Truong v The State of Western Australia
[2020] WASCA 177
•29 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRUONG -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 177
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 14 AUGUST 2020
DELIVERED : 29 OCTOBER 2020
FILE NO/S: CACR 178 of 2019
BETWEEN: NAM VAN TRUONG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STONE DCJ
File Number : IND 318 of 2019
Catchwords:
Criminal law and sentencing - Offender pleaded guilty to one count of cultivation of cannabis with intent to sell or supply - Large sophisticated enterprise where more than 7,500 cannabis plants were found - Where offender pleaded guilty and was awarded a discount of 20% for the plea of guilty - Whether the sentencing judge erred by implicitly characterising the offending as falling within or extremely close to the 'worst category' of the offence - Whether sentence of 7 years' imprisonment was manifestly excessive - Whether discount of 20% under s 9AA of the Sentencing Act 1995 (WA) revealed implied error
Legislation:
Misuse of Drugs Act 1981 (WA), s 7(1)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal on ground 1 refused
Appeal upheld
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | S R McGrath |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Stephen McGrath Barristers and Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Allen v The State of Western Australia [2017] WASCA 203
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Casbolt v The State of Western Australia [2005] WASCA 41
Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403
Eacott v The State of Western Australia [2009] WASCA 112
Franchina v The State of Western Australia [2017] WASCA 56
Gaskell v The State of Western Australia [2018] WASCA 8
Greenfield v The State of Western Australia [2019] WASCA 29
Greenland v The State of Western Australia [2017] WASCA 83
Ha v The State of Western Australia [2019] WASCA 69
Harvey v The State of Western Australia [2017] WASCA 149
HNA v The State of Western Australia [2016] WASCA 165
House v The King [1936] HCA 40; (1936) 55 CLR 499
KAT v The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Kezkiropoulos v The State of Western Australia [2018] WASCA 58
Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380
Kolek v The State of Western Australia [2017] WASCA 180
Lee v The State of Western Australia [2019] WASCA 137
Lester v The State of Western Australia [2011] WASCA 128
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McRobb v The State of Western Australia [2015] WASCA 189
Miles v The State of Western Australia [2016] WASCA 138
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Mussarri v The State of Western Australia [2018] WASCA 46
My v The State of Western Australia [2018] WASCA 1
Ng v The State of Western Australia [2020] WASCA 70
Nguyen v The State of Western Australia [2009] WASCA 8
Nguyen v The State of Western Australia [2017] WASCA 195
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Sandwell v The State of Western Australia [2012] WASCA 15
Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Malone [2015] WASCA 188
Trajkoski v The State of Western Australia [2008] WASCA 130
Tran v The State of Western Australia [2016] WASCA 37
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
YDN v The State of Western Australia [2018] WASCA 62
BUSS P:
This is an appeal against sentence.
The appellant was charged on indictment with one count.
The count alleged that on 19 October 2018, at Red Gully, the appellant cultivated a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
The maximum penalty for an offence under s 7(1)(a) of the MD Act that relates only to cannabis is 10 years' imprisonment or a fine of $20,000 or both. See s 34(2)(a) of the MD Act.
The appellant pleaded guilty.
On 30 October 2019, Stone DCJ sentenced the appellant to 7 years' imprisonment. A parole eligibility order was made. The sentence was backdated to 31 October 2018.
I would allow the appeal, set aside the sentence of 7 years' imprisonment and resentence the appellant.
The facts and circumstances of the offending and the sentencing judge's sentencing remarks
The facts and circumstances of the offending and the sentencing judge's sentencing remarks are recounted by Mazza and Beech JJA in their reasons. I will not repeat their Honours' narration except to the extent necessary to explain my reasons.
The grounds of appeal
The appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that the sentencing judge erred by discounting the appellant's sentence by 20% rather than 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), notwithstanding that the appellant had pleaded guilty at the first reasonable opportunity.
Ground 2 alleges, in essence, that the sentence of 7 years' imprisonment was manifestly excessive.
Ground 2 was developed in argument to allege, additionally and in effect, that the sentencing judge erred by implicitly characterising the appellant's offending as falling within or extremely close to the 'worst category' of the offence of cultivating cannabis, with intent to sell or supply it to another, before regard was had to matters of mitigation.
On 15 January 2020, I granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.
The submissions of the appellant and the State on the grounds of appeal
The submissions of the appellant and the State on the grounds of appeal are summarised in Mazza and Beech JJA's reasons. I will not reproduce their Honours' summary except to the extent necessary to explain my reasons.
The merits of ground 1
I agree with Mazza and Beech JJA, for the reasons they give, that ground 1 fails. The ground was not reasonably arguable and had no reasonable prospect of success. Leave to appeal on ground 1 should be refused.
The merits of ground 2
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
If, in a particular case, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick with which to judge the adequacy of the sentence imposed at first instance. See Munda v The State of Western Australia;[1] The State of Western Australia v Doyle.[2]
[1] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] ‑ [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[2] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen.[3]
[3] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 9AA regulates the extent to which the court may reduce, on account of an offender's plea of guilty to a charge for an offence, the sentence that the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.
The statutory principle that a sentence must be commensurate with the seriousness of the offence reflects the common law principle which requires that a sentence be proportionate to the offence. See Veen v The Queen [No 2].[4]
[4] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson & Toohey JJ), 484 ‑ 486 (Wilson J), 490 ‑ 491 (Deane J).
Sentencing patterns for a particular offence emerge over time as a result of the experience of the courts in sentencing offenders who have committed the offence in question with varying degrees of culpability.
In House v The King,[5] Dixon, Evatt and McTiernan JJ identified a residuary category of error in discretionary judgment, namely the appellate court infers error where the result or conclusion of the primary court is unreasonable or plainly unjust. This kind of error is usually referred to, in the context of sentencing appeals, as 'manifest excess' or 'manifest inadequacy'.
[5] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
If offending falls within the 'worst category' of an offence, it is an instance of the offence which is so grave that it warrants the imposition of the maximum penalty. Both the nature and facts of the offending and the circumstances of the offender must be considered in deciding whether the case falls within this 'worst category'. If offending falls within the 'worst category' it is immaterial that it may be possible to conceive an even worse instance of the offence. Accordingly, an offence may be so grave as to warrant the maximum penalty even though it is possible to imagine an even worse instance. See R v Kilic.[6]
[6] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [18] (Bell, Gageler, Keane, Nettle & Gordon JJ).
Where offending, although a grave instance of the offence, is not so grave as to require the imposition of the maximum penalty, the sentencing judge is obliged to consider where the nature and facts of the offending and the circumstances of the offender lie on the 'spectrum' that extends from the least serious instances of the offence to the 'worst category'. See Kilic [19].
In the present case, the sentencing judge made findings and observations in his sentencing remarks, relevantly, as follows (ts 50 ‑ 55):
(a)The cannabis growing operation on the farm property in Red Gully was a sophisticated and extensive hydroponic set-up, comprising two large greenhouse‑type structures. There were seven structures within the two large greenhouse‑type structures. The structures contained a total of 7,567 cannabis plants in various stages of maturity.
(b)There was a sophisticated lighting and water set-up for the plants including two large water tanks. There was a small shed and a sea container adjacent to the entrance to the two large greenhouse-type structures. A commercial-grade generator had been installed in the sea container.
(c)The estimated street value of the 7,567 cannabis plants was $17,000,000. The estimated wholesale value of the plants was $10,020,000.
(d)In early March 2018, the appellant, using a false name, began negotiations with a real estate agent to lease the farm property.
(e)On 26 March 2018, the appellant deposited $7,152 cash at a bank.
(f)On 1 May 2018, the appellant, using a false name and a Queensland driver's licence and a Medicare card in the false name, leased the farm property for five years. The appellant was named in the lease agreement as the lessee. The lessor understood that the farm property would be used to grow cucumbers, strawberries and other vegetables for supply to a supermarket.
(g)On 9 September 2018, the appellant, using a false name, purchased the commercial‑grade generator for $17,000 cash. The appellant was present when his partner, using a Victorian driver's licence, hired a truck to transport the generator to the farm property.
(h)His Honour noted a number of aggravating factors in relation to the appellant's offending. First, the appellant was involved in the cultivation of the cannabis for commercial gain. His Honour was unable to make a finding as to how much the appellant would receive for his involvement in the enterprise. Secondly, the cannabis growing operation was sophisticated and extensive. There were 7,567 cannabis plants in various stages of maturity. The estimated street value of the crop was $17,000,000 and its estimated wholesale value was $10,020,000. Thirdly, the appellant was involved persistently in the operation between March and October 2018. Fourthly, the appellant's offending included deceptive behaviour, namely the use of false identification. Fifthly, his Honour accepted that the appellant was 'hired', but he was 'hired' to play a significant role in the operation. The appellant was involved from the inception, not only in obtaining the lease, but in turning the ground to set up the hydroponic system. The appellant was in 'the upper echelon of this commercial drug enterprise and quite close to the source of it in Perth', but his Honour accepted that the appellant was 'hired to play that role'. Nevertheless, the appellant played 'a leading role as a hired hand at the upper end of an enormous and sophisticated cannabis growing commercial enterprise' (ts 51, 54).
(i)His Honour noted a number of mitigating factors. First, the appellant's plea of guilty at the first reasonable opportunity, which his Honour recognised by allowing a 20% discount, pursuant to s 9AA of the Sentencing Act, on the head sentence he would otherwise have imposed. Secondly, the appellant's remorse as demonstrated by his plea of guilty. Thirdly, imprisonment would be more arduous for the appellant because he did not speak English and his family was in Vietnam. Fourthly, the appellant's prior good character, although his Honour said that it was 'difficult to attach a lot of weight' to that factor (ts 53, 55).
(j)His Honour observed that a significant quantity of cannabis could have been distributed into the community, but for the intervention of the police. A term of immediate imprisonment was the only appropriate disposition. His Honour considered that an appropriate term of imprisonment, having regard to the appellant's role and the size of the criminal enterprise, was 7 years' imprisonment.
In my opinion, the proper inference from:
(a)the maximum penalty for the offence; and
(b)the findings and observations made by the sentencing judge in his sentencing remarks, in the context of all the facts and circumstances of the offending,
is that his Honour must have characterised the appellant's offending as falling within or extremely close to the 'worst category' of the offence of cultivating cannabis, with intent to sell or supply it to another, before regard was had to matters of mitigation.
I draw that inference on the basis of the following. First, the maximum penalty for the offence is 10 years' imprisonment or a fine of $20,000 or both. Secondly, his Honour allowed a discount of 20% for the appellant's plea of guilty on the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act) he would otherwise have imposed. Thirdly, his Honour then reduced the sentence he would otherwise have imposed (after allowing for the 20% discount for the plea of guilty) for the other mitigating factors, namely the appellant's remorse, the more arduous character of imprisonment for the appellant because he did not speak English and his family was in Vietnam, and the appellant's prior good character. Fourthly, his Honour imposed a sentence of 7 years' imprisonment.
In my opinion, the sentencing judge's implicit characterisation of the appellant's offending as falling within or extremely close to the 'worst category' of the offence in question, before regard was had to matters of mitigation, constituted an error. I accept that the appellant's offending was, no doubt, a very serious example of the offence of cultivating cannabis, with intent to sell or supply it to another. That is apparent from the aggravating factors referred to by his Honour. However, although the appellant played 'a leading role as a hired hand at the upper end of an enormous and sophisticated cannabis growing commercial enterprise' (ts 54), there was no finding (and it could not reasonably have been found) that the appellant:
(a)was a principal of the commercial drug enterprise; or
(b)was involved in directing or managing the overall business of the enterprise; or
(c)was an owner or part owner of any of the cannabis plants; or
(d)was entitled to participate or share in any of the profits derived from the sale of the cannabis.
Ground 2, as developed in argument, has been made out.
It is unnecessary to consider the allegation in ground 2 concerning manifest excess.
The appropriate disposition of the appeal
I am satisfied that the sentencing judge's erroneous implicit characterisation of the appellant's offending as falling within or extremely close to the 'worst category' of the offence in question, before regard was had to matters of mitigation, was capable of affecting the actual sentence his Honour imposed for the offence. His Honour's error was therefore 'material' in the relevant sense. His Honour's discretion
miscarried, irrespective of whether and to what extent the error actually influenced the outcome. See Kentwell v The Queen.[7]
[7] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] (French CJ, Hayne, Bell & Keane JJ).
It is the duty of this court to exercise the sentencing discretion afresh in deciding whether a different sentence should have been imposed. See Kentwell [42] ‑ [43]. This court has the material necessary to exercise the sentencing discretion afresh.
I agree with Mazza and Beech JJA that, having regard to all relevant sentencing principles and all relevant sentencing factors (including the maximum penalty for the offence, the facts and circumstances of the offending, the seriousness of the offence, the general patterns of sentencing for this kind of offence, the aggravating factors and the mitigating factors), a different sentence should have been imposed.
The appeal should be allowed and the sentence imposed by the sentencing judge should be set aside.
I agree with Mazza and Beech JJA, for the reasons they give, that the appellant should be resentenced to 6 years' imprisonment. The new sentence should be taken to have taken effect on 31 October 2018. The appellant should remain eligible for parole.
MAZZA & BEECH JJA:
Introduction
The appellant pleaded guilty to one count of cultivation of cannabis with intent to sell or supply. He was integrally involved, for commercial gain, in a large and sophisticated hydroponic cannabis growing enterprise where 7,567 cannabis plants were found, with an estimated street value of about $17 million and wholesale value of about $10 million.
After discounting his sentence by 20% pursuant to s 9AA of the Sentencing Act 1995 (WA), the sentencing judge sentenced the appellant to 7 years' imprisonment.
The appellant challenges his sentence on two grounds. First, he complains that the judge erred in not awarding him a discount of 25%
for his plea of guilty. Secondly, he contends that the sentence of 7 years' imprisonment was manifestly excessive.
For the reasons that follow, we would refuse leave to appeal on ground 1, allow the appeal on ground 2 and resentence the appellant to 6 years' imprisonment.
The facts
The facts of the offending were not and are not in dispute.[8]
[8] ts 32. The appellant pleaded guilty on 14 June 2019. After the facts were read, the matter was adjourned for a three‑day trial of the issues because, at that stage, the appellant disputed the level of his role in the cannabis growing enterprise. However, the facts were ultimately agreed.
On 19 October 2018 police attended a farm property in Red Gully. There they located a sophisticated and extensive hydroponic cannabis growing set‑up. There were two large greenhouse‑type structures with seven structures within those, together containing a total of 7,567 cannabis plants at various stages of maturity. The operation included a sophisticated lighting and water set‑up, with two large water tanks located outside. There was also a small shed and a sea container containing a large generator.
The estimated street value of the plants was $17 million and estimated wholesale value about $10 million.
From early March 2018, the appellant, using a false name, negotiated with a real estate agent to lease the property.
On 1 May 2018, using a false name, driver's licence and Medicare card, he leased the farm property for five years. The owner understood that the lessee would be growing cucumbers, strawberries and other vegetables for a contract with a supermarket.
On 26 March 2018 he deposited cash in an amount of $7,152 at a bank. On 9 September 2018, using a false name, the appellant purchased a commercial grade generator for $17,000 in cash. He was also present when his partner hired a truck from a rental business to transport the generator to the farm property.
The appellant was arrested on 31 October 2018, with his partner, attempting to board a flight for Adelaide. He was carrying a suitcase with all of his personal belongings.[9]
[9] ts 50.
The appellant's personal circumstances
The appellant was 32 years old when he was sentenced. He came to Australia from Vietnam in 2012 on a student visa, having done a degree in engineering in Vietnam. The appellant studied in Melbourne for some time.
The judge observed that, apart from the appellant avoiding the immigration authorities for some years, little was known about the appellant's conduct and circumstances in the years leading up to the commission of this offence.
The appellant has a child and an ex‑wife in Vietnam.
The appellant does not speak English. He has not been convicted of any offences, although the judge observed that it was difficult to attach a lot of weight to that as the appellant had been on a student visa and evidently been avoiding authorities for some years.[10]
[10] ts 52 ‑ 53.
Sentencing remarks
The judge noted the statutory maximum penalty of 10 years' imprisonment and/or a fine not exceeding $20,000.[11]
[11] ts 49.
The judge identified aggravating features of the appellant's offending:
(1)The appellant was involved in the cultivation of cannabis for commercial gain. The judge found that he did not know the extent to which the appellant gained from the enterprise.[12]
(2)The appellant was involved in a sophisticated large scale hydroponic operation as can be seen in the photographs of the operation. It was a very large scale enterprise, with over 7,500 cannabis plants worth $17 million in street value and $10 million in wholesale value.[13]
(3)The appellant's involvement in the operation was persistent, occurring in the many months from March 2018 to October 2018.[14]
(4)The appellant's offending involved a level of deception, namely, using a false name.[15]
(5)The appellant's role in leasing the property, exchanging text messages with a real estate agent concerning council approval for the placing of structures on the farm, his access to significant amounts of cash and his acquisition of the commercial grade generator demonstrated that he played a significant and integral part in the commercial drug enterprise. The judge found that the appellant was in the 'upper echelon' of the enterprise and 'quite close to the source of it' in Perth.[16]
[12] ts 51.
[13] ts 51.
[14] ts 51.
[15] ts 51.
[16] ts 51 - 52.
The appellant's plea of guilty was the most significant mitigating factor. The judge accepted that the appellant had demonstrated remorse by his plea of guilty. His Honour reduced the head sentence by 20% on account of that plea.[17] The judge also attached some mitigatory weight to the fact that the appellant did not speak English and his family was in Vietnam, so that prison would be somewhat more arduous for the appellant.[18]
[17] ts 53, 54 - 55.
[18] ts 53.
The judge further recognised that the appellant's prior good character was a mitigating factor although, as already noted, his Honour observed that it was difficult to attach a lot of weight to that factor.[19]
[19] ts 53.
The judge emphasised the importance of deterrence in sentencing for offending of this kind. His Honour observed that this type of offending is difficult to detect and that the appellant went to elaborate lengths in this case to avoid detection. The judge found that this was a well organised criminal syndicate.[20]
[20] ts 54.
The judge referred to what was said by this court in Ha v The State of Western Australia,[21] in which reference was made to several cases involving the imposition of total effective sentences of 5 ‑ 6 years' imprisonment or more on offenders convicted of multiple offences of cultivation of cannabis or selling or supplying cannabis or possessing it with intent to sell or supply, where the offender was involved in the upper end of the enterprise, or in the cultivation and distribution of very large quantities of cannabis for commercial purposes. The judge also noted the discussion in Ha of the sentences imposed for offences at the lower end of the scale of offences involving the cultivation, or possession, of cannabis with intent to sell or supply.[22]
[21] ts 54 referring to Ha v The State of Western Australia [2019] WASCA 69 [36].
[22] ts 54 referring to Ha [37].
The judge observed that the case before him was at a higher level of sophistication than those cases referred to in Ha.[23]
[23] ts 54.
The judge concluded that, having regard to the appellant's role and the size of the criminal enterprise, as well as the appellant's plea of guilty and the other mitigating factors, the appropriate term of imprisonment was 7 years' imprisonment.[24]
[24] ts 55.
The judge ordered that the appellant be eligible for parole and that the sentence commence on 31 October 2018.[25]
[25] ts 55.
Grounds of appeal
The appellant advances two grounds of appeal. Ground 1 contends that the sentencing judge erred in law by discounting the appellant's sentence by only 20% rather than 25% where the appellant had pleaded guilty at the first reasonable opportunity. Ground 2 contends that the appellant's sentence was manifestly excessive.
Leave on ground 2 was granted by Buss P on 15 January 2020. The question of leave on ground 1 was referred to the hearing of the appeal.
The appellant's submissions
In support of ground 1, the appellant notes that the judge found that he had pleaded guilty at the first reasonable opportunity and that the judge gave no reason for imposing a reduction of only 20%. The appellant submits that, no reason having been given for imposing a discount of 20%, the appellant should have received a discount of 25% on account of his plea of guilty at the first reasonable opportunity.[26] In oral submissions, the appellant contended that the 20% discount was unreasonable or plainly unjust and that it was not open to award a discount of less than 25%.[27]
[26] Appellant's submissions [4] - [8].
[27] Appeal ts 7.
As to ground 2, the appellant submits that having regard to the 20% discount he received for his plea of guilty, his sentence of 70% of the maximum sentence indicated a starting point close to the maximum. He submits that the sentence was manifestly excessive, having regard to the circumstances of the offence, his plea of guilty, the place his offence occupies in the scale of offences of this kind (including the fact that the appellant was not at the top of the hierarchy of the cannabis growing operation), the personal circumstances of the appellant and sentencing standards.[28]
[28] Appellant's submissions [18]; appeal ts 7 ‑ 9.
In support of ground 2, the appellant refers to a number of cases: Lee v The State of Western Australia;[29] Ha; HNA v The State of Western Australia;[30] and Sandwell v The State of Western Australia.[31]
[29] Lee v The State of Western Australia [2019] WASCA 137.
[30] HNA v The State of Western Australia [2016] WASCA 165.
[31] Sandwell v The State of Western Australia [2012] WASCA 15.
The respondent's submissions
It is not necessary to outline the respondent's submissions on ground 1.
In relation to ground 2, the respondent points to a number of cases concerned with sentencing for large scale commercial cultivation of cannabis. The respondent refers to the cases summarised in Rillotta v The State of Western Australia[32] and the more recent review of cases in Lee.[33]
[32] Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [21] ‑ [34].
[33] Lee [22] ‑ [29].
The respondent submits that the offending in the present case is significantly more serious than in cases such as Nguyen v The State of Western Australia,[34] My v The State of Western Australia,[35] and Lee, in terms of both the scale and sophistication of the cultivation and the appellant's role in the enterprise. The respondent emphasises the following features of the appellant's offending. It points to the number of cannabis plants (7,567 plants) and their anticipated value (a wholesale value in excess of $10 million). The appellant was involved in the installation of a sophisticated hydroponic set‑up for the cultivation of cannabis. His offending continued from March 2018 until 31 October 2018. It involved deception in the use of a false identity to enter the lease and to buy the generator. That he deposited over $7,000 of cash at a bank and purchased the generator for $17,000 in cash demonstrated that he had access to and was entrusted with substantial sums of money which he used on behalf of the criminal enterprise.[36]
[34] Nguyen v The State of Western Australia [2017] WASCA 195.
[35] My v The State of Western Australia [2018] WASCA 1.
[36] Respondent's submissions [32].
In all the circumstances, the respondent submits, the sentence appropriately reflected the seriousness of the appellant's offending, the level of his role, the need for deterrence and appropriate punishment, and the available mitigating factors.[37]
[37] Respondent's submissions [32].
Ground 1: section 9AA of the Sentencing Act
Disposition
In our opinion, for the reasons that follow, ground 1 is entirely without merit.
The law relating to s 9AA is well established. It was summarised by Buss P in Mussarri v The State of Western Australia.[38]
[38] Mussarri v The State of Western Australia [2018] WASCA 46.
Under s 9AA(2), if a person pleads guilty to a charge for an offence, the court may reduce the 'head sentence' for the offence. The head sentence for this purpose is the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.[39] The court may reduce the head sentence[40]
in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
These utilitarian considerations exhaustively state the matters (apart from the timing of the guilty plea) to be taken into account in determining the extent of any discount under s 9AA for a plea of guilty.[41]
[39] Sentencing Act s 9AA(1) (definition of 'head sentence').
[40] Sentencing Act s 9AA(2).
[41] Kirby v The State of Western Australia [2016] WASCA 199; (2016) 78 MVR 380 [24] and cases there cited; Mussarri [48].
The benefits to the State which may result from a plea would ordinarily include the matters in the following non‑exhaustive list:[42]
(1)securing the conviction of a person who has committed a criminal offence;
(2)the Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;
(3)if the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;
(4)avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and
(5)the more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.
[42] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [56], cited with approval in Mussarri [51].
Importantly for present purposes, the sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary even among cases where the offender has pleaded guilty at the first reasonable opportunity.[43]
[43] Abraham [62]; Kirby [25].
The strength of the prosecution case can be taken into account in assessing the amount of the discount under s 9AA. That is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction, and therefore the value of the benefit to the State.[44]
[44] Beins v The State of Western Australia [No 2] [2014] WASCA 54 [58]; Abraham [58] ‑ [61]; Kirby [26]; Mussarri [52].
In order to impugn the exercise of the sentencing judge's discretion under s 9AA, the appellant must show either that the sentencing judge made an express material error of principle, or that error is to be inferred from a result of the exercise of the discretion which is unreasonable or plainly unjust.[45]
[45] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Mussarri [82], [103].
While a judge may choose to say something to explain the discount that is applied, generally at least there is no obligation to do so, and failure to do so would not normally be an error of law or occasion a miscarriage of justice.[46]
[46] Kirby [30] ‑ [31]; Mussarri [104].
At the hearing of the appeal, the appellant conceded that the strength of the State case provided a reasonable basis for fixing the level of discount for the plea of guilty at below 25%.[47] That concession was correct. In light of the concession, there was no room for a contention that the 20% discount was unreasonable or plainly unjust. Nevertheless, the appellant persisted in that contention.
[47] Appeal ts 4, 5 ‑ 6.
In the present case, it was well open to the sentencing judge to consider that a discount of 20% was appropriate, bearing in mind the apparent strength of the prosecution case, and the fact that the trial would not have been long or complex, and would not have required evidence from any witness who might have been expected to find giving evidence a traumatic experience. No express or implied error has, even arguably, been established in the exercise of his Honour's discretion under s 9AA of the Sentencing Act.
We would refuse leave to appeal on ground 1.
Ground 2: manifest excess
General principles
The general principles governing appeals contending that a sentence is manifestly excessive are well established:
(1)A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
(2)The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
(5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Section 6 of the Sentencing Act requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence; any aggravating factors; and any mitigating factors. As this court observed in Kezkiropoulos v The State of Western Australia,[48] the statutory requirement that a sentence must be commensurate with the seriousness of the offence reflects the common law principle that a sentence should be proportionate to the offence.
[48] Kezkiropoulos v The State of Western Australia [2018] WASCA 58 [27].
In Rillotta, this court adopted the following observations made in Tran v The State of Western Australia:[49]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
The court identified the factors that inform an assessment of the overall criminality involved in a series of commercially driven drug offences as including the quantity of drugs involved; the offender's knowledge about the drugs involved; the offender's role in the operation; and the reward which the offender anticipated receiving.[50]
Comparable cases
[49] Rillotta [33], quoting Tran v The State of Western Australia [2016] WASCA 37 [29].
[50] Rillotta [34], citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [64].
Case law in this court in respect of sentencing for large‑scale commercial cultivation of cannabis was summarised in Rillotta:[51]
[51] Rillotta [21] ‑ [31], adopted in Harvey v The State of Western Australia [2017] WASCA 149 [21], Greenfield v The State of Western Australia [2019] WASCA 29 [30]; and Lee [22].
In Lester v The State of Western Australia,[52] McLure P observed:
[52] Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22], see also to similar effect Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403 [38].
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.
In McRobb v The State of Western Australia,[53] Buss JA, with whom other members of the court agreed, endorsed those observations. [President McLure's] observations were also endorsed by the court in HNA v The State of Western Australia.[54]
In Lester, McLure P, with whom other members of the court agreed, reviewed a number of sentences for offences under s 6(1) and s 7(1) of the [Misuse of Drugs Act 1981 (WA)] involving cannabis. The reviewed total effective sentences ranged between 1 year 4 months' immediate imprisonment and 2 years 8 months' immediate imprisonment.[55] In many cases, the offending concerned significantly lower weights than the approximately 22.7 kg of cannabis which the appellants sold. However, some of the cases reviewed in Lester concerned significant amounts of cannabis. Trajkoski v The State of Western Australia[56] concerned a sophisticated cultivation involving plants with a total value of about $250,000, and the offender was sentenced to 2 years 8 months' imprisonment. Eacott v The State of Western Australia[57] involved possession of over 51 kg of dried cannabis from a bush crop, and the offender was sentenced to 2 years 3 months' imprisonment. It must be borne in mind that Trajkoski and Eacott were appeals by the offenders and not by the State.
Two cases decided since Lester reflect a firmer approach than that taken in Trajkoski and Eacott.
The first case is The State of Western Australia v Malone,[58] where a total effective sentence of 7 years 6 months' imprisonment was imposed by this court in a State appeal against sentence. In that case the offender was the sole distributor in Western Australia for a syndicate involved in distributing large quantities of cannabis grown in South Australia to Western Australia and Queensland. … Malone was charged with 16 counts, each involving between 10 and 40 kg of cannabis. The total estimated weight of the cannabis involved in Malone's offending was 330 kg, and its estimated street value was about $2.9 million. Malone pleaded guilty shortly after committal to the District Court, and received a 15% discount under s 9AA of the Sentencing Act 1995 (WA). Malone was 33 years old at the time of sentencing, and had a dysfunctional upbringing but stable employment history. While he had a criminal record, it did not involve prior serious criminality. Malone had limited remorse and insight into his offending. Psychological testing indicated that Malone had an impaired capacity to communicate ideas and understand problems. Malone had a number of health problems.
In considering Malone, it is important to bear in mind the well‑established principle that, when this court allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range.
The second case is McRobb, which involved an appeal by one of Malone's customers, who took possession of cannabis in one pound packages and on‑sold them at prices between $4,400 and $4,800 per pound. McRobb was charged with two counts of possession of cannabis with intent to sell or supply it to another, in relation to three 10 kg boxes of cannabis received from Malone. McRobb was also convicted of conspiring to sell or supply cannabis to others, contrary to s 6(1)(c) and s 33(2) of the [Misuse of Drugs Act], for which the maximum penalty was 20 years' imprisonment and a fine of $75,000. McRobb was convicted of three offences after trial, and did not show any remorse. He was 29 years old at the time of sentence, had a stable employment history, ran his own construction business and had no prior convictions. McRobb had no history of drug use, and carried on his drug dealing business purely for commercial purposes. McRobb's total effective sentence of 6 years' imprisonment was upheld on appeal.
A number of other cases decided since Lester may also be noted, while recognising that they concerned much lesser degrees of seriousness of offending than the present case.
HNA involved an offender who participated in a large‑scale and sophisticated hydroponic cannabis cultivation operation. However, the offender in that case played only a minor low‑level role in the operation, assisting in the harvesting of cannabis head material. His sentence of 9 months' immediate imprisonment for one count of cultivating cannabis plants with intent to sell or supply to another was upheld on appeal.
Also since Lester, a number of cases have considered lower level offences of possession of cannabis with intent to sell or supply to another. Sentences of 12 months' immediate imprisonment were upheld by this court in Sandwell v The State of Western Australia[59] and Rodi v The State of Western Australia [No 2].[60] Both cases involved significantly different circumstances to the present. Sandwell concerned the possession of about 2.5 kg of cannabis and 147 cannabis seedlings by an offender who was not a commercial dealer of cannabis and intended to use the cannabis himself and distribute it to a small number of friends. Rodi involved possession of less than 1 kg of cannabis by an offender sentenced on the basis that he was a mid‑level dealer. In Miles v The State of Western Australia,[61] a total effective sentence of 22 months' immediate imprisonment was upheld in respect of possession of about 421 g of cannabis with intent to sell or supply, together with dexamphetamine tablets and possession of $27,500 in cash reasonably suspected of being unlawfully obtained.
Lester and the subsequent decisions demonstrate a firming up of sentences for offences involving trafficking in significant quantities of cannabis. Of the cases decided by this court since Lester, only two ‑ Malone and McRobb ‑ involved a substantial operation of the kind considered here. The range of sentences imposed in the past does not fix the boundaries within which future sentences must be passed. Rather the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle. Sentences imposed in a few cases do not define the sentencing range, and are not sufficient in number to provide a sentencing pattern. At best they are representative of particular aspects of the spectrum of seriousness.
[53] McRobb v The State of Western Australia [2015] WASCA 189 [52].
[54] HNA v The State of Western Australia [2016] WASCA 165 [38].
[55] This range is in post‑transitional terms. The total effective sentence in one case reviewed by McLure P, Nguyen v The State of Western Australia [2009] WASCA 8, stood outside this range, but included sentences for more serious offences. Nguyen received a total effective sentence of 10 years' imprisonment for a variety of drug dealing offences, including in relation to drugs other than cannabis.
[56] Trajkoski v The State of Western Australia [2008] WASCA 130.
[57] Eacott v The State of Western Australia [2009] WASCA 112.
[58] The State of Western Australia v Malone [2015] WASCA 188.
[59] Sandwell v The State of Western Australia [2012] WASCA 15.
[60] Rodi v The State of Western Australia [No 2] [2014] WASCA 233.
[61] Miles v The State of Western Australia [2016] WASCA 138.
This court summarised more recent appellate sentencing decisions concerning cultivation of cannabis in Lee,[62] as follows:
In Rillotta, the two offenders (who were brothers) were jointly operating a well‑established business involving sending significant quantities of cannabis from South Australia to Western Australia. They arranged for 50 pounds (about 22.7 kg) of cannabis to be delivered by a truck driver from South Australia to Western Australia and then delivered by a different truck driver to two of their customers. They were each convicted after trial of two counts of selling or supplying cannabis (one count in respect of each customer), and were each sentenced to a total effective sentence of 6 years 3 months' imprisonment. The trial judge in that case would have imposed individual sentences of 5 years' immediate imprisonment on each count, prior to the application of the totality principle. Their appeals against those sentences, on totality grounds, were dismissed.
One of the Rillotta brothers' customers, Franchina, received 30 pounds (about 13.6 kg) of the cannabis referred to above. He was convicted after trial on one count of possessing cannabis with intent to sell or supply, and received a sentence of 4 years' immediate imprisonment. He was characterised as a 'wholesaler' of cannabis who played a 'crucial and integral role' in the distribution of large quantities of cannabis within Western Australia. His appeal against sentence was dismissed in Franchina v The State of Western Australia.[63]
In the present appeal, particular reference was made to My v The State of Western Australia[64] and Nguyen v The State of Western Australia.[65] Those two appeals concerned the same hydroponic cannabis operation in which Mr My, Ms Nguyen and her son were jointly engaged. Police located a total of 207 cannabis plants at two grow houses, about 8 kg of cannabis packaged for sale and a significant quantity of cash reasonably suspected of being unlawfully obtained. Mr My entered a plea of guilty (for which he received a discount of 20% under s 9AA of the Sentencing Act), had shown remorse and accepted responsibility for the offending and was of prior good character. He was the junior partner in the enterprise. His total effective sentence of 5 years' immediate imprisonment (including for a breach of bail offence and offences of fraudulent appropriation of power) was upheld on appeal. Individual sentences for cultivating and possessing cannabis ranged from 1 year 8 months' imprisonment to 2 years 2 months' imprisonment. Ms Nguyen, who was also sentenced for a firearms offence, received a total effective sentence of 6 years 6 months' imprisonment after trial. Individual sentences for cultivating and possessing cannabis ranged from 2 years 6 months' imprisonment to 3 years' imprisonment. She had previously been sentenced for her involvement in a large heroin importation operation. Her sentence was also upheld on appeal.
The nature of the offending in My and Nguyen was broadly similar to the appellant's offending in the present case. Both were large scale cannabis growing operations and, although hydroponics operations in My and Nguyen had been established at two different premises, the number of plants involved was about half of the number cultivated by the appellant. Senior counsel for the appellant submits that, even once that conclusion is reached, the sentence imposed in the present case is comparatively high, particularly having regard to the fact that Ms Nguyen was convicted after trial. So much may be accepted, but that does not compel a conclusion that the sentence imposed in this case was unreasonable or plainly unjust. Individual cases do not fix an upper limit on the range of permissible sentences. Further, My and Nguyen involved the rejection of offender appeals and establish only that the sentences appealed against were not unreasonable or plainly unjust. Those decisions do not identify the sentence this court would have imposed had it resentenced the offenders.
Recently, in Ha v The State of Western Australia,[66] this court considered cumulative sentences of 2 years 6 months' immediate imprisonment imposed on each of two counts, one of cultivating cannabis and one of possessing cannabis with intent to sell or supply. The individual sentences were upheld, but the total effective sentence was reduced from 5 years' to 3 years 3 months' immediate imprisonment. The offender was arrested at a house equipped for the sole purpose of cultivating cannabis plants using hydroponic equipment. There were 112 plants (the subject of the cultivation charge), and about 30 kg of cannabis buds which had been harvested from the plants (the subject of the possession charge). The offender undertook to participate in the cultivation of the cannabis in return for a payment of $500 per week (which he ultimately never received). He had worked for about three to four weeks prior to being apprehended. He was involved in packaging the cannabis when arrested. The offender had not set up the cultivation of the cannabis and was not participating in the profits of the enterprise. The 51‑year‑old Vietnamese offender pleaded guilty and received a 20% discount under s 9AA of the Sentencing Act.
In Ha,[67] the court observed that Rillotta, Nguyen and My:
[I]nvolved the imposition of total effective sentences of 5 ‑ 6 years, or more, on offenders convicted of multiple offences of cultivating cannabis or selling or supplying cannabis or possessing cannabis with intent to sell or supply, who were involved at the upper end of cannabis growing or distribution enterprises, or in the cultivation and distribution of very large quantities of cannabis for commercial purposes. Those cases do not establish any upper limit of the appropriate sentencing range for offenders at the upper end of the scale of seriousness of offending of this kind.
[62] Lee [23] - [28].
[63] Franchina v The State of Western Australia [2017] WASCA 56.
[64] My v The State of Western Australia [2018] WASCA 1.
[65] Nguyen v The State of Western Australia [2017] WASCA 195.
[66] Ha v The State of Western Australia [2019] WASCA 69.
[67] Ha [36].
In Lee itself, the offender was convicted of one count of cultivating cannabis with intent to sell or supply, for which he was sentenced to 5 years' immediate imprisonment. In that case, the offender was the lessee of a house which he had converted into a sophisticated cannabis grow house. He planted a total of 431 cannabis plants. The offender was involved in a carefully planned operation for financial reward and intended to participate in the profits resulting from the operation. He pleaded guilty at the first reasonable opportunity, for which his sentence was discounted by 25% under s 9AA of the Sentencing Act. His plea of guilty was the only significant mitigating factor. This court dismissed a ground of appeal asserting that the sentence of 5 years' immediate imprisonment was manifestly excessive, holding that it was broadly consistent with the customary sentencing standards reflected in the cases referred to above.
Neither the parties nor we have identified an appellate case in this State in which a sentence of more than 5 years' imprisonment was imposed for a single count of cultivating cannabis with intent to sell or supply.
This review of comparable cases suggests that the sentence of 7 years' imprisonment imposed on the appellant is, in any appellate decision in this State at the least, high ‑ it is distinctly higher than the sentence imposed for any single count of cultivating cannabis.
Disposition
In our respectful opinion, for the reasons that follow, the sentence of 7 years' imprisonment was manifestly excessive ‑ in other words, the sentence is so high as to compel the conclusion that there must have been some misapplication of principle. Notwithstanding the serious elements of the appellant's offence, taking into account the 20% discount for the appellant's plea of guilty and the other mitigating factors identified by the judge, the sentence of 7 years' imprisonment materially exceeded the sentence that was reasonably open on a proper exercise of his Honour's discretion.
The appeal is against the sentence imposed, not against the judge's starting point before discounts for mitigating factors. It is the sentence imposed that the court must evaluate under s 31 of the Criminal Appeals Act2004 (WA). What must be shown to be unreasonable or plainly unjust is the sentence imposed, not a point along the path of reasoning towards that ultimate conclusion.[68] The question is whether the ultimate sentencing outcome sustains an inference that some error has been made. Moreover, given that the discount for mitigating factors other than the plea of guilty is not quantified, there are ordinarily substantial limits on the ability of an appellate court to 'reverse engineer' the sentence to deduce a starting point.[69]
[68] Casbolt v The State of Western Australia [2005] WASCA 41 [3] ‑ [7]; Kolek v The State of Western Australia [2017] WASCA 180 [28]. The discount under s 9AA is an exception, as that discount may be the subject of challenge on appeal: Mussarri [81], [103].
[69] Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386 [69]; Greenland v The State of Western Australia [2017] WASCA 83 [158].
However, that does not mean that consideration of what may be evident as to the sentencing judge's starting point before discounts for mitigating factors is, in all cases, incapable of assisting the evaluation of whether error is to be inferred from the ultimate sentencing outcome. That starting point, which in a case involving a plea of guilty is essential to a judge's application of s 9AA of the Sentencing Act,[70] is the sentence thought to be appropriate if the offender had been found guilty after a trial and in the absence of any mitigating factors.[71] Where the starting point is evidently at or close to the maximum penalty, there may be utility in giving consideration to the judge's starting point to the extent it may be evident.[72]
[70] KAT v The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367 [32] ‑ [33]; Greenland [155] ‑ [159].
[71] Sentencing Act s 9AA(1) (definition of 'head sentence').
[72] See for example, Gaskell v The State of Western Australia [2018] WASCA 8[145] ‑ [149]; Ng v The State of Western Australia [2020] WASCA 70[54] - [60]. For an example of a case where the starting point evidently exceeded the maximum penalty, see YDN v The State of Western Australia [2018] WASCA 62.
In our view, this is such a case. In this case, proceeding as we do on the basis that the judge did as his Honour said and discounted the sentence by 20% for the plea of guilty and to some additional extent for other mitigating factors, the nature of the error that is to be inferred is reasonably apparent. As explained below, consideration of the sentence imposed ‑ 7 years' imprisonment ‑ in light of the discounts for mitigating factors, including the plea of guilty, indicates a starting point that was closer to the maximum penalty than could be justified by the objective seriousness of the appellant's offence.
The maximum penalty fixed by the legislature provides, 'taken and balanced with all of the other relevant factors, a yardstick'.[73] The maximum penalty may be imposed for an offence that falls within the 'worst category', as that expression was explained by the High Court in R v Kilic.[74]
[73] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].
[74] Kilic [17] ‑ [20].
The assessment of whether a case falls within the 'worst category' requires a consideration of both the nature of the crime and the circumstances of the offender.[75] Where an offence, even if a grave instance of the offence in question, is not so grave as to warrant the imposition of the maximum prescribed penalty, a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instance of the offence to the worst category, properly so called.[76]
[75] Kilic [18].
[76] Kilic [19]; Gaskell [29], [144]; Ng [53].
In the present case, at first instance, the State did not submit, and it could not reasonably be said, that the offence was in the worst category. His Honour made no finding to that effect. Nevertheless, as explained below, the sentence imposed suggests that his Honour started very close to the maximum and so must have regarded the offending as, in effect, falling very close to the worst category.
The maximum penalty was 10 years' imprisonment. The judge imposed a sentence of 7 years' imprisonment. The sentencing judge gave the appellant a discount of 20% for his plea of guilty. He also gave the appellant credit for the fact that prison would be arduous for him, as he did not speak English and his family was in Vietnam. To a lesser extent, the judge also gave the appellant credit for his prior good character. His Honour accepted that the appellant had demonstrated remorse by his plea of guilty.
Taken together, those matters indicate that the sentencing judge must have had a starting point above 9 years' imprisonment.
Without doubt, the appellant's offence was very serious. He was integrally involved in the cultivation operation for months and, in doing so, acted for commercial gain (the extent of which is unknown). He was cultivating an extremely large quantity of cannabis in the context of a sophisticated and extensive hydroponic cannabis growing operation. The street value and wholesale value of the plants possessed by the appellant was enormous.
However, it must be borne in mind, as the High Court emphasised in Wong v The Queen,[77] that the gravity of a drug offence is not to be assessed solely or chiefly by the weight or quantity of the prohibited drug involved. This is not to deny the importance of the quantity (and purity) of a prohibited drug. The quantity and purity of the drug involved are significant factors because, the greater the quantity and purity, the greater the potential harm to the community if the drug is distributed. Nevertheless, in addition to the quantity and purity of the drug involved, the gravity of a drug offence must be assessed by reference to all relevant circumstances, including, but not limited to:
(1)the nature of the drug enterprise in which the offender was involved;
(2)the role that the offender played in the enterprise;
(3)the offender's motive for becoming involved in the enterprise;
(4)whether the offender pleaded guilty; and
(5)the offender's personal circumstances.[78]
[77] Wong [73]; see also Ng [55].
[78] Ng [55].
As this court observed in Kezkiropoulos, in offences of this kind, the worst category of offending will generally involve those who are at the top of the hierarchy of a significant drug‑dealing operation.[79] The nature and level of an offender's participation in a drug enterprise is a highly significant sentencing factor.[80]
[79] Kezkiropoulos [38]; Ng [56].
[80] Gaskell [41] ‑ [42], [148].
In our respectful opinion, notwithstanding the serious features of the appellant's offence as identified in [98] above, bearing in mind the appellant's role in this sophisticated cannabis growing enterprise, the appellant's offending conduct did not justify, in the absence of mitigating factors, a sentence very close to the maximum. The appellant played a significant and integral part in the enterprise and was, as the judge found, in the upper echelon of it. But there was no finding that the appellant was a principal in the enterprise who directed it and shared in its profits. It was the person or persons above the appellant who were in ultimate control and who derived the ultimate profits of the enterprise.
In all the circumstances, evaluated against the yardstick of the maximum penalty of 10 years' imprisonment, locating the offence on the spectrum that extends from the least serious instances of the offence to the worse category, and taking into account his plea of guilty (for which he received a 20% discount) and the other mitigating factors, in our opinion it must be concluded that the sentence imposed reveals implied error.
The sentencing judge referred to this court's observations in Ha, noting that the operation in the present case was more sophisticated than the operations involved in the cases discussed in Ha (see [57] ‑ [58] above).[81] However, it is important to notice that what was said in Ha related to the total effective sentence imposed in cases in which the offender was convicted of multiple offences. By contrast, in the present case the appellant was convicted of a single count. That distinction is critical because, in a case such as the present involving a single offence, the maximum sentence and its relationship with the sentence imposed has a limiting effect that does not, as a practical matter, arise in a case of multiple counts.
[81] ts 54.
For these reasons, we would uphold ground 2. Consequently, the appellant must be resentenced.
Resentencing
This court has the necessary materials for resentencing.
In resentencing, we take into account the matters to which we have already referred including as to the facts of the offending, the appellant's personal circumstances, relevant sentencing principles, the aggravating and mitigating factors and as to patterns of sentencing in reasonably comparable cases.
The serious elements of the appellant's offending conduct, outlined in [98] above, meant that his offending was a very serious example of an offence of this kind.
Like the sentencing judge, we would apply a discount of 20%, pursuant to s 9AA of the Sentencing Act, for the appellant's plea of guilty. After applying that reduction, and a further reduction on account of the other mitigatory matters referred to in [96] above, we would impose a sentence of 6 years' imprisonment.
It might be thought that there is a relatively small difference between the sentence we have found to be manifestly excessive (7 years' imprisonment) and the sentence we would impose on resentencing (6 years' imprisonment) such as amounts to impermissible 'tinkering' by an appellate court.[82] We acknowledge that in both proportionate and nominal terms, the difference is relatively modest. Nevertheless, for the reasons already given, we are satisfied that the sentence of 7 years' imprisonment reveals implied error. The relatively moderate difference in the sentence we would impose reflects a degree of compression of sentences as one approaches the statutory maximum.[83]
[82] See Allen v The State of Western Australia [2017] WASCA 203 [66].
[83] Compare Gaskell [155].
Conclusion
For the above reasons, we would make the following orders:
(1)Leave to appeal on ground 1 is refused.
(2)The appeal is allowed.
(3)The sentence imposed on 30 October 2019 is set aside and in lieu:
(a)the appellant is sentenced to 6 years' imprisonment;
(b)the sentence be taken to commence on 31 October 2018; and
(c)the appellant be eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Research Orderly to the Honourable Justice Beech29 OCTOBER 2020
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