Hodge v The Queen
[2004] WASCA 100
•17 MAY 2004
HODGE -v- THE QUEEN [2004] WASCA 100
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 100 | |
| COURT OF CRIMINAL APPEAL | 17/05/2004 | ||
| Case No: | CCA:107/2003 | 2 DECEMBER 2003 | |
| Coram: | WHEELER J MCLURE J WALLWORK AJ | 19/01/04 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against sentence allowed Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | MERVYN LAWRENCE HODGE THE QUEEN |
Catchwords: | Turns on own facts |
Legislation: | Criminal Code, s 689(3) |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 Lowndes v The Queen (1999) 195 CLR 665 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HODGE -v- THE QUEEN [2004] WASCA 100 CORAM : WHEELER J
- MCLURE J
WALLWORK AJ
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Turns on own facts
Legislation:
Criminal Code, s 689(3)
Result:
Application for leave to appeal against sentence allowed
Appeal allowed
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Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr K P Bates & Ms K E Ellison
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
Case(s) also cited:
Nil
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1 WHEELER J: I have had the advantage of reading the reasons for decision of Wallwork J, which reflect my own reasons for granting leave to appeal allowing the appeal. I wish only to add that it should not be thought that, as a matter of principle, concurrency of the two sentences was appropriate. Had the appellant's date for eligibility for parole not been so close, I would have preferred to reduce the sentence in relation to the possession charge. Practical considerations however suggested that concurrency would more conveniently achieve the same result in this case.
2 MCLURE J: I have had the advantage of reading the reasons for decision of Wheeler J and Wallwork AJ. I agree with the orders made for the reasons given by Wheeler J and Wallwork AJ.
3 WALLWORK AJ: On 19 January 2004 this Court reduced a sentence which had been imposed on the appellant on 5 June 2003 by ordering that the second relevant sentence of 12 months' imprisonment which was ordered to be served cumulatively on an earlier sentence of 3 years' imprisonment (which was to date from 2 December 2002) be served concurrently with the first 3 year sentence rather than cumulatively. Below are my reasons for agreeing in that decision.
4 The appellant had been indicted for two offences, the first being that on 2 December 2002 he had cultivated at Topanup in Western Australia, cannabis plants with intent to sell or supply cannabis. Secondly, he was indicted for possessing cannabis with intent to sell or supply it to another. To that second charge he pleaded not guilty. He pleaded guilty to the first charge concerning the cultivation.
5 When addressing the learned Judge with respect to the plea of guilty to the cultivation offence the appellant's counsel had stated that the equipment had been provided to the appellant by persons whom he was not willing to name for personal safety reasons. The counsel told the Judge that the appellant had been growing some of the plants for his own use but had tended to the watering and had assisted in the cultivation of the plants in relation to three of the sites for other people. He accepted that he had assisted and aided in relation to those three crops and that he had grown the other two crops for himself. He accepted that he had been convicted on his own confession of being involved in a systematic and organised operation to produce cannabis for commercial gain.
6 Counsel told the Judge that the appellant had been suffering from depression for some four years. He was very heavily dependent on
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- cannabis. He had also been increasingly reliant on alcohol. Counsel told the Judge that the appellant's parents had separated when the appellant was five years of age and that he had been sent to a boarding school which was very strict. His mother had had a problem with alcohol and had used to drink all day, every day. There had been violence perpetrated in relation to that. The appellant had left home at the age of 13.
7 Counsel informed the Judge that the appellant had previously been convicted of various offences but had not been in trouble since November 1993, which was a period of about 10 years. That fact is confirmed by the appellant's record of convictions. The appellant had been confined in prison in a very small area for his own safety. He had therefore suffered more deprivation of freedom than he would have in a normal prison.
8 In sentencing the appellant for the cultivation offence, the learned Judge said that there were seven sites at which cannabis had been grown but that the appellant had admitted active participation in relation to the cultivation at only some of them. His Honour noted that 146 plants were involved; that the plants found at some sites were healthy and well maintained; that the appellant's role was to assist in their cultivation in return for a wage or remuneration rather than to participate as an entrepreneur in the reaping of a reward by way of profit from the harvesting. His Honour said that the cultivation offence was committed on 2 December 2002 at a time when the appellant was on bail in respect of the possession charge. He said that that was a relevant consideration.
9 With respect to the facts relating to the possession charge, his Honour said that they had been the subject of evidence before him at a trial which had just concluded. His Honour said that it had been accepted by the jury that the cannabis in question was cannabis grown by another and taken by the appellant and then bagged and placed in a freezer. His Honour said that there were 31 bags containing cannabis and that the total weight of the green cannabis appeared to have been at least 6,600 grams. He accepted evidence that the cannabis was likely to deteriorate as a result of having been kept in a frozen form which was an unusual way of preserving cannabis.
10 His Honour said the evidence was that in its dried form only something like 25 per cent of the weight in its green form could have been expected to have been obtained. He noted that the evidence had been that the cannabis in green form which was frozen had been comprised not just of the head material which was the most potent but also in equal parts at least, it would seem of leaf material, which the appellant and many other
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- heavy users of cannabis would regard as being undesirable and perhaps of little or no effect.
11 His Honour said that these were some of the facts relevant to take into consideration in the process of sentencing. He also had before him a pre-sentence report and a psychological report together with an antecedent report. He had heard the submissions from counsel.
12 His Honour said that the appellant had been born in January 1959 in New Zealand. He had come to Australia in 1978 and to Western Australia in 1982. His childhood appeared to have been a difficult one. He had clearly suffered from a deprived background in terms of being prepared for life as an adult. He had clearly fallen into wrong company early on. He had been forced to care for himself when he was still far too young and immature to do so properly. He had been exposed to drugs and cannabis at an early age. That had developed into a lifelong habit which his Honour said had played a significant part in the appellant's motivation for the commission of the relevant offences.
13 His Honour noted that the appellant had a partner and three children. Also that he suffered from Ross River virus and depression. He had suffered from depression for some years. His heavy use of cannabis was related to his medical condition. His Honour said that the appellant had claimed to gain some benefit from the use of cannabis. He was on an invalid pension and neither he nor his family had any significant assets.
14 With respect to matters in the appellant's favour his Honour noted that there had been a plea of guilty in relation to the cultivation offence. However he said that the appellant had not co-operated to the extent of naming any other persons in connection with that offence. He said that the explanation for that was that the appellant had a fear for his own safety. His Honour accepted that but said that nevertheless it did signify something less than total remorse for the offending.
15 His Honour noted that the appellant had been in custody since 2 December 2002 and that the custody had been particularly difficult because he had been confined in maximum security for reasons to do with his safety.
16 His Honour said that the cultivation had been an operation which had been quite well organised and systematically executed. It had been committed by the appellant for reward. The appellant had tended the plants and that was an important role which, but for the intervention of the
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- police, would have enabled a significant amount of cannabis to be released to the market. A valuable crop would have been produced.
17 With respect to that offence his Honour sentenced the appellant to a term of 3 years' imprisonment. I note that it is that sentence which is referred to in the notice of application for leave to appeal as being the sentence which is appealed against. In the notice of appeal it is asserted that the learned Judge failed to recognise the appellant's fast track plea.
18 With respect to the offence of possessing cannabis with intent to sell or supply his Honour said that had been the subject of a trial. He was of the view that there was at least a partial commercial motive on the appellant's part in taking and keeping possession of the cannabis and then freezing it. He accepted the Crown submission that it was likely that the appellant would have used a significant amount of the cannabis in the freezer for his own purposes given his heavy use and heavy habit. However he was not prepared to accept and neither had the jury, that some of the cannabis would not have been distributed to other persons. His Honour found that it was likely that the cannabis would have been distributed for gain. His Honour said he did not regard the possession offence as being as serious as the cultivation offence. He said that the commercial viability of the cannabis was perhaps not all that great. It had been kept in a freezer. It had not been dried and it would not have been easy to bring it to market for any great amount of money.
19 His Honour said that he was inclined to think that the appellant's offending in relation to the possession charge was offending committed opportunistically. It was clear that there had been no plan to acquire the cannabis and place it in the freezer. Rather the appellant had come across the cannabis growing in the bush and had seized the opportunity to take possession of it. However, he was of the view that the appellant should serve a term of imprisonment in respect of the possession offence but that term should be less than that in relation to the cultivation offence. He took the view that it would be appropriate that the appellant serve a term of 12 months' imprisonment to be cumulative upon the earlier three year term for the cultivation offence. Again he declared the appellant eligible for parole.
The Application for Leave to Appeal
20 In the particulars of appeal the appellant complains of alleged errors by his counsel. Amongst other things the appellant claims that he could not name the other persons involved because he had co-operated with the police on the possession charge. His safety was in real danger which he
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- claims was not taken into account in the sentence. The appellant further asserts that he had been in maximum security for six months for reasons to do with his safety on the possession charge and that he could not name the persons involved for his own safety. He also claimed that the Judge had not taken into account his total remorse and that he knew that his safety was an issue and should have considered that.
21 There are other allegations made by the appellant which in my view were not relevant or substantiated in the application for leave to appeal.
22 It is noted that the learned Judge ordered that the three year sentence for the cultivation be deemed to have commenced upon the day on which the appellant had been taken into custody which was 2 December 2002. His Honour ordered that the appellant be declared eligible for parole with respect to that term.
23 At the hearing of application it was noted that there was an application for extension of time but that the Crown had conceded that there was no problem with that. The extension of time was granted.
24 The appellant complained that he had co-operated with the police on one charge and "had got no thanks for it". The appellant said he did not think his Honour had taken that matter very seriously. He had co-operated fully with the police, "I helped them out and just got no thanks for it".
25 The appellant informed the Court of the co-operation which he had given, and of what he believed had resulted from that co-operation. It is not appropriate to detail the precise circumstances .
26 In reply, counsel for the Crown said the co-operation had not been referred to in the sentencing submissions by counsel and there had been a trial. There was no more material than what was apparent on the face of the record. It was submitted that the sentence was a fairly modest one on the possession count.
27 The Crown submitted that in failing to identify the owners of the plants the appellant had limited his co-operation with the authorities. In doing so he could not receive a benefit of sentence because of his assistance to the authorities. It was submitted that the reasons for the appellant refusing to provide assistance were taken into account by his Honour in sentencing and no error had been demonstrated.
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28 The Court asked counsel for the Crown to make enquiries from the investigating officer and to provide an affidavit as to whether or not it was the officer's understanding that there was co-operation of any kind and if so what it was. Counsel undertook to do that. The appellant named the officer who would be able to advise the Crown on that subject.
29 This Court subsequently received an affidavit from the officer which relates to the possession charge. Although the affidavit is not very detailed concerning the co-operation which the appellant says he gave to the police, and the officer did not consider that the co-operation had been of much significance, it is my view that the co-operation was not sufficiently taken into account by the learned Judge in the sentencing of the appellant. It should have been.
The Law
30 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge – Lowndes v The Queen (1999) 195 CLR 665. However, if the learned Judge did not take into account a material matter and the Court of Criminal Appeal is of the opinion that a different sentence should have been passed it may pass such other sentence which may be lawfully passed for the offence as it thinks ought to have been passed – Criminal Code (WA), s 689(3); Dinsdale v The Queen (2000) 202 CLR 321.
Conclusion
31 It was my view that the learned Judge did not sufficiently take into account the co-operation given by the appellant to the authorities, probably due to the failure of either counsel for the appellant or counsel for the Crown to fully inform his Honour of it. It was because of that, that I agreed that the 1 year sentence of imprisonment for the possession charge should be made concurrent with the 3 year sentence for the cannabis cultivation with intent, with a result that the appellant would have been eligible for parole in December 2003 rather than early in April 2004.
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