Roth-Beirne v The Queen - [2001] WASCA 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ROTH-BEIRNE -v- THE QUEEN [2001] WASCA 64

CORAM: MALCOLM CJ
KENNEDY J
STEYTLER J

HEARD: 15 FEBRUARY 2001

DELIVERED : 14 MARCH 2001

FILE NO/S: CCA 183 of 2000

BETWEEN: SALLY CLAIRE ROTH-BEIRNE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Possession of cannabis with intent to sell or supply it to another, cultivating cannabis with intent to sell or supply it to another, cultivating opium poppies with intent to sell or supply it to another - Concurrent sentences totalling 18 months' imprisonment not set aside as excessive

Legislation:

Nil

Result:

Application for leave to appeal against sentences dismissed

Representation:

Counsel:

Applicant: Ms K J Farley
Respondent: Mr S E Stone

Solicitors:

Applicant: Unrepresented Criminal Appellants Scheme
Respondent: State Director of Public Prosecutions

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

Pop v The Queen [2000] WASCA 283
R v Basso (1999) 108 A Crim R 392

Case(s) also cited:

Nil

MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be dismissed for the reasons to be published by Kennedy J with which I am in entire agreement.
KENNEDY J: On 24 July 2000, the applicant pleaded guilty in the District Court to one count of having in her possession a quantity of a prohibited drug, namely cannabis, with intent to sell or supply it to another, to one count of cultivating a quantity of a prohibited plant, namely cannabis, with intent to sell or supply it to another and to one count of cultivating a quantity of a prohibited plant, namely papaver somniferum (opium poppy) with intent to sell or supply it to another. The applicant also pleaded guilty to eight charges, the subject of a notice under s 32 of the Sentencing Act 1995, namely having in her possession a prohibited drug, namely heroin; cultivating a prohibited plant, namely cannabis, with intent to sell or supply it to another; having in her possession a prohibited drug, namely cannabis, with intent to sell or supply it to another; driving a motor vehicle on a road without being the holder of the appropriate driver's licence and whilst legally disentitled to hold a driver's licence; having in her possession an implement for use in connection with the smoking of a prohibited drug, such implement having detectable traces of a prohibited drug, namely cannabis; escaping legal custody; having in her possession a prohibited drug, namely cannabis; and having in her possession a prohibited drug, namely opium.
The statement of material facts indicated that, on 14 November 1999, police officers had executed a search warrant at a property in Hawtin Road, Albany. They conducted a search of an old railway carriage on the property, which was used by the applicant. They also located numerous plastic bags which contained, in total, 4.4 kg of dry cannabis leaf and head material and 2.7 kg of cannabis seeds. Some of the bags were labelled with the weight of the cannabis which they contained, and others had monetary values written on them. At the rear of the railway carriage, the police located a green house which contained 61 cannabis plants and a hydroponic set‑up. The police officers located 35 additional plants which were scattered around the yard. They also located what were described as three cannabis large leaves in a cupboard inside the railway carriage. There were 30 opium poppy plants growing in pots in the yard, which had been cared for. Books and instructions on the cultivation of cannabis and opium poppies were found inside the carriage, together with handwritten notes on the growth of plants.
The street value of the cannabis leaf and head material was estimated at approximately $27,000. The cannabis plants were valued at over

$4000. Her Honour accepted that the applicant's cultivation of opium poppies was an experiment on her part, and that it would seem that "a fair degree of processing" was necessary in order to make the opium saleable.

When the applicant was apprehended by the police, she was in possession of $1816.05 in cash. She acknowledged that everything inside the carriage was her own; but she declined to participate in a full videotaped record of interview. She also declined to comment upon the amount of money which she had in her possession. Subsequently, she declined once again to be interviewed on video; but she did agree to have a handwritten record of interview taken. In that interview, she admitted having cultivated the cannabis and opium poppy plants.
At the time of sentencing, the applicant was 42 years of age. She had accumulated a minor record of criminal convictions, which had attracted relatively small fines. It is apparent that the applicant has experienced a most unfortunate background. She was born with a cleft palate which had necessitated a number of operations when she was young. This had made her very self conscious and shy, and she became reclusive. She had a number of jobs after leaving school, working mainly with horses and plants. It was apparent that she had a genuine love of nature. All of the references provided to the learned sentencing Judge spoke of her as being a very gentle and caring person.
A short time prior to the offences, the applicant's partner had been killed in tragic circumstances. This made her still more reclusive, and she found it more difficult to cope in society. She was described as suffering from moderate levels of depression. She also has marked interpersonal difficulties. A short while before the applicant came up for sentencing, she sustained serious injuries in a motor vehicle accident. The psychological report indicated that she may have a mild frontal lobe deficit.
It was not clear to her Honour whether the applicant had become involved in growing illegal plants in order to gain some sort of peer acceptance or whether she had drifted into this area as a result of her own poverty. In any event, the applicant, her Honour found, did not appear to have understood the seriousness of her offences. She continued growing drugs after she had been released on bail with respect to the indictable offences the subject of the present application. Her Honour indicated that the material placed before her revealed that the applicant had been conducting an organised enterprise.
Her Honour was invited to suspend any sentence of imprisonment but said that she was not satisfied that there was a very good prospect of the applicant's rehabilitation, given the fact that she had re‑offended after being arrested. Where, as in this case, offences committed on bail are effectively a continuation of the criminal conduct the subject of earlier charges, it will have significant weight as an aggravating factor in respect of those later charges, as to which see R v Basso (1999) 108 A Crim R 392 and Pop v The Queen [2000] WASCA 283. These authorities would indicate that the sentences imposed for the offences the subject of the s 32 notice were exceedingly lenient.
In her careful sentencing remarks, the learned sentencing Judge explained the need for personal and general deterrence. She had regard to the applicant's age, and to the fact that the offences with which she was concerned were the first serious offences to have been committed by the applicant. She also acknowledged the health problems from which the applicant was suffering.
With respect to the offence of possessing cannabis with intent to sell or supply it to another, the learned sentencing Judge sentenced the applicant to a term of 18 months' imprisonment; with respect to the offence of cultivating cannabis with intent to sell or supply it to another, a sentence of 12 months' imprisonment was imposed; and with respect to the offence of cultivation of opium poppies, a sentence of 12 months' imprisonment was imposed. These sentences were all directed to be served concurrently. Her Honour directed that the applicant be eligible for parole with respect to each sentence.
In relation to the additional charges brought before her Honour pursuent to s 32 of the Sentencing Act, she imposed fines totalling $1600 and two custodial sentences totalling 6 months and 2 months respectively. The custodial sentences were directed to be served concurrently with the sentences imposed with respect to the indictable offences. With respect to the fines, her Honour directed that the applicant have no time to pay; but she then went on to direct that any term of imprisonment in default of paying the fines was to be served concurrently with the custodial sentences.
The applicant now seeks leave to appeal against her sentences for the three indictable offences only, on the following grounds:
(1)The learned sentencing Judge erred in failing to suspend the period of imprisonment, in that she failed to give sufficient regard to the applicant's particular medical and emotional problems, which made imprisonment for her a harsher penalty than for others. In particular, the learned sentencing Judge failed to have sufficient regard to the fact that the applicant had suffered severe head injuries in a car accident in March 2000 following her arrest in relation to the offences. This made her imprisonment very harsh and interfered adversely with her rehabilitation.
(2)The learned sentencing Judge erred in placing emphasis on the fact that the applicant re‑offended whilst on bail. The second lot of offences arose as a consequence of the first. There were no new plantings carried out by her.
In her written submissions the applicant contended that the learned sentencing Judge had not given careful consideration to suspending her imprisonment, having failed to see that the applicant was rehabilitated. She claimed that for four months from 22 March 2000 she had proved to herself and to society that she was rehabilitated. She also described the effects of her motor vehicle accident and complained of bad treatment at the hands of the police, which appears to have stemmed from her being moved between three police stations over a two‑day period.
The drug offences the subject of the s 32 notice were claimed in the written submissions to be the consequence of the search of her property in November 1999, which had resulted in her being charged with the indictable offences, claiming that she had just let her garden grow and that she had not been growing the prohibited plants with any intent to sell or supply but merely for her own personal medicinal use. This claim is inconsistent with the applicant's pleas of guilty to three offences involving an intent to sell or supply to another. In any event, the applicant has not sought to appeal against the sentences imposed for the offences the subject of the s 32 notice.
The applicant also challenged the psychological report which had been commissioned by her own solicitor and which, it may safely be assumed, was tendered to her Honour through her solicitor.
Having carefully considered the material before this Court, I am quite satisfied that the sentences imposed by the learned sentencing Judge fall well within the range of a sound discretionary judgment. Indeed, the sentences may fairly be categorised as being near the bottom of that range.

In fixing the sentences which she did, in my view, her Honour had regard to all the relevant mitigatory factors, although I do note that she did not refer specifically to the respondent's pleas of guilty. It cannot, however, be doubted that, having regard to the sentences imposed, her Honour did take this factor into account. It is not the subject of any ground of appeal.

Her Honour expressly recognised the medical and psychological problems from which the applicant suffers. There is, however, nothing to indicate that these problems were causally related to the applicant's offending. It may be accepted that to some extent the applicant's imprisonment would bear more heavily upon her than would ordinarily be the case; but this factor was adequately taken into account by her Honour in that the sentences which she imposed were significantly less than would normally have been imposed. Her Honour took great care to ensure that the psychological report and the medical report as to the injuries suffered by the applicant in her motor vehicle accident accompanied the warrant of commitment to the prison, so that the authorities would be well aware of the difficulties faced by the applicant and would treat her accordingly.
In my opinion, no error has been demonstrated in the sentences imposed by her Honour. In the circumstances, I would dismiss the application for leave to appeal against the sentences for the offences the subject of the indictment.
STEYTLER J: I have had the advantage of reading the reasons for decision of Kennedy J. I agree with them and with his Honour's conclusion. I have nothing to add.