Llewellyn v Tasmania
[2018] TASCCA 12
•29 August 2018
[2018] TASCCA 12
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Llewellyn v Tasmania [2018] TASCCA 12
PARTIES: LLEWELLYN, Timothy Robert
v
STATE OF TASMANIA
FILE NO: CCA 724/2018
DELIVERED ON: 29 August 2018
DELIVERED AT: Hobart
HEARING DATE: 17 April 2018
JUDGMENT OF: Blow CJ, Brett J and Marshall AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in a controlled substance – Growing and possessing cannabis intending that some of it be sold – Sentence of nine months' imprisonment with six months thereof suspended.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: G Stevens
Respondent: L Mason SC
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASCCA 12
Number of paragraphs: 31
Serial No 12/2018
File No CCA 724/2018
TIMOTHY ROBERT LLEWELLYN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
BRETT J (Dissenting)
MARSHALL AJ
29 August 2018
Orders of the Court (30 May 2018)
Appeal allowed.
Sentence of nine months' imprisonment, with six months thereof suspended, set aside.
Appellant sentenced to nine months' imprisonment with effect from 28 April 2018, with the unserved balance of that sentence suspended on condition that he commit no offence punishable by imprisonment for a period of two years from 30 May 2018.
Serial No 12/2018
File No CCA 724/2018
TIMOTHY ROBERT LLEWELLYN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
29 August 2018
This is a sentencing appeal. The appellant, Timothy Llewellyn, pleaded guilty before a magistrate to a single charge of trafficking in a controlled substance, namely cannabis. He was subsequently sentenced by Slicer AJ to nine months' imprisonment, with six months of that sentence suspended on condition that, for a period of three years following his release from prison, he was to commit no crime or offence involving any commercial dealing in a prohibited plant or substance. He appealed, contending that his sentence was manifestly excessive. On 30 May 2018 this Court allowed the appeal, set aside the original sentencing orders, and imposed a substituted sentence. These are my reasons for joining in the making of those orders.
The charge alleged that the appellant, his wife, and a man related to her trafficked in cannabis on a single day, namely 6 September 2017. On that day police officers searched a property occupied by the three defendants. In a shed they found two grow rooms in which cannabis plants were being grown hydroponically. The first grow room contained seven small cannabis plants, four of which were in a propagation tray. The second grow room contained four mature cannabis plants, 13 small cannabis plants, and quantities of cannabis leaf. In the house, they also found 75.5 grams of cannabis leaf, 23 snap lock bags containing a total of 158.3 grams of cannabis bud, a set of scales, two "tick sheets", $310 in cash, and further very small quantities of cannabis. They also located a lot of items routinely used in the growing and packaging of cannabis. They found cannabis butter in a refrigerator. In a caravan, where the other male defendant slept, they found another set of scales, another "tick sheet", a snap lock bag containing 3.2 grams of cannabis, a used smoking device, a snap lock bag containing 0.02 grams of hashish, some loose cannabis seeds, and four snap lock bags containing a total of 46.6 grams of cannabis.
Some of the items found by the police officers suggested that the appellant had been involved in selling cannabis prior to the police search. There was nothing to suggest that he had sold cannabis on the day of the search. The charge related only to that day. He pleaded guilty on the basis that he had grown and possessed the cannabis found by the police, intending that some but not all of it would be sold. Possession of the growing plants and the harvested cannabis, with the intention that some of the cannabis was to be sold, amounted to trafficking by virtue of the definition of "traffic" in s 3 of the Misuse of Drugs Act 2001. The appellant asserted that all three defendants were cannabis users, and that some of the cannabis was intended for their personal use. That was not disputed by the Crown.
The appellant was 32 years old when he was sentenced. The relevant mitigating circumstances, and my comments in relation to them, are as follows:
· The appellant had no significant prior convictions. His only convictions were for driving offences. He had been fined on several occasions, and had been disqualified from driving twice in 2005, but had never committed any offences warranting more serious penalties.
· He co-operated with the police on the day of the search. Although he initially denied any offending, he quickly made admissions as to possessing and selling cannabis, and as to his intention that some of the cannabis found by the police was to be sold.
· He had been using cannabis to relieve back pain, having decided not to use codeine-based medications.
· The occupant of the caravan had been using cannabis to relieve the symptoms of a spinal injury and an illness.
· The three defendants had commenced growing cannabis because the cost of purchasing it had been beyond their means. All were dependent on Centrelink benefits.
· The appellant had sold cannabis only because of financial difficulties at a time when he was unemployed. The proceeds were used to pay household expenses.
· He had sold cannabis only to friends of the family. There was no suggestion that he had introduced anybody to the drug.
· His counsel said that he was "remorseful for his involvement".
· He pleaded guilty at a very early stage, on his second appearance in the Magistrates Court. A plea of guilty at such an early stage should result in a substantial sentencing discount because of the resulting benefit to the administration of justice, and the sentencing discount should be greater when the offender is remorseful: Director of Public Prosecutions v Broad [2018] TASCCA 5, per Geason J at [27]-[33]. In less serious cases, pleading guilty will sometimes make a difference not to the length of a prison sentence, but to the type of sentence that the sentencer considers appropriate. It may be a factor that weighs in favour of wholly suspending a sentence, or in favour of a sentence that provides for community service or a fine rather than immediate incarceration.
· Since being charged he had separated from his wife, stopped using cannabis, moved to Burnie, and taken up an exercise regime at a gymnasium for the purpose of relieving his back pain. He had been in Burnie for about five months.
· He intended not to be involved with cannabis again, and to put the past behind him.
· He had been offered employment in the Burnie area and was looking forward to returning to the workforce.
· He was assisting in the care of two aunts, who were not in good health.
· He had the care of his 9 year old daughter, whose mother had died. At the time of sentencing, he was living at the home of his brother. One of his aunts was living next door. The impact of an offender's imprisonment on a child should not be taken into account as a mitigating factor in the absence of extreme or exceptional consequences: Oliver v Tasmania [2006] TASSC 95 per Underwood CJ, with whom Evans J agreed, at [2]-[11]. It was not suggested that the imprisonment of the appellant would have a sufficient impact on his daughter for that impact to be taken into account as a mitigating factor. However the emotional impact on the appellant of his separation from his daughter was a relevant mitigating factor, but a minor one. His counsel told the learned sentencing judge that the appellant's daughter was starting a new school, and referred to the associated "anxieties and stresses in her life".
From the information provided to the learned sentencing judge, it is difficult to estimate the scale of the trafficking operation. Only $310 in cash was found during the search. His Honour was not told anything as to what the "tick sheets" recorded. He was told that the appellant had been purchasing cannabis for $250 per ounce. On that basis, it appears that the cannabis found in the house, excluding the plants, was worth less than $2,000. An unspecified proportion of the cannabis was not intended for sale. There was no suggestion that the appellant had derived any significant financial benefit from selling cannabis. The appellant's counsel told the learned sentencing judge that the appellant "played a part in the sale of cannabis every now and then", and that the appellant said that he had "sold a little bit of cannabis". Those assertions were not disputed by the Crown. No information was provided as to the number of persons to whom the appellant had sold cannabis. The Crown asserted only that sales had been made to more than one person.
The prosecutor provided details of the equipment found in the grow rooms. In his sentencing comments, his Honour referred to the police locating "a large number of items associated with the commercial use of that prohibited substance" and "paraphernalia associated with the cultivation of … cannabis at a far higher degree of sophistication than simply amateur use for one's self". I accept that the equipment described by the prosecutor indicated that the cultivation arrangements were neither unsophisticated nor amateurish, but in my view it does not follow that the cannabis under cultivation was intended predominantly for sale. None of the three defendants had employment. All were regular cannabis users. They had been buying cannabis for $250 per ounce, apparently without any sources of income other than Centrelink benefits. One or more of them had the skills necessary to set up the grow rooms. The Crown did not assert that the cultivation operation was predominantly commercial.
Later in his sentencing comments, the learned judge said, "The Court would regard it as being a medium commercial operation as evidenced by 34 bags and 24 plants." After referring to the appellant's prior convictions and his use of cannabis to relieve back pain, his Honour continued as follows:
"Warner, in her tables, puts a range of – between very minor matters and non-custodial sentence – the range seems to be between six months and one to two years, although on some occasions the two years has been exceeded. This comes within the low to medium range."
His Honour was no doubt referring to the second edition of Professor Warner's Sentencing in Tasmania (Federation Press, 2002). In that work at [13.109], the learned author said the following in relation to the sentencing range for trafficking in a prohibited plant or substance:
"Most sentences for this crime were single-count sentences and most were for trafficking in Indian hemp or cannabis. As Table 37 shows, 92% of sentences in 1990-2000 were custodial sentences. Prison sentences ranged from 2 months to 5 years and the median was 5 months. Almost half of all custodial sentences were wholly suspended and about 70% of sentences below 6 months fell into this category. Sentences in the 3 to 5-year range were imposed for large scale operations where the offender had received in excess of $200,000."
The learned author's Table 37 provides statistics in relation to single-count and global sentences for trafficking in a prohibited plant or substance. In the years 1990-2000, 92% of such sentences were custodial sentences, including wholly and partly suspended sentences. The shortest head sentence was two months, the median five months, and the longest five years. There were 89 such sentences. In 46 cases, the head sentence was less than six months. There were only seven sentences of two years or more. At [13.110] the learned author said, "Sentences of imprisonment between 6 months and 18 months were imposed in respect of commercial operations involving cannabis valued up to about $100,000."
In my view it was inappropriate for the learned sentencing judge to characterise the appellant's trafficking activities as coming "within the low to medium range". There was nothing in the information provided to him that would suggest that the appellant trafficked in cannabis other than on a small or very small scale. The sentencing statistics relied upon by his Honour in fact indicated that most single-count sentences for trafficking in cannabis involved head sentences of less than six months, but his Honour seems not to have realised that.
Using the Court's sentencing database, I have prepared a table setting out the details of the sentences imposed upon offenders who trafficked in cannabis, but not other drugs, during the years 2013 to 2017 inclusive, and who had no significant prior convictions. That table is appended to these reasons. It shows that wholly suspended sentences were almost always imposed in such cases, and that the few first offenders who were sent to prison were involved in much larger trafficking operations than the one that was the subject of this appeal. Of course each case must turn on its own facts. However like cases must be treated in a like manner: Lowe v The Queen (1984) 154 CLR 606 per Mason J at 610-611. In Wong v The Queen [2001] HCA 64, 207 CLR 584, Gaudron, Gummow and Hayne JJ said at [65], "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." [Original emphasis.]
It must be recognised that using cannabis can have serious consequences, both in the short term and in the long term: R v Nguyen [2006] NSWCCA 389 at [54]; Sweetman v Tasmania [2016] TASCCA 5 at [13]-[17]. It is therefore appropriate for the crime of trafficking in cannabis to routinely be punished by sentences of imprisonment, though such sentences are usually wholly suspended in cases involving first offenders and/or small trafficking operations. It cannot be said that cannabis is so soft a drug that a first offender who traffics in it should never be sent to prison, as distinct from receiving a wholly suspended prison sentence. Much depends on the size and duration of the trafficking operation, and on the circumstances of the offender. Often, rather than imposing a partly suspended prison sentence, it is more appropriate to impose a wholly suspended prison sentence with a condition requiring the performance of some community service. The maximum amount of community service that can be ordered is 240 hours: Sentencing Act 1997, s 31. The imposition of a condition requiring the performance of community service is often appropriate for the purposes of general deterrence. See Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399, at [7]-[12].
When an appellant contends that his or her sentence is manifestly excessive, the principles to be applied by the appeal court are as stated in House v The King (1936) 55 CLR 499 at 504-505 by Dixon, Evatt and McTiernan JJ:
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court must exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
No specific error on the part of the learned sentencing judge was asserted in the notice of appeal. In essence the appellant contended that the sentence imposed was unreasonable and plainly unjust.
This case involved trafficking on a small scale, as evidenced by the police finding only $310 in cash, and less than $2,000 worth of cannabis, much of which was intended for personal use by three individuals. The appellant had to be sentenced for trafficking not by selling cannabis, but by possessing cannabis, intending that some of it should later be sold, on the day to which the charge related. His admissions as to selling cannabis in the past meant that a common mitigating factor was absent: this was not a case where the offending had ceased before any sales were made.
There were no aggravating factors in this case. The sophistication of the cultivation arrangements was not an aggravating factor because it was asserted on behalf of the appellant, and not disputed by the Crown, that the grow rooms were established to grow cannabis for the personal use of the three individuals. On the other hand, there were very powerful mitigating factors in this case, particularly the appellant's very early plea of guilty, and the substantial rehabilitative steps taken by him giving up cannabis and starting a new life hundreds of kilometres away from his co-offenders, one of whom was his wife.
In all the circumstances, I was satisfied that the sentence of nine months' imprisonment, with only six months thereof suspended, was unreasonable and plainly unjust. It did not make allowance for the small scale of the trafficking operation and the substantial mitigating factors. In my view the requirement that the appellant serve three months of the head sentence made the sentence unreasonable and plainly unjust. If he had been required to perform community service rather than go to prison, or even if the unsuspended component of the sentence had been substantially less than three months, the sentence might have been unimpeachable.
It followed that, in my view, this appeal should be allowed and the sentence set aside. It was appropriate that the appellant be re-sentenced by this Court.
The appellant commenced serving his sentence on the day it was imposed, namely 23 February 2018. He was granted bail on 27 March 2018, which was the 32nd day of his sentence. His counsel informed this Court that thereafter he returned to Burnie, resumed looking after his daughter and his aunts, and had not resumed using cannabis. We were told that employment was available to him in Burnie, if he did not return to prison.
In my view the head sentence of nine months' imprisonment, though far from lenient, was not manifestly excessive. I did not think that the appellant's offending was so serious that, having regard to all the circumstances, he should have been required to spend any more time in prison or perform any community service.
For these reasons I concluded that this Court should allow the appeal, set aside the original sentencing orders, substitute a sentence of nine months' imprisonment, backdated by 32 days, and suspend the unserved balance of that sentence on condition that the appellant commit no offence punishable by imprisonment for a period of two years.
SENTENCES FOR FIRST OFFENDER FOR TRAFFICKING IN CANNABIS 2013-2017
Date Name Judge Head Sentence Period not Suspended Other Details 15.2.13 Morgan Tennent J 8 months 0 Sophisticated operation. Selling to one known person. 14.3.13 Wright Porter J 4 months 0 Grew 10 plants. Sold 32 ounces for $5,000 to $6,000. All but $595 unpaid. 24.4.13 Mann Estcourt J 3 months 0 Pensioner. Registered carer for wife.
Poor financial circumstances. Remorse.31.7.13 McSpadden Blow CJ 1 month 0 Helped prepare cannabis from 5 plants for sale. 21.10.13 Hills Blow CJ 6 months 0 Over 2 years grew cannabis worth over $20,000 for someone else to sell. Received $5,000 31.10.13 Goodman Blow CJ 5 months 0 Had about 2kg of harvested cannabis and 35 growing plants.
Date Name Judge Head Sentence Period not Suspended Other Details 1.11.13 Mackintosh Blow CJ 8 months 0 Helped principal offender grow cannabis at her home and other addresses over 14-15 months. Received $10,000. 27.11.13 Cooper Tennent J 3 months 0 Young woman. Prospects of rehabilitation. Psychological issues. 6.12.13 Musch Wood J 9 months
1 month Also fined $5,000. Builder purchased house and dedicated it to growing cannabis. Commercial enterprise. Others involved. 20.6.14 Jackman Pearce J 3 months 0 7 plants, mostly for personal use. 24.6.14 Mulcahy Wood J 4 months 0 Grew 4 plants. Sold some, grew 51 more plants, intending some to be sold and some for personal use. 27.6.14 Webb Wood J 12 months 8 days 61 yo sold for about 2½ years to 40 customers.
Turnover $184,000. Forfeiture of $35,570.
3.7.14 Smith Pearce J 12 months 0 175 hours' community service. Probation for 12 months. Tended to crop and sold over $100,000 worth over 9 months. Received $40,000. Squandered on drugs. 11.8.14 Plowman Porter J 3 months 0 Possessed 2.18kg, 3 plants, 29 cuttings. Some personal use. Traumatic brain injury. 18.9.14 Michaelson Estcourt J 6 months 0 Forfeited $53,300. Trafficked over several years. 13.10.14 Wilson Estcourt J 7 months 0 63 ounces at home. Not a user. 29.10.14 Millhouse Estcourt J 9 months 0 In a group that bought a property and set up 2 grow rooms. Crops harvested. 26.3.15 Yost Blow CJ 8 months 0 Also fined $3,000. Possessed over $8,000 worth of cannabis for sale. 27.4.15 Roberts Blow CJ 2 months 0 Pecuniary penalty $4,500. Bought by the lb and sold to users at low prices. 15.5.15 Beadle Pearce J 3 months 0 Grew 32 plants. Sales of $2,500. 19.6.15 Evans Tennent J 6 months 0 Not a commercial operation. Partly personal use. 2.7.15 Baillie Tennent J 8 months 0 Pecuniary penalty $2,200. 18.9.15 Ball Estcourt J 9 months 0 119 plants in grow rooms. Same sentence for 2 offenders. Assisting parents financially and pain relief for mother.
Date Name Judge Head Sentence Period not Suspended Other Details 30.9.15 Humphrey Porter J 4 months 0 Also 35 hours' community service. 48 plants but 28 useless. Mostly personal use. 19.5.16 McCulloch Porter J 5 months 0 Also 105 hours' community service. Helped grow 58 plants in undergrounds hydroponic grow room. 19.5.16 Beechey Porter J 10 months 3 months Elaborate sophisticated underground hydroponic grow room. Sales at least $20,000 over 18 months. 58 plants growing. 2.8.16 Fiddler Estcourt J 9 months 0 Also $5,000 fine. Police found 2.8kg with street value over $20,000. Long time user. Good employment history. 12.9.16 Fennelly Pearce J 9 months 0 Possessed 5.4kg worth at least $30,000. Amateurish. Financial hardship. 14.10.16 Hawkes Estcourt J 5 months 0 Sold to 33 people over 14 months. Profit $27,000. Father of 2. Good work history. 9.12.16 Steinmetz Brett J 4 months 0 Part personal use. Possessed cannabis with estimated street value of $16,500. 17.2.17 Kelp Blow CJ 6 months 0 Pecuniary penalty $1,370. Sold over 6 months. Profit at least $320. 23.2.17 Moore Blow CJ 38 months 38 months Non-parole period 19 months. Over 7 years grew $1.123m worth in house and sold it to one buyer. 29.3.17 Parker Porter AJ 5 months 0 Also 35 hours' community service. Grew 12 plants. Sold 1½ lbs. Caught with 87 plants intending to sell all yield. 1.5.17 Thogesen Tennent J 4 months 0 Some sales, some concealed. 12.5.17 Gourlay Blow CJ 4 months 0 Grew for 10 months. Sales $6,300. Funding own use for self-medication. 16.5.17 Hay Blow CJ 10 months 3 months Grew at 3 places. 64 plants found. Sophisticated commercial operation. 18.8.17 Cunningham Blow CJ 2 months 0 Grew over 16 plants, mainly for self-medication. 21.8.17 Schupp Tennent J 6 months 0 Unexplained wealth declaration $60,000. Possession of cannabis worth at least $5,500. Woman aged 73. 3.11.17 Sulzberger Slicer AJ 6 months 0 Also fined $2,500. Commercial operation growing, processing and selling. Date Name Judge Head Sentence Period not Suspended Other Details 10.11.17 Pybus
Porter AJ 15 months 3 months 73 yo man growing and selling over 3 years. Turnover about $100,000. 7.12.17 George Pearce J 5 months 0 Possessed $11,000 worth for sale.
File No CCA 724/2018
TIMOTHY ROBERT LLEWELLYN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
29 August 2018
This appeal has been allowed for the reasons expressed by the Chief Justice. Because Marshall AJ expressed agreement with those reasons, I acceded to the order, notwithstanding that I would have dismissed the appeal. I now take the opportunity to record my reasons for that conclusion.
As the Chief Justice has pointed out in his reasons, the sole ground of appeal in this case was that the sentence was manifestly excessive. It was asserted that manifest excess could be identified by the failure of the learned sentencing judge to wholly suspend the sentence.
The principles which are applicable in respect of an appeal on the ground of manifest excess are well known and encapsulated in the passage from House v The King (1936) 55 CLR 499, set out in the reasons of the Chief Justice. The question for this Court is whether error in the exercise of the sentencing discretion can be inferred from a sentence which is unreasonable or plainly unjust.
The appellant was clearly entitled to the benefit of the various factors which distinguished his conduct from more serious cases of trafficking and provided mitigation. This included mitigating factors which related to his response to the crime and his personal circumstances. However, the criminal conduct to which the appellant had pleaded guilty was trafficking in a controlled substance. There is an inherent aspect of seriousness in respect of the crime of trafficking because, whatever may be the particular circumstances of the crime, it will always involve conduct directed at the actual or potential distribution of a proscribed substance to other members of the community. As Pearce J said in Sweetman v Tasmania [2016] TASCCA 5 at [53]:
"Because trafficking has a broad meaning, the level of criminality in individual crimes varies widely, depending for example on the type and quantity of drug and the nature and level of the offender's involvement in its commercial distribution. In general, however, those who engage in trafficking in illicit drugs should expect harsh punishment. The Misuse of Drugs Act 2001 ('the Act'), s 12, provides that trafficking in a controlled substance is punishable by imprisonment for a term not exceeding 21 years. The penalty provision reveals a legislative intention that those who traffic in illicit drugs may be subject to heavy penalties."
I agree with the comments of Wood J in that case to the effect that the crime of trafficking in cannabis should no longer be regarded as less serious than other forms of trafficking because of "outdated views or complacency which may persist in the community about the impact of cannabis use". Her Honour went on to say at [17]:
"Offenders like the appellant, who traffic in cannabis, commit a serious crime relating to a harmful drug with deleterious consequences for the individual user and society."
It is true that, in this case, the appellant's crime was constituted by possession of cannabis on the day of the search, with the intention of future sale. However, in my view, the learned sentencing judge correctly took into account surrounding circumstances in order to determine the context in which this crime had been committed, so as to make some assessment as to its objective seriousness. This was entirely appropriate. The crime of trafficking is one which is notoriously difficult to investigate, detect and prosecute. Hence, the legislature has provided for an expanded definition which identifies the crime by proof of one or more defined acts, each of which is consistent with the offender being part of the chain of commercial distribution. In such cases, while there is no question that an offender should not be sentenced for uncharged conduct, it would also be completely artificial to exclude from consideration evidence which establishes the context in which the specified conduct took place. It is appropriate to assess the offender's culpability by reference to that context.
In this case, the learned sentencing judge correctly had regard not just to the amount of cannabis in the actual possession of the appellant on the day of the search, but also to the surrounding indicia and paraphernalia, which provided some evidence of the context of the appellant's possession of the cannabis. In particular, it was appropriate for his Honour to take into account the relatively sophisticated hydroponic cultivation set-up and the appellant's admissions about past sales. His Honour was also entitled to have regard to the tick sheets and other paraphernalia such as scales, snap lock bags and the number of bags and individuals plants. The appellant's counsel, in sentencing submissions, did not attempt to explain away any of these surrounding circumstances except by a very broad and imprecise claim that some of the cannabis produced by the appellant was for personal use. In my view, the said circumstances justified the sentencing judge's conclusion that the context in which the trafficking had been committed was that of a "medium commercial operation".
These factors and the conclusion reached by the sentencing judge required an emphasis on general deterrence. Of course, there were also many factors which justified leniency and some emphasis on rehabilitation. The sentencing judge balanced these competing considerations by the imposition of a sentence of imprisonment, together with the suspension of a substantial part of the sentence. It was well within the proper exercise of his Honour's sentencing discretion to determine that a proportion of the sentence should not be suspended, in order to reflect the need for denunciation of the conduct and general deterrence. In my view, that course was open to his Honour in the circumstances of this case, and it cannot be said that the sentence imposed "was unreasonable and plainly unjust".
For these reasons, I would have dismissed the appeal.
File No CCA 724/2018
TIMOTHY ROBERT LLEWELLYN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
29 August 2018
I joined in the making of the orders of the Court on 30 May 2018 because I agreed that those orders should be made, for the reasons stated by the Chief Justice.
0
8
0