McLeod v The State of Western Australia
[2009] WASCA 233
•22 DECEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McLEOD -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 233
CORAM: McLURE P
OWEN JA
WHEELER JA
HEARD: 3 DECEMBER 2009
DELIVERED : 22 DECEMBER 2009
FILE NO/S: CACR 74 of 2009
BETWEEN: TRAVIS JAMES McLEOD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
File No :IND BUN 88 of 2007, IND 1009 of 2008
Catchwords:
Criminal law - Appeal against sentence - Cultivation of cannabis and attempt to manufacture methylamphetamine - Parity with sentences imposed on the principal offender - Whether sentencing judge took into consideration extraneous matters not supported by facts - Whether the sentence imposed was manifestly excessive - Turns on own facts
Legislation:
Nil
Result:
Application for an extension of time within which to appeal refused
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr A L Troy
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Lowe v The Queen (1984) 154 CLR 606
R v Beaumont [1955] SASR 110
Royer v The State of Western Australia [2009] WASCA 139
Wimbridge v The State of Western Australia [2009] WASCA 196
McLURE P: I agree with Owen JA.
OWEN JA: The appellant seeks leave to appeal against sentences imposed in the District Court on 24 October 2008. The appellant was sentenced to four years and ten months' imprisonment on two counts arising from the cultivation of cannabis, one count of an attempt to manufacture methylamphetamine and 26 other drug related charges.
As I understand it the substance methylamphetamine is described by different street names depending on geographical locations and other influences. For sake of brevity, throughout these reasons I will refer to that substance as 'methamph'.
The notice of appeal was filed outside the period specified in the rules and the appellant has applied for an extension of time within which to appeal. On 5 August 2009 an order was made that the application for leave to appeal and the application for an extension of time be heard together with the substantive appeal.
Background
The offences on which the appellant was sentenced were included in two separate indictments: BUN 88 of 2007 (which I will call the Bunbury indictment) and 1009 of 2008 (which I will call the Perth indictment). The Bunbury indictment was first issued on 12 September 2007 and it then contained only one count; namely, possession of a prohibited drug with intent to sell or supply. In May 2008 the Bunbury indictment was amended to add another charge; namely, cultivating a prohibited drug with intent to sell or supply. The 26 other drug related charges were dealt with by virtue of a notice issued under s 32 of the Sentencing Act 1995 (WA).
Between 1 June 2006 and 6 April 2007 the appellant and a co‑offender (Bruce Chesham) planted about 300 cannabis seedlings on a property owned by the co‑offender. The appellant and Chesham planted the seedlings at different locations on the property. They made sure to avoid planting them in clusters in an attempt to avoid detection from the air. Once the crop matured they were left with approximately 100 female plants ranging from 4 to 7 feet in height and about 1 m wide. They shared the plants between them. The agreement between the men arose from the co‑offender's need to settle an outstanding debt of $5,000. Two crops were harvested from the plants in that period. This was the subject of count 1 on the amended Bunbury indictment.
On 6 April 2007 the men conducted their third harvest, removed all of the plants and divided the proceeds between them. On 7 April 2007 the appellant secreted his share of the harvest in his vehicle and drove towards Perth. During that journey he was stopped by police in relation to his driving. Police smelled cannabis and in the ensuing search of his vehicle the cannabis was located (count 2 on the amended Bunbury indictment). The total weight of the material found when first weighed by police was approximately 5.3 kg but further testing by an approved analyst established that the total weight was approximately 1.85 kg. Smaller amounts of cannabis were found in board shorts located in the car boot and in a plastic bag on the front seat. The appellant was interviewed by police but made no admissions in relation to the cannabis. He was taken to Busselton Police Station where he declined to participate in a recorded video interview in relation to this charge. On 9 April 2007 the appellant was charged with the offence that became count 2 on the Bunbury indictment. He was remanded in custody before being released on bail on 18 May 2007.
On 6 November 2007 (while the appellant was on bail) police investigators became aware that he had organised to collect 100 g of alkali‑metal sodium from a courier company. Police seized the package and substituted another substance that was delivered to the appellant's home (charge 1 on the s 32 notice).
Also while the appellant was on bail, telephone intercepts were installed on mobile telephones operated by the appellant pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth). Between 9 November 2007 and 28 November 2007 the appellant was recorded offering to sell methamph to others on 20 separate occasions and to sell cannabis to another on one occasion (charges 6 to 26 on the s 32 notice). The amounts involved in the 'deals' captured in the telephone intercepts were between $100 and $400, save for charge 17, where the amount involved was $1,000.
On 13 November 2007 police stopped and searched the appellant's vehicle in Fremantle and found one gram of cannabis in a bag which the appellant admitted he owned (charge 2 on the s 32 notice).
On 26 December 2007 the appellant received a package containing what he believed to be 559 g of ephedrine powder, which had been intercepted earlier by the Australian Customs Service and substituted with another powder. In the early hours of the morning of 27 December 2007 the appellant together with a co‑offender (Brett Matson) attempted to manufacture methamph in premises at Naval Base. The process was completed but not successful. The Tactical Response Group executed a search of the premises under a Misuse of Drugs Act 1981 (WA) warrant when the appellant had left the premises. The police officers seized various items used in the manufacture of methamph. The appellant was arrested upon his return to the premises and charged jointly with Matson with one count of attempting to manufacture a prohibited drug; namely methamph (the Perth indictment). Matson was charged on the same indictment with a separate count of attempting to manufacture methamph on a different occasion.
On 28 December 2007 (following the arrest of the appellant and after he had been remanded in custody) police executed a search of the appellant's Fremantle home. They located 0.2 g of methamph, one gram of cannabis and seven 40 mg tablets containing the substance oxycodone (charges 3, 4 and 5 on the s 32 notice). The appellant declined to be interviewed in relation to these drugs.
On 16 January 2008, as a result of information provided to police by the co‑offender Chesham, the appellant was charged with the offence that became count 2 on the Bunbury indictment. The indictment was amended accordingly.
The appellant initially pleaded not guilty to the charges on the Bunbury indictment and to the charge that was to become the subject of the Perth indictment. Prior to matters on the Bunbury indictment being listed for trial, he indicated that he would enter pleas of guilty to those charges. Prior to the presentation of the Perth indictment he indicated that he would plead guilty to that charge.
On 5 September 2008 the appellant was convicted on his own pleas to the three charges on the indictments and the 26 charges on the s 32 notice.
The sentencing of the appellant
The appellant was sentenced by Yeats DCJ. Her Honour took sentencing submissions on the morning of 5 September 2008. She ordered a psychological report and remanded the appellant in custody to return again on 24 October 2008. On the return date some further submissions were made and her Honour then sentenced the appellant.
Sentencing remarks
The sentencing judge noted that the appellant was a 31‑year‑old man with two children, and with a very long history of involvement with cannabis including the following convictions:
(a)possession of cannabis in 1995;
(b)possession of a prohibited drug in 2002;
(c)three counts of possessing with intent to sell or supply and one count of cultivating cannabis in 2005; and
(d)cultivating and smoking cannabis, possession of smoking utensils and possession of a prohibited weapon in 2008.
Her Honour made the comment that, given this history, it was surprising that the appellant had not previously been sentenced to a term of imprisonment.
The psychological report was considered not to be favourable to the appellant. He attributed his early offending (prior to 1999) to alcohol, and displaced responsibility for his actions to external factors. He began smoking cannabis as early as 13 and consumed alcohol heavily from 15 to 22. He moved to methamph after being diagnosed with ADHD and after he had stopped taking the medication provided for that diagnosed condition.
Her Honour had letters of support from the appellant's mother and de facto partner and a letter from the appellant. The appellant and the de facto had two young children and it was apparent that the relationship was troubled whether he was at home or in custody.
The sentencing judge took into account the effects of cannabis use which were 'devastating in the community'. She commented that the substance disturbed the thinking and emotions of the young: 'it sends them off the twist'. Methamph was a particularly cruel drug because of the damage it had done in the community, and it was through people like the appellant who attempted to provide the drug that the trade continued.
Matters personal to the offender, such as his substance abuse and the effect of separation from his children, were noted but they were overwhelmed by the need for general and personal deterrence. Her Honour said:
You were given a number of chances as you came along, and I'm afraid you've had all the chances you can have. It's beyond my powers to do other than sentence you to what, in the end because of the number of offences, you may find to be relatively substantial imprisonment.
Her Honour noted the guilty plea, which was early in relation to the attempted drug manufacture but 'took some time in relation to the cannabis charges'. The plea showed some level of remorse. Her Honour recognised that the pleas to the s 32 charges deserved 'full credit' because they were not easy to prove. At the same time her Honour was aware of the psychologist's report that the appellant shifted blame to other events. She said that the appellant would have to start facing the realisation that the problem lay within him, and eventually he would have to 'grow up'.
The sentencing judge noted that the offence the subject of the Perth indictment was committed while the appellant was on bail for the cultivation offences and was therefore more serious. However, because the appellant was a 'user/dealer' he would be sentenced for the three charges in the two indictments on the basis that he was not 'at the top' (presumably in an hierarchical sense).
The sentence
On the count of attempted methamph manufacture (the Perth indictment) her Honour mentioned a starting term of 5 years which was then adjusted to take into account the early guilty plea and the (then) requirement for a reduction by one third to arrive at a term of 2 years 6 months' imprisonment.
For cultivation of cannabis with intent to sell or supply (the Bunbury indictment count 1), her Honour would have started at 3 years but for the same reasons this was reduced to 18 months. The charge of possession of approximately 1.85 kg of cannabis (the Bunbury indictment count 2) was visited with a penalty of 3 years reduced to 18 months.
I have set out the disposition of the individual charges in the s 32 notice in Schedule 1. Charges 1 and 17 attracted terms of 6 months and 4 months respectively. The terms of imprisonment imposed for the other charges were 3 months or less.
Having pronounced the sentences for the individual counts in the indictments and in the s 32 notice her Honour turned to the question of totality, which she said 'loomed large'. She recognised that the sentence would be crushing if all terms were to be served concurrently. She also noted that the cultivation of the cannabis resulted in the possession and that this justified an order for concurrent sentences for the two counts on the Bunbury indictment.
These considerations led the sentencing judge to order that the two 18 month sentences for possession and cultivation of cannabis be served concurrently with one another but cumulative upon the 2 years 6 months term for attempted manufacture of methamph. In relation to the s 32 notice, all except charges 1 and 17 were to be served concurrently with all other terms. The terms imposed for charges 1 and 17 were ordered to be cumulative, bringing a total of 10 months' imprisonment for all charges in the s 32 notice.
The result was a total head sentence of 4 years 10 months' imprisonment. The sentencing date was to commence on 16 November 2007 and the appellant was made eligible for parole.
The sentencing of the co-offender Chesham
Chesham was sentenced by Wisbey DCJ on 31 March 2008. Chesham pleaded guilty to the one count of cultivating cannabis with intent to sell or supply. He also pleaded guilty to two charges specified in a s 32 notice; namely possession of cannabis and possession of a smoking implement.
The facts relating to his criminality were based on information Chesham provided to the police. His Honour accepted that Chesham owed 'a person' money and was imposed upon by that person, who put to him a proposition that the debt would be repaid by him allowing the cultivation of cannabis on property that he occupied. Half of the cannabis was to be taken by the person in satisfaction of the debt. The other half would be retained by Chesham for his own purposes, which involved satisfying his own demands and supplying small quantities to associates.
Apart from payment of an existing debt this was not a case in which there was a substantial commercial element. The requirement for general deterrence, and some element of specific deterrence in Chesham's case, demanded that because of the nature of the criminality and the fact that 100 plants (a considerable amount) was involved, a term of imprisonment was the appropriate disposition. The question was whether the term could be suspended.
Chesham was 31 years of age. His Honour took matters into account regarding his upbringing and social situation that were presented in a pre‑sentence report and reference material. Chesham had pleaded guilty at the earliest opportunity and it was very significant in terms of mitigation that the case against him was based on information he voluntarily provided to police. He also appeared to have provided considerable assistance with respect to the involvement of his co‑offender in certain matters.
In his Honour's view in this particular case and the facts that Chesham was well regarded vocationally and in regular employment, the sentence could be suspended. The appropriate sentence would have been of 2 years' imprisonment but it should be reduced to 12 months to give effect to the early guilty plea and transitional sentencing requirements, suspended for a period of 18 months. There would in addition be a fine of $1,000 for the cultivation count and fines of $250 and $100, respectively, for the two charges in the s 32 notice.
The sentencing of the co-offender Matson
Matson appeared before Yeats DCJ on 5 September 2008 and sentence was pronounced on the same day. His sentencing hearing occurred after her Honour had heard submissions in relation to the appellant but before the final disposition of the appellant's case in October.
When a search warrant was executed on 30 July 2007 Matson was found to be in the process of manufacturing methamph. Matson was charged with that offence and released on bail but less than six months later, following a Customs Service interception and substitution of the ephedrine powder, he was found again attempting to manufacture methamph. This latter event was the subject of the Perth indictment, in which he was charged jointly with the appellant. He was also dealt with for three counts of burglary and committing an offence under a s 32 notice and was resentenced in relation to a suspended term of imprisonment imposed on 30 November 2006 for discharging a firearm to cause fear and threatening to kill.
Matson was 39 years old with an entrenched methamph habit. From the pre‑sentence report it was ascertained that he came from a good supportive family with a happy childhood, which the courts often did not see. He had a bad court history. As this was his third conviction on serious drug offences an order was made that Matson be declared a drug trafficker. The sentencing judge accepted that Matson and the co‑offender were addicted to methamph and were manufacturing the drug to feed their own addictions. But as the sentencing judge remarked, that simply meant it was not as bad as it would have been if he were involved in more commercial production.
The sentencing judge noted that Matson had suffered three serious tragedies in his life, witnessing his brother's death in a traffic accident, having his partner commit suicide and being stabbed by a close friend. But that did not excuse resort to methamph. Matson was a qualified marine mechanic who worked well with his father in his boat building business when he was off drugs and was assured of continuing employment in that field.
Matson had two children, one of whom was born since he had been in custody on remand, and a 16‑year-old son from a previous relationship. The sentencing judge accepted that Matson had engaged in programmes while in prison in an attempt to improve his situation. The sentencing judge also said that she intended to give Matson a substantial reduction on his sentence because of his guilty pleas which, among other things, had saved the community a good deal of time and expense.
On the July 2007 charge of attempting to manufacture methamph Matson was sentenced to 2 years' imprisonment. On the Perth indictment charge of the same offence (the charge in which the appellant was also involved) he was sentenced to imprisonment for 2 years and 6 months, to be served cumulatively on the term for the earlier offence. Her Honour then made specific reference to the totality principle before pronouncing concurrent sentences of 18 months' imprisonment on each of the three burglary charges in the s 32 notice. Similarly the reactivation of the previously suspended sentences resulted in concurrent terms that did not increase the overall term.
The effect of all of this was to sentence Matson to immediate imprisonment for a total of 4 years and 6 months with eligibility for parole.
Grounds of appeal
The appellant advances four grounds of appeal. The first ground is that the sentencing judge imposed sentences which were inconsistent with established sentencing principles. The appellant contends that the sentences imposed for counts 1 and 2 were ordered to be served concurrently on the basis that they arose from the same criminal enterprise and set of facts. But the sentences imposed for charges 1 and 17 of the s 32 notice, despite stemming from the same criminal enterprise and set of facts as count 3, were ordered to be served cumulative to count 3, at odds with the principle of consistency.
In the second ground the appellant contends that the sentences were disproportionate to the overall criminal conduct when viewed against the sentences imposed upon the principal offender. He says that the co‑offender Matson had previous convictions for manufacturing methamph and is a declared drug trafficker. Further, Matson was the principal offender yet the appellant has received an aggregate sentence greater than that imposed upon the principal offender.
Ground 3 asserts that the sentencing judge erred by taking into consideration extraneous matters not supported or proved by the facts. The appellant contends that speculative values, unsupported by evidence, were advanced in relation to the quantity and quality of drugs seized.
The final ground is that in all the circumstances the aggregate sentence imposed was manifestly excessive. The appellant calls in aid the first three grounds to make good that contention.
Ground 1 - consistency and totality
From the appellant's written and oral submissions it seems that there are three bases for the argument advanced in the first ground of appeal. First, the disparity between the sentence of 18 months' immediate imprisonment imposed on the appellant for the cultivation of cannabis and the suspended term of 12 months imposed on Chesham for the same offence. Secondly, the cumulation of the sentence imposed for charge 1 on the s 32 notice (possession of alkali metal‑sodium) upon the sentence imposed for attempting to manufacture methamph was inappropriate because they stemmed from the same set of facts. The sentencing judge was correct to make the sentences for the two counts on the Bunbury indictment concurrent. But having done so, she took an inconsistent and impermissible approach to the methamph offences. Thirdly, the cumulation of the term of 10 months imposed for the charges in the s 32 notice on the 4 years given in relation to the counts in the indictments resulted in a sentence that offended the totality principle.
As to the first of those issues, there are significant points of distinction between the appellant's circumstances and those of Chesham. They include:
(a)Chesham was imposed upon to settle a debt by taking part in the offences;
(b)his share of the crop was to satisfy his own demands and supply small quantities to associates;
(c)aside from repaying the drug debt there was no substantial commercial element in his offending;
(d)he pleaded guilty at the earliest opportunity;
(e)the case against him was based upon information he had voluntarily provided to police; and
(f)he had provided considerable assistance in respect of the involvement of his co-offender (the appellant).
In my view those differences provide ample justification for the different sentences imposed on the appellant and on Chesham. The appellant cannot reasonably assert a justifiable sense of grievance on that account.
The second and third issues can be taken together. As Yeats DCJ remarked, totality considerations loomed large in sentencing the appellant. It is well known that there are two limbs to the totality principle. A judicial officer sentencing an offender for a number of offences must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In addition, the overall sentence should not be 'crushing' in the sense that it would destroy any reasonable expectation of a useful life after release. I do not understand the appellant to have called in aid the second limb but his written submissions suggest he does rely on the first.
The argument raised by the appellant in relation to the cumulation of the sentences imposed for charges 1 and 17 in the s 32 notice has elements of the so‑called one transaction principle. He says that alkali metal‑sodium was procured for the purpose of manufacturing methamph and thus they 'stemmed from the same set of facts'. I presume he would say the same about the offer to sell methamph in charge 17. But the one transaction principle is not an immutable rule and the fact that different charges may have arisen out of the same set of facts does not necessarily mean that concurrent sentences will or should be imposed. A sentencing judge is obliged to impose an effective term that she or he judges to be appropriate for the overall criminality of the offender's conduct. Even where, on a strict and literal understanding of the one transaction principle, it might be said that the concurrency of terms can be justified, the need for proportionality might demand cumulative or partly cumulative terms. In this way the one transaction principle and the totality principle are closely connected: see the discussion in Royer v The State of Western Australia [2009] WASCA 139 [19] - [32].
The possession of an ingredient for a manufacturing process might be regarded as part of the transaction in which the process was carried out. But in accordance with the principles that I have just discussed, it does not follow that the sentence on charge 1 should have been made cumulative upon the sentence on the count in the Perth indictment. As the attempted manufacture was apparently unsuccessful, it is difficult to see why the possession offence in charge 17 should have been treated as 'stemming from the same facts'.
It is well known that when the totality principle requires adjustment to the length of multiple sentences, it can be achieved by lowering individual terms or by using a combination of accumulation and concurrency: Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616. It seems clear that the sentencing judge used a combination of accumulation and concurrency to achieve what she considered was an effective sentence that would be proportional to or with the criminality of the appellant's conduct viewed in its entirety. Out of deference to the appellant (who is self represented) I will return to the question of manifest excess under ground 4. But it seems to me that her Honour did not commit errors of consistency or in relation to totality in the way advanced in the grounds of appeal as particularised. Ground 1 has not been made out.
Ground 2 ‑ parity and Matson's sentence
The appellant submits that he has a justifiable sense of grievance because his sentence is the same (or greater) than that imposed on his co‑offender Matson. It is not entirely clear whether the appellant's argument is based on a comparison of the sentences imposed for the offence in the Perth indictment or whether he is referring to the overall sentences they received. If it is the former, they received identical terms (2 years and 6 months). If it is the latter, the appellant received 4 years and 10 months and Matson was sentenced to 4 years and 6 months.
I take no issue with the statements of general principle set out in the appellant's written submissions. It is desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account: Lowe v The Queen (1984) 154 CLR 606, 609.
If the appellant's complaint is that his overall sentence of 4 years and 10 months is unfair because it is more than the total sentence of 4 years and 6 months imposed on Matson, the argument is untenable. Leaving to one side the Perth indictment, the offences for which the appellant was sentenced were different from those that Matson was facing. It would not be possible to make a proper comparison. This ground of appeal stands or falls on a comparison of the sentences imposed on the co‑offenders in the Perth indictment.
The appellant contends that the following factors relating to Matson should have been, but were not, taken into account:
(a)he had a previous conviction for manufacturing methylamphetamine;
(b)he had been declared a drug trafficker pursuant to s 32A of the Misuse of Drugs Act 1981 (WA);
(c)he was the cook; the appellant had no personal knowledge of the manufacturing process;
(d)he was on a suspended sentence for burglaries and for discharging a firearm to cause fear; and
(e)he was principal manufacturer and the appellant held a subservient role in the enterprise.
In addition the appellant contends that he should be viewed as having greater prospects of rehabilitation compared to Matson as the appellant has never previously been sentenced to a term of imprisonment, citing R v Beaumont [1955] SASR 110. It is convenient to deal with this matter immediately. The judge who sentenced Matson accepted that while in prison Matson had availed himself of opportunities to improve his situation. The appellant's pre‑sentence report indicated that the appellant, too, had commenced a drug and alcohol course while in prison. Towards the end of her remarks the judge who sentenced Matson said of Matson: 'I hope through your time in prison and then on parole you will rid yourself of your addiction, otherwise you have a very grim future …'. As for the appellant, the sentencing judge said: '… I hope this ends your drug dealing [appellant]. One can only hope, but in your case one never knows'. That is to be understood against the background that there was a psychological report concerning the appellant that the judge considered generally unfavourable.
Matson had a trade qualification and was assured of employment on release provided he stayed away from drugs. The sentencing judge would have been entitled to take the view that the appellant's education and employment history (as disclosed in the pre‑sentence report) did not engender the same confidence about his prospects in that respect.
In those circumstances it cannot be said that her Honour erred by not regarding the fact the appellant had not been imprisoned as meaning his chances of rehabilitation were greater than those of Matson. If, as appears to be the case, her Honour felt that drugs were the main problem for both men she would have been entitled to conclude that there was not much separating them in terms of rehabilitation prospects.
I return now to the matters raised by the appellant in support of the submission that Matson played a greater role in the offence and the appellant was, accordingly, less culpable.
The transcript of the sentencing hearing suggests that little information was provided as to the respective roles of the appellant and Matson in the attempted manufacture. The prosecutor told the sentencing judge that 'they' (presumably the appellant) knew that Matson was a 'cook'. But that aside, little was said about their respective roles. Counsel appearing for the appellant conceded that 'there were strong similarities in terms of manufacturing' between the appellant and Matson and 'they both need to be dealt with as principal offenders'. Counsel then went on to points of difference in Matson's personal circumstances (but not his role in the offence) before saying: 'So although there is a degree of parity between them, and I don't take issue with the fact that my client …'. That sentence was not completed but it appears to be an acceptance that the appellant's culpability was similar to that of Matson.
The offering to sell offences in charges 6 to 26 in the s 32 notice occurred between 9 November 2007 and 28 December 2007. The appellant was actively involved in the drug dealing or preparations for drug dealing throughout that period. Even though no direct connection can necessarily be drawn between those transactions or purported transactions and the methamph that was to be manufactured using the substituted ingredients, it is clear that the appellant was heavily involved throughout the period leading up to the failed manufacturing venture.
The sentencing judge made no findings on the matters in items (c) and (e) in the list set out above. That is not surprising as there seems to have been little material put to her Honour on the subject.
It is clear from the sentencing remarks in relation to Matson that her Honour was alive to all of the matters in items (a), (b) and (d). While it is true that Matson had a prior record for the same offence and was facing other serious charges, the appellant's criminal history was not attractive. He had been before the adult courts on many occasions since 1996 and had prior drug convictions including cultivation of cannabis. Her Honour was entitled to have regard to the fact that the attempt to manufacture methamph occurred while the appellant was on bail for another cultivation of cannabis offence (just as she had regard to the fact that Matson was on bail for a prior offence).
It must be accepted that the declaration as a drug trafficker made against Matson and the nature of the offences for which he had previously been under a suspended sentence were serious. But the appellant's prior record of offending was significant and he was not entitled to leniency on that account. This being a drug case, general and personal deterrence would play a greater role than personal factors. That is not to say that personal factors are irrelevant. The age difference between them (31 to 39) was not particularly significant and nor was there much difference in their respective family situations.
In my view, it cannot be said that the differences between the two of them were so marked that justice demanded that the appellant be treated more leniently than Matson. Nor do I think the appellant can hold a reasonable sense of grievance because they have been given the same sentence. Ground 2 has not been made out.
Ground 3 ‑ erroneous considerations
The appellant submits that speculative values were advanced by the Crown in relation to the quantity and quality of drugs seized, and was not supported by police reports or expert analysis.
At the sentencing hearing on 24 October 2008 the prosecutor made submissions about the quantity and value of the cannabis that could be expected to have been obtained in the two previous harvests. This, together with the plants seized on 7 April 2007, would have produced cannabis with a potential sale value of $120,000. But her Honour pointed out that there was a flaw in the prosecutor's reasoning (the material seized and weighed included branches and leaves as well as buds) and, in any event, it was highly speculative and did not really matter.
In her sentencing remarks the judge repeated that she did not accept what the State had said about value of the cannabis and confirmed that she was sentencing the appellant on the basis that he had 100 fully mature female cannabis plants and that this was the third harvesting. In relation both to the number and description of the plants and the number of harvests those comments accord with the statement of material facts that was accepted by defence counsel at the hearing. No error has been demonstrated and ground 3 has not been made out.
Ground 4 - manifest excess
Ground 4 alleges that the aggregate sentence is manifestly excessive. As particularised, it calls in aid the other three grounds. Read strictly, ground 4 must fail because it adds nothing to the preceding grounds, all of which have been found to be without substance. However, I will look at the sentence as if the appellant were alleging that the total sentence offends the totality principle.
The difficulty for the appellant is that, with one caveat, he does not challenge any of the individual sentences. The caveat is that the sentence for count 1 on the Bunbury indictment should have been less to ensure parity with Chesham's sentence and the term imposed for the count on the Perth indictment should have been reduced below that given to Matson. I have already dealt with those matters and have rejected the appellant's contentions in that respect.
The appellant was involved in the cultivation of a cannabis crop over a long period of time during which it was harvested three times. He was found in possession of 100 mature female cannabis plants. While he was on bail for the possession count, he was found to have been engaged in an attempt to manufacture methamph. In that same period (that is, while he was on bail) he was found to be in possession of smaller amounts of cannabis (twice), oxycodone tablets (once) and methamph (once). In addition, he was, on 21 separate occasions, found to have offered to sell cannabis or methamph.
In my view, in the circumstances of this case the sentences are unimpeachable. The following points can be made.
1.It cannot be said that any of the sentences of 18 months for the cultivation of cannabis, 18 months for the possession of cannabis, 2 years and 6 months for the attempted manufacture of methamph or any of the individual sentences for the charges in the s 32 notice were outside an appropriate sentencing range.
2.The effective sentence of 4 years (by a combination of accumulation and concurrency) for the two counts on the Bunbury indictment and the count on the Perth indictment was an appropriate measure of the appellant's culpability and the degree of criminality involved in those offences.
3.The effective sentence of 10 months' imprisonment for the 26 charges in the s 32 notice is unobjectionable. While the sentencing judge might have ordered that the term for charge 1 on the s 32 notice be served concurrently with the term imposed for the Perth indictment, she was not obliged to do so. There was no error of principle, and nor was there an erroneous result, brought about by the sentencing judge using a combination of accumulation and concurrency to achieve a sentence that bore a proper relationship to the degree of criminality involved in the appellant's conduct viewed in its entirety.
Ground 4 has not been made out.
Application for an extension of time to appeal
The appellant was sentenced on 24 October 2008. His appeal notice was filed on 10 June 2009. The delay is approximately seven months.
The appellant filed an affidavit on 10 June 2009 in support of his application for an extension of time within which to appeal. He cites as reasons for the delay:
(a)having no substantial funds to pay for representation, he was unable to obtain appropriate legal advice on the merits of an appeal or assistance to prepare and file an appeal;
(b)his own lack of knowledge and understanding of his right to seek leave to appeal;
(c)when he did receive a legal opinion he moved promptly to file the notice of appeal; and
(d)at the time when he filed the notice of appeal no decision had been made on his application for legal aid.
The approach which the court takes in deciding whether or not to grant an extension of time was discussed by Wheeler JA (Miller JA agreeing) in Wimbridge v The State of Western Australia [2009] WASCA 196 [19] ‑ [25]. I adopt, without repeating, what is there said.
A person applying for an extension of time must provide a satisfactory explanation for the delay. If there has been a lengthy delay, exceptional circumstances must be demonstrated unless it can be established that a miscarriage of justice will eventuate unless an extension is granted. To demonstrate that a miscarriage of justice is likely it may be necessary to do more than simply point to a ground of appeal that would have succeeded in a regularly instituted appeal.
In this case the delay (seven months) is long. The delay has to be seen in the context of the relatively simple procedure now in force under the Supreme Court (Court of Appeal) Rules for the commencement of an appeal. The delay has not been satisfactorily explained. The appellant does not say, for example, what steps he took (before finally receiving a legal opinion) to seek sources of funding or otherwise to investigate the options open to him. But the real problem for the appellant is that he has not been able to demonstrate that he has a viable ground of appeal. For that reason I would not extend time.
Conclusion
I would dismiss the appellant's application for an extension of time within which to institute the appeal. In any event I would have refused leave to appeal and would have dismissed the appeal.
WHEELER JA: I agree with Owen JA.
Schedule 1: Section 32 offences
Charge No
Offence
Would have imposed
Reduced to
1
Possession of alkali metal‑sodium
12 months
6 months
2
Possess cannabis
2 months
1 month
3
Possess cannabis
2 months
1 month
4
Possess methylamphetamine
4 months
2 months
5
Possess oxycodone
4 months
2 months
6
Offer to sell/supply methylamphetamine
2 months
1 month
7
Offer to sell/supply methylamphetamine
4 months
2 months
8
Offer to sell/supply methylamphetamine
4 months
2 months
9
Offer to sell/supply methylamphetamine
2 months
1 month
10
Offer to sell/supply methylamphetamine
4 months
2 months
11
Offer to sell/supply methylamphetamine
2 months
1 month
12
Offer to sell/supply methylamphetamine
2 months
1 month
13
Offer to sell/supply methylamphetamine
2 months
1 month
14
Offer to sell/supply methylamphetamine
4 months
2 months
15
Offer to sell/supply methylamphetamine
2 months
1 month
16
Offer to sell/supply methylamphetamine
4 months
2 months
17
Offer to sell/supply methylamphetamine
8 months
4 months
18
Offer to sell/supply cannabis
2 months
1 month
19
Offer to sell/supply methylamphetamine
2 months
1 month
20
Offer to sell/supply methylamphetamine
2 months
1 month
21
Offer to sell/supply methylamphetamine
2 months
1 month
22
Offer to sell/supply methylamphetamine
6 months
3 months
23
Offer to sell/supply methylamphetamine
4 months
2 months
24
Offer to sell/supply methylamphetamine
2 months
1 month
25
Offer to sell/supply methylamphetamine
2 months
1 month
26
Offer to sell/supply methylamphetamine
2 months
1 month
15
5
1