Rodi v The State of Western Australia [No 2]

[2014] WASCA 233

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   RODI -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 233

CORAM:   BUSS JA

MAZZA JA
HALL J

HEARD:   12 NOVEMBER 2014

DELIVERED          :   15 DECEMBER 2014

FILE NO/S:   CACR 81 of 2014

BETWEEN:   PAUL JOSEPH RODI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON DCJ

File No  :IND 495 of 2013

Catchwords:

Criminal law - Appeal against sentence - Possession of cannabis with intent to sell or supply - 12 months' imprisonment - Whether different sentence should have been imposed

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S Vandongen SC

Respondent:     Mr J C Whalley

Solicitors:

Appellant:     Shadgett Legal

Respondent:     Director of Public Prosecutions (WA)

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

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186

Brown v The State of Western Australia [2008] WASCA 48

Lester v The State of Western Australia [2011] WASCA 128

Noble v The State of Western Australia [2005] WASCA 33

Royer v The State of Western Australia [2009] WASCA 139

Sandwell v The State of Western Australia [2012] WASCA 15

Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1. BUSS JA:  I agree with Hall J.

2. MAZZA JA:  I agree with Hall J.

3. HALL J:  This is an appeal against sentence.

4. The appellant was convicted after trial of one count of possession of cannabis with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On 14 April 2014 he was sentenced to 12 months' immediate imprisonment with an order that he be eligible for parole.

5. The ground of appeal is that the sentencing judge erred by taking into account the wrong maximum penalty for the offence. There is no doubt that such an error was made. In sentencing the appellant the trial judge referred to the maximum penalty for the offence as being a fine of $100,000 or 25 years' imprisonment or both. This was consistent with the written submissions provided by the State. It was not corrected by counsel who appeared for the appellant. In fact, because the offence for which the appellant was convicted was an offence relating to cannabis, the maximum penalty was a fine not exceeding $20,000 or imprisonment for 10 years or both: s 6(1)(a), s 34(1)(a) and s 34(2)(a) of the Misuse of Drugs Act.

6. The State conceded that an error of law was made by the trial judge.  However, it submits that the sentence imposed on the appellant was a just and appropriate one in all of the circumstances and that no different sentence ought to have been imposed.  The appellant submits that a different sentence should have been imposed when regard is given to the quantity of cannabis, the lack of sophistication involved in the offending and sentences customarily imposed for offences of this type.

7. Whether or not a different sentence should have been imposed is the essential issue on this appeal. Section 31(3) of the Criminal Appeals Act 2004 (WA) provides that unless the court allows an appeal against sentence under s 31(4) it must dismiss the appeal. Section 31(4) provides that the court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.

Facts of the offending

1. On 14 April 2012 police officers executed a search warrant at the appellant's home in Madeley.  They found six shopping bags of cannabis head material on the floor of the shower recess.  In the same vicinity some

loose cannabis material and cannabis in a shoe box was also located.  Cannabis was also found in the laundry and cannabis head material was found drying on a frame above a spare bed.  Also in the shower recess police found a box of clip seal bags, scissors with traces of tetrahydrocannabinol on the surface, some clip seal bags containing cannabis seeds, smoking implements and a set of electronic scales with traces of other drugs on them.

1. At trial the appellant formally admitted that he was in possession of the cannabis.  The only issue was whether he had the requisite intent to sell or supply some or all of the cannabis to another.

2. The total quantity of cannabis was 925.19 grams. This raised the statutory presumption of an intention to sell or supply provided for by s 11 of the Misuse of Drugs Act.  The State relied upon that presumption, but also on other evidence which it said was indicative of drug dealing.  This other evidence included the digital scales and clip seal bags found in proximity to the cannabis. 

3. The appellant's defence was that all of the cannabis was intended for his use for pain relief in relation to a back injury.  He gave what the trial judge described as 'elaborate evidence' about his regular use of cannabis butter.  The appellant had said that he preferred consuming cannabis in this form and cooking with it rather than smoking it.  He claimed to smoke and consume cannabis butter six days a week to alleviate chronic pain.  He claimed to have grown all of the cannabis found in his home.  His Honour noted that police found no cannabis butter when the search warrant was executed.

4. The appellant was found guilty of possession with intent to sell or supply.  By that verdict the jury must have rejected the appellant's claim that all of the cannabis was for his personal use.  It remained necessary, however, for the trial judge to make findings of fact regarding the extent to which the appellant intended to sell or supply the cannabis to others and the extent to which he was dealing for commercial gain.

5. The trial judge found that the appellant had not been truthful in his evidence.  He concluded that the appellant intended to sell or supply to others at least a substantial portion of the cannabis.  He found that the appellant was selling cannabis in ounce bags and noted that this contrasted with the smaller quantities that were sold at street level.  The total street value of the cannabis was $7,000.  His Honour concluded that the appellant was not a street level dealer but was 'perhaps closer to the middle level of distribution of cannabis' and that he was 'involved for commercial gain'.

6. The trial judge accepted the possibility that the appellant had used some of the cannabis for medicinal or recreational use.  However, he considered that the dominant reason for possession of the cannabis was to conduct a 'fairly lucrative cash business'.  His Honour's findings are not challenged.

Personal circumstances

1. The appellant is 36 years old and single.  He completed Year 11 and then began working at a local plant nursery.  He then undertook an apprenticeship in carpentry and joinery.  After completing that apprenticeship he started his own business.  He was assisted by his father, who had considerable experience in the building industry.  The business was successful.  He reported earning a substantial income and being able to set aside money for investment purposes, though the reliability of this information was questioned in the pre‑sentence report.

2. The pre‑sentence report also noted that whilst the appellant stated that he was in generally good physical health he did report having had an old work injury that sometimes bothers him and required pain relief.  The medication prescribed for this was Panadene Forte and the appellant described the pain as sometimes 'unbearable'.  The pre‑sentence report author noted that in such circumstances it might be expected that a benzodiazepine would be prescribed.

3. The appellant tendered to the trial judge the opinion of a doctor regarding the efficacy of cannabis for pain relief.  His Honour accepted that cannabis could be used for this purpose and that the appellant had a degree of chronic pain as a result of a work injury. 

4. According to the pre‑sentence report the appellant did not accept the verdict of the jury and continued to deny that he had ever intended to sell the cannabis or make a profit.  He did, however, concede that he would have been prepared to supply cannabis to his friends.  He told the report writer that he felt that he was the victim in the matter.  The trial judge concluded that the appellant had demonstrated a clear lack of remorse.

5. The appellant has no criminal record.  The pre‑sentence report states that he presents limited risk in the community.  To the extent that he suffers from pain, this can be monitored and controlled through prescription drugs, obviating the need to use cannabis.  The appellant told the pre‑sentence report author that he no longer used illicit drugs of any type and this was confirmed by urinalysis testing. 

Sentencing remarks

1. There is no allegation of error in the trial judge's sentencing remarks.  Accordingly, it is unnecessary to refer to those remarks in great detail.

2. His Honour concluded that he was unable on the evidence at trial to be specific as to the commercial aspect of the appellant's dealings in cannabis.  However, he concluded that any use of cannabis by the appellant as an analgesic involved a relatively small amount of the cannabis that was found.  His Honour considered, and rejected as inappropriate, either a community based disposition or a suspended term of imprisonment.  He said that a suspended sentence was inappropriate having regard to the seriousness of the offending.  He concluded by stating that the appellant's attitude to his offending meant that there was a need for the sentence to incorporate a component of personal deterrence as well as general deterrence.

Merits of the appeal

1. As noted earlier, the maximum penalty for the offence of possession of cannabis with intent to sell or supply is $20,000 or 10 years' imprisonment or both: s 6(1)(a), s 34(1)(a), s 34(2)(a) of the Misuse of Drugs Act.

2. The total amount of cannabis found in the appellant's possession was 925.19 grams.  The amount which raises the presumption of an intent to sell or supply is 100 grams.  Whilst the appellant sought to dispute that he had an intent to sell or supply, he was convicted of being in possession of the cannabis with that intent and that conviction is not the subject of appeal.  The trial judge also made findings that any personal use of the cannabis for pain relief or recreational use would only have been in respect of a relatively small proportion of the amount seized.

3. The appellant was sentenced on the basis that his possession of the cannabis was for commercial purposes and that he was a mid‑level dealer in the drug.  This conclusion is not contested and was well‑founded on the evidence.  Not only was the appellant in possession of nearly a kilogram of cannabis but some of the cannabis was also located near electronic scales and clip seal bags.  That the appellant was selling cannabis in one ounce bags supported the conclusion that he was a mid‑level dealer. 

4. The appellant pleaded not guilty and went to trial.  Whilst it is true that he admitted possession of the drugs and only put in issue the question of whether he had an intent to sell or supply, his denial of such an intent significantly qualifies any suggestion of remorse or contrition.  Indeed, it is apparent from the pre‑sentence report that the appellant was not remorseful, considered himself to have been unfairly convicted and continued to deny that he possessed the cannabis with intent to sell or supply it, notwithstanding the verdict of the jury.  In these circumstances there was an enhanced need to incorporate an element of personal deterrence into the sentence, as the trial judge recognised.

5. The major sentencing considerations for serious drug offences are personal and general deterrence.  Matters personal to the offender, whilst not irrelevant, are usually of limited significance.  The weight of the drugs is a matter of importance, but is not the chief factor to be taken into account in fixing sentence.  Other matters to be taken into account include the nature and level of the offender's participation in drug dealing and whether the offending was committed for commercial gain:  Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] ‑ [70].

6. In Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22] McLure P referred to these principles in the context of an offence involving cannabis. Her Honour also noted that since 2001 the court has repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. She said that in the previous five years, at least, there had been a tangible, incremental firming up of sentences for dealing in other types of prohibited drugs. That was not obviously so in respect of offenders dealing in cannabis, despite an identified need. Her Honour also noted the correlation between the use of cannabis and mental illness and the progression to harder drugs.

7. The range of sentences imposed in other cases do not suggest that a sentence of 12 months' immediate imprisonment on the appellant was inappropriate.  In Lester the offender was convicted of one count of cultivating cannabis and one count possessing 3.68 kgs of cannabis material (of which approximately 2 kgs was head material).  He was sentenced to 18 months' immediate imprisonment on each count, the sentences to be concurrent.  However in Lester the offender entered a fast track plea of guilty and was remorseful.  He was a long‑term addict, but had engaged in a rehabilitation programme following his arrest.  He had a stable background and good employment history.  He had many positive personal references.  The cultivation in that case was described as fairly sophisticated and involved the use of hydroponic equipment.  An appeal against the sentences was dismissed.

8. In Sandwell v The State of Western Australia [2012] WASCA 15 the offender was sentenced to a total effective sentence of 12 months' immediate imprisonment for possessing 2.5 kilograms of cannabis and cultivating 147 cannabis plants. The offender was sentenced on the basis that he was not a commercial dealer of cannabis but that he cultivated and possessed the cannabis with the intention of using it himself and distributing it to a small number of friends. The offender in that case pleaded guilty. The appeal was confined to the question of whether the sentence that was imposed should have been suspended.

9. In Brown v The State of Western Australia [2008] WASCA 48 the offender was convicted of possessing a large quantity of cannabis including over eight kilograms of wet cannabis head material and four kilograms of wet leaf material which when dried would have reduced in weight by about 75%. The offender was convicted after trial and sentenced to 2 years and 5 months' immediate imprisonment. An appeal against that sentence was dismissed.

10. In Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 the offender was sentenced to 2 years' immediate imprisonment after trial for possession of approximately 2.2 kilograms of cannabis which he intended to sell. He also received an additional 8 months' immediate imprisonment for an activated suspended sentence for an earlier similar offence. Various quantities of cannabis were found in bags throughout the appellant's house, along with clipseal bags, scales, tick lists and cash. The total sentence was not found to be disproportionate to the total offending conduct.

11. In Noble v The State of Western Australia [2005] WASCA 33 the offender was sentenced after trial to a total effective sentence of 3 years' immediate imprisonment for possession of approximately 1.4 kilograms of cannabis which was intended for sale. Some 415 grams was located in a car which had been driven to Western Australia by the offender. A further quantity of just over a kilogram was found in a chalet at a caravan park where the applicant was staying. The offender was 51 years of age and had no prior convictions. An appeal against the sentence on the ground of alleged disparity with a co‑offender was dismissed.

12. Whilst the amounts of cannabis involved in each of the cases referred to was greater than that possessed by the appellant that is not the only relevant factor.  A significant factor here was that the appellant was found to be in possession of the cannabis for the purposes of commercial dealing and that he was a mid‑level dealer.  In a number of the other cases early pleas of guilty had been entered.  That was not the case with the appellant.  In any event, the significantly higher sentences imposed in Lester, Brown, Abbott and Noble reflect the larger quantities of cannabis, previous offending or greater sophistication involved in some of those cases.

13. The appellant's submissions conclude by suggesting that a different sentence 'should be imposed'.  In fact the first question to be asked is whether a different sentence 'should have been imposed': s 31(4)(a) Criminal Appeals Act.  This indicates that the appellate court must decide that the sentencing judge ought to have imposed a different sentence from the one that he or she originally pronounced:  Royer v The State of Western Australia [2009] WASCA 139 (Owen JA) [114]. This requires the court to consider whether the sentence imposed was, notwithstanding the error, an appropriate one in all of the circumstances. See also Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [73] (Buss JA). It is only if the court concludes that a different sentence should have been imposed that it is then called upon to exercise its own sentencing discretion.

14. In my view, there is no basis for concluding that a different sentence should have been imposed.  Even taking into account the correct maximum penalty, the sentence of 12 months' immediate imprisonment was an appropriate sentence having regard to the quantity of cannabis possessed, that it was possessed for the purpose of commercial dealing and that the appellant was found to be a mid‑level dealer.  In those circumstances the appeal must be dismissed.