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

Atholwood v The Queen [1999] WASCA 256

Cabassi v The Queen [2000] WASCA 305

Duncan v The Queen (1982) 9 A Crim R 354

Little v The Queen [2001] WASCA 87

Maniaci v The Queen [2000] WASCA 195; (2000) 114 A Crim R 308

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Rattray, unreported; DCt of WA (Hammond CJDC); No 247 of 2001; 19 March 2001

1 KENNEDY J: The applicant was charged, together with three other persons, with having, between 1 July 1998 and 21 January 1999, at Hillman, cultivated a quantity of cannabis plants with intent to sell or supply cannabis to another. He was convicted on his own plea of guilty. His three co-accused have pleaded not guilty. Their trial has been set down for hearing in September 2001.

2 The facts presented to the learned sentencing Judge were that, on the evening of 20 January 1999, the Western Australian Fire Service was called to a fire at a house in Hillman, near Rockingham. Firefighters gained entry to a rear room of the house and successfully extinguished the blaze, which was confined to that room. In searching the house for occupants, the firefighters discovered that it was being used for the unlawful cultivation of cannabis by a hydroponic method, and the police were summoned accordingly.

3 The police attended the scene and it quickly became apparent that a considerable amount of time, money and expertise had been expended in converting the house into what was described as being literally a factory for the cultivation of cannabis on a commercial scale. The cannabis plants were being tended with scientific precision. The house was therefore secured and placed under guard until a thorough investigation could be undertaken on the following morning.

4 A search the next day revealed that the master bedroom and the living room of the house had been converted into growing rooms, in which some 47 mature cannabis plants in pots were located. Two smaller bedrooms had been adapted into nurseries, in which 62 seedlings were found, making a total of 109 plants. Each room was reticulated and banks of overhead lights had been installed in such a manner as to encourage and accelerate the growth of the plants by optimising their growing conditions. A rear room had been converted into a control room for the hydroponic system.

5 Those responsible for the cultivation of the plants had bypassed the Western Power supply meter in order to avoid both the detection of their activities and the cost associated with the large amount of power required to run the lighting for the hydroponic system. The fire which had attracted the attendance of the fire service had apparently been caused by a short circuit resulting from the overheating of the electrical wiring.

6 There was an equipped kitchen in the house, with a stocked refrigerator and pantry. Although only one bed was found in the house, there was evidence of the occupation of the premises by several people. It was apparent that those involved in the cultivation of the cannabis plants had been taking it in turns to look after the crop and to guard the premises. There were reminders and instructions to persons serving on successive shifts, which were found in the living area and the control room. In the kitchen, there was a video monitor. It was connected to a surveillance camera concealed in a light on the front porch in order that the occupants of the house could observe any persons approaching the house. The property had a very sophisticated security system. Built-in closets had been converted into drying racks for harvested cannabis. In a hall cupboard, the police found several firearms, including a Chinese made assault rifle and a Glock automatic pistol, together with a considerable quantity of ammunition.

7 The police also discovered the sum of $49,000 in cash in a drawer in the kitchen, together with writing which indicated that the proceeds of the enterprise were being shared amongst a number of people. There were meticulous records found in relation to the progress of cannabis crops, and it became apparent that the "factory" had been operating for some time. A yearly planner chart on a door in the living area contained entries with details of the cultivation of crops from July 1998. A diary found in the control room recorded the progress of the crops, and had entries from July 1998 up to and including the day of the fire. This was a very professional illegal commercial enterprise.

8 The material before his Honour did not indicate how many people were involved in the cultivation of the cannabis or who had assisted in setting up the project. The Crown alleged that the applicant and his three co-accused were not only amongst those involved but were the principals in the venture. Their fingerprints appeared on several items in the house and in the garden shed in the back yard, which evidenced their connection both with the premises and with the cultivation of the cannabis. Handwriting on several documents found about the house linked them with the growing of the cannabis. The documents included a note concerning the mixing of chemicals for cultivation and an exercise book recording day to day expenditure upon the operation. It was accepted by the applicant that he was one of the principals and that he had the expectation of receiving one-third of the profits of the enterprise.

9 The house had been purchased on 11 June 1996 for an amount in excess of $100,000. The title to the house was put into the name of a person who was totally unaware that her name was being used for this purpose. A considerable amount of work took place inside the house after it had been acquired to effect its conversion into a place for growing cannabis hydroponically.

10 The dates pleaded in the indictment were for the period spanned by the yearly planner and the entries in the diary, 21 January being the day after the fire and the discovery of the crop. The Crown contended that the period spanned by the indictment potentially covered three crops of cannabis, including the crop which was discovered after the fire. It must be appreciated, however, that the offence charged under the Misuse of Drugs Act 1981, s 7(1)(a) was that the four accused, with intent to sell or supply cannabis to another, cultivated cannabis plants, which are prohibited plants under the Second Schedule to the Act. By s 34(2) of the Act, a person convicted of such an offence is liable, if sentenced by the District Court, to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 10 years, or both. It is clear from the period specified in the indictment that the charge relates to one crop only, being the crop which was discovered immediately after the fire.

11 The applicant was arrested and charged on 7 July 1999. He made no statement to the police. He was released to bail later on the same day and he therefore spent no appreciable time in custody prior to his sentencing. Although the applicant did not himself elect to have a preliminary hearing, one or more of his co-accused did so elect. A partial brief was prepared by the arresting police office and served upon the applicant. It contained about 50 per cent of the complete brief. Upon the delivery of the remainder of the brief a few days prior to the preliminary hearing, the applicant reassessed his position, and when he came before the Court of Petty Sessions on the preliminary hearing, he indicated that he would be pleading guilty. He entered a plea of guilty when he first appeared in the District Court, which was some 7-1/2 months before he came to be sentenced.

12 The applicant was born on 30 October 1959. His father, who is now deceased, was an alcoholic. He is the eldest of four children, his youngest sibling being 13 years younger than the applicant. By the time the applicant was 16, when his father died, he had, to all intents and purposes, become the head of the family and he was supporting the family financially. He worked on crayfish boats from the age of 16 until the age of 23. He married in 1982 and travelled in the eastern states for 12 months on an extended working holiday. In 1984, he returned to work once again on crayfish boats for about three or four years until 1987, when he obtained an unrestricted crane driver's licence. He then worked for Alcoa between 1987 and 1992. He worked as a crane driver between 1993 and 1994. In 1994 he returned to the crayfishing industry and resumed working on boats, but after four months he severely injured his back, with the result that he was no longer able to work in that industry. He turned to working in the trucking industry.

13 Between about 1990 and 1994 the applicant formed a relationship with Ms T Burgoyne. A son of that relationship was born on 2 April 1994. The child suffers from a severe disability, cortical dysplasia. This condition affects his mental and physical abilities. He has the mental age of an 18-month-old child. He is not able to toilet himself, he is destructive and he requires constant care which, as he gets older, will become increasingly difficult. Prior to the applicant being sentenced, Ms Burgoyne cared for the child for about four days a week and the applicant cared for him for approximately three days a week. It is claimed that the applicant's motivation for the present offence was directed towards raising money for his son's care, which does not, of course, diminish his culpability.

14 The applicant's previous record of offending was not of significance for the present purposes. In 1983 he was fined $100 for possessing a quantity of cannabis, and on 5 April 1998 he was fined $200 for possessing cannabis and a similar amount for possessing a smoking implement. He has a number of traffic offences of no present consequence. A significant number of references praised the applicant for his contribution to the community, in particular with regard to his assisting people in need.

15 The learned sentencing Judge sentenced the applicant on the basis of the crop as found by the police at the end of January 1999, but he indicated that he had to take into account all the matters to which he had referred regarding the scale, the sophistication, the length of time and the investment in the project. His Honour noted that the plea of guilty had apparently only been offered on the first day of the preliminary hearing, but he accepted that some discount must be given for his pleading guilty prior to trial. He acknowledged that there had been a delay in the sentencing process and he said he had taken this into account with the plea of guilty.

16 His Honour observed that the applicant had not provided any co-operation to the police apart from his plea of guilty and an acknowledgment that he was a principal amongst what appears to have been a group of principals in the matter. His Honour indicated that he would make an allowance for the applicant's son's disability, but on the other hand he observed that the applicant had involved himself over a lengthy period of time in the unlawful activity of cultivating cannabis, apparently without regard to its effects on other children and persons in the community. His Honour then proceeded to sentence the applicant to 6 years' imprisonment, having reduced it from 8 years having regard to the plea of guilty and "the issue of the care of [the applicant's] son". The applicant was made eligible for parole.

17 The applicant seeks leave to appeal against his sentence upon the following grounds:

"1. The learned sentencing Judge imposed a sentence that was manifestly excessive in all the circumstances of the case and of the applicant.

Particulars

The learned sentencing Judge failed to give any or sufficient weight to the following matters

(a) the applicant's early plea of guilty

(b) the applicant's genuine remorse

(c) the applicant's disabled son

(d) the delay between the date the applicant entered a plea of guilty and the date of sentence.

2. The learned sentencing Judge erred in the exercise of his sentencing discretion by indicating a starting point for the sentence, absent the mitigating features, of 8 years' imprisonment, which is excessive given the range of sentences commonly imposed for offences of this nature.

3. The learned sentencing Judge erred at law or alternatively in the exercise of his discretion by sentencing the applicant on the basis that all 109 plants would reach maturity when it was not open to do so on the evidence."

18 The learned sentencing Judge did not make specific deductions from the starting point of 8 years for each of the matters referred to in ground 1, that is, the early plea of guilty, the remorse, the disabilities suffered by his son and the delay in sentencing. And, of course, he was not required to do so. He did, however, refer to each matter and, except in relation to remorse, he indicated that he was taking it into account. He referred to "suggested remorse" in relation to his consideration of a suspended sentence, which he rejected.

19 In relation to the plea of guilty, s 8(2) of the Sentencing Act 1995 provides that such a plea by an offender is a mitigating factor and the earlier in proceedings that it is made, or an indication is given that it will be made, the greater the mitigation. In this case, the applicant only indicated that he would be pleading guilty on the first day of the preliminary hearing. He cannot, therefore, attract the usual concession of between 25 and 35 per cent for a fast track plea of guilty. Nevertheless, he is entitled to a significant discount, having regard to the strong considerations of public policy which attach to the willingness of an accused person to make an early plea.

20 The claim that the learned sentencing Judge failed to give any or sufficient weight to the applicant's genuine remorse is more problematic. A plea of guilty may in itself indicate remorse, although, in this instance, it may well have stemmed from a realisation of the strength of the Crown case. It is indeed a question of whether any remorse on the part of the applicant goes any further than his plea of guilty in justifying a discount.

21 Remorse may be shown by statements of contrition made by the offender, or on his behalf. It may take various forms. In Fox and Freiberg, Sentencing State and Federal Law in Victoria, 2nd edn (1999) at 305, the learned authors observed:

"It has been said that it is rare to find convincing evidence of genuine remorse, but where it is found, credit should be given. Remorse is considered to form part of the reformative component of the sentence. It is an elusive concept; it "is not to be confused either with sorrow at the fact that a victim is no longer available as a companion, nor with regret at the position in which an applicant now finds him or herself". As Asche CJ sardonically remarked [in Jabaltjari (1989) 64 NTR 1 at 10]:

'.... the difference between being sorry for what one has done and sorry for being caught is a difference which judges may not always wish to investigate too thoroughly.' "

"Pious claims of an intention to turn over a new leaf, or to make restitution, or to reform oneself, will alone seldom be sufficient. Nor will great weight be attached to remorse that appears only once the "jaws of Pentridge" gape before the offender. In all cases, to obtain mitigation of sentence, concrete evidence of contrition is needed. It usually has to take the form of restitution to the victim, co-operation with the authorities by disclosing the identity of co-offenders, an early indication of an intention to plead guilty, the admission of other offences, or the provision of information leading to the restitution of goods and property or conviction of other offenders." [references omitted]

23 In the present case, the applicant has made no statements to the police. Nor has he assisted them in any way, apart from his plea of guilty and his concession that he was a principal. He was not willing to assist the authorities in relation to the trial of his co-accused. The only reference in the material before the learned sentencing Judge to remorse came from three of the writers of references. Ms Burgoyne, the mother of his child, wrote:

"I know that [the applicant] is deeply remorseful of his actions and he knows the only person that will suffer from all of this will be his son Adam."

"I have discussed the offences with [the applicant] and feel that he is disappointed in himself over this situation. He certainly showed remorse for his actions and the impact it will have on the local community."

25 A friend of Ms Burgoyne who had known the applicant for nine years said, simply:

26 There was no indication from the applicant himself as to any remorse on his part beyond his plea of guilty, and no evidence as to how the applicant demonstrated his remorse to his referees. Merely to assert that a person is remorseful, without more, does little to assist a sentencing Judge. In the circumstances, any reduction in the sentence on the ground of remorse should be minor. It is effectively subsumed by the discount for his plea of guilty.

27 As to the position with respect to the applicant's son, there is no doubt that he is seriously disabled. A report by Dr S Kelly, from the Fremantle Hospital and Health Service, noted that Adam was a nearly seven year old boy with a history of primary global developmental delay leading to intellectual disability, severe language delay and dyspraxia. An MRI scan of the brain on 10 June 1998 showed some cortical dysplasia affecting the parietal and occipital lobes bilaterally. No therapeutic suggestions for the boy were made at the time of the report.

28 The Acting Deputy Principal of the Malibu school which Adam was attending reported that the boy needed constant supervision at all times for all aspects of his care to ensure his personal health and safety needs were met. He is able to stand, walk and sit; but he is unstable and, unless supervised, he is likely to injure himself or other children if he falls. He is incontinent. As well, he requires supervision when using play equipment to avoid injury to himself or others. He is not able to follow instructions to move from one location to another without supervision and assistance. During excursions away from the school site, he requires one on one supervision at all times. All learning programmes for meal times, dressing, undressing, washing/bathing, grooming, cleaning teeth, etc, require supervision and assistance to complete.

29 Notwithstanding his son's obvious needs and demands, the position of the applicant in this case is significantly different from that of the applicant in Nguyen v The Queen [2001] WASCA 72, which was relied upon for the applicant. In that case, the applicant and her de facto husband, who were both Vietnamese, had been convicted after trial of an offence of attempting to obtain possession of a trafficable quantity of heroin. The applicant was sentenced to 8 years' imprisonment, with a non-parole period of 3 years and 7 months. The co-offender was sentenced to 12 years' imprisonment with a minimum of 6 years. The applicant had four children, ranging in age from 16 to 6 years. At the time of the offence, the three youngest children were living with the applicant and the co-offender, who was the father of the youngest child. An attempt by the applicant before she was sentenced to have the father of her three elder children come from Sydney to assist with the care of the children failed and, at the time of sentencing, the children, who were aged between 6 and 16, were being cared for by her business partner and boarder, a middle-aged divorced man of Chinese descent who managed a restaurant which required him to work between 3.00 pm and 11.00 pm. Their relationship was said to be tenuous. There was no family support available to care for the children, who were presenting serious disciplinary problems. In the very unusual circumstances of that case, the appellant was released on a recognizance to be of good behaviour. Whilst it is appropriate, having regard to the heavy burden that will rest upon the boy's mother, to make some allowance for the position with respect to the applicant's son, a very substantial allowance on this basis would not, I consider, be justified in this case.

30 In relation to the delay in sentencing, as Fox and Freiberg, op cit, at 335, have remarked:

"The courts recognise that the anxiety and uncertainty experienced by an offender over a long period while his or her fate is undetermined is punishment in itself particularly when the delay is not attributable to the accused."

31 No question of the applicant's rehabilitation during the delay of 7-1/2 months is raised in this case and no specific reduction in the sentence is called for on this account. The cases in which specific allowances are made relate to much longer delays than occurred in this case - see R v Todd [1982] 2 NSWLR 517 and R v Shore (1992) 66 A Crim R 37 and the cases therein cited.

32 It is convenient to deal with the third ground of appeal before turning to the second.

33 In relation to the third ground of appeal, Mr Grace relied upon a report on an inspection of "available evidence" by Dr R B Longmore which was tendered on behalf of the applicant. It was submitted that, on the basis of this report, the learned sentencing Judge ought to have made a positive finding consistent with Dr Longmore's findings. The question which arises, however, is whether Dr Longmore's findings were arrived at in the context of an offence prohibiting the cultivation of the cannabis plants. Dr Longmore estimated the number of plants as being 62 immature seedling plants "of probable non-commercial quality", together with 49 to 51 "almost mature plants of probable commercial value". The seedling plants were said to have been unlikely to have "yet" developed any reasonable quantity of characteristic cannabinoid content and were for this reason deemed to be of non-commercial quality. He did not indicate that, in the sophisticated environment in which they were found, the seedling plants would not have grown to maturity. What he appears to have done was to assess the present value of the crop, overlooking the fact that the offence was the offence of "cultivating" the prohibited plants. It is clear that his Honour accepted that the seedlings would grow to maturity, and Dr Longmore's report did not state to the contrary, being only concerned with whether they were of commercial quality when the police intervened. This is made clear by his conclusion that the plants seized were of Cannabis Sativa at various stages of maturity "but certainly about 50 almost mature plants were apparent". I can find no basis for accepting that the potential value of the crop should be based upon the mature plants alone. There was nothing to support the assertion that where you have 109 plants "and some of them clearly had not reached maturation, there will be a fair amount of plants that die in the process or something will go wrong" in a situation where it was acknowledged for the applicant that this operation was a carefully organised, sophisticated operation, which is certainly borne out by the evidence.

34 For the purposes of the sentencing process, it was relevant to know how much the cultivators were likely to gain from the sale of their crop. An estimate by the police was that it would realise between $219,000 and $608,000, depending on how it was marketed. The submission on behalf of the applicant was that the 47 mature plants had a potential yield of about $90,000 in total, of which, it was said, the applicant would receive one-third. On the view which I have expressed, the potential yield would have been more than double the applicant's estimate, and his share would have been in excess of $60,000. I am not persuaded that his Honour fell into any error in adopting the approach which he did.

35 In relation to the second ground of appeal, the schedule of sentences for similar offences tendered by Mr Grace QC clearly indicates that the sentence imposed upon the applicant was out of line with the range of sentences imposed in similar cases, and I have arrived at the conclusion that the starting point should be 5 years instead of 8 years. This was a major enterprise, unlawfully undertaken by the applicant for financial gain. It is no answer to say that he was cultivating the cannabis to provide for his son. As Malcolm CJ said in Troy v The Queen, unreported; CCA SCt of WA; Library No 980145; 3 April 1998, which also involved the cultivation of cannabis using hydroponic methods:

"In cases such as this, punishment by way of retribution, personal deterrence and general deterrence is necessary by reason of the harm caused by those who become involved in the drug trade for the purposes of profit: cf R v Tait (1979) 46 FLR 386 at 399. ... In these cases mitigating factors have a significantly reduced impact: Pizzata v The Queen, unreported; CCA SCt of WA; Library No 930590; 29 October 1993, at 131."

36 Having regard to the foregoing, I have reached the view that the starting point should be 5 years. From that period I would deduct 1 year, which accommodates the plea of guilty and small allowances for remorse and delay. I would deduct a further period of 6 months having regard to the needs of the applicant's child. I would therefore grant leave to appeal, allow the appeal, set aside the sentence imposed by the learned sentencing Judge and substitute a sentence of 3 years and 6 months. The order for eligibility for parole should remain.

37 STEYTLER J: I have had the advantage of reading the reasons for decision to be published by Kennedy J. I agree with them and with his Honour's conclusion.

38 I would add only one comment in relation to the second ground of appeal, which refers to the range of sentences commonly imposed for offences of this nature. 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 were in agreement). That being so, it should not be assumed that the existing range of sentences continues to provide a reliable guide.

39 MILLER J: The facts of this matter are clearly set out in the judgment of Kennedy J. The applicant was centrally involved in the cultivation of cannabis in a hydroponic house. It was a sophisticated operation in which the house had been effectively turned into a factory for the cultivation of cannabis on a commercial scale. Substantial money had been outlaid to ensure that the cannabis cultivated within the house was of high quality and therefore fit for commercial distribution. As Kennedy J has pointed out, persons took it in turn to guard the premises and look after the crop. There was a video monitor connected to a surveillance camera to ensure that those who approached the house were seen. There was a sophisticated security system. Present in the house were several firearms, one of which was an assault rifle. A substantial sum of money was found by investigating police in a drawer in the kitchen. Crops had been

harvested from July 1998 until January 1999, when the enterprise was accidentally discovered because of the outbreak of fire within the house.

40 The indictment alleges that between 1 July 1998 and 21 January 1999 the applicant cultivated a quantity of cannabis plants with intent to sell or supply cannabis to another, but the charge relates to only the crop which was discovered on 20 January 1999. That is, a crop of 47 mature cannabis plants and 62 seedlings. For this offence the applicant was liable to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 10 years or both.

41 Although it was argued on the hearing of the appeal that the crop was small and unlikely to yield more than about $90,000 in sales, the reality is that this was a major "hydroponic house" in relation to which cannabis was and had been cultivated on a substantial scale. True it is, that the applicant is to be sentenced only in relation to the crop which was found, but the background and circumstances in which he came to be involved in the enterprise are highly relevant. In my view the Crown could have done much more to have established the degree of implication of the applicant in the enterprise. Questions which remain unanswered include the ownership and/or source of the firearms and the precise role played by the applicant in the hydroponic cultivation of the cannabis.

42 I agree with Kennedy J that for the purpose of the sentencing process it is relevant and important to know how much those who cultivated the cannabis were likely to gain from the sale of the crop. The police estimate that the crop would realise between $219,000 and $608,000 depending upon its marketability was something which the trial Judge was clearly entitled to take into account. I reject the submission that the potential yield was no more than $90,000 and the share of the applicant no more than one-third of that sum.

43 On the hearing of the appeal, senior counsel for the applicant tendered a schedule of sentences imposed in recent years for the offence of cultivation of cannabis. It was argued that the sentence imposed upon the applicant was out of line with the range of sentences imposed in similar cases. It was stressed that the maximum sentences that had been imposed have been in relation to substantial cannabis plantations. Whilst this may be so, the fact is that cultivation of cannabis by hydroponic methods appears to have become more fashionable than cultivation in open plantations. The observations of Malcolm CJ in Troy v The Queen, unreported; CCA SCt of WA; Library No 980145; 3 April 1998, to which Kennedy J has referred, make it clear that punishment by way of retribution, personal deterrence and general deterrence is required in cases of this sort.

44 In my view, it is wrong to suggest that cultivation by hydroponic means is in some way less culpable than cultivation in an open plantation. Quite clearly, cultivation by hydroponic means has been seen to be a safer enterprise because of the difficulty of detection of cultivation within hydroponic houses. Increasing availability of surveillance technology from the air and otherwise appears to have discouraged plantation cultivation and encouraged the establishment of hydroponic houses. As this case reveals, these houses can operate over a period of years on a regular cycle of cultivation, production and supply.

45 In my view, sentences in relation to cultivation of cannabis within hydroponic houses must be firmed up and substantially so. As Steytler J has pointed out, this Court has in recent times taken a more serious view of the threat which the trade in cannabis poses to society than had previously been the case. Like Steytler J, I am of the view that the prevalence of commercial trafficking in cannabis requires that there be a firming up of sentences imposed on offenders who fall into the category of drug traffickers.

46 The applicant came to be sentenced at a time when past sentences for cultivation of cannabis were clearly lower in many cases than they should have been. For this reason only I am prepared to reduce the sentence imposed upon the applicant, but not to the extent that Kennedy and Steytler JJ have determined. In my view the appropriate starting point for the applicant's sentence was 6 years. The applicant's plea of guilty and the considerations in relation to his son would not, in my view, justify anything more than 25 per cent by way of discount on that term. The result is that I would reduce the sentence from 6 years to one of 4 years 6 months.