Noble v The Queen
[2003] WASCA 83
•2 APRIL 2003
NOBLE -v- THE QUEEN [2003] WASCA 83
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 83 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:12/2003 | 2 APRIL 2003 | |
| Coram: | MURRAY J SCOTT J WHEELER J | 2/04/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL NOBLE THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Commercial cultivation of cannabis using hydroponics Whether sentence manifestly excessive Turns on its own facts |
Legislation: | Misuse of Drugs Act 1981 (WA) |
Case References: | Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403 Dinsdale v The Queen (2000) 202 CLR 321 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NOBLE -v- THE QUEEN [2003] WASCA 83 CORAM : MURRAY J
- SCOTT J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Commercial cultivation of cannabis using hydroponics - Whether sentence manifestly excessive - Turns on its own facts
Legislation:
Misuse of Drugs Act 1981 (WA)
Result:
Application for leave to appeal refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms A G Braddock SC & Mr R D Young
Respondent : Mr K P Bates & Mr A D Hills-Wright
Solicitors:
Applicant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403
Dinsdale v The Queen (2000) 202 CLR 321
Case(s) also cited:
Nil
(Page 3)
1 MURRAY J: I shall ask Wheeler J to give her Honour's decision first.
2 WHEELER J: The applicant was convicted on 13 December last year by a jury after trial on two counts of cultivation of a prohibited plant, namely cannabis, with intent to sell or supply to another. He was acquitted of one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply but convicted of simple possession of that drug.
3 The circumstances of those offences were that in July 2001 police executed a search warrant under the provisions of the Misuse of Drugs Act at the applicant's house, where they located 48 cannabis plants growing hydroponically in a spare bedroom cupboard. The plants were between 15 and 25 centimetres in height. They are the ones referred in count 1.
4 A further search of premises in Greenwood revealed 36 cannabis plants growing hydroponically in one of the rooms. They were between 90 and 125 centimetres in height, so significantly more advanced than the others, and are the subject of count 2. In that house, the applicant had set up lights, extractor fans, piping and reflective sheeting in the room in which the plants were growing and had set up a further room with chains and hooks in order to dry the plants. It appeared that the house was one which was effectively controlled by his parents, who had no knowledge of the fact that the applicant was using it for those purposes.
5 In relation to count 3, the police located approximately 850 grams of cannabis material at the Greenwood premises. That was the material in respect of which the applicant was convicted of possession only, and in respect of which his Honour the learned sentencing Judge accepted the proposition that most of it could be described colloquially as "rubbish".
6 The learned sentencing Judge, having regard to the number of cannabis plants correctly, in my respectful opinion, described the operation as one conducted on a moderate commercial scale. On January 23 this year, the applicant appeared for sentence before the learned trial Judge, who had in the interim obtained relevant reports in respect of him and had had available to him written submissions on sentence.
7 The sentences imposed were imprisonment for 6 months in relation to count 1, imprisonment for 2 years in relation to count 2 and a fine of $200 in relation to count 3, with an order that the sentences on counts 1 and 2 be served concurrently and the applicant be eligible for parole.
(Page 4)
8 The mitigating factors put forward on the applicant's behalf were, in summary: that the applicant had himself been a heavy user of cannabis, smoking a considerable quantity each night in order to enable him to sleep; that he had, subsequent to the detection of these offences, weaned himself off cannabis and not smoked the substance for over a year; and a toxicology report showed that at least he had not used cannabis for the preceding 3 months. The psychological report suggested that he had good prospects of rehabilitation in terms of cannabis use. He had no prior criminal convictions. There was extensive reference, both before his Honour and in the references which were made available, to his personal circumstances. He was married, he and his wife had one young child, and she was pregnant with a second child. He and his wife jointly operated two franchise businesses in relation to which they worked long hours. The applicant had a very considerable role and there was concern for what would happen to those businesses and to the burden which would be placed on the applicant's wife if he were to be imprisoned.
9 In his remarks, his Honour referred to the principles of personal punishment and general deterrence, referred to the favourable matters which I have mentioned, and accepted that the applicant was unlikely to reoffend. He certainly was conscious of the effect which a sentence of imprisonment would be likely to have on the businesses run by the applicant and his wife.
10 However, his Honour said that those personal matters "paled into insignificance" by comparison with the seriousness of the offences and I quote two passages from his Honour's sentencing remarks in particular. His Honour said:
"There is a high degree of sophistication involved in growing these plants hydroponically and the Court of Criminal Appeal has regularly said sentences of imprisonment are the appropriate sentences."
11 That, in very broad terms, is an accurate characterisation of the view that this Court has taken in relation to the growing hydroponically of moderately commercial quantities of cannabis. The comments in relation to sophistication were amply justified by the circumstances in relation to the plants in count 2. His Honour then went on to say:
"I have given consideration to the question of whether it would be appropriate to suspend the sentence of imprisonment. In my view, the nature of this offence calls for real punishment.
(Page 5)
- Personal matters such as your background are less significant. As I have said, this is not a case where a sentence of suspended imprisonment is appropriate."
12 The applicant has essentially three grounds of appeal, they being, first, that the learned sentencing Judge erred in concluding that imprisonment was the only appropriate disposition, having regard to the personal matters to which I have referred, to the fact that the number of plants being cultivated meant that the offence was not at the upper end of scale for offences of this type.
13 It is also submitted that the sentence was manifestly excessive having regard to those factors. The most significant ground is said by the applicant to be that the learned sentencing Judge failed to properly consider whether any imprisonment should be suspended rather than served immediately, and in particular erred in that he considered a suspended term of imprisonment did not constitute "real punishment," that expression being taken from those remarks of his Honour which I have just quoted. In relation to the ground which I have identified as the most significant one, the applicant's counsel quite properly recognises that there is a question which the Court has to consider as to whether his Honour was expressing an erroneous view as to the legal effect of a sentence of suspended imprisonment or whether it was no more than an unfortunate term of phrase.
14 In my view it was clearly the latter, for these reasons. First, that in the immediately preceding page of the appeal book, page 34 at par (d), his Honour said:
"The sentencing principles are that a sentence of imprisonment to be served immediately is only to be imposed if the offence is so serious that only immediate imprisonment is appropriate or if the protection of the community requires it."
15 That of course is a shorthand and not particularly sophisticated summary of the relevant principles, but it is adequate I think to demonstrate that his Honour was very conscious of the fact that a sentence of imprisonment could be of two kinds, either one to be served immediately or one to be suspended and that both were appropriately considered sentences of imprisonment. Against that background, his Honour then considered the circumstances of the offence and the principles governing offences of that kind generally and again referred briefly but accurately to the circumstances of the applicant.
(Page 6)
16 It appears to me that his Honour's remarks in relation to the offence calling for "real punishment" are properly to be considered as remarks to the effect that the nature of the offence calls for severe punishment, significant punishment, punishment in effect which is the most serious of those options available. It is only the word "real" upon which, it seems to me, the applicant's ground of appeal turns. That word, in a context where his Honour has taken care to weigh all of the appropriate matters and has expressly adverted to the question of suspending the sentence of imprisonment, is not enough in my view to support any inference that his Honour did not consider such a sentence to be a real punishment at all. Rather, in my view, he considered it, accurately, not to be as severe a sentence as one of imprisonment to be served immediately, which for reasons which he gave he considered the only appropriate sentence.
17 In relation to the other grounds, having regard to the circumstances of the offence and in particular, the quantity and the degree of persistence and planning evidence by the circumstances of count 2, I am not persuaded that his Honour erred in reaching the view that a sentence of 2 years' imprisonment to be served immediately was the appropriate one. In the case of Day v The Queen [2001] WASCA 284, this Court considered the commercial cultivation of cannabis hydroponically, and expressed the view that such cultivation would generally attract a term of immediate imprisonment. This Court also considered that sentences for the cultivation of cannabis by hydroponic means should be significantly "firmed up". The statutory context is that the maximum penalty available is one of 10 years' imprisonment or $20,000 fine or both.
18 In Day's case itself the circumstances were somewhat different; it was a much more serious type of cultivation, in that there was a very long-term use of a house to cultivate very significant quantities. On the other hand the appellant in that case had pleaded guilty, had a very minor record, and had a disabled son to care for. The sentence which was imposed in that case was one of 3 and a half years' imprisonment with the Court, as I say, expressing the view that sentences needed to be firmed up for the future. That, I think, gives some sort of guide to an appropriate level of sentencing for offences of this kind. Retribution and personal and general deterrence were considerations particularly stressed in that case and his Honour adverted to them and considered them in this.
19 In my view his Honour plainly took into account all of the relevant considerations and the sentence which he imposed was one within the appropriate range for offences of this kind.
(Page 7)
20 MURRAY J: I am of the same view. In my opinion there is no capacity to establish that, in concluding that imprisonment was the only appropriate disposition, in choosing the length of the terms, or in the way in which the sentences were structured, his Honour's exercise of discretion miscarried.
21 It is sufficient, I think, to demonstrate that proposition by reference to the case of Day (2001) 127 A Crim R 403, a decision of this Court recently given in which it was held that because the courts have of recent years acquired a clearer perception of the harm and dangerousness of cannabis and of its dissemination in the community, cases where that occurs with a degree of sophistication, particularly for profit, which is the conclusion to which one comes having regard to the verdict of the jury in relation to counts 1 and 2 on the indictment, will receive sentences from the courts which are firmer. They will be longer for the purposes, not only of punishment of the offender and particular deterrence, which may have lesser significance in this case if one accepts that the applicant is well down the road of rehabilitation, but more particularly for the purpose of general deterrence and the protection of the community from the dissemination of the drug.
22 As to the question of suspension of the sentences, which, as I say, it seems to me impossible to say were not appropriately structured and were not of appropriate length, I agree with the reasons for judgment of Wheeler J. It seems to me that it is not possible to establish that the sentencing Judge erred in his approach to the question of suspension having regard to the portion of his remarks upon which the applicant places principal reliance, particularly when that is considered in the context of the earlier remarks to which Wheeler J has referred.
23 I think that, when one looks at the observations, they are designed to put shortly a view that the proper exercise of discretion on the part of the sentencing Judge precluded the suspension of the term of imprisonment that in aggregate his Honour had imposed. His Honour said that in his view the nature of the offence calls for "real punishment". In the circumstances that have been described it seems to me that there can be no argument with that as a general proposition.
24 His Honour then went on to observe that personal matters, to which he had referred earlier in his remarks in some detail, were of less significance. In other words, having regard to the nature of the offences and the circumstances of their commission, the mitigatory power of the personal circumstances of the applicant was rather reduced.
(Page 8)
25 Then his Honour expressed his conclusion in terms of discretionary judgment by saying:
"This is not a case where I think a sentence of suspended imprisonment is appropriate."
- I would not interpret the content of those remarks as expressing an error or principle.
26 As to whether the discretion not to suspend miscarried, it seems to me that there is ample material which justifies that as an exercise of discretion. The Court did revisit, I have no doubt, in relation to that part of the sentencing exercise, the considerations of general relevance in relation to the imposition of sentence. That is the approach which the High Court in Dinsdale v The Queen (2000) 202 CLR 321 reminds sentencing courts is the appropriate way to go about it and it seems to me that it cannot be said that the exercise of discretion has miscarried in any respect in this case. I too would refuse the applicant leave to appeal against the sentences.
27 SCOTT J: I also agree with those views that have been expressed before me. In my view, it was somewhat unfortunate that his Honour the sentencing Judge referred to the expression "real punishment" in the context of a suspended sentence of imprisonment, but having read his Honour's sentencing remarks in total, I do not think he was really suggesting that a suspended sentence of imprisonment was not a real punishment. In my view what his Honour was doing was considering all of the appropriate sentencing options and coming to the view that a term of imprisonment to be served immediately was in his view the appropriate term. Reading it in context, I am of the view that his Honour did not intend to suggest that a suspended term of imprisonment was not a real punishment. I also agree that the appeal should be dismissed.
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