The State of Western Australia v Yeates

[2018] WASCA 232

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- YEATES [2018] WASCA 232

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   23 JULY 2018

DELIVERED          :   27 JULY 2018

PUBLISHED           :   22 JANUARY 2019

FILE NO/S:   CACR 88 of 2018

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

BRIAN GERARD YEATES

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BRADDOCK DCJ

File Number             :   IND 1716 of 2017

Catchwords:

Criminal law - State appeal against order - Pre‑sentence order - Whether sentencing judge erred in considering term of immediate imprisonment might not be imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 24(1)(a)
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 33A(3), s 9AA

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant	:	Ms A L Forrester SC
Respondent	:	Ms N R Sinton

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

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

Harvey v The State of Western Australia [2017] WASCA 149

HNA v The State of Western Australia [2016] WASCA 165

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

The State of Western Australia v Hatch [2008] WASCA 162

The State of Western Australia v Polmear [2013] WASCA 291

REASONS OF THE COURT:

1. This is a State appeal against the imposition of a pre‑sentence order made by Braddock DCJ on 18 May 2018. The appeal is brought pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA) (CAA) which enables the State to appeal against any order made as a result of a conviction.[1]

   [1] The State of Western Australia v Hatch [2008] WASCA 162.

2. The respondent was charged on indictment with three offences. Counts 1 and 3 alleged that on 14 May 2016, the respondent had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Count 2 alleged that the respondent was in possession of a sum of money that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA).[2]

   [2] AB 27.

3. On 15 March 2018, the respondent pleaded guilty as charged and was duly convicted of the offences.[3] 

   [3] ts 16.

4. On 18 May 2018, her Honour ordered that the respondent be placed on a pre‑sentence order for a period of 6 months with supervision and program requirements (the pre‑sentence order).  Her Honour expressed an expectation that the respondent would be subjected to random urinalysis.[4]  Her Honour ordered the respondent to appear for a review of his progress on 18 July 2018 and for sentence on 2 November 2018. 

   [4] AB 80.

5. The State filed a notice of appeal on 24 May 2018 and an appellant's case on 5 June 2018.  The State's appeal was heard on an urgent basis.

6. The single ground of appeal relied upon by the State, for which leave was granted on 8 June 2018,[5] alleged that her Honour erred in imposing a pre‑sentence order because a sentence of immediate imprisonment was inevitable, given:

   (a)the seriousness of the offences;

   (b)the standards of sentencing customarily observed; and

   (c)the need for personal and general deterrence.[6]

   [5] Order of Mazza JA, 8 June 2018.

   [6] AB 7.

7. On 27 July 2018, this court ordered that the appeal be allowed, the pre‑sentence order made by Braddock DCJ be set aside and the respondent be sentenced by another judge of the District Court.  Our reasons for making those orders are as follows.

The facts

1. There was no dispute, either in the court below or in this court, as to the facts of the respondent's offending.

2. As to count 1, at about 11.00 am on 14 May 2016, the respondent was driving a motor vehicle on Finlay Street, Wangara, when he was stopped by police for a random breath test.  The respondent was the sole occupant of the car.  On approaching the car, the police officers detected a strong smell of cannabis.[7]

   [7] ts 16.

3. A search of the vehicle revealed the presence of cannabis in bags on the rear seat and in the boot.  The total weight of cannabis located in the vehicle was 1,547.59 g.  In addition, police officers located a set of small electronic scales and three mobile telephones.  On the respondent's iPhone, the police found messages and photographs relating to the cultivation and sale of cannabis and the manufacture of cannabis oil and hash.[8]

   [8] ts 16 - 17.

4. In relation to count 2, during the search, police located a total of $8,629 in banknotes.[9]  It was agreed by the State and the respondent that of this sum, $6,000 was the proceeds of the sale of cannabis and had thus been unlawfully obtained.[10]

   [9] ts 17.

   [10] ts 19.

5. In relation to count 3, at around 6.00 pm on 14 May 2016, the respondent's premises in Neergabby were searched.  There, a total of 4,568.52 g of cannabis was located in various places, including in the kitchen, the laundry, a spare bedroom and the shed.  Some of the cannabis in the shed was being dried.  Police officers found two small hydroponic set‑ups in the shed which were not in use and appeared to be new.  A set of scales and several packets of clipseal bags were discovered in a kitchen drawer.[11]

   [11] ts 17 - 18.

6. As to count 1, it was accepted that the respondent intended to use a small portion, 3.59 g, of the cannabis for himself and that he intended to sell the remaining 1,544 g of cannabis for profit.[12]

   [12] ts 24, 31.

7. As to count 3, the respondent was sentenced on the basis that he intended to sell approximately 1 kg of the total amount of cannabis found at the house and that he intended to use 2.04 kg of the cannabis to produce cannabis resin and oil, some of which he intended to use himself and some of it he intended to supply (not sell) to others.  The remaining approximately 1.5 kg of cannabis was either unusable or intended for personal use.[13]

   [13] ts 24 ‑ 25, 31 ‑ 32.

8. Thus, in total, the respondent intended to sell approximately 2.5 kg of cannabis for profit, and to produce and then supply to others a further amount of cannabis resin and oil. 

9. The respondent made admissions to the author of the psychological report that he had been engaged in the cultivation, supply and sale of cannabis for two years prior to his arrest.[14]

   [14] ts 53, 64; psychological report, 29 October 2017, par 10.

The respondent's antecedents

1. At the time her Honour imposed the pre‑sentence order, the respondent was 51 years of age.  He is the father of two children and has two grandchildren.  He has been in two significant relationships, but is currently single.  At the time of the offending, the respondent lived by himself in what her Honour described as 'an isolated situation'.[15]

   [15] ts 63 - 64.

2. The respondent has been addicted to cannabis since his teens.  In the past, he has been diagnosed with depression, anxiety and post‑traumatic stress disorder.  Rather than take prescribed medication for these conditions, he relied upon cannabis to alleviate them. 

3. In 2004, the respondent was convicted in New South Wales of cultivating and supplying cannabis, for which he was sentenced to 9 months' imprisonment, suspended for 9 months.[16]  In 2017, he was convicted in the Joondalup Magistrates Court of cultivating a prohibited plant and possession of drug paraphernalia.  He was fined for these offences.[17]

   [16] AB 86; psychological report, 29 October 2017, par 9.

   [17] AB 83.

4. In recent years, the respondent dealt with the deaths of his parents (his father in 2012 and his mother in 2015) and his brother (in 2014). 

5. The respondent's counsel tendered a number of letters which spoke positively of the respondent.

The course of the sentencing proceedings

1. The respondent was interviewed on 24 October 2017 and 13 November 2017 by a community corrections officer, and by a forensic psychologist on 24 October 2017.  In the reports that were prepared after these interviews, it was noted that the respondent's offending behaviour was directly related to his chronic cannabis use.  It was also noted that the respondent had suffered from depression and post‑traumatic stress disorder.  It was said that the respondent was not interested in engaging in counselling for these conditions.  It was also said that he justified his cannabis use as a means of treating his depression.  He also minimised the offending.

2. On 15 March 2018, after the respondent entered his guilty pleas, his counsel sought an adjournment on the basis that since the writing of the reports the respondent had ceased cannabis use and had taken steps towards his rehabilitation.[18]  Defence counsel sought an opportunity to put further information before her Honour and requested an order for the production of an updated pre‑sentence report.  Her Honour acceded to this request.  The proceedings were adjourned and an updated pre‑sentence report was prepared on 15 May 2018.

   [18] ts 21.

3. The updated pre‑sentence report revealed that the respondent had attended 14 drug and alcohol counselling sessions.  Her Honour was provided with seven urinalysis reports dated between 14 March 2018 and 16 May 2018, all of which, save for the report dated 14 March 2018, were negative for cannabinoids.[19]  The author of the updated pre‑sentence report wrote that the respondent appeared to be in the 'action' stage of change.[20]  It was said that the respondent viewed his abstinence from cannabis as a long‑term commitment.

   [19] AB 98 ‑ 104.

   [20] Updated pre-sentence report, 15 May 2018, page 1.

4. The State submitted to her Honour that a pre‑sentence order was inappropriate because even if it were complied with, the only appropriate disposition would be an immediate term of imprisonment. As we explain below, in our respectful opinion, this submission should have been accepted.

Her Honour's reasons

1. In her reasons for making the pre‑sentence order, her Honour said there was no doubt that the offences were 'very serious'.[21]  She noted the respondent's admissions that he had been engaged in the production of cannabis for two years prior to his arrest.  Her Honour said that the respondent had in his possession a significant quantity of the drug for sale.  Moreover, he also intended to produce cannabis oil or hash for supply to others.  Her Honour observed that the respondent was apparently 'quite skilled' in growing cannabis and was capable of producing 'good quality stuff'.[22]

   [21] ts 62.

   [22] ts 64.

2. Her Honour acknowledged the serious detrimental effects caused by cannabis.  She (correctly) recognised the importance of general deterrence in the sentencing of offenders who produce cannabis for profit.  Her Honour referred to the respondent's antecedents, including the 2004 conviction.

3. In deciding to place the respondent on a pre‑sentence order, her Honour was significantly influenced by factors personal to the respondent, which she described as 'very powerful',[23] namely:

   (a)the deaths of his parents and his brother;

   (b)the respondent's long‑term cannabis addiction;

   (c)from about March 2018 he had moved in with his adult daughter to assist her with the upbringing of his grandson;

   (d)prior to sentencing he had taken positive steps to rehabilitate himself by attending counselling and that the urinalysis reports showed (apart from one dated 14 March 2018) that he had ceased using cannabis; and

   (e)the respondent pleaded guilty to the offences, although not at the earliest opportunity.[24]

   [23] ts 64.

   [24] ts 64 - 66. Her Honour expressed the views that the pleas ought to attract a discount of 18% pursuant to s 9AA of the Sentencing Act 1995 (WA): ts 64.

Relevant legislative framework

1. The legislative framework relating to a pre‑sentence order has been considered by this court on several occasions, most recently in The State of Western Australia v Polmear.[25] 

   [25] The State of Western Australia v Polmear [2013] WASCA 291 [24], [25].

2. A pre‑sentence order is not a sentence in itself.  It is an order made as a result of a conviction, from which the State has a right of appeal.[26] Section 33A(3) of the Sentencing Act1995 (WA) provides that a pre‑sentence order may be made where the sentencing judge considers, in other words is of the opinion, that:

   (a)the seriousness of the offences warrant the imposition of a term of immediate imprisonment;

   (b)the order would allow an offender to address his or her criminal behaviour and any factors which contribute to that behaviour; and

   (c)if the offender were to comply with the order, the court might not impose a term of immediate imprisonment for the offences.

   [26] CAA, s 24(1)(a); The State of Western Australia v Hatch [7].

3. A pre‑sentence order cannot be made if, at the time it is made, a sentence of immediate imprisonment is and will remain the only appropriate sentencing option even if the respondent were to comply with the pre‑sentence order.  If that were so, the third condition for the making of a pre-sentence order, set out in [30](c) above, would not be satisfied.

Submissions

1. The State submitted that the seriousness of the offences committed by the respondent and the need for personal and general deterrence mandated the imposition of terms of immediate imprisonment notwithstanding the mitigating factors, including the respondent's prospects of rehabilitation.  In other words, it was not open to her Honour to form the opinion that a sentence other than immediate imprisonment might be imposed if the respondent complied with the pre‑sentence order.

2. It was submitted on behalf of the respondent that he had taken substantial steps towards his rehabilitation and that the pre‑sentence order should be allowed to take its course because, despite the seriousness of the respondent's offending, if he successfully completed the pre‑sentence order, there was a prospect that a suspended term of imprisonment would be imposed.

Disposition

1. The general principles applicable to this appeal were stated in HNA v The State of Western Australia.[27]  We adopt without repetition what was written in that case.

   [27] HNA v The State of Western Australia [2016] WASCA 165 [23] - [32].

2. The maximum penalty for counts 1 and 3 is 10 years' imprisonment and/or a fine of $20,000.  The maximum penalty for count 2 is 7 years' imprisonment. 

3. As this court observed in HNA,[28] ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for offences against s 6(1) of the Misuse of Drugs Act because of the harm caused by illicit drugs such as cannabis, and the need for general deterrence.  The incentives, financial and otherwise, to participate in the distribution of illicit drugs must be counterbalanced by a clear and certain understanding that such involvement will ordinarily, as a matter of fact, result in a penalty of immediate imprisonment.  Because of the need for general deterrence, matters personal to an offender ordinarily have less weight. 

   [28] HNA [34], [39].

4. While rehabilitation was a relevant sentencing factor in the present case, it, even when combined with the other mitigating factors recognised by her Honour, could not, on the facts of this case, justify the imposition of any other sentence than immediate imprisonment.  The respondent's offending was simply too serious to justify any sentencing option short of that mark. 

5. The respondent had in his possession a significant quantity of cannabis with the intention of selling it for commercial gain.  The not insubstantial amount of cash the subject of count 2 is a further indication of this.  Further, the respondent intended to produce cannabis resin and oil from some of the material found at his house.  While it is to be accepted that the resin and oil would not have been sold, and some would have been for the respondent's personal use, nevertheless a significant quantity was to be distributed into the community.

6. The offending occurred in the context of the respondent having been engaged in the production of cannabis for a period of two years prior to his arrest.  The offending was no isolated aberration.  It is also clear that the respondent was involved in all facets of the production of cannabis and that he regarded himself as capable of producing 'good quality' material. 

7. As to the respondent's rehabilitation, he has prior relevant convictions for growing and supplying cannabis and, until recently, he saw little harm in its production, possession and use.  It is to be hoped that the respondent will be rehabilitated, but even if the respondent is able to demonstrate that he has been rehabilitated, given the seriousness of the offending, this factor, even in combination with other factors personal to him and his pleas of guilty, cannot prevail to the point where a suspended term of imprisonment may be imposed. 

8. In Lester v The State of Western Australia,[29] McLure P said:

   The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it.  The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times. 

   Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight.  In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs.  That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need.

   [29] Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22].

9. The firmer approach endorsed by McLure P has been reflected in sentencing cases decided subsequently. 

10. In Harvey v The State of Western Australia,[30] this court observed that there did not appear to be any case considered by this court where a suspended or conditionally suspended term of imprisonment had been imposed on a person involved in a commercial cannabis operation of significant scale. 

    [30] Harvey v The State of Western Australia [2017] WASCA 149 [22].

11. In the end, having regard to all of the circumstances of the respondent's offending including those personal to him, the successful completion of the pre‑sentence order, combined with other mitigating factors, was  not capable of  justifying the imposition of a penalty other than immediate imprisonment.  It was not open to the sentencing judge to form the opinion that, if the respondent complied with the pre-sentence order, immediate imprisonment might not be imposed.  The ground of appeal was established.  Implied error was demonstrated.  The pre‑sentence order was set aside and the matter was remitted to the District Court for sentence by another judge.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

FN
Associate

22 JANUARY 2019