Lester v The State of Western Australia

[2011] WASCA 128

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LESTER -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 128

CORAM:   McLURE P

NEWNES JA
HALL J

HEARD:   12 MAY 2011

DELIVERED          :   8 JUNE 2011

FILE NO/S:   CACR 194 of 2010

BETWEEN:   DAVID JOHN LESTER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BIRMINGHAM DCJ

File No  :IND 1147 of 2010

Catchwords:

Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6, s 7, s 34
Sentencing Act 1995 (WA), s 32

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr L M Levy SC

Respondent:     Mr J Mactaggart

Solicitors:

Appellant:     Max Crispe

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Abbott v The State of Western Australia [2005] WASCA 42

Brown v The State of Western Australia [2008] WASCA 48

Collins v The State of Western Australia [2007] WASCA 108

Day v The Queen [2001] WASCA 284

Eacott v The State of Western Australia [2009] WASCA 112

Fernandes v The State of Western Australia [2009] WASCA 227

Nguyen v The State of Western Australia [2009] WASCA 8

Noble v The Queen [2003] WASCA 83

R v Lyon [2001] WASCA 120

The State of Western Australia v Johnson [2010] WASCA 187

Trajkoski v The State of Western Australia [2008] WASCA 130

1. McLURE P: This is an appeal against sentence. The appellant was convicted on his own plea of guilty of one count of cultivating cannabis with intent to sell or supply contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act) and one count of possessing cannabis with intent to sell or supply contrary to s 6(1)(a) of the Act.

2. The appellant was sentenced on 21 October 2010 by Birmingham DCJ to 18 months' imprisonment on each count. The sentences were ordered to be served concurrently, resulting in a total effective sentence of 18 months' imprisonment. The appellant was declared to be a drug trafficker. The appellant also pleaded guilty to and was sentenced for two offences (possessing a smoking implement and possessing a prohibited drug) the subject of a notice pursuant to s 32 of the Sentencing Act 1995 (WA).

3. The appellant contends that the individual sentences of 18 months' imprisonment are manifestly excessive.  The facts found by the trial judge are as follows.  On 27 May 2010, detectives attended at the appellant's house to execute a warrant under the Act.  During the search, a quantity of loose cannabis head material weighing approximately 1.86 kg was located inside a laundry cupboard.  A search of a side shed revealed that a portion of it was converted into a concealed, active, hydroponic growing room for cannabis plants.  Six mature plants in pots were growing under lights in a fairly sophisticated hydroponic set‑up.  The plants were approximately 70 cm to 80 cm tall.  A further 18 tissue cultured seedlings were located within a separate growing chamber.  The police also located in the shed a quantity of loose cannabis head material weighing approximately 268 g and approximately 1.55 kg of dry leaf material in bags.  The total amount of loose cannabis materials seized was approximately 3.68 kg, of which approximately 2 kg was head material.  Police also located $1,600 in a jar and $500 in a drawer.  A set of digital scales was located in the kitchen.

4. The sentencing judge found that the set up of the nursery and the growing area had a degree of sophistication that indicated a considered, deliberate commercial aspect to the operation.

5. The appellant was aged 50 at the time of sentencing.  He had a stable upbringing and personal life.  His employment reflected a strong work ethic.  He has suffered work‑related injuries commencing with an industrial accident in 1990.  References from family, friends and former work colleagues speak of the high regard in which he is held.

6. The appellant commenced using cannabis when he was aged 17 and he had developed an addiction to the drug.  A psychological report concluded that the appellant's offending was attributable to him being in a peer group where the use of cannabis was the norm and the offending was not recognised by the appellant to be significant antisocial behaviour.

7. Following his arrest in May 2010, the appellant sought assistance for his addiction by engaging in a treatment programme at Holyoake.  He completed eight of the 12 scheduled sessions over a 12‑week period.

8. The appellant pleaded guilty on the fast‑track system.  He had a relatively minor criminal record with convictions for simple drug‑related offences in 1988 and 2001.  The appellant was remorseful for his offending.

9. The appellant contends the individual sentences are manifestly excessive in both type and length.  He claims the trial judge erred in failing to suspend the terms of imprisonment imposed. 

Length of the terms

1. The maximum penalty for both the indictable cultivation and possession offences is 10 years' imprisonment (s 34(2)(a) of the Act).  When determining manifest excess regard is also had to, inter alia, sentences customarily imposed for offences of the same type.  The court was referred to a number of cases as follows.

2. R v Lyon [2001] WASCA 120 - The appellant made a fast‑track plea of guilty to one count of cultivation of cannabis with intent to sell or supply. The offence involved 7.9 kg of head material. Six rooms were set up in a house structurally modified for this purpose. The appellant was one of the principals and had prior convictions. A prosecution appeal against suspension of a term equivalent to 1 year and 8 months (post‑transitional) was upheld. There was no challenge to the length of the term. Anderson J identified the need for firming up sentences for trafficking in cannabis.

3. Day v The Queen [2001] WASCA 284 - The appellant pleaded guilty to one count of cultivation of cannabis with intent to sell or supply. The house in which the cultivation occurred was described as a 'factory for the cultivation of cannabis on a commercial scale'. There were 47 mature plants and 62 seedlings. The appellant was sentenced to a term of imprisonment equivalent to 2 years and 4 months (post‑transitional). The appellant had a record of no significance for sentencing purposes and cared for a seriously disabled son who required constant supervision.

4. Noble v The Queen [2003] WASCA 83 - The appellant was found guilty after trial of two counts of cultivation of cannabis with intent to sell or supply. The total number of plants being cultivated was 84. The enterprise was described as cultivation on a moderate commercial scale. The appellant was sentenced to a total effective sentence equivalent to 1 year and 4 months (post‑transitional).

5. Abbott v The State of Western Australia [2005] WASCA 42 - The appellant was convicted after trial of one count of possession of cannabis with intent to sell or supply. The quantity was 2.2 kg. The offence was committed whilst he was on suspension for a previous offence of cultivation of cannabis with intent to sell or supply. A term of 8 months' imprisonment was imposed for the cultivation offence (the appellant was not the principal) which was ordered to be served cumulatively with the sentence of 2 years for the possession offence. The appellant had a prior drug conviction.

6. Brown v The State of Western Australia [2008] WASCA 48 - The appellant was convicted after trial of one count of possession of cannabis with intent to sell or supply. She had 8 kg of wet head material and 4 kg of wet leaf material which, when dry, would weigh approximately 3 kg. The appellant was involved in a relatively sophisticated hydroponic operation. She was sentenced to 2 years and 5 months' imprisonment. Her antecedents were good.

7. Trajkoski v The State of Western Australia [2008] WASCA 130 - The appellant was convicted after trial of one count of cultivation of cannabis with intent to sell or supply. The drug was cultivated in a bush location. It had a potential value of $250,000. The appellant had prior convictions, including some drug offences. He was sentenced to 2 years and 8 months' imprisonment.

8. Nguyen v The State of Western Australia [2009] WASCA 8 - The appellant pleaded guilty to two counts of cultivation of cannabis with intent to sell or supply (124 plants and 148 plants respectively) for which he was sentenced to 3 years' imprisonment on each count. The appellant also pleaded guilty to two counts of possession of cannabis with intent to sell or supply (2.38 kg and 7.8 kg respectively) for which he was sentenced to 2 years' imprisonment on each count. The appellant was also sentenced for other drug dealing offences involving heroin, methylamphetamine and ecstasy. He also had prior convictions for drug offences. The cannabis cultivation was described as elaborate and sophisticated. The appellant was the principal. The appellant's girlfriend was sentenced to a total sentence of 1 year's imprisonment for the same cultivation offences and his mother to a total sentence of 4 years' imprisonment for those offences. The sentences reflected the different roles played by the offenders.

9. Eacott v The State of Western Australia [2009] WASCA 112 ‑ The appellant pleaded guilty at a very late stage to multiple offences, including one count of possession of cannabis with intent to sell or supply. He was in possession of 51.47 kg of dried cannabis from a bush crop. The appellant was sentenced to a term of imprisonment of 2 years and 3 months for the possession offence. He had a lengthy criminal history.

10. The sentencing judge described the cultivation in this case as involving a fairly sophisticated hydroponic set up.  At the time of the search, six mature cannabis plants and 18 seedlings were being grown under lights; there were three exhaust fans, five timers, three power transformers, three power boards, a large installed exhaust fan, a water pump, an air pump, fertiliser, a PH gauge and reticulation and duct tubing for automatic watering and fertilising. 

11. The hydroponic set up had been in existence 'for a while'.  The appellant was the principal in a successful clandestine hydroponic operation for the cultivation of cannabis for sale at a profit.  As to count 2, the appellant was in possession of 2.128 kg of dried cannabis head material.  However, as the sentencing judge recognised, the two offences involved a large degree of overlap which justified the same sentence for each and concurrency.

12. 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. 

13. 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.

1. There is a relatively narrow sentencing range in the cases referred to by the parties, notwithstanding the wide variability in sentencing factors.  Against that background, the sentences imposed on the appellant can be regarded as broadly consistent with comparable cases.  In any event, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion:  Fernandes v The State of Western Australia [2009] WASCA 227 [15]. Were it otherwise, the firming up of sentences in response to current circumstances would be impeded.

2. The individual sentences of 18 months' imprisonment imposed on the appellant are not outside the range of a sound exercise of the sentencing discretion.  Further, the total sentence is a proper reflection of the criminality of the appellant's conduct as a whole.

Suspension

1. The relevant legal principles and their application to offences of this type and seriousness are well‑known and do not require repetition:  Collins v The State of Western Australia [2007] WASCA 108 [15] ‑ [17]; The State of Western Australia v Johnson [2010] WASCA 187 [15] ‑ [17]. The appellant fell well short of establishing that the trial judge erred in concluding that a sentence of immediate imprisonment was the only appropriate disposition. That outcome is consistent with dispositions in comparable cases. The parties were unable to point to any comparable case in which a suspended term of imprisonment has been imposed.

2. The appeal should be dismissed.

3. NEWNES JA:  I agree with McLure P.

4. HALL J:  I agree with McLure P.