R v Lyon
[2001] WASCA 120
•17 APRIL 2001
R -v- LYON [2001] WASCA 120
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 120 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:269/2000 | 14 MARCH 2001 | |
| Coram: | MALCOLM CJ ANDERSON J STEYTLER J | 17/04/01 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | THE QUEEN JAMES LYON DARREN STUART SMITH |
Catchwords: | Criminal law Sentencing Possession of 7.9 kilograms of cannabis with intent to sell or supply Sentences of 2-1/2 years suspended for 2 years set aside as inadequate Sentences of 2-1/2 years' immediate imprisonment substituted |
Legislation: | Criminal Code, s 688(2) Justices Act 1902 (WA), s 101 Misuse of Drugs Act 1981 (WA), s 61(a), s 32A, s 34(1)(a) |
Case References: | Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315 House v The King (1936) 55 CLR 499 Kennedy, unreported; CCA SCt of WA; Library No 980145; 3 April 1998 R v Tait (1979) 46 FLR 386 Fazari v The Queen, unreported; CCA SCt of WA; Library No 960651; 14 November 1996 R v Liddington (1997) 18 WAR 394 R v Minchinton (1998) 104 A Crim R 502 R v Shaharuddin [1999] WASCA 229 R v Thomson (2000) 49 NSWLR 383 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- LYON [2001] WASCA 120 CORAM : MALCOLM CJ
- ANDERSON J
STEYTLER J
- Appellant
AND
JAMES LYON
Respondent
- Appellant
AND
DARREN STUART SMITH
Respondent
(Page 2)
Catchwords:
Criminal law - Sentencing - Possession of 7.9 kilograms of cannabis with intent to sell or supply - Sentences of 2-1/2 years suspended for 2 years set aside as inadequate - Sentences of 2-1/2 years' immediate imprisonment substituted
Legislation:
Criminal Code, s 688(2)
Misuse of Drugs Act 1981 (WA), s 61(a), s 32A, s 34(1)(a)
Result:
Appeal allowed
Representation:
CCA 269 of 2000
Counsel:
Appellant : Mr R E Cock QC
Respondent : Mr M R Gunning
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Gunning
CCA 270 of 2000
Counsel:
Appellant : Mr R E Cock QC
Respondent : Mr L M Levy
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Laurie Levy
(Page 3)
Case(s) referred to in judgment(s):
Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315
House v The King (1936) 55 CLR 499
Kennedy, unreported; CCA SCt of WA; Library No 980145; 3 April 1998
R v Tait (1979) 46 FLR 386
Case(s) also cited:
Fazari v The Queen, unreported; CCA SCt of WA; Library No 960651; 14 November 1996
R v Liddington (1997) 18 WAR 394
R v Minchinton (1998) 104 A Crim R 502
R v Shaharuddin [1999] WASCA 229
R v Thomson (2000) 49 NSWLR 383
(Page 4)
1 MALCOLM CJ: In my opinion this appeal should be allowed, the suspended sentence of 2-1/2 years set aside and substituted by a sentence of immediate imprisonment for 2-1/2 years. I have reached that conclusion substantially for the reasons to be published by Anderson J. I simply propose to add a few comments of my own.
2 The respondent was sentenced in the District Court prior to the decision of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315 on 12 October 2000. In that case at par [11] Gleeson CJ and Hayne J held that the effect of s 39(2) of the Sentencing Act 1995 (WA) was that a court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the options listed before that option. Section 39(2) of the Act must also be read in conjunction with s 76(2) of the Act which provides that:
"Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances."
3 Section 76(2) requires the sentencing Judge to have first concluded that were it not possible to suspend a sentence of imprisonment, imprisonment for a term or terms equal to the term suspended would be appropriate in all the circumstances. This necessarily requires the formation of an opinion not only that imprisonment would be appropriate, but also to fix the term which would be appropriate on the footing that the power to suspend did not exist. This was recognised by Gleeson CJ and Hayne J in Dinsdale at par [15].
4 Kirby J at [78] (with whom Gaudron and Gummow JJ agreed) expounded the provisions of s 76 of the Act in terms similar to those adopted by Gleeson CJ and Hayne J. The sentence of suspended imprisonment was rightly described in par [78] by his Honour as the "penultimate penalty known to the law".
5 Kirby J went on to hold in pars [84] - [89] that the provision for suspension required the sentencing Judge to "reconsider and give renewed attention to all the circumstances of the case before reaching a decision whether to suspend the sentence which would otherwise be appropriate".
6 As a result of the abandonment of ground 1 of the grounds of appeal which contended, in effect, that a sentence of 2-1/2 years was "manifestly inadequate", the sole question raised by ground 2 of the appeal is whether the learned sentencing Judge erred in suspending the sentence of
(Page 5)
- imprisonment imposed. I agree with Anderson J that the issue raised by the appeal in terms of House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ was whether, in all the circumstances of this case, the suspension of the sentence of 2-1/2 years was manifestly wrong.
7 The facts stated to the Court on the basis of which pleas of guilty were made by the respondents under the fast-track system are set out in the judgment of Anderson J. I agree with Anderson J that in the circumstances outlined, particularly having regard to the size and value of the operation and the presence on the table in the loungeroom of $18,000 in cash, left little or no room for a plea in mitigation that the respondents were merely "crop sitters" in the sense of caretakers or minders working for principals who would pay them $5,000 each for their time and trouble. While there may well have been other persons involved, this operation has been rightly characterised by Anderson J as an enterprise in which substantial capital and expertise was involved. The quantity of cannabis head material and cannabis leaf and stalk was very substantial, although the respondents were not charged in respect of the leaf and stalk. The value of the hydroponic equipment, wall constructions and electrical wiring involved in the operation was estimated at approximately $100,000. The estimated street value of the bagged cannabis head material the subject of the charge was 7.91 kgs.
8 The only factors in mitigation referred to by the learned sentencing Judge was that the respondents had pleaded guilty on the fast-track system and were family men who were both employed and had businesses to go back to. In my opinion, given the circumstances, the pleas of guilty were a recognition of the inevitable. While the early pleas of guilty on the fast-track system were relevant, they would normally have been taken into account by discounting the sentence which would otherwise have been imposed. While it is doubtless one of the relevant circumstances to be considered again in the context of deciding whether or not to extend the sentence together with factors personal to the offenders, these matters have to be weighed with all of the other relevant circumstances including the need for specific and general deterrence in the case of those who, as in this case, choose to engage in the production and sale of drugs in a significant commercial scale.
9 The learned sentencing Judge in this case is a very experienced Judge whose exercise of sentencing discretion is worthy of very considerable respect. However, in the present case I am of the view that, in the result, the suspension of the sentence was a manifestly inadequate
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- penalty having regard to all the relevant circumstances. The quantity of the drugs involved and the commercial scale of the operation required a deterrent sentence to be imposed in the interests of the general community. The sentence imposed placed undue emphasis on the personal considerations which, in the whole context, were unremarkable. If anything, the fact that the respondents had their own businesses simply underscored the fact that the offence was committed solely for the purposes of profit.
10 ANDERSON J: The respondents Smith and Lyon were presented in the District Court on an indictment charging them jointly with possession of cannabis with intent to sell or supply it to another. The offence is created by s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Each pleaded guilty, they having already so pleaded before a Magistrate under the fast-track system provided for in s 101 of the Justices Act 1902 (WA).
11 Cannabis is a prohibited drug and the maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply is a fine of $100,000 or 25 years' imprisonment, or both: s 34(1)(a) Misuse of Drugs Act 1981 (WA). The quantity of the drug the subject of the charge was 7.917 kilograms, the estimated street value of which was between $36,000 and $54,000.
12 The respondents were each sentenced to a term of imprisonment of 2-1/2 years and the learned sentencing Judge (Hammond CJDC) ordered that this sentence be suspended for a period of 2 years.
13 This is an appeal by the Crown against that sentence. The appeal is brought pursuant to s 688(2) of the Criminal Code which provides:
"An appeal may be made to the Court of Criminal Appeal on the part of the prosecution:
…
(d) against any punishment imposed or order made in respect of a person convicted on indictment … "
"1. The learned sentencing Judge erred in imposing a sentence that was manifestly inadequate in all the circumstances of the case.
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- 2. The learned sentencing Judge erred in suspending the sentence of imprisonment imposed."
15 At the hearing of the appeal, the first ground was expressly abandoned. There might be a question as to whether a challenge by the Crown to the imposition of a suspended sentence is nothing more than a challenge to the adequacy of the sentence. There is no need to give that question detailed consideration in this case. It was not contended on behalf of the respondents that an abandonment of the ground of "manifest inadequacy" was, in effect, an abandonment of the appeal. It was accepted on both sides that what was still at issue in the appeal was whether the sentencing Judge had erred in imposing a suspended sentence, rather than a sentence of immediate imprisonment. It was accepted on both sides that what the Crown really intended by abandoning ground 1 was to abandon any argument that, assuming a sentence of immediate imprisonment should be imposed, a term of 2-1/2 years was manifestly inadequate. We heard no argument on that question. Therefore we are concerned only with the question whether a sentence of suspended imprisonment was "manifestly wrong": House v The King (1936) 55 CLR 499 at 505.
16 In my respectful opinion, it was.
17 I would identify the errors as a failure to give sufficient weight to the size and elaborate nature of this cannabis growing and processing operation and to the objective criminality of the respondents' conduct; and a failure to give proper emphasis to the sentencing objectives applicable in drug trafficking cases, they being the objectives of general and personal deterrence and proper punishment. Far too much weight appears to have been given to certain matters personal to the respondents - in particular that they were family men with jobs.
18 In his very short sentencing remarks which, of course, must be read together with the remarks and observations which the learned sentencing Judge made during the course of the sentencing proceedings, his Honour said:
"It is by virtue of the fact of the plea of guilty on the fast-track system and by the merest of margins that the result will come about this way - or perhaps there are two aspects: one is the stalemate sort of situation that one gets into sometimes here in assessing the exact involvement of people in this drug area but the - I am bearing in mind that it was cannabis, I am bearing in
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- mind the quantity of it, in my view it ought to attract a term of 2-1/2 years' imprisonment as far as each of them are concerned.
They are both family men, they are both employed, they both have businesses to go back to. In acknowledgment also of the plea of guilty on the fast-track system I propose to suspend that term of imprisonment for a period of 2 years, but let me make no mistake about it, Darren Smith and James Lyon, if you break the law during that period of 2 years, you come back to this court and the term of 2-1/2 years' imprisonment will descend upon you with absolute certainty. Is that clear?"
19 The errors enumerated above are revealed, in my respectful opinion, in these remarks, coupled with the sentence itself which is far too lenient when the offence charged is seen in its true complexion.
20 The facts, which I take from the statement of facts read to the sentencing court, were as follows. On 27 July 2000, detectives from the Fremantle Tactical Investigation Group executed a search warrant at a house in the southern Perth suburb of Beeliar. They found substantial structural changes had been made to the original premises and that a total of six rooms in the house had been elaborately set up to grow cannabis hydroponically. An inspection of the power supply to the premises revealed that the electricity supply had been bypassed, obviously to avoid attention being drawn to the house by the excessive consumption of electricity. In one of the rooms, 71 cannabis plants were being grown under hydroponic conditions. They were between one and four feet tall and were maturing. In the rear bedroom, the detectives located 18 snap-lock bags each containing approximately 454 grams of cannabis head material, having a total weight of 7.91 kilograms. It is the material in these bags which is the subject of the charge. A green garbage bag was located in another room containing approximately 3.6 kilograms of cannabis head and at numerous other locations in the house cannabis leaf and stalk material weighing a further 34 kilograms was found. The respondents are not charged with respect to that material.
21 On the table in the lounge room was $18,600 in cash, separated into $1,000 bundles.
22 The value of the hydroponic equipment, wall constructions and electrical wiring was estimated at approximately $100,000.
23 The respondents were the only persons in the house.
(Page 9)
24 They were interviewed and the interviews were recorded on videotape. Only the video interview of Smith was tendered. It is of about 13 minutes' duration. In this interview, Smith admitted being in the house and opening the door to the detectives, but gave no other information, giving as one reason why he did not wish to answer any questions "I don't want to incriminate myself". We can take it that Lyon's interview was just as unproductive.
25 No evidence was tendered to the sentencing court as to the ownership of the house or as to the involvement of any other person.
26 This was undoubtedly a major and sophisticated crop growing and processing operation, taken as a whole. The capital and expertise which had been invested in the enterprise was substantial and it would be a fair inference that persons other than the respondents were involved.
27 The pleas of guilty were inevitable, inasmuch as the respondents were present in the premises when the police executed the search warrant. They were, in effect, caught red-handed. Apart from their pleas of guilty, no co-operation or assistance was forthcoming from them.
28 On behalf of the respondent Smith, it was submitted by his counsel that he was "recruited" as one of a number of people to act as a "crop-sitter" for six weeks for which he was to be paid about $5,000. It was claimed on his behalf that he was "not involved in any of the distribution networks" and had not been involved in setting up the property for cannabis growing, although it was admitted that he "was involved in the harvesting of the crop". Concerning the cash which was present at the premises, the submission was simply that he had "no claims over it". It was not his money, so it was said.
29 On behalf of Lyon, it was submitted that he "was asked to assist in clipping the crop, if you like, and he did that. He also indicated that he was asked to sit it on a number of occasions, but they were spread out". It was put on his behalf that he also expected $5,000, or thereabouts. It was not denied on Smith's behalf that he had made some contribution to the supply and setting up of the equipment. The submissions that were made on this subject were vague to say the least. They were as follows:
"The situation, as I said, in respect of his involvement is again likewise he didn't have anything to do with the money. It certainly wasn't his. He was expecting to receive some $5,000 from his contribution in the matter and also in respect of the hydroponic set-up or fertilising. As has been explained, that's
(Page 10)
- not part of the offence that's before you, that's the cultivate, but of course it gives flavour to the surrounding circumstances."
30 During debate with his Honour, the respondents were sometimes referred to as "crop-sitters" as if this was of itself a mitigatory factor. The phrase "crop-sitter" is of uncertain meaning. If it was intended to mean that the respondents' role was limited to being at the premises to watch the crop grow and perhaps do menial tasks such as adjust the watering system and lighting, then patently that was not the limit of their role. Counsel for both men admitted that they were involved in the actual harvesting or "clipping" of the crop and in the submissions made on behalf of Lyon, which I have quoted above, there appears to be an admission or at least a refusal to deny that Lyon had made a contribution of some kind to the setting-up of the growing operation. And, of course, there was the money.
31 It is impossible to believe that the respondents did not have a good deal more to do with this operation than to act as occasional low-level gardeners. It does not take two people to watch 70 or so cannabis plants grow and keep the trickle irrigation up to the plants. It is highly unlikely that $18,600 in cash in $1,000 bundles would be left behind on the table in the house by someone higher up in the hierarchy than the respondents. It would be naive in the extreme to think that the cash was anything other than the proceeds of the sale of the cannabis material harvested by the respondents. There is no other credible explanation for the presence of the money on the table in that house in which only these two men were present. Who was eventually going to get the money - how it was going to be divided up - is another question.
32 The respondents ought to have been sentenced on the basis that the objective criminality involved in this offence of possession with intent was of a high order. On the objective evidence, there was no reason to treat them as other than "principals" with respect to the offence itself. Having regard for that and for the maximum penalty imposed by parliament, nothing less than a sentence of immediate imprisonment was appropriate.
33 There is nothing about the matters personal to the respondents which would justify any other disposition of the matter. Lyon was of the age of about 37. Smith was about 34. Both had previous convictions. Lyon has 22 previous convictions. A number of them are for driving offences, but there are also multiple convictions for break and enter and steal, reckless driving, stealing, giving a false name and address, cultivation of cannabis and possession of smoking implements, as well as an offence in January
(Page 11)
- 1997 of possessing cannabis with intent to sell or supply. Smith has eight previous convictions. Several of these are driving convictions, but he has on his record a conviction for armed robbery and fraudulently altering a vehicle numberplate. I do not leave out of account that the offence of armed robbery was committed as long ago as 1984, but, on the other hand, it appears to have been a serious offence resulting in imprisonment for 5-1/2 years.
34 The domestic situation of the respondents calls for no special treatment.
35 These respondents were, and were declared to be, drug traffickers pursuant to s 32A of the Misuse of Drugs Act 1981 (WA) and with respect to the offence of which they were convicted, they had a high degree of culpability and the offence itself involved a high level of objective criminality.
36 With all due respect, the sentence fell well short of that which is required to meet sentencing objectives in a case of its type. I would accept the submissions of the Director of Public Prosecutions, Mr Cock QC, that whilst cannabis is still regarded as a soft drug, this was a sizeable operation and the connection between the abuse of cannabis and progression to more dangerous drugs has become clearer in the last few years. The seriousness of the threat which the trade in cannabis poses is more keenly appreciated by the courts than it was 5 to 10 years ago: Kennedy, unreported; CCA SCt of WA; Library No 980145; 3 April 1998, especially per Malcolm CJ at 13 and 14. This, together with the notorious prevalence of commercial trafficking in cannabis, requires that there be some firming-up of the sentences imposed on offenders who fall into the category of drug traffickers.
37 I would set aside the sentence imposed in the District Court and substitute a sentence of 2-1/2 years' immediate imprisonment in each case, with eligibility for parole.
38 STEYTLER J: I have had the advantage of reading the reasons for decision of Anderson J. I agree with them. This was a serious case of drug trafficking looked at only upon the basis of what was admitted to by the respondents. They played a knowing part in a very substantial enterprise involving considerable capital and expertise. Their admitted role in that enterprise was serious enough, in my respectful opinion, to require a sentence of immediate imprisonment. There was nothing in their personal circumstances or antecedents sufficient to lead to any different conclusion. Moreover their pleas of guilty came in
(Page 12)
- circumstances in which, as Anderson J has said, they were caught red-handed and their level of co-operation, given their position that they were only "bit" players in the enterprise, was minimal.
39 I consequently agree with Anderson J, notwithstanding the well-known constraints on Crown appeals against sentence (as to which see, for example, R v Tait (1979) 46 FLR 386 at 387 - 388), that the sentence imposed in the District Court should be set aside and that a sentence of 2-1/2 years immediate imprisonment should be imposed, in each case, with eligibility for parole.
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