Sweetman v Tasmania

[2016] TASCCA 5

[2016] TASCCA 5

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                Sweetman v Tasmania [2016] TASCCA 5

PARTIES:  SWEETMAN, Leigh Anthony
  v

STATE OF TASMANIA

FILE NO:  2542/2015
DELIVERED ON:  31 March 2016
DELIVERED AT:  Hobart
HEARING DATE:  29 February 2016
JUDGMENT OF:  Wood, Estcourt and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Plea of guilty to trafficking in a controlled substance – Whether sentence of 10 months' imprisonment with 7 months suspended manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Edwards
             Respondent:  A Shand
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2016] TASCCA 5
Number of paragraphs:  55

Serial No 5/2016

File No 2542/2015

LEIGH ANTHONY SWEETMAN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
ESTCOURT J
PEARCE J
31 March 2016

Order of the Court

Appeal dismissed.

Serial No 5/2016

File No 2542/2015

LEIGH ANTHONY SWEETMAN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
31 March 2016

1. The appellant pleaded guilty to trafficking in a controlled substance.  Tennent J imposed a sentence of 10 months' imprisonment, with 3 months to be served.  The balance of 7 months was suspended subject to a condition that for a period of 2 years from his release the appellant not commit any crime punishable by imprisonment.  The ground of appeal is that the sentence was manifestly excessive. The appellant is aggrieved about the length of the sentence and particularly, that the sentence of imprisonment was not wholly suspended. 

2. On 29 February 2016, this Court dismissed the appeal, with reasons to be published at a later date.  These are my reasons for joining in the order made.  The relevant facts of this case, the matters in mitigation and the sentencing remarks of the sentencing judge are set out in the reasons of Estcourt and Pearce JJ and I see no need to repeat them. 

3. The particulars of the charge of trafficking are that on or about 10 March 2015 the appellant trafficked in a controlled substance, namely cannabis.  The appellant was sentenced on the basis, accepted by the Crown, that he trafficked in cannabis by having possession of cannabis and 113 cannabis plants with the intention of bartering or exchanging some of the cannabis once harvested.

4. The crime of trafficking extends to this kind of conduct, even though there had not been any sale transactions, and even though it was not intended that money would change hands.  Having possession of a controlled substance, with the intention of selling it, is trafficking (s 3 of the Misuse of Drugs Act 2001).  "Sell" is widely defined and includes to "barter or exchange".  The definition of "controlled substance" includes cannabis plants, as well as cannabis. 

5. It was submitted for the appellant that the following features of his offending had warranted a lenient sentence:

   ·     The appellant had not expected his efforts would yield so many plants or so many female plants.

   ·     The cannabis plants had all been seized and the appellant had not derived any benefit from his criminal conduct.

   ·     The cannabis and plants, the subject of the charge, had not been distributed to anyone in the community.  

   ·     He had intended to barter or exchange cannabis, but not to gain a monetary benefit or derive income from it.  The appellant's conduct can be distinguished from a purely profit-driven commercial enterprise.

   ·     He intended to traffic in only some of the harvested cannabis by bartering or exchanging and the remainder he was going to store, use himself or give away to friends.

   ·     The high monetary value of the cannabis was not to be realised by him.

   ·     The plants were grown in a basic outdoor compound.

6. As for the final point, it was emphasised that the compound was a less sophisticated growing enterprise than is seen in other cases.  The appellant's counsel contrasted the enterprise with indoor hydroponic set-ups that are more elaborate, expensive and labour intensive.  Of course, this is a relevant consideration.  The effort and planning involved in committing a crime is relevant to an assessment of an offender's culpability.  Also, purposeful effort in pursuing a criminal enterprise may ensure its success. 

7. It is accepted that the appellant's conduct was not the product of effort as intense as other cases.  However, it should also be noted that the conduct was not haphazard or lacking in purpose.  There were two crops in a relatively isolated rural location.  The large crop included a watering system, fencing and concealment.  The appellant effectively utilised the natural resources available to him and no more was required to ensure a productive harvest. 

8. It was submitted by the appellant that, when compared to sentences for comparable offending, the sentence imposed upon the appellant was so far outside the range as to demonstrate error.  A review of similar cases was said to reveal that the range for first offenders sentenced for trafficking in cannabis is not heavier than a wholly suspended term of imprisonment.  Counsel for the appellant referred to nine sentences delivered in Tasmania since 2008.  They all involved a significant number of plants and also some sale transactions.  The respondent countered this submission by referring the Court to instances of similar offending attracting actual terms of imprisonment.  There were four sentences imposed in 2008 upon offenders for trafficking in cannabis, as first offenders for this crime. 

9. The comparative exercise does not assist the appellant.  It fails to support a "range" in the sense of a firm or settled approach in this jurisdiction with respect to trafficking in cannabis.  All that can be said is that in nine instances, when dealing with similar cases, sentencing courts have imposed wholly suspended terms of imprisonment. Those "historical statements of what has happened" (adopting the language of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303]-[305]) are too few in number to be capable of demonstrating a discernible and established range.

10. It should also be noted that the nine cases involved similar offending, but not necessarily more serious offending than here.  In approximately half of the cases, the number of plants was less than the number here, and generally, the monetary value of the plants did not exceed $100,000.  There were dissimilar personal considerations and matters in mitigation, some of them telling in the fixing of a wholly suspended term of imprisonment.

11. Furthermore, in some of the nine cases, there are useful sentencing comments which show that the appropriate range was regarded by the judge as including an actual term of imprisonment.  These comments reveal that serious consideration was given to an actual term of imprisonment, and that often it would be imposed for such offending.  I expect that if a wider snapshot of history were to be taken, capturing more cases over a lengthier time-frame, and future cases as they emerge, it may well be shown that the sentence under appeal is unexceptional. As for the length of the sentence, it is comparable to the length of other sentences referred to.

12. In reviewing sentences, this Court often emphasises that the sentencing discretion is very wide.  Sentencing is not a process that leads to a single correct answer: Pearce v The Queen (1998) 194 CLR 610 at [46]. A "range of legitimate outcomes is inevitable": Hili v The Queen (2010) 242 CLR 520 per Heydon J at [74]. The sentence under appeal may be atypical, but nonetheless may be a correct sentence and a legitimate exercise of discretion. The question raised by this appeal is whether this Court infers a failure to properly exercise the discretion because the sentence was manifestly excessive in the sense of "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499.

13. I detected in the appellant's submissions a grievance that the sentence was heavy, given the trafficking related to cannabis.  It may be thought that leniency was warranted given the nature of the drug compared to other illegal drugs.  Certainly in the past, some people have regarded cannabis as a "soft drug" and have not seen it as particularly harmful or potentially dangerous to the user.

14. However, it is now well-known that cannabis has a range of destructive effects on the physical and mental health of users.  Previously held views or assumptions about cannabis are completely at odds with well-established empirical evidence and knowledge about the adverse effects of cannabis and its association with serious short term and long term harm. 

15. In R v Nguyen [2006] NSWCCA 389, McClellan CJ at CL at [54] referred to previously held assumptions about cannabis and stated, "It is now recognised that marijuana can have very serious consequences for users with destructive potential for the lives of young persons."

16. To make an obvious point, a sentencing court's evaluation of the seriousness of offending cannot reflect out-dated views or complacency which may persist in the community about the impact of cannabis use.  Another point to be emphasised, relating to the court's approach in sentencing for this crime, is that cannabis is a proscribed drug.  Drugs have been proscribed because they have harmful consequences, R v D'Aloia [2006] VSCA 237 per Nettle JA at [56], and trafficking in all proscribed drugs is a serious criminal offence.

17. Offenders like the appellant, who traffic in cannabis, commit a serious crime relating to a harmful drug with deleterious consequences for the individual user and society. 

18. Returning to the specific facts of this case, it is my conclusion that the appellant's conduct warranted the imposition of an actual term of imprisonment.  This is despite the fact that there are some aspects of his conduct distinguishing it from more serious cases.  The appellant was not intending to realise the high monetary value of the cannabis he was cultivating and did not consider its monetary value.  He was intending to barter with only some of the cannabis and previously, when exchanging cannabis, had given it to "mates", not to the community at large.  However, it is a serious matter to intend to distribute a harmful drug, whether it is to a small circle of people or even to one person.  There was also the risk, pronounced due to the monetary value of the drug, that those who received it might be tempted to trade and profit and distribute the drug to a broader market.  Additionally, there was a risk that the appellant, when faced with such a valuable asset and a quantity that vastly exceeded his rate of personal usage, may ultimately have tried to realise some of that value himself and benefit more than he had set out to do. 

19. The learned sentencing judge adverted to the option of suspended sentences but imposed an actual sentence, stating that there was a clear need for a sentence which reflects general deterrence.  Her Honour was entitled to have regard to the fact that a period of actual imprisonment is more effective in achieving this goal: Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399 per Evans J at [9]-[11], Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26 at [67]. While a wholly suspended sentence is a severe sentence, its impact on an individual offender is not well understood in the community and consequently, it is less effective in terms of general deterrence.

20. The learned sentencing judge was entirely justified in giving significant weight to general deterrence.  Her Honour referred to the incidence of trafficking, often in cannabis, and was rightly concerned about it. There were a significant number of cannabis plants and the yield was expected to be worth hundreds of thousands of dollars.  The appellant had a prior conviction for cultivating in 2007 and a lenient sentence had not been effective in deterring him.  In fact, he had grown cannabis plants on some five to six times over the past six years.  On previous occasions, he had given cannabis away and exchanged it. He was not to be punished for those occasions because they were not encapsulated in the charge, but he was to be sentenced on the basis that his criminal conduct was not an isolated lapse. I find myself in agreement with the learned sentencing judge that a deterrent message and a strong message were needed.  

21. Undoubtedly, there are mitigatory factors in this case. However, the sentence imposed does not suggest that the sentencing judge overlooked those factors or that she failed to give them adequate weight. The sentence was ameliorated by the suspension of a significant portion of the term of imprisonment. It adequately reflected the mitigatory factors and the appellant's personal circumstances. 

22. The sentence was not unreasonable or plainly unjust.  It was one of the sentences legitimately open to the learned sentencing judge.  It was a correct sentence. 

File No 2542/2015

LEIGH ANTHONY SWEETMAN v DIRECTOR OF PUBLIC PROSECUTIONS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J

31 March 2016

The appeal

1. The appellant, Leigh Anthony Sweetman, appeals against a sentence imposed upon him by Tennent J on 3 December 2015.

2. Her Honour convicted the appellant of the crime of trafficking contrary to s 12(1) of the Misuse of Drugs Act 2001 and sentenced him to a period of 10 months' imprisonment with the balance suspended after he had served 3 months of that sentence.

3. The sole ground of the appellant's appeal is that the sentence was manifestly excessive.

The law

1. The legal principles applicable to appeals against sentence on the ground of manifest excess or inadequacy are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8] per Pearce J.

The facts

1. The learned sentencing judge set out the factual background to the appellant's crime in her comments on passing sentence in the following terms:

   "You have pleaded guilty to one count of trafficking in a controlled substance, namely cannabis, contrary to the Misuse of Drugs Act 2001, s12, on or about 10 March 2015.

   On that day, police executed a drug related search warrant at a farm at Trowutta where you worked. You were asked if there were any drug related items on the property and you said no. Police then searched the property. On the northern side of the farm, adjacent to a dam, police found a large compound constructed with chicken wire and star pickets. There appeared to be an electric spook installed to keep cattle away.  There were several bales of silage along one side of the compound.  At the front of the compound was a sprinkler being fed by a hose from the nearby dam. The compound contained 97 cannabis plants. You admitted the plants were yours and you had planted and cultivated them.

   Your nearby home was then searched. There you directed police to 16 cannabis plants growing in the rear yard and to a shed. In the shed police seized 17 branches with cannabis bud that was being dried and a used smoking device.  You were subsequently interviewed and made a number of admissions although denied ever selling or intending to sell cannabis. You admitted being a user of cannabis, that you intended to give cannabis away to friends to smoke, that in return for cannabis given to your mates in the past you had received crayfish or beer, you had grown cannabis five or six times previously over the past six or so years and you had various sources of income but were unsure exactly how much you earned.

   The State has accepted your plea of guilty on the basis you were bartering or exchanging the cannabis you grew.

   In all police seized 113 cannabis plants which were in good condition. While police estimated a possible value of the crop at between $210,000 and $452,000 depending on the weight in which it might have been sold, those figures are estimates only. Even at the lowest end of that estimate the value is significant." (Emphasis added.)

The sentence

1. The learned sentencing judge made the following comments on passing sentence:

   "You are 39 years old. You have convictions for growing, possessing and using cannabis in 2007. You were fined in relation to that offending. You remain working at the farm where the cannabis crop was found and earn about $700 per week. You have generally had an industrious work record over your life. You are single but have five children to a relationship which ended about two years ago. You assist with their care. I am told all suffer from a bleeding disorder similar to haemophilia. It was not suggested that your children would not be cared for adequately were you sent to jail.

   I am told that, despite the size of the crops you were growing, you never considered their monetary value and did not realize that bartering cannabis for goods was illegal. You have been a long term user of cannabis. You do not intend to grow cannabis again and intend to cease use. Your children are of an age where if you smoke around them, they will realise what it is you are doing.

   The number of cannabis plants you were growing was significant despite your lack of intention to sell. The cannabis was being made available in the community, even if bartered. You were also getting benefits.

   A review of the Court's sentencing database reveals what appears to be an increasing number of convictions for trafficking in drugs, often cannabis. There is a trend in the sentences imposed which involves a suspended sentence where there is no or very minor drug related history. However the sentences I reviewed did not involve the quantity of plants and cannabis head found at your work and home earlier this year. Your counsel assured me you would not grow or use again. Accepting that, there may be a reduced need for personal deterrence. However there is a clear need for a sentence which reflects general deterrence given the volume of what was found in your possession."

The appellant's submissions

1. Counsel for the appellant, Ms Edwards, submits that a review of sentences in this Court in cases where there has been a high number of cannabis plants found suggests that the "general range" remains a suspended term of imprisonment.

2. Counsel attached to her written submissions a review of these cases in summary form set out in a table which is attached to these reasons as Annexure A.

3. She submits, correctly as I apprehend it, that the table shows that each of the epitomised cases involved a large number of plants and actual sales of cannabis.  Counsel further observed, again correctly, that an examination of the sentencing judges' comments on passing sentence in respect of each of the cases set out in the table reveals that all of the sentences were suspended.  The longest suspended sentences were in cases where a substantial pecuniary penalty order was made and/or where the accused person had not pleaded guilty.

4. Ms Edwards submitted that the appellant's case demonstrated marked distinctions from many of the tabulated cases, most particularly in that the appellant's crime did not involve any commercial aspect, there being no allegation of monetary profit, no actual sales, and the appellant's plea of guilty was accepted by the respondent on the basis that he bartered the cannabis he gave away to friends in exchange for crayfish or beer.

5. Counsel for the appellant concluded that, when compared to any other sentences for a comparable crime, the sentence imposed upon the appellant was outside the range.

6. Counsel for the respondent, Ms Shand, submitted that it is also possible to identify cases where the sentence imposed was similar to or greater than the sentence imposed upon the appellant.  She set out a table showing four such sentences. That table is attached to these reasons as Annexure B.

Discussion

1. I accept the conclusion of counsel for the appellant. It accords with my own experience and with my own examination of the Court's electronic sentencing database. Leaving aside all other matters of distinction, the sentences tabulated by counsel for the respondent were all in 2008, and in my perception, sentences for this crime have moved more towards wholly suspended sentences since then.

2. However, being outside a perceived range of sentences does not necessarily establish manifest excess. Sentencing judges should be "accorded a wide measure of latitude": Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336.

3. It was pointed out by Underwood J (as he then was) in Inkson v The Queen (1996) 6 Tas R 1 at 15, that having regard to a "range of sentences imposed for a crime does not mean that every sentence must fall within that range".

4. And Wright J said in R v Dowie [1989] Tas R 167 at 186:

   "A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State ... but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in the light of all the known facts and circumstances."

5. It remains true that "gross departure from what might in experience be regarded as the norm may be held to be error in point of principle": Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ. However, in my view, in this case there has not been a "gross" departure from what may be regarded as the "norm".

6. It is a matter for consideration whether this Court should, in an appropriate case, review whether what appears to be the norm remains appropriate, particularly in view of the scourge of methylamphetamine with which trafficking in cannabis is often associated. This is not an appropriate case, in my view, given that the appellant's plea of guilty was accepted by the respondent on the basis that he would have given a lot of the cannabis away, and that in the past he had bartered the cannabis he grew and gave away to friends in exchange for crayfish or beer.

7. For the moment it is sufficient to remember that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10.

Conclusion

1. In this case I am not persuaded, in accordance with the traditional formula set out in House v The King (1935) 55 CLR 499, that the appellant has established that by reason of its severity, the sentence imposed on him is "unreasonable or plainly unjust" so as to give rise to the inference that there has been a failure by the learned sentencing judge to properly exercise her discretion. Even if much of it might have been given away, a very significant amount of cannabis worth a great deal of money was involved, the appellant had a prior conviction for cultivating a controlled plant and he had previously cultivated cannabis on five or six occasions over some six years and had exchanged cannabis for goods. Moreover, the appellant's personal use of cannabis was miniscule in comparison to the size of the crop he grew on this occasion.

2. I would dismiss the appeal.

ANNEXURE A

Trafficking Charges - High amount of Plants

Date	Case	Crime/Section	Sentence	Bartering/100+ plants
5 February 2008	State of Tasmania v Stuart John Ward	Trafficking in a controlled substance and cultivating a controlled plant for sale	Six (6) months imprisonment wholly suspended on condition of good behaviour for 3 years	Produced about 50 usable plants from about 100 plants
3 March 2008	State of Tasmania v Garrard William Cini	Trafficking in a controlled substance, cultivating a controlled plant, possessing a controlled plant and using a controlled plant or its products	Six (6) months imprisonment, wholly suspended on condition that commit no offence involving illegal drugs for two (2) years	212 plants growing
6 October 2009	State of Tasmania v Jade Phillip Connelly	Trafficking controlled substance and cultivating controlled plant for sale	Three (3) months imprisonment, wholly suspended on condition of good behaviour and commit no offence under the Misuse of Drugs Act for 3 years	90 cannabis plants at various stages of development
9 June 2010	State of Tasmania v Trina Maree Patricia Koeck	Trafficking in cannabis	Four (4) months imprisonment, suspended on condition commit no offence under Misuse of Drugs Act for two (2) years	Sold, to the one person, between 100 and 150 plants
30 September 2010	Tasmania v Craig Archie Burr	Cultivating controlled plants for sale and trafficking in a controlled substance	One (1) year imprisonment, wholly suspended on condition of good behaviour for 3 years and upon condition does not cultivate or have possession of more than a trafficable quantity of controlled substance or plant	117 cannabis plants growing
24 August 2011	State of Tasmania v Andrew Bond	Cultivating a controlled plant for sale, trafficking in a controlled substance, use controlled plant or its products and possess controlled plant or its products	Nine (9) months imprisonment, suspended on the condition that commit no offence punishable by imprisonment for 3 years	150 plants at various stages of development
9 August 2012	State of Tasmania v Darryl John Heard	Trafficking and attempting to unlawfully import a controlled substance	12 months imprisonment, wholly suspended on condition of good behaviour for 3 years	20 plants - 7 to 8 weeks old 21 plants = 4 to 5 weeks old 39 cuttings which appeared to have taken
15 February 2013	State of Tasmania v Brett Anthony Morgan	Trafficking in a controlled substance	Eight (8) months imprisonment, wholly suspended on condition that commit no offence punishable by imprisonment and no offence contrary to the Misuse of Drugs Act for 3 years	84 cannabis plants - 50 mature plants and 34 plantlets
4 May 2015	State of Tasmania v Craig John Wilson	Trafficking in a controlled substance	Nine (9) months imprisonment, wholly suspended on condition that commit no offence punishable by imprisonment for 3 years and pay a pecuniary penalty to the State of $6,000	81 cannabis plants

ANNEXURE B

Name	Date	Crime	Plea	Facts	Sentence
LEON FRANCIS WRIGHT	7/8/2008	Trafficking in controlled substance	FG	Hydroponic grow rooms.  Over 100 plants 4 year period.  User of cannabis, and growth started for personal use. Evidence of sales.	Nine months' imprisonment, 3 months suspended.
STUART CLYDE DEW FREEMAN	2/9/2008	Cultivating a controlled plant for sale, Possessing things intended for use in the cultivation of a controlled plant for sale, Trafficking in a controlled substance	PG	Hydroponic grow rooms. Over 100 plants. No prior convictions. Heavy user. Significant mitigation.	26 weeks imprisonment, 20 suspended.
CRAIG ANDREW BENNETT	2/10/2008	Cultivating a controlled plant for sale, Trafficking in a controlled substance	PG	75 plants growing outside, 12 already stripped. Had grown in the previous years and sold around $2000. User of cannabis.	12 months imprisonment
WAYNE REX BENNETT	2/10/2008	Cultivating a controlled plant for sale, Trafficking in a controlled substance	PG	115 outdoor plants and 6.5kg harvested cannabis.  Heavy user. Had grown an earlier crop. Significantly disabled and in need.	12 months imprisonment

File No 2542/2015

LEIGH ANTHONY SWEETMAN v DIRECTOR OF PUBLIC PROSECUTIONS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
31 March 2016

1. The appellant, Leigh Sweetman, pleaded guilty to trafficking in cannabis. He was sentenced by Tennent J on 3 December 2015 to imprisonment for 10 months, 7 months of which were suspended for 2 years from his release. The sole ground of this appeal is that the sentence is manifestly excessive. These are my reasons for joining in the order that the appeal be dismissed.

2. On 10 March 2015 police officers went to a dairy farm at Trowutta in north west Tasmania. They spoke to the defendant who was employed on the farm. He denied knowledge of any "drug related items". However when the police conducted a search they found 97 mature cannabis plants growing in a compound near a dam on the northern side of the property. The cannabis was protected by a fence made of chicken wire and star pickets. A water sprinkler was fed by a hose from the dam. On one side of the compound were several bales of silage which obscured a view of the compound from the road. The appellant admitted the cannabis was his, whereupon the police obtained a warrant to search his house. There they found 16 cannabis plants growing in the yard and 17 branches of cannabis bud drying in the shed.

3. The Court was informed that all of the 113 plants the police found were in good condition, had a potential yield between 1,356 to 1,808 ounces (about 40 to 50 kgs), with a value between $210,000 and $450,000.

4. The appellant was interviewed. He told the police that:

   ·     all the cannabis was his;

   ·     he was a long-term cannabis user, probably using an ounce a week;

   ·     he did not intend to sell any of the cannabis but would probably give a lot of it away. In the past when he had given cannabis away, most recently in 2012 or 2013, he had done so in exchange for crayfish and beer;

   ·     he had grown cannabis five or six times over the last six years.

5. At the date of sentence, the appellant was 39. He was single but had five children to a relationship which ceased about two years earlier. He has contact with and cares for his children from time to time. All the children suffer from haemophilia. He was educated to grade 10 and had a good industrial record in the dairy industry. He had only one relevant prior conviction. He was fined by a magistrate in 2007 for possessing, using and cultivating a controlled plant.

6. In mitigation, his counsel submitted:

   ·     the appellant had spread a large amount of seed not expecting all would germinate;

   ·     an unexpectedly high number of plants, with an unexpectedly high percentage of females, had grown;

   ·     the appellant did not consider the cannabis plants to be of high quality;

   ·     he did not expect that the yield would be as high as contended by the State, although he agreed it was a significant quantity;

   ·     he did not consider the monetary value of the crop;

   ·     he had cut back his cannabis use but was probably using something more than two ounces of cannabis per month;

   ·     he intended to use some of the cannabis and give part of it away "by way of barter or exchange", not aware that this amounts to the crime of trafficking.

7. The appellant contended that the sentence is manifestly excessive. He submitted that the sentence imposed by her Honour failed to reflect the mitigatory aspects of the crime, in particular that it was accepted by the State that "there was no monetary, commercial element involved" and that the appellant had only ever "supplied and exchanged". His counsel pointed out that in this case there had been no monetary sale, no profit, no barter or exchange had yet taken place, and that there was no specificity as to the amount of cannabis bartered in the past. 

8. The appellant pointed out that this Court commonly imposes wholly suspended sentences for offenders with little or no history of similar offending, and submitted that a wholly suspended sentence ought to have been imposed in this case.

9. The learned sentencing judge reviewed the Court's sentencing data base. In her sentencing remarks, her Honour drew a distinction between the amount of plants and cannabis involved in cases in which wholly suspended sentences had been imposed, and the number of plants and quantity of cannabis in this case. Her Honour was entitled to obtain guidance from sentences imposed in other cases. Before this Court, counsel for the appellant and counsel for the respondent have each referred to other examples of sentencing in trafficking cases. However, care should be exercised in comparison with other individual cases. Appellate intervention is not justified simply because the sentence is different than may have been imposed in some other cases. In sentencing, a range of legitimate outcomes is inevitable: Hili v The Queen (2010) 242 CLR 520 per Heydon J at [74]. The majority in Hili accepted that the proper use of past sentences was correctly identified by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303]–[305] and said:

   "As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added in Hili). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'." (Footnotes omitted.)

10. As to the way in which past sentences are to be considered, I respectfully agree with the comments made by Wood J in Connelly v State of Tasmania [2015] TASCCA 15 at [4]-[5]. Even if it is the case that, over the last few years, persons convicted of trafficking in a controlled substance for the first time have commonly been given wholly suspended sentences, it does not mean that this establishes a range, that the range is correct, or that a decision of a sentencing judge to not wholly suspend a sentence constitutes error. Because trafficking has a broad meaning, the level of criminality in individual crimes varies widely, depending for example on the type and quantity of drug and the nature and level of the offender's involvement in its commercial distribution. In general, however, those who engage in trafficking in illicit drugs should expect harsh punishment. The Misuse of Drugs Act 2001 ("the Act"), s 12, provides that trafficking in a controlled substance is punishable by imprisonment for a term not exceeding 21 years. The penalty provision reveals a legislative intention that those who traffic in illicit drugs may be subject to heavy penalties. For an appeal on this ground to succeed it is not enough for the appellant to demonstrate that a sentence is a harsh one or persuade the appeal court that a more lenient sentence might have been imposed. The appellant must persuade the court of error; that there must have been some misapplication of principle by the sentencing judge. I do not consider that the impugned sentence discloses error. Taking into account all matters relevant to sentence, the sentence is not outside the range of sentences reasonably open to her Honour. It is not unreasonable or plainly unjust. To the contrary, I would consider the sentence to be comfortably within the proper exercise of her Honour's sentencing discretion.

11. The overwhelming consideration in sentencing was the amount of cannabis which the appellant produced and the circumstances in which he produced it. By operation of the Act, s 12(2), if it is proved, amongst other things, that an accused possessed a trafficable quantity of a controlled substance, it is presumed that he did so with the intention of selling it unless he proves, on the balance of probabilities, to the contrary. By his plea of guilty, the defendant admitted that he possessed at least part of the cannabis in his possession with the intention of selling it. The term "sell" is defined in the Act, s 3, to include "deal in, barter or exchange". The trafficable quantity of cannabis is specified in the Act, Schedule 1 Part 3, as 20 plants or 1kg. Thus, the appellant cultivated and had possession of cannabis in a quantity which was at least five times the trafficable quantity in terms of number of plants and potentially more than 40 times the trafficable quantity in terms of weight. On the material asserted by the Crown, it was worth a minimum of about $200,000. Most of the cannabis was cultivated in a protected, irrigated and partially concealed compound in an isolated location. The appellant did not accept the Crown's assertions of the amount of cannabis the crop would have yielded, and said he did not think about monetary value, but conceded that it was "significant". The amount which the appellant could have used himself was a tiny fraction of the amount he grew. The only explanation for the balance was that the crop was larger than expected, an assertion of an intention that some unspecified quantity would be stored or would be given away or exchanged for "crayfish and beer". It was the exchange which, the appellant admitted, amounted to trafficking. No further specificity was offered about how much of the cannabis he intended to exchange in this way. As the learned sentencing judge correctly pointed out, the cannabis was, whatever the basis of the exchange, being made available to the community. The quantity of cannabis involved is a factor which strongly influenced the sentencing judge. She found that the amount of cannabis grown by the appellant was "significant", despite his lack of intention to sell it in the sense of monetary exchange. Those who possess cannabis with the intent to use it in this way must expect that punishment will follow. General deterrence was an important sentencing consideration.

12. In my opinion, neither the ten-month head sentence imposed by the learned sentencing judge, nor the requirement that the appellant immediately serve three months of the sentence, justified intervention of an appeal court.