Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and sentencing - Appeal against sentence - Whether sentences of 3 years' imprisonment and 2 years 6 months' imprisonment for cultivation cannabis with intent to sell or supply manifestly excessive - Whether total effective sentence of 6 years 6 months' imprisonment offends totality principle - Turns on own facts

Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152

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

McRobb v The State of Western Australia [2015] WASCA 189

Nguyen v The State of Western Australia [2009] WASCA 8

Rillotta v The State of Western Australia [2017] WASCA 55

Tulloh v The Queen [2004] WASCA 147; (2004) 169 A Crim R 107 [50]

1 JUDGMENT OF THE COURT: The appellant applies for leave to appeal against sentences imposed on her, following her conviction after trial of seven offences for which she received a total effective sentence of 6 years 6 months. She alleges that the sentences offend the first limb of the totality principle.

2 For the reasons that follow, we would not grant leave to appeal.

3 The appellant was charged and tried jointly with her son, Hoang Son Nguyen. The charges and the sentences were as follows:

1. On 19 June 2015 at Burswood the appellant was in possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to be unlawfully obtained

1. On the same date and at the same place as in count 1 the appellant was in possession of ammunition and was not the holder of a licence or permit under the Firearms Act 1973 (WA) entitling her to do so

1. On 19 June 2015 at Langford the appellant and Hoang Son Nguyen cultivated a prohibited plant, namely cannabis, with intent to sell or supply cannabis to another

1. On the same date and at the same place as in count 3 the appellant and Hoang Son Nguyen had in their possession a prohibited drug, namely cannabis, with intent to sell or supply it to another

1. On the same date and at the same place as in count 3 the appellant and Hoang Son Nguyen, fraudulently diverted to their own use electrical power derived from the main electrical supply, the property of Western Power

1. On 2 July 2015 at Belmont the appellant cultivated a prohibited plant, namely cannabis, with intent to sell or supply cannabis to another

1. On the same date and at the same place as in count 6 the appellant fraudulently diverted to her own use electrical power derived from the main electrical supply, the property of Western Power

4 The sentences on counts 3, 5 and 6 were ordered to be served cumulatively and the rest of the sentences were concurrent.

5 Consequently, as we have said, the total effective sentence was 6 years 6 months' imprisonment. The sentence was backdated to commence on 21 November 2016. It is not necessary to detail the other orders that were made by the sentencing judge for destruction, forfeiture and dealing with other matters.

6 The appellant was convicted after trial. The sentencing judge's findings as to the facts of the offending may be summarised as follows.

7 The appellant was a 60% partner in a cannabis growing and distribution enterprise. She was the senior partner and had control over the enterprise. She performed numerous active executive roles, including the procuring of two houses where cannabis would be grown, and the purchasing of hydroponic equipment.[1]

8 The appellant took care to ensure that neither of the two houses at which cannabis would be grown were in her name. She paid the deposit for the house at Langford, and guaranteed her co-accused son's loan.[2] The house was registered in her son's name to make him look like an innocent homebuyer.[3]

9 The appellant and her partner used the property at Burswood, referred to in counts 1 and 2, as an administration centre for the business. Cannabis was stored at that location and distributed. Elaborate financial accounts were maintained, detailing the operation.[4]

10 Count 1 related to $83,650 in $50 notes, that was found in the appellant's safe. The trial judge found that money represented the profits of previous cannabis sales.[5]

11 Count 2 involved three pistol bullets which were, on the jury's findings, in the possession of the appellant at the Burswood premises.

12 The property at Langford the subject of counts 3, 4 and 5 was found by the sentencing judge to have been converted by the appellant and her partner into a 'commercial grow house' in early 2014. The judge characterised it as a professional, sophisticated set up that included an electrical power bypass the subject of count 5, pursuant to which $76,225 worth of electricity was fraudulently used. One hundred and twenty two plants ranging in height from 2 metres to 2.5 metres were found at the premises (count 3). Also found at the premises was about 8.1 kg of cannabis head, much of which was vacuum-packed ready for wholesale distribution (count 4).[6]

13 Counts 6 and 7 related to premises at Belmont which the judge found to have been converted for the purposes of growing cannabis. His Honour described the set up as similar to the Langford premises, involving an electrical bypass under which $11,593 worth of electricity was fraudulently taken (count 7). Ninety one plants were grown there (count 6).

14 The judge characterised the offending as a 'high level organised crime carried out over a lengthy period purely for greed'. The sentencing judge referred to the fact that the appellant had previously served a term of imprisonment for involvement in a drug importation offence, demonstrating a need for personal deterrence.[7] The sentencing judge described the appellant as 'totally unremorseful' and as a 'serious criminal who must be dealt with very seriously'.[8]

15 The appellant is 52 years old. She came to Australia as a Vietnamese refugee under extremely difficult circumstances. She has been involved in more than one dysfunctional and abusive relationship. For a period, her husband was a heroin addict. The appellant was sentenced to imprisonment for her involvement in a large heroin importation, in which she assisted by using a false name and giving a false signature.

16 The appellant worked for about 10 years in the catering section of a hospital where she had a reputation as a good worker. The sentencing judge observed that the appellant had been successful in raising her children, all of whom had been successful in life.[9]

17 The sentencing judge said that the appellant had virtually no mitigation. While these were the first offences of their type committed by the appellant, it was not the first time that she had been associated with serious drug offending. The offending was not in any sense opportunistic or an aberration. She herself was not addicted or even a user. The judge described her as a high level criminal. His Honour did not rate the appellant's prospects of rehabilitation highly, and suggested that the risk of reoffending was very real.[10]

18 The judge noted the maximum sentences for each of the offences. The judge referred to the following passage from the decision of this court in Lester v The State of Western Australia:[11]

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.

19 His Honour observed that the bottom line is that cannabis is a dangerous drug and people who wilfully distribute it in large quantities into the community out of commercial greed can expect no clemency from the court, and matters personal to them will count for almost nothing. While personal matters are not ignored, it is hard to put aside the need for punishment, general deterrence, denunciation of the behaviour and personal deterrence.[12]

20 The judge observed that he had looked at a number of cases. He referred in particular to Nguyen v The State of Western Australia,[13] in which the offender pleaded guilty to two counts of cultivation of cannabis with intent to sell or supply, for which he was sentenced to 3 years' imprisonment on each count, the offences being ordered to be served cumulatively.

21 The judge observed that in the appellant's case 'the upper end of the range of commonly imposed sentences is enlivened'.[14] His Honour then imposed the individual sentences which we have already set out. The judge stated that the sentences on counts 3, 5 and 6 should be served cumulatively and all other sentences made concurrent on grounds of totality. In relation to count 5, the fraudulent diversion of power, the judge observed that there was a strong need for deterrence so that offenders know that it is not worth taking the risk of diverting electricity, as it results in an additional sentence. That, the judge observed, would make it more difficult for offenders to run a business of cultivating cannabis, and more risky.

22 As amended in the course of the hearing,[15] the grounds of appeal are, in substance, as follows:

(1) The sentence imposed on each of counts 3 and 6 was manifestly excessive.

(2) The total effective sentence infringed the first limb of the totality principle.

23 The appellant accepts that little purpose is served by detailed analysis of comparable cases.[16]

24 In support of ground 1, the appellant submits that when proper account is taken of the quantity of plants (count 3 - 122; count 6 - 91) and the drugs involved (cannabis), the sentences of 3 years (count 3) and 2 years and 6 months (count 6) were manifestly excessive.[17]

25 As to ground 2, the appellant submits that her criminal conduct falls in the mid to lower end of the scale, and that the court erred in accumulating the sentences in the way that it did.[18]

26 The principles relevant to an appeal on grounds of manifest excess and totality are well-established and may be summarised as follows:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to 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, and the personal circumstances of the offender.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.

27 There is no merit in the appellant's contention, by ground 1, that the sentences on counts 3 and 6 were manifestly excessive. The maximum sentence for these offences is 10 years. The appellant's submissions focus on the number of plants that were cultivated. While that is undoubtedly a matter of importance, it is only one of many material factors in assessing the criminality of an offence of cultivating a prohibited plant with intent to sell or supply. The level of the offender's participation in drug dealing and whether the offence was committed solely for commercial gain are also relevant.[19] The appellant was a partner in a well-organised enterprise of cultivating and selling cannabis, and acted purely for commercial gain. She did not have the mitigation that pleas of guilty would have brought and her personal circumstances were unfavourable. Specific as well as general deterrence were important sentencing factors. When proper account is taken of those circumstances, the sentences imposed on counts 3 and 6 are consistent with the patterns of sentences customarily imposed for offences of this kind. See, for example, the survey of cases in Lester v The State of Western Australia.[20]

28 For these reasons, ground 1 has no reasonable prospects of succeeding.

30 The appellant cultivated two separate crops of cannabis at two different locations. The cultivations were part of a well-organised enterprise, planned over a period of time. The offences were in no sense an aberration. The appellant was also convicted of possession of a substantial quantity of cannabis material, packed ready for distribution. Further, she was in possession of more than $80,000 in cash, profits from previous sales of cannabis. Both cultivations were conducted with the assistance of a fraudulent diversion of electrical power. In those circumstances, there was no error in accumulating the sentences in respect of the two cultivations. Further, there is no error in accumulating one of the sentences for fraudulently diverting electrical power. For the reasons given by the sentencing judge, that was appropriate.

31 There was little in the way of mitigation in the appellant's favour. She did not plead guilty. She had previously been involved in a drug importation offence. The judge found, without challenge on appeal, that her prospects of rehabilitation were not high, and that there was a very real risk of reoffending.

32 As the sentencing judge pointed out, this court has emphasised the serious harm caused by cannabis and the need to give weight to deterrence in the sentencing process.[21]

33 In all the circumstances, the appellant's contention that her total effective sentence reveals implied error has no reasonable prospects of success. In our opinion, it was well open to the sentencing judge to conclude that a total effective sentence of 6 years 6 months' imprisonment was a proper reflection of the appellant's criminality, having regard to the maximum penalties, general sentencing patterns, all the circumstances of the offending and the appellant's personal circumstances.

34 For the reasons we have given, we would refuse the application for leave to appeal.

[11] Lester v The State of Western Australia [2011] WASCA 128 [21] - [22].

[13] Nguyen v The State of Western Australia [2009] WASCA 8.

[19] Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52].

[20] Lester v The State of Western Australia [2011] WASCA 128 [11] - [18].

[21] Lester v The State of Western Australia [21] - [22]; McRobb v The State of Western Australia [2015] WASCA 189 [52]; Rillotta v The State of Western Australia [2017] WASCA 55 [21], [22].