Lee v The State of Western Australia
[2019] WASCA 137
•4 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 137
CORAM: QUINLAN CJ
BUSS P
MITCHELL JA
HEARD: 9 AUGUST 2019
DELIVERED : 4 SEPTEMBER 2019
FILE NO/S: CACR 194 of 2018
BETWEEN: JAMES LEE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SCOTT DCJ
File Number : IND 547 of 2018
Catchwords:
Criminal law - Appeal against sentence - Cultivation of cannabis with intent to sell or supply to another - Sophisticated large scale hydroponic operation - Whether sentence of 5 years' immediate imprisonment is manifestly excessive - Whether total effective sentence of 6 years' imprisonment for cannabis offence and associated fraudulent appropriation of power offence infringes the first limb of the totality principle
Legislation:
Criminal Code (WA), s 390
Misuse of Drugs Act 1981 (WA), s 7(1)(a)
Result:
Extension of time granted
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr T F Percy QC and Ms J M Byrne |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Equitas Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Franchina v The State of Western Australia [2017] WASCA 56
Greenfield v The State of Western Australia [2019] WASCA 29
Ha v The State of Western Australia [2019] WASCA 69
Harvey v The State of Western Australia [2017] WASCA 149
Kabambi v The State of Western Australia [2019] WASCA 44
My v The State of Western Australia [2018] WASCA 1
Nguyen v The State of Western Australia [2017] WASCA 195
Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32
JUDGMENT OF THE COURT:
Summary
On 28 August 2018, the appellant was convicted, on his pleas of guilty, of two offences, both committed on 16 September 2017 at Armadale. The appellant was sentenced to 5 years' immediate imprisonment for cultivating a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). He was sentenced to 12 months' immediate imprisonment for fraudulently diverting to his own use electrical power derived from an apparatus, the property of Western Power, contrary to s 390 of the Criminal Code (WA). The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 6 years' imprisonment. The sentence was backdated to 5 December 2017, and the appellant was made eligible for parole.
The appellant appeals against sentence. He contends that the sentence for the cannabis offence is manifestly excessive, and the total effective sentence infringes the first limb of the totality principle. The appellant requires an extension of time in which to appeal. His applications for an extension of time, and for leave to appeal, have been referred to the hearing of the appeal.
For the following reasons, the extension of time in which to appeal should be granted, leave to appeal should be granted on both grounds and the appeal should be dismissed.
Extension of time in which to appeal
The appeal notice was due to be filed by 18 September 2018, but was not filed until 8 October 2018. The appellant's appeal notice was filed late due to miscommunication between the appellant's sentencing counsel and solicitors he engaged in the appeal. This resulted in the solicitors mistakenly believing that an appeal notice had been filed within time. The situation was complicated by the fact that the appellant is in custody and requires an interpreter to communicate with his lawyers.
The delay in instituting the appeal has been short, and is adequately explained. We would grant the extension of time in which to appeal.
Circumstances of offending
The sentencing judge made the following findings of fact in relation to the circumstances of the offences.
At about 4.30 pm on 16 September 2017, a suspicious power outage, which caused homes on a street in Armadale to lose power, was reported to Western Power. Western Power attended and discovered that power had been bypassed from a roadside dome that serviced a particular house on that street. Police attended and forced entry into the premises.
Inside, police found the house had been converted into a sophisticated hydroponic grow house and was uninhabitable. They located 431 plants in various stages of growth, together with overhead grow lights and a complex watering system.
The appellant was lessee of the house and had converted it into a sophisticated cannabis grow house. The appellant purchased the hydroponics equipment and, with the assistance of a person he knew, set up the equipment in the house. He planted a total of 431 cannabis plants and tended them so they would grow.
The appellant also admitted that he installed the electrical wiring to bypass the meter to avoid paying for electricity.
The expected yield was 0.2 kg of head material per cannabis plant. This would have resulted in a yield of about 82 kg from the 431 plants,[1] with potential for 344.8 kg to be produced in a year if there were four growing cycles. The sentencing judge recognised this was no more than an approximation because it would be necessary to take into account any losses of plants through various growing phases. The appellant intended to be involved with another person in the sale of the cannabis crop.
[1] See sentencing ts 41 (where the estimate was 80 kg) and 42 (where the estimate was 82 kg). We note that, if 431 plants each produced 0.2 kg of head material, the resulting yield would be about 86 kg.
The price of cannabis at the time of sentence, when purchased in large quantities, was approximately $3,000 per pound (which is equivalent to approximately $6,600 per kg). The estimated value of the hydroponic equipment was $75,000.
In return for his participation, the appellant was to be paid $500 per week, have a $10,000 gambling debt written off and was to share in the sale proceeds of the crop.
Personal circumstances
The appellant was 61 years old at the time of sentence. He was separated from his former wife, with whom he had five children (three of whom died at a relatively young age). The appellant operated bakeries in Sydney, which he sold before coming to work in Western Australia as a handyman. The appellant had a number of health issues.
The appellant has no criminal record in Western Australia, but in 2007 he was convicted in New South Wales of an offence involving the hydroponic cultivation of cannabis, for which he was sentenced to 2 years' imprisonment.
When he was arrested, the appellant cooperated with police and admitted the offences. He pleaded guilty at the first reasonable opportunity, for which the sentencing judge allowed a discount of 25% under s 9AA of the Sentencing Act 1995 (WA). He regretted his involvement in the offences. His counsel told the sentencing judge that the appellant had made a commitment never to commit a similar or other serious offence again.
Implied error: general principles
Both grounds of appeal assert implied, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[2]
(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 or inadequate, 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 in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)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.
(4)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.
(5)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.
(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 (which 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 (which 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.
[2] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Disposition of ground 1: manifest excess
For the following reasons, the sentence of 5 years' immediate imprisonment imposed for the offence of cultivating cannabis with intent to sell or supply to another was not manifestly excessive.
The maximum penalty for an offence against s 7(1)(a) of the Misuse of Drugs Act, relating only to cannabis, is 10 years' imprisonment and a fine of $20,000.
The present case involves a serious example of this type of offence. The appellant set up a sophisticated hydroponic growing operation in a rented house and was cultivating 431 plants at the time of arrest. The operation was carefully planned. He did so for financial reward, and intended to participate in the profits resulting from the operation.
There were no significant mitigating circumstances, other than the appellant's pleas of guilty at the first reasonable opportunity. While the appellant's prior criminal record was not aggravating, he did not have the mitigating benefit of prior good character. Further, the fact that he had previously been convicted and imprisoned for cultivating cannabis increased the significance of personal deterrence and community protection as sentencing considerations.
Case law in this court in respect of sentencing for large-scale commercial cultivation of cannabis was summarised in Rillotta v The State of Western Australia:[3]
[3] Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [21] - [34], adopted in Harvey v The State of Western Australia [2017] WASCA 149 [21] and Greenfield v The State of Western Australia [2019] WASCA 29 [30].
In Lester v The State of Western Australia,[4] McLure P observed:
[4] Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22], see also to similar effect Day v The Queen [2001] WASCA 284 [38].
'The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.
Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need.'
In McRobb v The State of Western Australia,[5] Buss JA, with whom other members of the court agreed, endorsed those observations. McLure P's observations were also endorsed by the court in HNA v The State of Western Australia.[6]
[5] McRobb v The State of Western Australia [2015] WASCA 189 [52].
[6] HNA v The State of Western Australia [2016] WASCA 165 [38].
In Lester, McLure P, with whom other members of the court agreed, reviewed a number of sentences for offences under s 6(1) and s 7(1) of the Drugs Act involving cannabis. The reviewed total effective sentences ranged between 1 year 4 months' immediate imprisonment and 2 years 8 months' immediate imprisonment.[7] In many cases, the offending concerned significantly lower weights than the approximately 22.7 kg of cannabis which the appellants sold. However, some of the cases reviewed in Lester concerned significant amounts of cannabis. Trajkoski v The State of Western Australia[8] concerned a sophisticated cultivation involving plants with a total value of about $250,000, and the offender was sentenced to 2 years 8 months' imprisonment. Eacott v The State of Western Australia[9] involved possession of over 51 kg of dried cannabis from a bush crop, and the offender was sentenced to 2 years 3 months' imprisonment. It must be borne in mind that Trajkoski and Eacott were appeals by the offenders and not by the State.
[7] This range is in post‑transitional terms. The total effective sentence in one case reviewed by McLure P, Nguyen v The State of Western Australia [2009] WASCA 8, stood outside this range, but included sentences for more serious offences. Nguyen received a total effective sentence of 10 years' imprisonment for a variety of drug dealing offences, including in relation to drugs other than cannabis.
[8] Trajkoski v The State of Western Australia [2008] WASCA 130.
[9] Eacott v The State of Western Australia [2009] WASCA 112.
Two cases decided since Lester reflect a firmer approach than that taken in Trajkoski and Eacott.
The first case is The State of Western Australia v Malone,[10] where a total effective sentence of 7 years 6 months' imprisonment was imposed by this court in a State appeal against sentence. In that case the offender was the sole distributor in Western Australia for a syndicate involved in distributing large quantities of cannabis grown in South Australia to Western Australia and Queensland. … Malone was charged with 16 counts, each involving between 10 and 40 kg of cannabis. The total estimated weight of the cannabis involved in Malone's offending was 330 kg, and its estimated street value was about $2.9 million. Malone pleaded guilty shortly after committal to the District Court, and received a 15% discount under s 9AA of the Sentencing Act 1995 (WA). Malone was 33 years old at the time of sentencing, and had a dysfunctional upbringing but stable employment history. While he had a criminal record, it did not involve prior serious criminality. Malone had limited remorse and insight into his offending. Psychological testing indicated that Malone had an impaired capacity to communicate ideas and understand problems. Malone had a number of health problems.
[10] The State of Western Australia v Malone [2015] WASCA 188.
In considering Malone, it is important to bear in mind the well‑established principle that, when this court allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range.
The second case is McRobb, which involved an appeal by one of Malone's customers, who took possession of cannabis in one pound packages and on‑sold them at prices between $4,400 and $4,800 per pound. McRobb was charged with two counts of possession of cannabis with intent to sell or supply it to another, in relation to three 10 kg boxes of cannabis received from Malone. McRobb was also convicted of conspiring to sell or supply cannabis to others, contrary to s 6(1)(c) and s 33(2) of the Drugs Act, for which the maximum penalty was 20 years' imprisonment and a fine of $75,000. McRobb was convicted of three offences after trial, and did not show any remorse. He was 29 years old at the time of sentence, had a stable employment history, ran his own construction business and had no prior convictions. McRobb had no history of drug use, and carried on his drug dealing business purely for commercial purposes. McRobb's total effective sentence of 6 years' imprisonment was upheld on appeal.
A number of other cases decided since Lester may also be noted, while recognising that they concerned much lesser degrees of seriousness of offending than the present case.
HNA involved an offender who participated in a large-scale and sophisticated hydroponic cannabis cultivation operation. However, the offender in that case played only a minor low-level role in the operation, assisting in the harvesting of cannabis head material. His sentence of 9 months' immediate imprisonment for one count of cultivating cannabis plants with intent to sell or supply to another was upheld on appeal.
Also since Lester, a number of cases have considered lower level offences of possession of cannabis with intent to sell or supply to another. Sentences of 12 months' immediate imprisonment were upheld by this court in Sandwell v The State of Western Australia[11] and Rodi v The State of Western Australia [No 2].[12] Both cases involved significantly different circumstances to the present. Sandwell concerned the possession of about 2.5 kg of cannabis and 147 cannabis seedlings by an offender who was not a commercial dealer of cannabis and intended to use the cannabis himself and distribute it to a small number of friends. Rodi involved possession of less than 1 kg of cannabis by an offender sentenced on the basis that he was a mid-level dealer. In Miles v The State of Western Australia,[13] 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 dexamphetamine tablets and possession of $27,500 in cash reasonably suspected of being unlawfully obtained.
Lester and the subsequent decisions demonstrate a firming up of sentences for offences involving trafficking in significant quantities of cannabis. Of the cases decided by this court since Lester, only two - Malone and McRobb - involved a substantial operation of the kind considered here. 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.[14]
…
In relation to the amount of cannabis involved in the offending, it is relevant to recall the principles established by cases such as Tran v The State of Western Australia:[15]
'The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.'
Factors which inform an assessment of the overall criminality involved in a series of commercially driven drug offences include the quantity of drugs involved, the offender's knowledge about the drugs involved, the offender's role in the operation and the reward which the offender anticipated receiving.[16]
[11] Sandwell v The State of Western Australia [2012] WASCA 15.
[12] Rodi v The State of Western Australia [No 2] [2014] WASCA 233.
[13] Miles v The State of Western Australia [2016] WASCA 138.
[14] See, by analogy, Kilic [21] ‑ [25].
[15] Tran v The State of Western Australia [2016] WASCA 37 [29].
[16]Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [64].
In Rillotta, the two offenders (who were brothers) were jointly operating a well‑established business involving sending significant quantities of cannabis from South Australia to Western Australia. They arranged for 50 pounds (about 22.7 kg) of cannabis to be delivered by a truck driver from South Australia to Western Australia and then delivered by a different truck driver to two of their customers. They were each convicted after trial of two counts of selling or supplying cannabis (one count in respect of each customer), and were each sentenced to a total effective sentence of 6 years 3 months' imprisonment. The trial judge in that case would have imposed individual sentences of 5 years' immediate imprisonment on each count, prior to the application of the totality principle. Their appeals against those sentences, on totality grounds, were dismissed.
One of the Rillotta brothers' customers, Franchina, received 30 pounds (about 13.6 kg) of the cannabis referred to above. He was convicted after trial on one count of possessing cannabis with intent to sell or supply, and received a sentence of 4 years' immediate imprisonment. He was characterised as a 'wholesaler' of cannabis who played a 'crucial and integral role' in the distribution of large quantities of cannabis within Western Australia. His appeal against sentence was dismissed in Franchina v The State of Western Australia.[17]
[17] Franchina v The State of Western Australia [2017] WASCA 56.
In the present appeal, particular reference was made to My v The State of Western Australia[18] and Nguyen v The State of Western Australia.[19] Those two appeals concerned the same hydroponic cannabis operation in which Mr My, Ms Nguyen and her son were jointly engaged. Police located a total of 207 cannabis plants at two grow houses, about 8 kg of cannabis packaged for sale and a significant quantity of cash reasonably suspected of being unlawfully obtained. Mr My entered a plea of guilty (for which he received a discount of 20% under s 9AA of the Sentencing Act), had shown remorse and accepted responsibility for the offending and was of prior good character. He was the junior partner in the enterprise. His total effective sentence of 5 years' immediate imprisonment (including for a breach of bail offence and offences of fraudulent appropriation of power) was upheld on appeal. Individual sentences for cultivating and possessing cannabis ranged from 1 year 8 months' imprisonment to 2 years 2 months' imprisonment. Ms Nguyen, who was also sentenced for a firearms offence, received a total effective sentence of 6 years 6 months' imprisonment after trial. Individual sentences for cultivating and possessing cannabis ranged from 2 year 6 months' imprisonment to 3 years' imprisonment. She had previously been sentenced for her involvement in a large heroin importation operation. Her sentence was also upheld on appeal.
[18] My v The State of Western Australia [2018] WASCA 1.
[19] Nguyen v The State of Western Australia [2017] WASCA 195.
The nature of the offending in My and Nguyen was broadly similar to the appellant's offending in the present case. Both were large scale cannabis growing operations and, although hydroponics operations in My and Nguyen had been established at two different premises, the number of plants involved was about half of the number cultivated by the appellant. Senior counsel for the appellant submits that, even once that conclusion is reached, the sentence imposed in the present case is comparatively high, particularly having regard to the fact that Ms Nguyen was convicted after trial. So much may be accepted, but that does not compel a conclusion that the sentence imposed in this case was unreasonable or plainly unjust. Individual cases do not fix an upper limit on the range of permissible sentences. Further, My and Nguyen involved the rejection of offender appeals and establish only that the sentences appealed against were not unreasonable or plainly unjust. Those decisions do not identify the sentence this court would have imposed had it resentenced the offenders.
Recently, in Ha v The State of Western Australia,[20] this court considered cumulative sentences of 2 years 6 months' immediate imprisonment imposed on each of two counts, one of cultivating cannabis and one of possessing cannabis with intent to sell or supply. The individual sentences were upheld, but the total effective sentence was reduced from 5 years' to 3 years 3 months' immediate imprisonment. The offender was arrested at a house equipped for the sole purpose of cultivating cannabis plants using hydroponic equipment. There were 112 plants (the subject of the cultivation charge), and about 30 kg of cannabis buds which had been harvested from the plants (the subject of the possession charge). The offender undertook to participate in the cultivation of the cannabis in return for a payment of $500 per week (which he ultimately never received). He had worked for about three to four weeks prior to being apprehended. He was involved in packaging the cannabis when arrested. The offender had not set up the cultivation of the cannabis and was not participating in the profits of the enterprise. The 51-year-old Vietnamese offender pleaded guilty and received a 20% discount under s 9AA of the Sentencing Act.
[20] Ha v The State of Western Australia [2019] WASCA 69.
In Ha,[21] the court observed that Rillotta, Nguyen and My:
[I]nvolved 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.
[21] Ha [36].
The hydroponic operation in this case was broadly similar to that in Ha, although a significantly greater number of plants were involved in the present case. Further, the appellant's role in the enterprise with which we are currently concerned was significantly greater than that of the offender in Ha. The appellant's role was not confined to providing labour for an agreed weekly wage for the cultivation and harvesting of the cannabis. He had set up and managed the cultivation of very large quantities of cannabis, and intended to participate in the profits generated by its commercial distribution.
Having regard to the scale of the operation in the present case and the appellant's involvement in it, his pleas of guilty and his antecedents, the sentence of 5 years' immediate imprisonment for the cannabis offence is broadly consistent with the customary sentencing standards reflected across the range of cases noted above.
Having regard to all of the circumstances of the present case (including those personal to the appellant) and all relevant sentencing principles, we are not satisfied that the sentence of 5 years' immediate imprisonment was unreasonable or plainly unjust. The appellant has not made out his contention that the sentence for the cannabis offence is manifestly excessive.
Disposition of ground 2: totality
The challenge to the total effective sentence of 6 years' imprisonment in respect of both offences is also not established, having regard to the overall criminality revealed by the circumstances of the offences, the appellant's antecedents, his personal circumstances and the customary sentencing standards noted above.
The above discussion of the circumstances of the offences, the appellant's personal circumstances and the sentencing standards for cannabis offences is also relevant to this ground.
The maximum penalty for the offence of fraudulently appropriating electrical power is 3 years' imprisonment. The grounds of appeal do not challenge the individual sentence of 12 months' immediate imprisonment imposed for this offence.
It was open to the sentencing judge to make the sentence in respect of the fraudulent appropriation of power, which added to the overall criminality of the appellant's conduct, cumulative on the cannabis offence. The total effective sentence bore a proper relationship to the overall criminality involved in both offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally), all relevant sentencing factors and the total effective sentences imposed in comparable cases. The total effective sentence was not unreasonable or plainly unjust.
Orders
Although we do not regard the individual sentence for the cannabis offence or the total effective sentence as unreasonable or plainly unjust, the individual sentence imposed for the cannabis offence and the total effective sentence may be regarded as high but within the sound exercise of the sentencing discretion. While neither ground of appeal is established, we would grant leave to appeal in respect of both grounds. However, the appeal must be dismissed.
For the above reasons, the following orders should be made in the appeal:
(1)The time for the appellant to appeal against his sentences is extended to 8 October 2018.
(2)Leave to appeal is granted on both grounds of appeal.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell4 SEPTEMBER 2019
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