Poole v R [1999] WASCA 46

Misuse of Drugs Act 1981 s 34(2)

Respondent : Acting State Director of Public Prosecutions

Lowe [1984] HCA 46; (1984) 154 CLR 606, 12 A Crim R 408

R v GP (1997) 18 WAR 196

R v Liddington (1997) 18 WAR 394

1 PIDGEON J: I am in agreement with the reasons of Wallwork J.

2 WALLWORK J: These are reasons for judgment after the hearing of an application for leave to appeal against a sentence which was imposed upon the applicant in the District Court at Perth on 22 December 1998. The applicant received a total effective sentence of four years imprisonment with eligibility for parole for five offences under the Misuse of Drugs Act 1981. The five offences consisted of three offences which had been charged on indictment and two others which were dealt with pursuant to the provisions of the Sentencing Act, s32.

3 The learned sentencing Judge structured the sentence as follows: He imposed a sentence of two years imprisonment for the offence on count 1 of the indictment, which was that between 1 May 1997 and 19 May 1998 at Toodyay the applicant had cultivated a quantity of cannabis plants with intent to sell or supply to another. On the second count in the indictment, which was a charge that on 18 May 1998 the applicant had had in his possession a quantity of cannabis with intent to sell or supply to another, the applicant was sentenced to one year's imprisonment to be served concurrently with the term of imprisonment imposed on count 1. On count 3 of the indictment, which was that on or about 4 May 1998 at Midland the applicant had sold a quantity of cannabis to another, the applicant received a sentence of two years imprisonment to be cumulative upon the two earlier terms of imprisonment. He was then sentenced to six months imprisonment for each of the two summary matters to be served concurrently with the earlier sentences.

4 The applicant had pleaded guilty to all the charges at the first opportunity.

5 Count 1 had involved the cultivation of 69 cannabis plants. Count 2 had involved the possession of 735.2 grams of cannabis. Concerning count 3, it was said that initially the applicant had been charged with 46 complaints of selling cannabis. However, those complaints had been substituted by one charge in the indictment being count 3, on the basis that it was a representative count. The applicant had admitted to the police officers that he had sold cannabis over a period of 12 months.

6 The facts concerning the cultivating of the cannabis plants were that in May 1997 the applicant had purchased a caravan for the express purpose of cultivating cannabis for sale. He had removed the internal fittings inside the caravan and installed black PVC sheeting, metal shelving, fluorescent lighting, electrical timers, extraction fans, a

thermometer and a heating unit. He had then planted cannabis plants in pots filled with perlite to ensure maximum growth.

7 On 18 May 1998 police officers executed a search warrant. Sixty nine high quality cannabis plants were located growing in the caravan. They ranged from approximately 5cms to 100cms in height. Hydroponic equipment, lighting and the like was seized. An order was made forfeiting those items.

8 The applicant participated in two video records of interview in which he admitted the cultivation of the cannabis with intent to sell it. At the same time as the police located the plants, they found 735.2 grams of cannabis plant material in the applicant's possession at various locations in the premises. Some of the material was divided into one ounce or 28 gram lots, and half an ounce or 14 gram lots. The lots were in plastic snaplock bags. A set of electronic scales was also located.

9 The applicant admitted that the cannabis found in his possession had been cultivated by himself and was intended for future sale. He had stated that selling cannabis was his only source of income.

10 With respect to the selling count in count 3 of the indictment, the facts related to the Court were that between May 1997 and February 1998 whilst the applicant had resided at Toodyay, he had travelled to Midland approximately once a week to sell cannabis to an undisclosed person. He had admitted making a profit of approximately $13,000 from the sale of cannabis. He said he had used the proceeds for living expenses.

11 In February 1998 the applicant had moved from Toodyay to York. He had later made four trips to Midland to sell cannabis. On three of those occasions he had sold one ounce or a 28 gram bag of cannabis for $150. On the last occasion he had sold 10 ounces, being 280 grams of cannabis leaf, for $1,500.

12 During the search of his premises the police seized $1,240 in cash which the applicant readily admitted had been derived from the sale of cannabis. That sum was ordered to be forfeited. The applicant was also ordered to forfeit a sum of $11,760 being the balance of the $13,000 which he admitted having made from the sale of cannabis. The learned Judge also ordered the forfeiture of a Mitsubishi Station Wagon which the applicant had used to travel to Perth. That vehicle was said to belong to the applicant's partner who had also been accused of committing cannabis offences. The applicant admitted having made about eight trips to Perth in the vehicle.

13 Counsel for the applicant told the Court that at the time of the commission of the offences the applicant had been living with his partner in rented accommodation, firstly in Toodyay, and later in York. The couple had outlayed the sum of $2,385 on equipment to grow the cannabis. The crop was tended by hand watering. It was a small operation. It was said that the cannabis had been grown both for personal use and for sale. The cannabis sold had been sold to a friend who either used it himself or may have distributed some of it to a close circle of friends. During the time when the cannabis was sold neither the applicant nor his partner had claimed any social security payments. It was said that the money gained from the sale of cannabis had been used for such matters as the payment of their rent, food and other necessaries. It was contended for the applicant that financially, the couple would have gained more had they been in receipt of social security payments.

14 It was also said that the applicant had co-operated fully with the police and without any hesitation had disclosed to them the location of the various amounts of cannabis. He had participated fully in a video interview where he had made full and frank admissions. He had also pleaded guilty at the first opportunity.

15 The applicant's partner had been dealt with in the Court of Petty Sessions and been fined $1,000. It was acknowledged however, that the applicant's partner's involvement had been very minor. It was said the vehicle which had been ordered to be forfeited was valued at around $3,000. There was also the sum of over $11,000 which was ordered to be forfeited.

16 The applicant was 49 years of age at the time he was sentenced. He had left school at the completion of third year high school. He had previously been married and had two adult children aged 22 and 19. His relationship with his partner had been in existence for about five years. It was said that he had a reasonable history of employment as a farm labourer and also in a wrecking yard. He had conducted a wildflower business of his own for about four years and had held other positions. He had however, been unemployed since April 1997.

17 The applicant had first been convicted of possessing cannabis with intent to sell or supply in June 1985. He was then fined $500. In 1994 he had been fined $2,000 for possessing cannabis. He also had some traffic convictions which are not relevant.

18 It was submitted to the learned sentencing Judge that it was not necessary to impose a custodial sentence. That the applicant had suffered sufficient financial detriment due to the money and the vehicle he had forfeited. It was unlikely that he would reoffend.

19 From the prosecution's point of view it was submitted that the sale of cannabis had been the applicant's sole source of income. He had been living off the proceeds. It was said that count 3 was representative of a number of sales.

20 I mention at this time that a person can only be punished for what he is charged with. The relevance of there having been other sales which the applicant admitted, is that the applicant could not claim in mitigation that the offence charged was an isolated offence - Cooksley [1982] Qd R 405; H (1981) 3 A Crim R 53 The other offences if not charged are only part of the background to the charged offences.

21 It was submitted for the prosecutor that a sentence should be imposed which would demonstrate the very real concern which the community has for the effects of drugs on others, particularly on young people. That the applicant had deliberately flouted the law in deciding to supply cannabis and to live off the proceeds. He also had two prior convictions in connection with cannabis. It was said that the forfeiture of the money was only taking the profit from him which he had admitted to making.

22 When the applicant came up for sentencing on 22 December 1998 he admitted the two s32 offences. The first was having in his possession a pipe for use in connection with smoking a prohibited drug. The second was having in his possession a quantity of a prohibited drug, namely cannabis.

23 The pipe had been located during the original search on 18 May 1998. Traces of burnt cannabis were on it. Concerning the s32 charge for the possession of cannabis, police officers had searched business premises at 317 Guildford Road, Maylands on 20 February 1998 and found the applicant as a customer at the premises. At that time he was with his partner who had 0.09 grams of cannabis leaf in a plastic bag in her handbag. The applicant said that the cannabis was his and that it was intended for his own personal use.

24 When sentencing the applicant the learned trial Judge said, amongst other things, that the applicant's cannabis growing had been a reasonably sophisticated arrangement intended to provide him with a long term and profitable business. That the description of the caravan being a mobile sales shop seemed to be accurate. His Honour said he would take the financial orders he had made into account. He noted the previous cannabis convictions.

25 The learned Judge sentenced the applicant to two years imprisonment for the cultivation of the 69 plants with intent to sell or supply and to one year's imprisonment for having the 735.2 grams of cannabis in his possession with intent to sell or supply. The second sentence was concurrent with the first term. He sentenced the applicant to two years imprisonment to be cumulative upon the first sentence for the sale of the cannabis on or about 4 May 1998. That was the last sale when the applicant had sold 10 ounces, or 280 grams, for $1,500.

26 The maximum penalty for selling cannabis under s34(2) of the Act is a maximum fine of $20,000 or imprisonment for a term not exceeding 10 years, or both. It was submitted for the applicant that in Stol (1989) 44 A Crim R 137 there had been 2308 grams of cannabis and 183 plants involved. It was said that in Stol the enterprise was about three times the size of this operation. I presume that observation relates to the number of plants, which in this case was 69. In Stol there was an estimate made of the value of the seizure to the offender, being $60,000-$100,000. There had been earlier sales for between $12,000 and $16,000. On appeal the sentence of six years imprisonment was reduced to eighteen months imprisonment and a fine of $15,000.

27 The applicant also relied on Marchesano 61 A Crim R 372 which had involved 972 plants and 183 dried plants. The value of the seizure in that case was estimated at between $200,000-$1,000,000.

28 In Kennedy, unreported; SCt of WA; Library No 980145; 3 April 1998 there was approximately 3.5 kilos of dried cannabis plus an estimated wholesale value of cannabis plants at $138,000. The dried leaf was valued at $19,500, making a total of $157,500. There was also another count concerning 27 cannabis plants where the wholesale value of these was estimated at $86,000.

29 It was submitted for the applicant that in this case the number of plants made it a significantly smaller type of operation than those in the earlier cases mentioned above. It was submitted that putting a label on the applicant's activity as a moderate commercial operation or any other kind of operation, was misleading. The correct approach was to look at the size of the commercial transaction and then to compare it to previous decisions. It was said that the learned Chief Justice had said in Stol's case that there had to be some consistency in sentencing. It was also important for an accused person when entering a plea to understand what sentence he was likely to receive.

30 It was said that in Kennedy's case the quantity of cannabis seized at the first property was 3.4 kilos. That was much larger than the amount seized in this case which was 735.2 grams of cannabis plant. In Kennedy's case there had been a large commercial undertaking, although the applicant there had only had a minor involvement. However, there were large sums of moneys involved in Kennedy if the operation had been successful.

31 The applicant's counsel in this case pointed out that it was relevant when estimating the size of the applicant's operation that the applicant had sold on about eight occasions and had averaged about $350 per week. There had only been 69 plants when the police raided the property - plus 735.2 grams of cannabis plant, part of which was scrap leaf material. It was said that the amount seized was consistent with the applicant taking $13,000 over 12 months. That any sentence must be on the basis that the enterprise was one in which $13,000 worth of cannabis had been sold over a 12 month period. That this applicant "was not in the same league" as Kennedy who had been sentenced on two counts to a term of imprisonment of three years, although Kennedy was only part of a larger operation and was not the sole proprietor.

32 It was submitted for the applicant that the deterrent must be proportionate to the nature of the enterprise. That an enterprise creates a much higher risk to the community when large amounts of money are being made. Such an operation brings into possibility a contamination of the justice system with bribes and things of that nature. In this case it was said it was a small one man operation. The danger to the community had been substantially lower than the kind of operation dealt with in Kennedy. That the sentence in Kennedy suggested that the sentencing Judge in that case had commenced at about four or five years imprisonment as being the appropriate sentence and had then discounted that to three years imprisonment after a plea of guilty. It was said that if that procedure had been followed in this case, the sentencing Judge must have started somewhere about six years imprisonment. That would be clearly excessive.

33 It was submitted for the applicant that the correct starting point in this case was something in the region of three to four years imprisonment. That should have been reduced for the early plea of guilty and co-operation with the police officers to a total sentence of about two years. The learned Judge ought to have then considered whether the applicant was suitable for a suspended sentence having regard to the fact that he was nearly 50 years of age with a good work history and no serious prior criminal convictions. It was submitted that with that history he would certainly have been assisted with his rehabilitation by a suspended sentence. It would have given him the capacity to obtain work and pay off the pecuniary order which had been made by the sentencing Judge.

34 The prosecution however submitted that this had not been a backyard operation. It was a reasonably sophisticated arrangement intended to provide a long term and profitable business. The applicant had made his living from selling cannabis. To describe it as simply a backyard operation was not accurate. A cottage industry was a better way of describing what it was. The plants were of high quality and there had been a sophisticated watering system. The pecuniary penalty order had not been an additional punishment. It was a stripping of profits from the applicant. There was no penalty punishment component in that. However, the forfeiture of the car was an additional punishment worth about $3,000. The correct procedure was that the appropriate penalty for the offences had to be arrived at. Then there was a separate question of whether it was appropriate to impose an additional penalty in forfeiting the car. In this case it had been conceded by the applicant that it was appropriate to forfeit the car. In any event the learned sentencing Judge had indicated that he had taken into account the financial orders.

35 It was submitted for the applicant that Stol's decision was 10 years old. Marchesano's decision was 5 years old. Those decisions were no longer a reliable guide. That had been said in the case of Kennedy - see Malcolm CJ at p14 of his reasons when his Honour said that sentences imposed 5-10 years ago can no longer be regarded as a reliable guide. It was submitted that the decision in Kennedy supported the sentence in this case. In Kennedy's case it had been accepted that the offender was a relatively minor participant in the first count, in respect of which he had received a one year sentence. In respect of the second count he was the sole offender. That was on all fours with the case here. That count in Kennedy had involved 27 cannabis plants. In respect of that count alone he had been sentenced to two years imprisonment to be cumulative upon the sentence on the first count. It was said that Kennedy had had nothing to do with the two other cultivations. A co-accused had been the lynch pin in arranging all the operations. He had rented the house in count 1. He had been the only common factor in all the four counts. Mr Kennedy had been sentenced for being a minor player on count 1 and a primary offender in count 2. Further that his antecedents had been far better than the applicant's. He had no significant record of convictions and had an excellent work record. He had done very well in the Army. There were also other relevant personal circumstances.

36 It was submitted for the respondent that if any assistance could be gained from the Kennedy decision, the applicant in this case had been rather lucky in the sentence he had received in respect of the 69 plants. Further, it was obvious that the applicant had fully intended that the cannabis sold would be distributed to others. He had been in possession of cannabis, packaged neatly into one ounce bags and half ounce bags. It was obvious that he had intended that his friend would onsell it to others. He could probably be described as being at the top of the distribution chain. He had grown the product and sold it to someone else, knowing that that person would sell it to other people, or supply it to other people. In one month alone the applicant had sold $1,950 worth of cannabis. Even at $350 a week he would have received over $18,000 during the period concerned. The pecuniary penalty had been ordered on the generous basis of his own estimates.

37 In my opinion the submissions for the respondent are correct. It has not been demonstrated that the individual sentences imposed or the total effective sentence of 4 years imprisonment, is outside the permissible range. I would refuse the application.

38 WHEELER J: I agree with the reasons of Wallwork J and have nothing further to add.