, told his friend that he was interested.
3 A few weeks later, the appellant's friend visited his home and told the appellant that 'there was a house full of buds that were nearly ready to be trimmed'. It was arranged for the appellant to attend a designated park at a specified time after dark and meet a person who would show him the house. The appellant understood, from a previous instruction from 'the Boss', that he and the man he was meeting were to use nicknames rather than their real names.
4 The appellant met the man, Troy Boyle, at a park, and was driven to a house in Wanneroo. He was shown the house over about an hour. He observed that there was a generator in one room and the other rooms were being used to grow cannabis plants. The appellant later told police that 'I have never seen so many cannabis plants in my life'. He was told by Mr Boyle that it was 'a million dollar operation'. Mr Boyle explained that the house was his, that he had some false rental documents to show he was leasing the house to 'a false person' and that he supplied the generator with diesel using the fuel tanks of his ute. Mr Boyle told the appellant that this was the second batch of cannabis plants grown at the house using the equipment. After being shown the house, the appellant was dropped off at the park where he had met Mr Boyle.
5 Sometime later, the appellant received another call from his friend, and was told that the buds from the cannabis plants were just about ready to harvest. It was arranged that the appellant would start work at the Wanneroo house in about a week's time and would meet Mr Boyle at 10.00 am in the same park.
The appellant's participation in the operation
6 The appellant met Mr Boyle at the park on Wednesday 26 November 2014, and was driven to the Wanneroo house. The appellant was told that he was expected to work 12 hours a day in the house, and it would take about two weeks to harvest all of the cannabis plants.
7 The appellant spent about 12 hours harvesting the buds of cannabis plants under the instruction of Mr Boyle. Mr Boyle brought the plants in pots to the appellant, who would trim off all the cannabis buds and place them in big black drying bags that were hanging from the ceiling. It was extremely hot in the house due to the heat lamps, and the appellant was sweating a lot.
8 After he finished work, the appellant changed into a spare set of clothes he had brought with him. He left his old clothes at the house, intending to change back into them when he started working at the house on the following day. Mr Boyle dropped the appellant back at the park where they had met.
Police execute a search warrant at the Wanneroo house
9 At about 5.40 am on the following day, 27 November 2014, police executed a search warrant at the Wanneroo house.
10 They found that the house had been converted into a highly sophisticated commercial hydroponics operation for the purpose of cultivating cannabis plants.
11 There were three professionally installed meter boxes within the premises, in addition to the standard external meter box. The operation was powered by mains power and an additional commercial sized diesel power generator which had been built into a custom made soundproof booth in the house.
12 The windows of the house were covered from the inside with sheets of plasterboard installed over closed window treatments. The roof space contained an elaborate air filtration system. The house was divided into eight separate growing zones, each consisting of exhaust fans, air filters, heat lamps and an automated reticulation system. The house was being used to grow a total of 167 mature cannabis plants. An additional 103 smaller cannabis plants were in a cloning chamber located within a large partitioned area in the kitchen. A total of 270 cannabis plants, with an approximate weight of 151 kg, were seized from the house. The value of the plants was between $230,000 - $940,000.
13 Also located in the house were a commercial grade vacuum sealer, numerous vacuum seal bags, commercial quantities of hydroponic fertiliser solutions and surplus items of hydroponic equipment. A large hanging rack was being used to dry various quantities of hydroponic cannabis head material.
14 On the kitchen bench there were two further boxes of cannabis head material and a large bucket on the kitchen floor which was also full of cannabis. A search of the kitchen cupboards located a large sports bag which contained a further three large vacuum seal bags, each containing approximately 454 g, or one pound, of cannabis head material. The total quantity of cannabis seized was 11.279 kg, of which 4.46 kg was saleable.
The appellant is warned off
15 At about 10.00 am on 27 November 2014, the appellant returned to the park and waited for Mr Boyle to pick him up. The appellant waited for about half an hour and made several unanswered phone calls to Mr Boyle to try to find out where he was. After waiting for a while, the appellant gave up and drove home.
16 The appellant received a phone call that afternoon from 'the Boss', who instructed the appellant not to go near Mr Boyle's house. 'The Boss' told the appellant he had driven past the house earlier that day and observed police to be present.
The appellant is arrested
17 As a result of further inquiries, police arrested the appellant at his home on 17 March 2015. The appellant was interviewed and admitted that he had been harvesting the cannabis plants on the day before they were seized by police. The appellant was charged with one count of cultivating cannabis plants with intent to sell or supply cannabis to another.
The sentencing judge's approach
18 The appellant was sentenced on 30 May 2016. The sentencing judge noted the circumstances of the offending and identified these mitigating factors:
1. The appellant pleaded guilty at the first reasonable opportunity.
2. The appellant had no previous convictions as an adult.
3. The appellant has female physiology but has lived as a man since the age of 30. His childhood was marred by gender confusion and physical and sexual abuse, and he suffered from depression at the time of the offending. The appellant's gender issues were likely to make imprisonment a greater than usual hardship for him and affect his mental health issues.
4. In addition to complex personality issues, major depression and anxiety, the appellant was, after committing the offence, diagnosed with bipolar affective disorder, which was causally connected with the offending.
5. The appellant was a troubled person who was vulnerable to other people exploiting him, as occurred on the occasion of the offence.
6. The appellant provided significant assistance to police, by making full and frank admissions of his involvement in the offence and identifying Mr Boyle as a participant in the operation.
7. The appellant had demonstrated remorse.
19 The sentencing judge saw the appellant's diagnosis of bipolar affective disorder as a relevant circumstance which could reduce the appellant's moral culpability. He recognised the disorder as having an effect on the need for general and specific deterrence. However, the sentencing judge considered that, notwithstanding the appellant's mental health issues, general deterrence did have a role to play.1 The sentencing judge said:
Now, clearly one does have to look at the nature of your mental health symptoms, the effect on your mental capabilities and the nature and the seriousness of the offence. The total sentence I impose must be appropriate, bearing in mind the criminality displayed by the offence and also … bearing in mind your personal circumstances.
As I say, your personal circumstances excite considerable sympathy. But at the end of the day, as is conceded by [the appellant's counsel], the offence is so serious, the need to deter is so high that a period of imprisonment is appropriate. The question of whether or not the sentence ought to be suspended is of course what's occupied counsel's mind and rightly so.
But it seems to me at the end of the day, notwithstanding the matters that I have referred to - that is, your mental health issues, your vulnerability, the fact that imprisonment is likely to [be] harsher on you, that your involvement was less than others, that your assistance to authorities was significant, that you are genuinely remorseful, that you've got no prior record, and that you've cooperated with the police.
It seems to me that the need to deter people from being involved in the cultivation of cannabis for commercial gain is so high that a period of imprisonment is the only appropriate disposition and a suspended sentence would just be wholly inappropriate. It would just fail to adequately reflect the serious nature of the offence.
20 After taking account of all mitigating factors, the sentencing judge imposed a sentence of 9 months' immediate imprisonment.
The appeal to this court
21 The appellant appeals against the sentence of 9 months' immediate imprisonment on the sole ground that the sentencing judge imposed a manifestly excessive sentence from which an error of law in the exercise of his sentencing discretion may be inferred. At the hearing of the appeal counsel for the appellant confined his argument to a submission that the term of immediate imprisonment was not the only appropriate type of sentence in all the circumstances. He contended that the sentencing judge should have suspended the 9-month term which he imposed.
22 The appellant's appeal counsel was clearly correct not to press written submissions that contended that the length of the sentence of imprisonment was manifestly excessive. The sentence imposed was only 3 months longer than the minimum term of imprisonment which could have been imposed.2 An error of principle as to length of sentence cannot be inferred in these circumstances. Counsel's oral submissions were appropriately focused on the contention that there was an error as to the type of sentence imposed.
General principles
23 Section 6 of the Sentencing Act 1995 (WA)requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the appellant's offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. The appellant bears the onus of establishing mitigating factors on the balance of probabilities.
24 Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only a sentence of imprisonment can be justified or the protection of the community requires it.
25 The effect of s 39(3) of the Sentencing Act is that a court must not impose a term of immediate imprisonment unless satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options. In deciding whether it is satisfied of that matter, the court must have regard to the sentencing principles in pt 2 div 1 (including s 6) of the Act.
26 Section 39(3) of the Sentencing Act imposes a constraint on the court's sentencing discretion. The constraint is not discretionary. A court 'must not' use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. Section 39(3) prohibits a court from imposing a sentence of immediate imprisonment unless the required state of satisfaction exists.
27 The condition for the release of the constraint on the court's sentencing discretion which s 39(3) of the Sentencing Act imposes is defined by reference to the existence of a state of satisfaction in the sentencing court. The subject matter about which the sentencing court must be satisfied is the appropriateness of different types of sentence. A sentencing judge must be positively satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options before imposing a sentence of immediate imprisonment.
28 In considering whether suspended or conditionally suspended imprisonment is not appropriate, the provisions relating to those sentencing options must be considered. Only terms of 5 years or less may be suspended or conditionally suspended.3 Suspended or conditionally 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.4 Further, suspended or conditionally suspended imprisonment is not to be imposed if the offence was committed when the offender was subject to an early release order, or the offender is serving or is yet to serve a term of imprisonment that is not suspended.5 These specific requirements did not preclude the imposition of suspended or conditionally suspended imprisonment in the appellant's case.
29 Otherwise, considering what sentencing options are 'not appropriate' involves an evaluative judgment which is broad but not at large. The determination of what is 'not appropriate' must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender.
30 Where a sentence is said to be manifestly excessive as to type, 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 earlier listed sentencing options were not appropriate.
31 As was emphasised in Dinsdale v The Queen,6 in an appeal alleging the imposition of the wrong type of sentence, it remains necessary to identify an error of principle by the sentencing judge before this court has authority to interfere with the sentence. Where error is not express and manifest excess or inadequacy is alleged, the court may infer error where the sentence imposed is unreasonable or plainly unjust.7
32 As in any case where manifest excess is alleged, in determining whether it was open to the sentencing judge to be satisfied that a sentencing option was not appropriate, regard must be had to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender's criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender.
Disposition of appeal
Maximum penalty
33 The maximum penalty for the offence of cultivating cannabis with intent to sell or supply cannabis to another, contrary to s 7(1)(a) of the Misuse of Drugs Act, is a fine of $20,000 or imprisonment for 10 years or both.8
Customary sentencing standards
34 It is established that ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for offences against s 6(1) and 7(1) of the Misuse of Drugs Act. The gravamen of the offences created by those sections is the possession, manufacture, sale, supply or cultivation of illicit drugs which cause significant damage in, and to, the community. The imposition of a suspended term of imprisonment for these offences is, as a matter of fact, exceptional.9
35 The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.10
36 The appellant has identified a number of cases where sentences of immediate imprisonment have been imposed for cultivation and possession of commercial quantities of cannabis with intent to sell or supply to another. The cases include, and are otherwise summarised in, Lester v The State of Western Australia.11 The cultivation of a commercial quantity of cannabis plants with high value is capable of satisfying a sentencing court that suspended and conditionally suspended imprisonment are not appropriate sentencing options.12 Those sentencing options will not be justified merely by characterising the offender as a 'crop-sitter' or 'harvester'.13 The parties have not cited, and we have not been able to locate, any appellate decision in this State where a suspended or conditionally suspended term of imprisonment has been imposed on a person involved in a commercial cannabis operation of significant scale.
37 Of course, in determining the appropriate sentence, the focus is not solely on the quantity of the drug involved. Rather, the sentencing court must evaluate all of the relevant circumstances of the case to ensure that the sentence imposed is commensurate with the seriousness of the offence.14 However, the quantity of drugs involved remains an important factor for the sentencing court to take into account. The quantity of drugs or, in the case of cultivation, the number of plants, is directly related to the extent of harm that may be caused or potentially caused by the substance in question. The number of cannabis plants cultivated may be the 'tipping point' that leads to a conclusion that the only appropriate sentence is a term of immediate imprisonment.15
38 As McLure P observed in Lester:
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 [21] - [22].
39 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.16
40 The imposition of an immediate term of imprisonment in the present case is consistent with the standards of sentencing customarily observed with respect to involvement in the cultivation of significant commercial quantities of cannabis.
Seriousness of offending conduct
41 The appellant agreed, for financial reward, to provide his labour to harvest a large and valuable cannabis crop grown as part of a very sophisticated operation. Although the appellant was not in any sense an organiser, and was not going to share in the profits generated by the operation, the offence remained serious. Although the appellant was not a skilled labourer, the crop needed to be harvested to produce the drug to be sold. As the sentencing judge found, the appellant's role was that of 'a cog in the machine, but it's an important cog'.
42 The appellant knew the scale of the illegal commercial operation in which he was involved, having visited the Wanneroo house before commencing work, and had been told that he was assisting in the harvesting of a 'million dollar crop'. His incentive was the payment he was to receive for the labour, which his counsel informed the sentencing judge was $500 per day. The appellant would have continued harvesting the crop for about another 13 days but for the police 'raid' on the Wanneroo house.
43 Despite the appellant being a mere labourer without any organisational role, the scale of the commercial operation in which he knowingly agreed to participate, for financial reward, and the number and value of plants being produced by that operation would ordinarily, as a matter of fact, demand the imposition of an immediate custodial term.
Personal circumstances
44 Even though a term of immediate imprisonment is generally, as a matter of fact, the appropriate penalty for offences of this kind, a sentencing judge is required to consider whether, in all the circumstances of the particular case and having regard to all relevant sentencing factors, the generally appropriate type of sentence is required.17
45 The various mitigating factors to which the sentencing judge referred were accounted for in the length of the term of imprisonment he imposed, which was significantly less than would otherwise have been required. Matters such as the plea of guilty, remorse, assistance to police and the greater hardship involved in serving a sentence of immediate imprisonment did not necessarily outweigh the considerations of personal and general deterrence which would ordinarily, as a matter of fact, require the imposition of a sentence of immediate imprisonment.
46 The appellant relies on his (undiagnosed at the time of offending) bipolar affective disorder, considered in light of all the circumstances, including the causal connection between the disorder and the offending, as precluding the conclusion that a suspended or conditionally suspended term of imprisonment was not appropriate. The sentencing judge primarily based his conclusion that a suspended or conditionally suspended term of imprisonment was not appropriate on considerations of general deterrence.
47 As Buss JA, with whom McLure P and Mazza JA agreed, noted in The State of Western Australia v Malone:18
The effect of a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self-induced) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. An offender who seeks to rely on a mental disorder, intellectual disability or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her functioning to such an extent as to reduce the moral blameworthiness or culpability of the offending behaviour. However, although a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self-induced) will often tend to diminish moral blameworthiness or culpability and, consequently, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. For example, the existence of a causal connection between the mental disorder, intellectual disability or psychological difficulties, on the one hand, and the offending behaviour, on the other, might reduce the importance of general deterrence but increase the importance of personal deterrence or the need to protect the public. A sentencing factor may be relevant in a number of respects and not affect the sentencing outcome because the factor weighs both positively and negatively in the balance.
48 A psychiatric condition such as bipolar affective disorder can, depending on the circumstances, including any causal connection between the disorder and the offending, affect the significance of general deterrence as a sentencing consideration.
49 Non-drug induced mental impairment which has a causal relationship to the offence can impact on considerations of personal and general deterrence, in addition to reducing the moral culpability of the offender, as explained by Mazza J, with whom McLure P and Buss JA agreed, in Gok v The Queen:19
The impact of general deterrence is something which is often misunderstood. It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is, to use a phrase sometimes used in the cases, 'sensibly moderated'. In many cases, general deterrence will be given less weight because the offender is simply an inappropriate medium for making an example to others. However, it is an extreme case where considerations of general deterrence are eliminated entirely …
The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions.
With respect to personal deterrence, again much depends upon the circumstances. The law assumes that an offender has the intellectual capacity to be deterred from committing an offence by the prospect of being punished if the offence is committed and detected. Where an offender's mental impairment affects that person's ability to understand this, the effect of personal deterrence will be moderated. The extent to which it is moderated will depend upon the extent to which the offender has the ability to reason in the way I have described. In some cases … personal deterrence has little point whereas in other cases it would be more significant. (citations omitted)
50 Therefore, a significant factor governing the weight to be given to mental impairment, not resulting from the consumption of drugs, which has a causal relationship with the commission of the offence is the impact of the impairment on the offender's capacity to know and control what he or she is doing and to understand the gravity of his or her actions. The weight required to be given to the appellant's psychiatric condition in the present case depended in a large part on the appellant's mental state at the time of committing the offence. The appellant bore the onus of establishing that matter.
51 The difficulty faced by the appellant's submissions in relation to his mental impairment is the sparsity of the evidence about his mental state at the time of committing the offence.
52 The psychological pre-sentence report before the sentencing judge noted that the appellant reported being in a manic phase and was hospitalised several days later. The psychologist reported that the appellant's formation of associations with those in the drug culture, coupled with his mental health being unstable at the time, likely led him to exercise poor judgment and make unwise, erratic decisions, in a bid to earn some money.20 A short report from the appellant's treating psychiatrist indicated that the appellant was re-referred to him in the context of a hospital admission 'with an episode of mania' in December 2014 and was then diagnosed with conditions including bipolar affective disorder. However, the psychiatric report does not contain any further details of the appellant's mental state on admission. The sentencing submissions did not provide additional detail.
53 The sentencing judge's finding was more concerned with the general impact of the appellant's psychiatric disorder than the appellant's state at the time of committing the offence. He observed:
There's no suggestion that you didn't know that what you were doing was wrong, I mean you know cannabis is wrong, you know what you were doing was wrong but I do accept that the mental health issues are causally connected because people that suffer from bipolar affective disorder and borderline personality traits do indulge in risk-taking behaviour. They have impaired judgment in the sense that they're not capable of fully understanding the consequences of their behaviour and in many cases, even though they know what they're doing is risk-taking behaviour, that's the very reason why they indulge in it because of the - whether it's a high or whatever, I don't know, that it gives to them.
54 The evidence and findings do not establish that the appellant's mental state at the time of committing the offence was such as to remove personal and general deterrence as significant sentencing considerations. The appellant understood that he was committing an offence, and did so for the rational reason of securing financial reward. His mental state did not prevent him from completing 12 hours of work at the Wanneroo house, nor endeavouring to return for more work the next morning.
Conclusion
55 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 personal and general deterrence outweighed the mitigating factors and made inappropriate any sentence other than immediate imprisonment. The appellant did not establish that his mental state at the time of committing the offence made him an inappropriate medium for making an example to others. General deterrence remained a significant relevant consideration and, when evaluated with all other relevant sentencing considerations and all the circumstances of the case, required the imposition of an immediate term of imprisonment. The scale of the illegal cannabis operation in which the appellant knowingly participated for financial reward, and the need for personal and 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. The sentence of 9 months' immediate imprisonment was not unreasonable or plainly unjust.
Orders
56 For these reasons, the appeal must be dismissed.
1 The transcript records the sentencing judge as saying 'specific deterrence does have a role to play' (ts 37). Counsel for the appellant accepted that, in context, it was apparent that the sentencing judge intended to refer to general deterrence.
2 Section 86 of the Sentencing Act.
3 Section 76(1) and s 81(1) of the Sentencing Act.
4 Section 76(2) and s 81(2) of the Sentencing Act.
5 Section 76(3) and s 81(3) of the Sentencing Act.
6Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
7House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Dinsdale [3] - [4], [6], [21], [57] - [59].
8 Section 34(1)(a) and s 34(2) of the Misuse of Drugs Act.
9Fenton v The State of Western Australia [2015] WASCA 255 [18] - [19]; The State of Western Australia v Baldini [2015] WASCA 39 [23] - [28].
10Tapper v The State of Western Australia [2016] WASCA 140 [68] - [70] and cases there cited.
11Lester v The State of Western Australia [2011] WASCA 128 [11].
12Trajkoski v The State of Western Australia [2008] WASCA 130 [26] - [27].
13R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440 [7], [28] - [31], [38].
14Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [71].
15Sandwell v The State of Western Australia [2012] WASCA 15 [15], [17].
16Collins v The State of Western Australia [2007] WASCA 108 [17], applied in Lester [25].
17Collins [21].
18The State of Western Australia v Malone [2015] WASCA 188 [74].
19Gok v The Queen [2010] WASCA 185 [59] - [61].
20 Paragraphs 20 - 22 of the psychological report.
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