Trajkoski v The State of Western Australia - [2008] WASCA 130

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TRAJKOSKI -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 130

CORAM: PULLIN JA
MILLER JA
MURRAY AJA

HEARD: 15 MAY 2008

DELIVERED : 20 JUNE 2008

FILE NO/S: CACR 105 of 2007
CACR 106 of 2007

BETWEEN: SOTIR TRAJKOSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WAGER DCJ
File No  :IND 1605 of 2003

Catchwords:

Appeal - Criminal law - Conviction - Cultivation of cannabis - Whether conviction was unreasonable or could not be supported by evidence - Number of items linking the appellant to crop site - Whether open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty - Turns on own facts

Appeal - Criminal law - Sentencing - Commercial cultivation of cannabis - Appellant a carer for his wife and children - Whether sentence should have been suspended - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 7(1)(a)

Result:

Appeal in CACR 105 of 2007 dismissed
Appeal in CACR 106 of 2007 dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D Grace QC
Respondent: Ms L D M O'Connor

Solicitors:

Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (WA)

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

Abbott v Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
Brown v The State of Western Australia [2008] WASCA 48; (2005) 152 A Crim R 186
Collins v The State of Western Australia [2007] WASCA 108
Day v The Queen [2001] WASCA 284
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Jones v The Queen (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Noble v The Queen [2003] WASCA 83
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Lyon [2001] WASC 120
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

PULLIN JA: The appellant was convicted on 3 August 2007, after a trial before a District Court judge and a jury, that between 1 July 2002 and 27 December 2002, at Mimegarra, he cultivated a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7 of the Misuse of Drugs Act 1981 (WA). On 29 August 2007 he was sentenced to 2 years 8 months' imprisonment and made eligible for parole.
The appellant appeals against both the conviction and the sentence.

The conviction appeal

In relation to the conviction, there is one ground and that is that the verdict of the jury should be set aside on the basis that it was unreasonable or could not be supported, having regard to the evidence. When considering that ground, it is necessary for the court to make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court, proceeding wholly or substantially on the record, that the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. See Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [39], [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 450 ‑ 452 (Gaudron, McHugh and Gummow JJ); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [55] (McHugh, Gummow and Kirby JJ).
It is the task of the appeal court to determine for itself whether the prosecution on the admissible evidence, has established beyond reasonable doubt that the applicant was guilty of the offence charged. See Weiss [39]; M v R (493); Jones v The Queen (450 ‑ 452) and MFA v The Queen [55].
In examining the record and reaching its own conclusion, the question for the appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. See Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309 [113]. See also M v The Queen (329).
The prosecution case was based on circumstantial evidence. On 26 December 2002, a police air patrol noticed a cannabis crop at a remote location near Lancelin. A beige Nissan Patrol 4WD was noticed at the site.
On 27 December 2002, police went to the site. No‑one was there but they found at a campsite adjacent to the crop of cannabis plants, a number of items on which the appellant's fingerprints were identified. These included a West Australian newspaper dated 23 December 2006, a Scotch whisky bottle, a can of Aeroguard insect repellent, and a can of Scholl antiperspirant foot spray. The appellant's DNA was identified on two cushions found at the campsite. There was a reticulation system set up on site which used water from four sunken dams. There were two timers which were fitted into the reticulation system. They had labels on them from the '12 Volt Shop'. A receipt for the purchase of food from a Dewsons store located less than two kilometres from the appellant's home in Perth was also found. A newspaper that was not written in English was found at the site, and it was suggested the wording was Cyrillic or Greek. A shed at the campsite was set up as if used by two people. There were two chairs and two air mattresses. Some food, namely yellow peppers, and some grey duct tape was found. Tobacco, used cigarettes and rolling papers were located, but no identifiable DNA match could be made for the cigarette butts.
The police then visited the appellant at his house in Perth at the suburb of Mirrabooka on 14 January 2003. During the search of the appellant's house, a Scholl antiperspirant foot spray was found on the appellant's bedside table. Food items, including some yellow peppers, were found at the house which were of a type similar to those found at the campsite. Grey duct tape similar to that found at the campsite was found at the house. A can of Aeroguard insect repellent was found in a shed at the property. Whisky bottles and tobacco were found in the house. A receipt for the purchase of two timers from the 12 Volt Shop was found in the appellant's shed. This receipt bore the appellant's fingerprints. There were no timers found. A large quantity of fertiliser was found in the shed, although the garden beds at the appellant's home were small. In the shed police located an orange drum buried beneath the place where the appellant's Rottweiler dogs slept. Traces of cannabis were found inside the drum. Some other cannabis was found in two drawers in the shed. It was not analysed or compared with the cannabis grown at the crop site.
The beige Nissan Patrol which had been seen at the campsite on 26 December was found in the appellant's garage. Scissors or secateurs with traces of cannabis were found inside a backpack near the vehicle. The secateurs were similar to a pair of secateurs found at the campsite.
It is necessary to mention immediately that there was evidence accepted by the prosecution as indicating that it could not have been the appellant who was at the campsite with the Nissan vehicle on the day it was sighted by police on 26 December 2002.
The appellant gave evidence, the effect of which was as follows. He had a cousin by the name of Alex Manevski who had stayed at his house because of marital difficulties. Manevski used to visit his house in the six months before the police discovered the crop site. He would stay for one or two days, or three or four days a fortnight, he was a drinker of whisky and smoked the same brand of tobacco that the appellant did. From time to time he would borrow the appellant's vehicle and the last time he borrowed it was on 23 December 2002, returning it on 27 December 2002. Manevski took things in the vehicle and this explained how items with the appellant's fingerprints and DNA were found at the campsite.
The appellant denied that he had ever been to the campsite and denied that he knew anything about the cannabis cultivation. The appellant's evidence was that Manevski had left Australia during the middle part of 2003. Evidence was led that a Department of Immigration search revealed that Alex Manevski did leave Australia on 23 May 2003. As to the receipt concerning the timers, the appellant denied that he had ever gone to the 12 Volt Shop and in relation to the receipt found in his shed and bearing his fingerprints, he claimed that he removed some documents from the Nissan on 28 December 2002 after Manevski had used the car for the last time and that this must have been one of the documents he removed.
He testified that he bought the fertiliser at a time when there was a larger area of garden at the house. This was before an extension to his house was constructed. He said that he believed that the drum buried in the shed had been put there by the previous owner of the house and that he had had nothing to do with it. The police found similar orange drums found in the shed and he said that they had been left by the previous owner. The West Australian newspaper found at the campsite bearing his fingerprints was one he said that he purchased. He said he left it in the vehicle when Manevski had borrowed it. The other newspaper found on site was relevant because the appellant was admittedly Macedonian, and the writing was suggested to be Cyrillic or Greek origin. The appellant said that while he could speak 'Macedonian', he could not read 'Macedonian'. The appellant said Manevski was also Macedonian. He said that the cushions at the campsite bearing his DNA had been in the vehicle and he said they must have been taken to the crop site by the user of the car. The appellant denied any involvement in the cultivation enterprise when the police interviewed him.
There were some inconsistencies in his evidence. His wife said that when they bought the house the shed had been empty, this being inconsistent with the appellant's evidence that the orange containers had been left in the shed by the previous owner. The appellant's wife admitted to some uncertainty about events because she was on medication, but she said that Manevski began staying at the house in 2001, which contradicted the appellant's evidence that Manevski had only started staying at the house about six months before the last occasion on 27 December 2002.
The circumstantial evidence supported the prosecution case. It was for the jury to decide whether to accept the appellant's evidence or not. If the jury accepted the appellant's evidence, then he must have been found not guilty because his evidence if believed must have led the jury to have a reasonable doubt that the offence had been proved. However, the jury was entitled to reject the appellant's evidence and the points of inconsistency that emerged were matters the jury was entitled to take into account in deciding whether or not to accept his evidence. The jury had the advantage of seeing the appellant give his evidence. This court has not had that opportunity. If the jury did not believe the appellant's evidence explaining that it was Manevski who took all the incriminating evidence to the site then it was a very strong circumstantial case. Applying R v Hillier [2007] HCA 13; (2007) 228 CLR 618 and taking into account all of the circumstantial evidence, it did afford evidence which allowed the jury to reach a conclusion beyond reasonable doubt that the appellant, even though not on site on 26 December, had been involved in the cultivation enterprise. Counsel for the appellant submitted that this was merely speculation, but that submission must be rejected. The very essence of circumstantial evidence is that there is no direct evidence that the accused is involved in the offence, but the piling up of circumstances, each one of which may be insufficient to lead to a conclusion of guilt, may in the end, taken together, lead a jury to reach a conclusion beyond reasonable doubt, that the appellant was guilty of the offence charged.
Having considered all of the evidence and taking into account the limitations that confront this court, it was open to the jury to reach the verdict it did and that it is not possible to say that they must have had a reasonable doubt. As a result, the appeal against conviction should be dismissed.

Appeal against sentence

The appellant appeals against his sentence of 2 years 8 months' imprisonment on the ground that:
The learned sentencing judge erred in exercising her sentencing discretion in failing to wholly suspend the sentence on the basis of matters personal to the offender.
Particulars:
The appellant was the Commonwealth funded carer for his wife and children and in the event of his imprisonment the wife and children would be left without appropriate care and support.
The sentencing judge in her sentencing remarks found that the appellant aided and knowingly aided in the cultivation of the crop and that he was not alone in relation to the cultivation. Her Honour found that the plantation was sophisticated, that four dams had been camouflaged in the bush, that it was in a remote location and that the intention was to grow cannabis that would not be detected. Her Honour found that the camp was well stocked, well set up and camouflaged, and that the irrigation equipment included pumps and was consistent with a commercial operation. Her Honour took into account evidence that the potential value of the cannabis that was being grown was a quarter of a million dollars. Her Honour also inferred that the appellant's motivation for growing the crop was to make money.
Her Honour noted that the appellant had a criminal record involving one offence 21 years before in relation to the possession of cannabis with intent to sell or supply and conspiracy to sell or supply drugs. Fifteen kilograms of cannabis were involved on that occasion and he was sentenced to 4 years' imprisonment. Then in 1990, he was sentenced to a term of 6 years' imprisonment in relation to possession of heroin with intent to sell or supply and selling and supplying heroin.
Her Honour then took into account mitigating personal circumstances and the fact that the appellant was a carer for his wife and children, noted that there were other difficulties within the family and found that the appellant's wife and children would be affected by his incarceration 'but that there will be people to assist your wife and agencies to assist your wife in your absence'.
Her Honour also referred to remarks made by Steytler J (as he then was) in Day v The Queen [2001] WASCA 284 where his Honour said that:
This Court has, more recently, taken a more serious view of the threat which the trade in cannabis poses than has previously been the case. (See Kennedy v R, unreported; CCA SCt of WA; Library No 980145; 3 April 1998, per Malcolm CJ at 13 and 14). That fact, together with the increasing 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. (See R v Lyon [2001] WASC 120, per Anderson J at par 36, with whom the other members of the Court agreed.)
Her Honour noted that that concern had, if anything, become greater since then as a result of a greater understanding of the psychological and psychiatric dysfunction and breakdown of families that result from cannabis use. Her Honour then said that taking into account the evidence of his wife's illness, concerns for his children and issues in relation to their welfare a sentence of 5 years would have been appropriate and then said:
I am reducing that by … a percentage of 20 per cent to reflect the distress that your family will be under and the prejudice that your children will experience in your absence. That brings the term to one of 4 years. I am required by statute to deduct one‑third to reflect the requirements of the Sentencing Act and accordingly the sentence is one of 2 years 8 months' imprisonment.
The appellant was made eligible for parole.
The appellant through counsel informed this court that no complaint was made about the sentence of 2 years 8 months. The submission made was that 'but what we say is that her Honour erred in not imposing a suspended sentence because all the circumstances of the case called for that'. There was no submission that her Honour failed to take into account any relevant mitigating circumstances.
The law is clear that an appellate court is not entitled to intervene merely because it would have exercised a sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. It is entitled to intervene if a material error of fact or law is detected in the reasons for sentence or if error can be inferred. However, even if the sentencing judge has made an error, this court may only allow an appeal against sentence if, in its opinion, a different sentence should have been imposed. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Collins v The State of Western Australia [2007] WASCA 108 [8].
The appellant's submission amounts to no more than an invitation to this court to substitute a different sentence based on a consideration of the same material that was before the sentencing judge. The circumstances of this case did not leave open or require a suspended sentence. Reference has already been made to Day's case. Subsequent cases reflect what was said by Steytler J in Day's case. See Noble v The Queen [2003] WASCA 83; Abbott v Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 and Brown v The State of Western Australia [2008] WASCA 48; (2005) 152 A Crim R 186.
In Noble's case, the appellant was convicted after a trial of two counts of cannabis cultivation with intent to sell or supply. He was 51 years of age with no prior conviction. There were 48 plants and 36 plants in each of two places, as well as what was referred to as 850 grams of 'rubbish'. For that cultivation on a moderate commercial scale, he received a total effective sentence of 2 years' imprisonment. In Abbott's case, the appellant was sentenced after trial for possession with intent to sell or supply 2.2 kilograms (apparently already dried). He had at the time of the commission of the offence, been on a suspended sentence for cultivation with intent and had another prior conviction for possession with intent. He received a sentence of 2 years for the possession with intent and was required to serve 8 months of the suspended sentence for cultivation with intent. In Brown, the cannabis involved was found in two black plastic bags, one of which contained 8 kilograms of cannabis head material and the other contained 4 kilograms of cannabis stem and leaf material. The evidence was that once dried, the weight of the cannabis would be reduced to about 25 per cent of the original weight. The evidence was that the appellant's garage contained a relatively sophisticated hydroponic set‑up. The appellant was also convicted of the offence of cultivation of two plants in a garage. The sentence of 2 years 5 months was held to be well within the range of sentences and was not manifestly excessive and the appeal against sentence was dismissed. The quantity of cannabis involved is a relevant consideration. See Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]. None of these authorities support the submission that in a case of this kind, involving the amount of drugs and value of the drugs, that a suspended sentence was the appropriate disposition.
The appellant's submission that the sentencing judge erred in the exercise of her sentencing discretion by failing to wholly suspend the

sentence, must be rejected. The appeal against conviction and sentence should be dismissed.

MILLER JA: I agree with Pullin JA.
MURRAY AJA: I agree with Pullin JA. There is nothing I could usefully add.