Maniaci v The Queen

[2000] WASCA 195

MANIACI -v- THE QUEEN [2000] WASCA 195

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 195
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:86/1999	Heard:	14 APRIL 2000
Coram:	MALCOLM CJ KENNEDY J MURRAY J	Delivered:	2/08/00
No of pages:	24	Judgment Part:	1 of 1
Result:	Leave to appeal against conviction refused Leave to appeal against sentence granted Appeal allowedSentences varied
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Parties:	ERNESTO MANIACI THE QUEEN
Catchwords:	Criminal law and procedure Cannabis cultivation Two offences at separate premises Directions as to whether accused a principal offender or aider and abettor Directions as to fingerprint evidence and circumstantial evidence generally Verdicts not unsafe or unsatisfactory. Sentencing Aggregate term of 5 years imprisonment imposed Term reduced to 3 years 8 months Turns on own facts
Legislation:	Nil
Case References:	Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Giorgianni v The Queen (1985) 156 CLR 473 Kennedy v The Queen, unreported; CCA SCt of WA; Library No 980145; 3 April 1998 Langridge v The Queen (1996) 17 WAR 346 Laporte v The Queen [1970] WAR 87 M v The Queen (1994) 181 CLR 487 Postiglione v The Queen (1997) 189 CLR 295 R v Olbrich (1999) 73 ALJR 1550 Ruane v The Queen (1979) 1 A Crim R 284 Shaw v The Queen (1989) 39 A Crim R 343 Weissensteiner v The Queen (1993 178 CLR 217 Giowkos v The Queen, unreported; CCA SCt of WA; Library No 9604780; 26 August 1996 Gipp v The Queen (1998) 194 CLR 106 Holloway v McFeeters (1956) 94 CLR 470 Jones v The Queen (1997) 191 CLR 439 Lowndes v The Queen (1999) 195 CLR 665; (1999) 73 ALJR 1007 Marchesano (1992) 61 A Crim R 372 Pearce v The Queen (1998) 194 CLR 610 Pickett v Fuderer, unreported; SCt of WA; Library No 980174; 3 April 1998 Pickett v Fuderer, unreported; SCt of WA; Library No 980475; 27 August 1998 Poole v The Queen [1999] WASCA 46 R v Langridge (1996) 87 A Crim R 1 R v Storey [1998] 1 VR 359 R v Ward [1999] WASCA 157 Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Veen (No 2) (1988) 164 CLR 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MANIACI -v- THE QUEEN [2000] WASCA 195 CORAM : MALCOLM CJ

KENNEDY J
MURRAY J

HEARD : 14 APRIL 2000 DELIVERED : 2 AUGUST 2000 FILE NO/S : CCA 86 of 1999

CCA 87 of 1999

BETWEEN : ERNESTO MANIACI

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Cannabis cultivation - Two offences at separate premises - Directions as to whether accused a principal offender or aider and abettor - Directions as to fingerprint evidence and circumstantial evidence generally - Verdicts not unsafe or unsatisfactory.

Sentencing - Aggregate term of 5 years imprisonment imposed - Term reduced to 3 years 8 months - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Leave to appeal against conviction refused

Leave to appeal against sentence granted
Appeal allowed
Sentences varied

Representation:

Counsel:

Applicant : Mr S A Shirrefs
Respondent : Mr K M Tavener

Solicitors:

Applicant : Amidzic & Co
Respondent : State Director of Public Prosecutions

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

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Giorgianni v The Queen (1985) 156 CLR 473
Kennedy v The Queen, unreported; CCA SCt of WA; Library No 980145; 3 April 1998
Langridge v The Queen (1996) 17 WAR 346
Laporte v The Queen [1970] WAR 87
M v The Queen (1994) 181 CLR 487
Postiglione v The Queen (1997) 189 CLR 295
R v Olbrich (1999) 73 ALJR 1550
Ruane v The Queen (1979) 1 A Crim R 284
Shaw v The Queen (1989) 39 A Crim R 343
Weissensteiner v The Queen (1993 178 CLR 217

Case(s) also cited:

Giowkos v The Queen, unreported; CCA SCt of WA; Library No 9604780; 26 August 1996
Gipp v The Queen (1998) 194 CLR 106


(Page 3)

Holloway v McFeeters (1956) 94 CLR 470
Jones v The Queen (1997) 191 CLR 439
Lowndes v The Queen (1999) 195 CLR 665; (1999) 73 ALJR 1007
Marchesano (1992) 61 A Crim R 372
Pearce v The Queen (1998) 194 CLR 610
Pickett v Fuderer, unreported; SCt of WA; Library No 980174; 3 April 1998
Pickett v Fuderer, unreported; SCt of WA; Library No 980475; 27 August 1998
Poole v The Queen [1999] WASCA 46
R v Langridge (1996) 87 A Crim R 1
R v Storey [1998] 1 VR 359
R v Ward [1999] WASCA 157
Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Veen (No 2) (1988) 164 CLR 465

(Page 4)

1 MALCOLM CJ: I have read the reasons of Murray J. I agree with those reasons and have nothing to add.

2 KENNEDY J: The material facts are set out in the reasons to be published by Murray J.

3 The first ground of appeal contends that the trial Judge erred by directing the jury that they could return verdicts of guilty to the two counts in the indictment if they found that the applicant aided or enabled others to cultivate the cannabis. The argument advanced was that the jury, having been invited to find the applicant guilty of the crimes alleged on the basis of "enabling or aiding" the commission of the offence, it was essential that the jury be given adequate and proper directions concerning the required mental state. Reliance was placed upon Giorgianni v The Queen (1985) 156 CLR 473, in which, at 487 - 488, Gibbs CJ had said:

"No one may be convicted of aiding, abetting, counselling or procuring the commission of the offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender."

See also the judgment of Wilson, Deane and Dawson JJ at 503.

4 In this case, the relevant mental element to establish an offence under s 7 was the knowledge of the intention of the principal offender to sell or supply the cannabis to another. None of the relevant directions adverted to this necessary element. As it was put by the learned trial Judge, whether the applicant was the principal offender or merely an accessory, the Crown had to establish that he himself had the intention to sell or supply the cannabis. That this was so is made clear in the following passages from her Honour's directions:

"The heart of the case is this and that is whether you find that either or both of the accused men were involved in the cultivation of cannabis? Under our Criminal Code:

Each of the following persons is deemed to have taken part - in committing the offence and to be guilty of the offence -

first of all, "Every person who actually does the act," constituting the offence. So, ladies and gentlemen, if you were satisfied that anyone actually cultivated a plant; that is, nurtured or harvested or tended any of those cannabis plants, that would

(Page 5)

amount to cultivating cannabis, actually doing the act. Also, however:

Every person who does any act for the purpose of enabling or aiding another person to commit the offence or every person who aids another person in committing the offence.

In the case of enabling or aiding in the commission of an offence, you must be satisfied the offender knew cannabis was being cultivated and did an act intending to aid in that cultivation and I will talk to you specifically about that in a moment as we go through the evidence and what you might consider was an act aiding."

5 Her Honour, having reviewed the facts, then went on to say with reference to the North Perth premises:

"If you are satisfied a quantity of cannabis plants must have been growing there on 10 January and that Mr Maniaci visited the house for at least 15 minutes on that day, you go on to consider whether the only reasonable inference is that Mr Maniaci went there to cultivate the cannabis plants, that is, to tend or nurture or harvest the plants or knowing the cannabis plants were being cultivated, to do any act intending to aid or enable their cultivation."

"If you find he entered the house on 10 January 1996 and remained inside for at least 15 minutes, that he had a key to the premises, if you find that he had cannabis resin on his hand when he touched the pot, exhibit 43, during 1996 in that house, if you find he handled the Alinta Gas letter while he was in the house during 1996 and if you're satisfied that the only activity going [on] in that house during that time was the sophisticated hydroponic cannabis cultivation, then you ask is the only reasonable inference that he must have been involved, either that he himself cultivated cannabis or that he aided or enabled others to cultivate cannabis. If there's any other reasonable inference open on the facts that you find, you cannot find Mr Maniaci guilty of count 1."

6 Count 2, which related to the Balcatta factory unit, was also put to the jury on the basis that the applicant was either a principal offender or an accessory. Her Honour said:

(Page 6)

"If you accept the Crown's case and you find that he did lease the unit in a false name, that he told lies to Mr Rigoni, that he was involved in actually building the enclosure - the specialised enclosure - and that that was the reason he had his trailer there and if you find that when he visited on 6 August with an unknown man, that he actually went inside where the cannabis plants were growing, if you're satisfied that the only activity taking place at that factory unit was the cultivation of hydroponic cannabis, then you consider whether the only reasonable inference is that Mr Maniaci was involved in the cultivation of cannabis at Balcatta either directly, that he himself was growing, nurturing or tending or harvesting the plants or did he aid or enable others to cultivate cannabis.

To establish aiding or enabling, you must be satisfied that with knowledge that cannabis was being cultivated Mr Maniaci intentionally did an act to aid or enable the cannabis to be cultivated. Ladies and gentlemen, in this case building an enclosure knowing people intended it to hydroponically cultivate cannabis, could depending on your view of the evidence amount to aiding or enabling that cultivation of cannabis. If there are any other reasonable inferences open on the facts you find, you cannot draw the inference adverse to Mr Maniaci.

Ladies and gentlemen, the fourth element of these charges is the intent, an intent to sell or supply. Intention is a mental state. It can't be proved by direct evidence. The Crown can't tender a photograph of an accused person's mind and show what their intention was at a particular time. Intention can only be proved by circumstantial evidence taking account of all the circumstances as you find them to be and then considering any reasonable inferences arising from the circumstances.

In this case, the Crown relies on the costly elaborate hydroponic set-up found at 52 Farmer Street [North Perth] and at Balcatta. The Crown relies on the elaborate electrical arrangements, the power boards bypassing the meter to allow electricity without payment, the 44-gallon drums of liquid fertiliser with submersible pumps and hoses to feed and irrigate the plants, the grow lights, the transformers for each plant, the amount of rent that you have learned was paid for these premises.

(Page 7)

The Crown suggests that the cost, expense and sophisticated hydroponic set-up at each location shows that anyone involved in the cultivation of cannabis at either location was doing so with an intent to sell or supply the cannabis to another. In the case of Mr Maniaci, the Crown relies on the fact that he is himself not ever a user of cannabis. Ladies and gentlemen, you consider all the evidence and the circumstances as you find them.

In relation to each accused as charged, if you found that he was involved in the cultivation of cannabis, is the only reasonable inference open on the facts that you find that that person cultivated cannabis with intent to sell or supply that cannabis to another? Put another way, does the size and sophistication of the cannabis planting at each location satisfy you that those cultivations were not simply plantings for personal use?

Ladies and gentlemen, I will just remind you of the four elements of each charge. First, you must be satisfied that the plants involved were prohibited plants, that is, cannabis; secondly, you must be satisfied at each location that cannabis was cultivated; thirdly you must be satisfied in relation to each accused - you look at each one quite separately - that each accused was involved in the cultivation of cannabis at the premises which you're looking at, either directly, by doing an act that involved growing, nurturing, tending or harvesting the cannabis plants or that that particular accused, knowing cannabis was being cultivated, did an act with the intention of aiding or enabling others to cultivate cannabis.

The fourth element is that if you find that either or both accused did cultivate cannabis at either or both of the locations, did they do so with an intention to sell or supply cannabis to another?"

7 For the Crown to establish that the applicant was an accessory, it had to satisfy the jury that the applicant knew that the principal offender had the intention of selling or supplying the cannabis. Although the evidence would clearly indicate that if the applicant was otherwise shown to be an accessory, he must have known that the principal offender would have had the intention to sell or supply the cannabis, the directions given by her Honour were, in my opinion, deficient, and the appeal should therefore be allowed.
(Page 8)

8 In relation to ground 2 of the grounds of appeal, it is contended that the learned trial Judge erred by directing the jury that fingerprint evidence can provide strong circumstantial evidence which calls for explanation. What is said to be the offending passage in her Honour's directions were as follows:

"I will now speak to you about the fingerprint evidence. You will appreciate that in the detection of crime, fingerprints can provide strong circumstantial evidence. Courts takes judicial notice of the fact that no two people have identical fingerprints. If you are satisfied that an accused person's fingerprints have been found at an incriminating location or on an incriminating object, then that calls for some explanation as to how the fingerprints got there."

The applicant's complaint resides in the direction that the finding of an incriminating fingerprint "calls for some explanation", it being argued that the direction was erroneous and caused the trial to miscarry. In this case, however, the fingerprints did call for an explanation, otherwise there would be a "failure to explan facts for which, it is assumed, an innocent person would offer some explanation" - see Weissensteiner v The Queen (1993 178 CLR 217, per Gaudron and McHugh JJ, at 244 - 245, and the applicant did in fact make an explanation. Furthermore, there was no reasonable possibility of the jury being misled in relation to the burden of proof. At the commencement of her directions, her Honour rightly stressed that the onus or burden of proof rests on the Crown from the beginning to the end of the trial and went on to say:

"An accused person does not have to give evidence and has no obligation to prove anything in our courts. Under our law, an accused person is presumed to be innocent unless and until by your verdicts you were to find him guilty. Now, if an accused person goes into the witness box, which these two men have chosen to do, and does give evidence and raises any defence or explanation, it's not for him to prove his innocence. It's still for the Crown to negative his defence or explanation.

The Crown must prove guilt. An accused person does not have to prove his innocence."

9 Her Honour subsequently told the jury that the applicant did not have to prove anything in the trial, a direction which she later repeated.

10 In my opinion, ground 2 has not been made out.

(Page 9)

11 In relation to ground 3, I am in agreement with the reasons to be published by Murray J for dismissing the ground which contends that the verdict of the jury was unsafe and unsatisfactory.

12 In the circumstances, I would allow the appeal and order a new trial.

13 MURRAY J: The applicant was presented in the District Court upon an indictment which charged him with two offences:

(1) That between 1 January and 23 August 1996 at North Perth he "cultivated a quantity of cannabis plants with intent to sell or supply cannabis to another".

(2) That between 21 February and 23 August 1996 at Balcatta he "cultivated a quantity of cannabis plants with intent to sell or supply cannabis to another".

14 His trial by jury commenced on 6 April 1999. On 14 April he was convicted of both offences. On 20 April 1999 he was sentenced for the offence which was count (1) to two years imprisonment. For the offence which was count (2) he was sentenced to three years imprisonment to be served cumulatively. The sentences were to date from 14 April. A parole eligibility order was made with respect to the aggregate term of five years imprisonment. He now seeks leave to appeal against both the convictions and the sentences.

The appeal against the convictions

15 This application proceeded on the following grounds:

1. The trial Judge erred by directing the jury that the applicant might be convicted of the offences charged if they found that he aided or enabled others to cultivate the cannabis.

2. The trial Judge erred by directing the jury that fingerprint evidence can provide strong circumstantial evidence which calls for an explanation.

3. The verdict on count 1 is unsafe and unsatisfactory.

Particulars

Whilst on the whole of the evidence admissible against the Applicant upon count one it was open to a jury to conclude that the Applicant attended at the relevant address during the period

(Page 10)

alleged, it was not open to a jury to find that he was a cultivator of the cannabis therein.

Conviction as an aider of the cultivation

16 The offences charged resulted from police surveillance of the two premises at North Perth and Balcatta respectively where the cannabis plants were under cultivation and there was undercover police contact with persons said to be associated with those premises. The Crown relied on a circumstantial case to prove the applicant's guilt of each offence under the Misuse of Drugs Act 1981 (WA) s 7(1)(a), the elements of which were, having regard to the way in which both charges were particularised:

1. the cultivation of the prohibited cannabis plants, the term "to cultivate" being defined by the Act, s 3(1), to include, "to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plants"; and

2. the intention to sell or supply the prohibited drug cannabis obtainable from the plants.

17 The Criminal Code (WA) s 7, a provision of general application to offences whether defined by the Code or by some other statute, provides so far as material:

"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence; …"

18 In charging the jury the trial Judge correctly described the elements of the offences. Her Honour then came to what she described as "the heart of the case", the question whether the applicant was involved in the cultivation of cannabis. She referred to the Code s 7(a) and (b) and told

(Page 11)

the jury that to find the applicant guilty of enabling or aiding the commission of an offence, "you must be satisfied the offender knew cannabis was being cultivated and did an act intending to aid in that cultivation": Giorgianni v The Queen (1985) 156 CLR 473. Of course that was only part of the knowledge that was required. The other aspect was that the offender would need to know that the cannabis plants were being cultivated for the purpose or with the intention to sell or supply the prohibited drug derived from those plants to a person other than the cultivator.

19 Her Honour went on to discuss with the jury the evidence in relation to the acts which in respect of each location the applicant might be found to have performed and she put to the jury the question whether any such acts found by them were such that the only reasonable inference open was that the applicant was directly concerned in the cultivation or did those acts intending to aid or enable the cultivation of the plants. The question, as her Honour framed it, was whether, in either way, the applicant was "involved" in the cultivation of the cannabis plants.

20 Her Honour then turned to the intent to sell or supply the cannabis drug, spoke to the jury about how intention might be inferred from circumstantial evidence in the case, summarised briefly the evidence relied upon by the Crown to support that inference and concluded with the direction that if the jury found the applicant:

"… was involved in the cultivation of cannabis, is the only reasonable inference open on the facts that you find that that person cultivated cannabis with intent to sell or supply that cannabis to another? Put another way, does the size and sophistication of the cannabis planting at each location satisfy you that those cultivations were not simply plantings for personal use?"

21 Her Honour then reminded the jury of what she had referred to as the four elements of each charge, that the plants involved were the prohibited plants cannabis; that cannabis was cultivated at the location in question; that the applicant was involved in the cultivation, directly by doing an act which would constitute cultivation as defined, or by knowingly doing an act in aid of or to enable that cultivation; and finally:

"… if you find that [the applicant] did cultivate cannabis at either or both of the locations, did [he] do so with an intention to sell or supply cannabis to another?"

(Page 12)

22 In my opinion, that direction, while wrong in so far as it deals with the mental element involved in being an aider, does not involve appellable error on the part of the trial Judge. Indeed it was unduly favourable from the point of view of the applicant because it put to the jury that even if the applicant was not a principal offender directly involved in the cultivation of the cannabis plants at either location, but he was a mere aider of the cultivation by others, he could not be convicted unless he personally intended to sell or supply the drug cannabis to another. It was not of course necessary to establish such an intention on the part of the applicant if he was involved in the cultivation merely as an aider. It was sufficient if he knew that the principal offender intended to sell or supply the drug to another. I would not uphold ground 1.

The direction about fingerprint evidence

23 Such evidence was led by the Crown in support of count (1). The evidence was that the police found, on 22 August 1996 at the North Perth house which was the subject of that count, an AlintaGas card dated 13 May 1996 and a black plastic gardening pot, on both of which items they developed identifiable prints said by the fingerprint experts to be those of the applicant. On the pot the prints were associated with a deposit of sticky cannabis resin.

24 The complaint the subject of ground (2) is with the passage in the trial Judge's directions to the jury by which she introduced the subject matter of the expert fingerprint evidence. Her Honour said:

"I will now speak to you about the fingerprint evidence. You will appreciate that in the detection of crime, fingerprints can provide strong circumstantial evidence. Courts take judicial notice of the fact that no two people have identical fingerprints. If you are satisfied that an accused person's fingerprints have been found at an incriminating location or on an incriminating object, then that calls for some explanation as to how the fingerprints got there."

The complaint is that her Honour's concluding observation reversed the onus of proof. The error for which the applicant contends is said to affect not only the conviction in respect of count (1) but also count (2) upon the basis that the jury may have convicted of count (1) because they thought that the applicant had not discharged the onus upon him to give an acceptable innocent explanation and, presumably, it is suggested that,

(Page 13)

having convicted of count (1), the jury may have thought that fact alone supported a conclusion that the applicant was guilty of count (2).

25 Not only, in my opinion, does that argument have no merit, but the basic proposition that the jury may have been led into thinking that it was for the applicant to prove his innocence in relation to the fingerprints is without merit. To my mind, read naturally, the remark merely invited consideration of how the prints, if they were accepted to be those of the applicant, got onto the objects in question.

26 Her Honour gave comprehensive and careful directions about the onus and standard of proof. She said that if she used the word "satisfied" in the course of her charge to the jury, they should understand that she always meant satisfied beyond reasonable doubt. She added to those standard directions the necessary direction about proof beyond reasonable doubt when reliance was placed upon circumstantial evidence and she gave a direction, about which no complaint is made, about the circumstances in which the jury would be justified in inferring guilt from circumstantial evidence.

27 Having introduced the topic, the trial Judge gave appropriate directions about the expert evidence and the need for the jury to consider whether they accepted it and were satisfied of the facts established by such evidence, ie that the prints identified on the black pot and the AlintaGas document were indeed made by the applicant. As to the circumstances in which they got there, the applicant in fact gave evidence and provided innocent explanations which, unless they were rejected by the jury, would have made it impossible to use the fact of the existence of the applicant's fingerprints on the objects in question as circumstantial evidence against him.

28 Her Honour discussed all this evidence and at the end of her observations reminded the jury that, "Mr Maniaci, of course, does not have to prove anything in this trial". Her Honour again told the jury that it was only if they found that the only reasonable inference open was that the fingerprints in the cannabis resin on the pot had been made during the period with which the indictment was concerned, that the evidence could be used against the applicant. She said that if there was any other reasonable inference open on the facts found by the jury, "you must not use this evidence against Mr Maniaci". If the jury found that the fingerprints were put on the pot during the relevant period in 1996, then the trial Judge told the jury to "consider the reasonable inferences open on that finding", and she reminded the jury, appropriately, that the Crown's argument was that in those circumstances that would be powerful

(Page 14)

evidence of the applicant's direct involvement in harvesting the cannabis at the premises in question and therefore evidence of his direct involvement in the cultivation of the cannabis plants. Finally, her Honour discussed the evidence in relation to the AlintaGas document in similar terms. In my view, as I have said, ground 2 may not be upheld.

Was the verdict on count (1) unsafe or unsatisfactory?

29 When such a ground is advanced in support of the contention in terms of the Code s 689(1) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, the appellate court is obliged to review the available evidence and ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. In undertaking that task the court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and has had the benefit, denied to the appellate court, of having seen and heard the witnesses: M v The Queen (1994) 181 CLR 487, 493.

30 It is to be remembered that count (1) was concerned with the address in North Perth. It was a private house and the particulars of the ground amplify the complaint by contending that, although it was open to the jury to conclude that the applicant attended at the relevant address during the period alleged, it was not open to conclude that he was a cultivator of the cannabis plants.

31 The house was owned by the applicant's brother. It was always a rental property and between September 1994 and August 1996 it was rented to a person named Munro. The applicant's brother conducted no rental inspections because he had been told that the house would be used as a storage place for furniture.

32 From January to August 1996, from time to time, the place was kept under surveillance and the police made a number of covert entries to the house under the authority of search warrants. There was every indication that the house was not a place of human habitation and inside the police discovered a sophisticated hydroponics system used for the purpose of the cultivation of a number of cannabis plants. Plants grown under such a system are generally of better quality and yield a higher grade of cannabis than those grown more naturally. Wiring was placed to ensure that the plants would bend over as they approached maturity with the result that the cannabis resin would collect in the head of the plant, thus producing

(Page 15)

material of better quality. The plants observed at any given time were at various stages of maturity and, although plants were growing, there was on one occasion a bag with stripped cannabis plants inside it, so some material was harvested while other plants were being cultivated. There was a reticulation system to provide a dripfeed of water to each plant. In addition, liquid fertiliser was distributed to the plants in a controlled fashion by a pumping system. Chemicals were used to sustain the water quality. Bottles were installed from which oxygen could be pumped over the plants so as to promote their growth. The plants were grown under lights of high power known as "grow lights" which not only provide even light of the quality of sunlight but also generate heat. The power source for the lights was a series of transformers. The electricity supply to the house had been arranged so as to bypass the meter.

33 The first evidence of surveillance was given by undercover police officers of the events of 10 January 1996. From that evidence the jury might conclude that the accused was observed driving in his motor vehicle and was followed to the North Perth address. He was observed to alight from his car and enter the house using a key to unlock the front door. The house was then watched for 15 minutes before the police officer left. The applicant was not seen to emerge. The defence attacked the credibility of these officers and the applicant gave evidence that he did not go to the house on the day in question and he was not the person who was seen driving his car on that day.

34 The first covert entry to the house by police was made eight days later on 18 January 1996. A total of about 10 plants were observed in various stages of maturity. The hydroponics setup which I have described was photographed. From the evidence the jury might conclude that the plants were growing there on 10 January and that was the only activity to which the house was then being put. The applicant's evidence was that he only attended the house for innocent purposes at the request of his brother to do maintenance or repair work but he did not go there during the period covered by the indictment. On the other hand, the applicant's brother, while agreeing that at his request the applicant would assist with such routine maintenance and repair work, gave evidence from which the jury might conclude that the applicant had been asked to and had in fact visited the property, ostensibly for such purposes, during the period in question.

35 Then there was the fingerprint evidence which emerged from a covert entry and search of the North Perth premises on 22 August 1996. The black plastic pot which the jury might find contained the applicant's fingerprint was found in the bathroom. As I have mentioned the

(Page 16)

fingerprint was found in sticky cannabis resin. The evidence was certainly capable of indicating that the applicant had been involved in harvesting cannabis leaf but the jury had to consider the applicant's evidence that he had handled the pot and must have placed his fingerprint there in the middle of 1995 while helping his brother clean up the property. He said that he had removed two cannabis plants from pots and then stacked the pots but he denied that he was involved in any harvesting activity during the period covered by the indictment. A difficulty which emerged in relation to that evidence was that the applicant's brother confirmed the cleaning up operation but said that the cannabis had been removed from the pots by the previous tenant before the applicant and his brother commenced their cleanup. Certainly there was evidence that such prints could last for up to 12 months in identifiable form but that was not evidence given specifically in relation to plastic which was the material from which the pots were made. There was evidence that the identifiable prints found inside the house were predominantly those of the tenant Munro.

36 I have mentioned the AlintaGas card. It was dated 13 May 1996, had the applicant's fingerprints on it and was found in one of two plastic rubbish bags found on the premises. Included in the material in the bags was some loose cannabis leaf. Consistently with his other evidence the applicant testified that he had on occasions been asked to collect the rent from Munro. If Munro was not home, he would not enter the premises but would take any mail and push it under the front door. He gave no evidence specifically about the AlintaGas card and the associated letters.

37 In my opinion, having regard to the way in which the applicant's case was presented and the way in which the jury were directed by the trial Judge, the jury could not have convicted of the offence in count (1) unless they rejected the applicant's evidence. If they did that, I consider the objective circumstantial evidence was, in its totality, perfectly capable of supporting the conclusion that the applicant attended the property to assist in the cannabis cultivation during the period to which the indictment referred. The nature of the operation established there and the lack of any evidence of human habitation well supported the conclusion that the crop was cultivated so that the cannabis yielded by the plantation could be sold or supplied to others. It had all the hallmarks of a commercial operation of some sophistication, albeit that the quantity of the material which might be yielded at any given time would not be great.

38 I would dismiss the application for leave to appeal against the convictions.

(Page 17)

The appeal against the sentences

39 I have already mentioned what the sentences were and how they were structured to achieve an aggregate term of five years' imprisonment with eligibility for parole. The application for leave to appeal against sentence proceeded upon the following grounds:

"1. The learned Sentencing Judge erred by finding as a circumstance of aggravation with respect to count one that the applicant was directly involved in the cultivation and harvesting of the cannabis and thereby elevating his role to a level that was not supported by the evidence.

2. The learned Sentencing Judge erred by finding as a circumstance of aggravation with respect to count two that the applicant was a principal and thereby elevated his role to a level that was not supported by the evidence.

3. The learned Sentencing Judge failed to properly consider and apply the principle of parity when sentencing the applicant with respect to count one.

4. The sentences imposed with respect to each count were disproportionate to the degree of criminality involved.

5. The learned Sentencing Judge erred by ordering that the sentences imposed on each count be served cumulatively.

6. The total effective sentence of 5 years' imprisonment was manifestly excessive."

The role of the applicant

40 Grounds 1 and 2 may be taken together. They concern the trial Judge's findings about the role played by the applicant in the cannabis cultivation operations carried on at both locations. As to the North Perth premises the subject of count (1), her Honour found that the applicant "was directly involved in the cultivation and harvesting of the crop". She went on to refer to the evidence which persuaded her to that view saying, in a manner indicative of the application of the standard of proof beyond reasonable doubt, that, "the only reasonable inference to be gained" from the evidence was that the applicant was involved in harvesting cannabis at the house.

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41 The place in Balcatta the subject of count (2) in the indictment was a factory unit. Again, her Honour reviewed the evidence of the applicant's involvement in the activity of hydroponic cannabis cultivation carried on in that unit before saying:

"Now, taking account of all this evidence, I am satisfied that this offender was directly involved in obtaining the premises at Balcatta, directly involved in modifying them for the specialised hydroponic cultivation of cannabis and I consider that he was a principal offender at Balcatta in setting up those premises for the cultivation of cannabis."

That is not to say of course that there were not others involved, as obviously there were.

42 In their joint judgment in R v Olbrich (1999) 73 ALJR 1550 Gleeson CJ, Gaudron, Hayne and Callinan JJ, at 1553 - 1554, pars [19] - [20], referred to the decision often made by a sentencing Judge in cases of drug trafficking or importation to place an offender within an organised hierarchy of offenders involved in the commission of the offence. In the context of that case the court observed that to say, for example, that an offender was a courier rather than a principal might provide a useful shorthand description of the offender's role in the enterprise, but the court cautioned that the use of such a label should not obscure the assessment of what the offender did for which he was to be sentenced. In my opinion, it is clear that her Honour did not fall into that trap but she simply made findings of fact describing the part played by the applicant in the commission of each offence. It is not suggested that her Honour misapplied the appropriate burden of proof as discussed in Olbrich and such cases in this Court as Langridge v The Queen (1996) 17 WAR 346.

43 The argument presented in support of these grounds was that as the matters were left to the jury, their verdict may have been that the applicant was himself a principal offender or that he aided others in the cultivation for the purpose of the sale or supply of the drug, cannabis, to persons other than the cultivators. That is so and it can be seen that there are elements of a finding of direct involvement in the cultivation in the findings made by the sentencing Judge, but it cannot be said, as was argued, that her Honour's findings are in any way inconsistent with the verdict of the jury, if either view of the facts was open to them consistently with a guilty verdict on each count. It has long been recognised that the trial Judge is not bound to take a view of the evidence most favourable to the offender provided the findings of fact made by the

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Judge are not inconsistent with the jury's verdict. That has been accepted in this State since Laporte v The Queen [1970] WAR 87, 89. As I have mentioned, there is and could be no complaint about the standard of proof applied to the fact finding process by the trial Judge.

44 The only remaining question then in respect of these grounds is whether her Honour made findings of fact which went beyond those which the evidence was capable of supporting. This she clearly did not do. I have mentioned the evidence available in respect of count (1) when discussing ground 3 of the application for leave to appeal against conviction. It was open to her Honour to take a view of that evidence which clearly supported her findings of fact in relation to the applicant's role in respect of count (1).

45 As to count (2), the evidence was capable of establishing that the factory unit was leased by the applicant using a false name. His trailer was kept at the premises for a time. He was observed in the factory unit and was seen to build a wooden enclosure or frame which was later used to house cannabis plants being grown hydroponically. That was the sole purpose for which the factory unit was used and, as in the case of the premises at North Perth, the system employed displayed a considerable degree of sophistication. There was in my opinion ample evidence to support the findings of fact made by her Honour about the applicant's role in the commission of the offence which was count (2) in the indictment. In my view, neither of these grounds may be upheld.

Cumulative sentences

46 The argument presented for the applicant in respect of ground 5 is, that although pleaded as two counts, the allegation of the Crown was essentially that, during the relevant period, the applicant was involved in the cultivation of cannabis which happened to be at two locations. I think there is something to be said for this argument, although that is not to say that there was any duplicity as a matter of law in charging two offences. They were certainly separate acts of cultivation. The question really was whether, what is sometimes referred to as the "one transaction principle", should have been applied in this case. As I put it in Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 at 15 - 16:

"The ordinary rule of thumb is that where a number of offences arise out of what may be called the same transaction, in that they together constitute a single invasion of the same legally

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protected interest, then the sentences of imprisonment imposed will be permitted to be served concurrently. Otherwise, where the offences are of a different character or involve different circumstances in their commission, even though they were committed close together in point of time, they will be regarded as being concerned with separate transactions and meriting an order for cumulative service."

In support of that proposition, I cited Ruane v The Queen (1979) 1 A Crim R 284, 286 and Shaw v The Queen (1989) 39 A Crim R 343, 347.

47 In the end it is a matter of no great moment how the sentences are structured provided the total effect of what is done achieves a result which is proportionate to the total criminality involved. However, in this case, I am inclined to the view that it would have been more in accord with principle to impose concurrent sentences upon the basis that the applicant was involved in an enterprise of growing cannabis for sale utilising the facilities established at two locations. The appeal, of course, would not be allowed upon that ground unless this Court is required to conclude that the total effect of what was done by way of sentence was disproportionately severe or that, for some other reason, the Court must interfere with the sentences imposed.

Parity

48 In that regard, ground 3 presents a parity argument arising out of the involvement of the man Munro who was, it will be recalled, the tenant of the house in North Perth. By the time her Honour came to sentence the applicant, Munro had been before a different sentencing Judge upon his early plea of guilty and following the process of expedited committal. He was to be sentenced for three offences of the same kind of hydroponic cannabis cultivation at various locations for the purpose of producing the drug cannabis for sale. Apart from the North Perth property Munro was involved in properties at Willetton and Karrinyup.

49 As to the North Perth property, the information placed before the sentencing court in relation to Munro was rather different to that which emerged at trial in this case. Counsel said that over the period of surveillance when covert entries were made by the police, they saw a total of 92 cannabis plants at various stages of growth. In addition, about 1.8 kgs of dried cannabis leaf was seen. At the time of Munro's arrest in August 1996 there were six cannabis plants under cultivation in the house and there was evidence that another 42 cannabis plants had been stripped

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of their leaf. All of that was totalled to arrive at the view that the court was dealing with a crop of 140 plants capable of producing high yield, high quality cannabis leaf and having what was described as a conservative value on the street of about $420,000. I make no observation upon the accuracy of the estimate of value or the reliability of the process of totalling what was seen on different occasions in that way. In other words, I have no idea how much, if any, duplication is involved in what was observed.

50 On 21 November 1997 Munro was sentenced to an aggregate term of five years' imprisonment with eligibility for parole. His Honour imposed cumulative sentences of two years, two years and one year respectively. The one year term related to the North Perth property.

51 As to that place, Munro was clearly dealt with as a principal so far as his involvement went. That was said to be limited to the period between January and March 1996, during which period Munro said he grew only 12 plants. He asserted that the subsequent cultivation was the work of others and the sentencing Judge accepted that his substantial involvement in that operation ended in March. The Judge who sentenced Munro found that "the operations giving rise to each count were moderate commercial ventures developed with skill, ingenuity to avoid detection, and for naked gain". His Honour reduced by one third the sentences which he would otherwise have imposed on account of the early pleas of guilty.

52 In this case the trial Judge found that the applicant had been involved in both premises between January and August 1996. She described the operations as sophisticated hydroponic cultivation. She agreed with the characterisation of the operations by the previous sentencing Judge as moderate commercial cannabis cultivation displaying a degree of sophistication and ingenuity which took it out of the class of a relatively small backyard cultivation. Noting the sentence of one year imprisonment passed on Munro in respect of the North Perth premises, she expressed the view that that sentence did not in any way bind her Honour in considering what sentence was to be imposed upon the applicant. Her Honour said no more about that but went on to describe the Balcatta operation in terms which showed that it was of a similar nature to that conducted in North Perth and she found that the applicant's involvement in that operation was as a principal offender in setting up those premises for the cultivation of cannabis.

53 It is apparent that, had Munro not had the advantage of the remorse demonstrated by his early pleas of guilty, he would have been sentenced

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for the limited period of his involvement in the North Perth operation to 18 months imprisonment. I am unable to say in those circumstances that there is any marked disparity in the sentence of two years imprisonment imposed upon the applicant, following his conviction after trial, for his longer involvement with the North Perth operation. I am unable to accept the argument that there has been an error in the application of the parity principle: Postiglione v The Queen (1997) 189 CLR 295, 301 - 302.

Proportionality and the totality principle

54 These matters are in my opinion the nub of the application for leave to appeal against sentence. They are the matters raised by grounds 4 and 6. I have said enough I think about the nature of the operations in the two places. Given the relatively high degree of sophistication of both set-ups, it was clearly appropriate for the sentencing Judge to regard them as being out of the category of backyard operations and to categorise them as moderate commercial operations. Although relatively small numbers of plants were cultivated at any given time, the premises in each case were set up, as the sentencing Judge described them, as "a sort of cannabis factory, continually producing cannabis on an ongoing basis".

55 Nonetheless, it is right to say, as is argued for the applicant, that in that context the operations were relatively small at any given time. When they were observed by the police there was a maximum of about 12 plants growing at North Perth and about 20 plants at Balcatta. In each place the total number of plants was below the number which would give rise to the presumption under the Misuse of Drugs Act 1981 s 11 that the cannabis obtainable from the plants was to be sold or supplied to others. Even if the two operations were (impermissibly) added together, the total number of plants remained well below the number of plants which, under that Act, would have led to the offences concerned with their cultivation being incapable of being tried summarily. By the Misuse of Drugs Act s 34(2)(a) each offence was punishable by a fine of $20,000 and/or imprisonment for 10 years.

56 When the applicant came to be sentenced he was a man of nearly 40 years of age. He had no previous convictions of any note. Her Honour accepted that until 1995 when his marriage broke down the applicant was a hardworking family man of good character. The breakdown of his marriage, her Honour said, had a devastating effect upon the applicant and she accepted that these offences were committed "during the time that he was in a stressed condition". Of course, the applicant did not have

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available to him any mitigation by way of the display of contrition and the making of pleas of guilty.

57 I have mentioned the case of Munro who was sentenced to an aggregate term of five years imprisonment for three offences of the same character as those before the court in the applicant's case. Those sentences were imposed after early pleas of guilty. The sentencing Judge referred to yet another related case, Kennedy v The Queen, unreported; CCA SCt of WA; Library No 980145; 3 April 1998. Kennedy was another co-offender of Munro who was convicted of two similar offences at separate premises. He was sentenced to one year imprisonment and two years imprisonment cumulative making a total of three years with eligibility for parole. Those sentences were upheld on appeal. Again there were early pleas of guilty. In relation to the first offence Kennedy was found to have assisted the principal offender. As to the second offence he was the owner of the property and found to be the sole offender. That of course is not the case so far as the applicant is concerned with respect to each property and each offence.

58 In my opinion, in this area of the law, sentencing is rather more tariff driven than is often the case. It is right to say I think that of recent times the courts have firmed up the sentences imposed in respect of the cultivation and sale of cannabis as they have in relation to other drug trafficking offences, notably those concerned with drugs much more dangerous in the community than cannabis. However, in relation to cannabis as well as to other drugs, the courts have recognised that, "punishment by way of retribution, personal deterrence and general deterrence is necessary by reason of the harm caused by those who become involved in the drug trade for the purposes of profit". In such cases it is said, "mitigating factors have a significantly reduced impact": per Malcolm CJ, with whom Franklyn and Ipp JJ agreed, in Kennedy at 13. In this case the sentencing Judge had regard to those matters and, in imposing the sentences she did, she remarked that she could find no remorse, no mitigation of any kind despite the applicant's antecedents to which I have referred.

59 In my opinion, having regard to the sentences imposed relatively contemporaneously for similar and related offences, having regard to the various points of similarity and dissimilarity between the cases discussed above, having regard to the nature of the offences as her Honour described them, to the applicant's personal circumstances and to the need to impose sentences having an appropriate deterrent value, it is the case that, while the sentences individually may not be considered to be excessive, and

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while it was appropriate to impose a sentence of somewhat greater severity in relation to the second offence concerning the Balcatta operation, the total five year term was excessive. I would grant leave to appeal against the sentences and allow the appeal.

60 In my opinion, an appropriate outcome would be achieved by preserving the two sentences as imposed by her Honour and making them partly cumulative rather than totally so. In my opinion, that would have the advantage of recognising that the applicant was engaging in an enterprise of cannabis cultivation at two locations, the total criminality of the enterprise being somewhat exacerbated by the enhancement of the production capacity achieved by adding one location to the other. I would order the sentence of three years imprisonment imposed for the second offence to begin after the applicant served eight months imprisonment in respect of the sentence of two years imprisonment imposed for the first offence. That would make an aggregate term of three years and eight months imprisonment. I would leave in place the parole eligibility order and the sentences would of course commence on the date ordered by the sentencing Judge, 14 April 1999.