Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Possession of cannabis with intent to sell or supply - Cultivation of cannabis with intent to sell or supply - Whether trial judge erred in not imposing a suspended sentence by primarily having regard to the number of cannabis plants cultivated

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

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

2 This is an application for leave to appeal against sentence.

3 On 19 September 2011 the appellant pleaded guilty before Bowden DCJ to three offences:

Count 1

On 18 March 2011 at Forest Grove he together with Jasper Coates possessed 2.3 kilograms of cannabis with intent to sell or supply it to another.

Count 2

On the same date at Margaret River he possessed 209 grams of cannabis with intent to sell or supply it to another.

Count 3

On the same date also at Margaret River he cultivated 147 cannabis seedlings with intent to sell or supply it to another.

4 The appellant was not sentenced immediately because there was some disagreement between the parties about the facts upon which the appellant should be sentenced. These differences were resolved by the parties. On 28 September 2011, despite a submission by defence counsel that the appellant should be given a suspended imprisonment order, his Honour sentenced the appellant to terms of immediate imprisonment. His Honour imposed 12 months' imprisonment on each of counts 1 and 3 and 6 months' imprisonment on count 2. He ordered that all terms be served concurrently. The total effective sentence was therefore 12 months' imprisonment. The appellant was made eligible for parole. Coates, the co-accused on count 1, was sentenced to 12 months' imprisonment suspended for 12 months. No issue of parity has been raised by the appellant.

5 The appellant seeks leave to appeal on one ground only. As explained by senior counsel at the hearing of this application, that ground alleges an express error. The appellant alleged that his Honour erred in law in his decision not to impose a suspended imprisonment order by primarily having regard to the number of cannabis plants cultivated in count 3.

6 Senior counsel made it clear in his oral submissions that the appeal rose or fell on this allegation and that no allegation of implied error, such as manifest excess or a breach of the totality principle, was being pursued.

7 The facts as found by his Honour are not in dispute. On 18 March 2011, police officers stopped a vehicle being driven by the appellant for a random breath test. Coates was a passenger in the vehicle. The police noticed a strong smell of cannabis coming from the vehicle. A search revealed two separate lots of cannabis, weighing in total 2.3 kg (count 1).

8 The appellant's house was then searched. There, police discovered 209 g of high quality cannabis head material (count 2) and 147 cannabis seedlings growing in the bathroom (count 3).

9 It was not disputed by the State (perhaps fortunately for the appellant) that the appellant was not a commercial dealer of cannabis and that his cultivation and possession of the drug was with the intention of using it himself and distributing it to a small number of his friends.

10 In respect of count 3, his Honour accepted the concessions made by the State as to the appellant's intention. In addition, his Honour accepted the submission put to him on behalf of the appellant by defence counsel that there would have been some culling and natural attrition of the seedlings. As to the number of plants which would have reached maturity, his Honour said:

Now it's impossible to prescribe a percentage of the number of plants that would have been produced or would have produced cannabis but the reality is that, given that 147 seedlings were being cultivated, it's clear that a large number, although undetermined number would have come to fruition and produced cannabis which you accept would have been distributed within a small circle of persons (ts 15).

11 His Honour referred to a number of mitigating factors. These included the absence of prior convictions, the appellant's good work record and that he had, since his arrest, attended counselling sessions with respect to his long-term cannabis use: ts 16.

12 His Honour made appropriate reference to the need to protect the community and to deter others from being involved in the sale or supply of cannabis: ts 15 - 16. He acknowledged that imprisonment was the sentence of last resort and that if a conclusion was reached that imprisonment is appropriate, immediate imprisonment could only be imposed if a suspended sentence was considered to be 'wholly inappropriate': ts 16.

13 In respect of the role which the quantity of any illicit drug plays in the sentencing process, he said:

Cases have referred to the fact that it's wrong to focus solely on the quantity of the drugs. You've got to look at other factors, including your knowledge of the type and amount of the drug, the nature and level of your participation in its distribution. One is also entitled to take into account the quantity of the drug (ts 16).

14 His Honour explained why he imposed immediate imprisonment upon the appellant in this way:

I accept without reservation that the State has indicated and accepted that there was no commercial element involved in the distribution and that you were simply growing to distribute amongst a small group of friends, without the element of commerciality. But it does seem to me that one must take into account the quantity of the cannabis material that was being cultivated.

And absent the aggravated circumstance [of commerciality], I have reached the conclusion that a sentence of immediate imprisonment insofar as the cultivation concerned is the only appropriate way to dispose of the case.

I do consider that dealing with the case by way of, for example, a suspended sentence would be wholly inappropriate in light of the quantity of the cannabis being cultivated: ts 17 - 18.

15 Senior counsel based his arguments in support of the proposed ground of appeal upon the decision of the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584. In that case, it was made clear that it is wrong to focus solely on the quantity of the drug involved, without regard to an evaluation of all the relevant circumstances of the case to ensure that in the end the sentence imposed upon the offender is commensurate with the seriousness of the offence. It is important to observe that the High Court did not say that the quantity of the drug was not an important factor for a sentencer to take into account: Wong v The Queen [67] - [71] (Gaudron, Gummow and Hayne JJ) and Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50] (McLure J). The quantity of a drug, or in the case of the cultivation of cannabis, the number of plants, is directly related to the extent of the harm that may be caused or potentially caused by the substance in question.

16 His Honour's sentencing remarks must be read in context. His Honour correctly proceeded on the basis that immediate imprisonment could not be imposed unless suspended imprisonment was inappropriate. He expressly and correctly acknowledged that it was wrong to focus solely on the quantity of the drug involved. However, in coming to his decision to impose immediate imprisonment, his Honour was entitled in this case to have particular regard to the number of seedlings cultivated by the appellant. This was a case where the appellant plainly knew the number of plants he was cultivating. They were, after all, growing in his bathroom. His Honour found that a large number of those plants would have come to fruition and produced cannabis which would have been distributed, albeit not on a commercial basis, to his friends. Thus the appellant intended that his involvement with the drug was to be ongoing.

17 When his Honour's sentencing reasons are read as a whole, it is clear that his Honour considered that, in light of all the relevant factors of the case, a suspended sentence would be wholly inappropriate in particular because of the quantity of cannabis being cultivated. It was the number of plants which was the 'tipping point' that led to the imposition of an immediate term of imprisonment. This approach is not contrary to Wong v The Queen.

18 For these reasons, I reject the appellant's submissions, his Honour did not decide to impose immediate imprisonment having regard only to the number of plants and to none of the other factors relevant to the exercise of the sentencing discretion.

19 I do not consider that his Honour made the express error alleged by the appellant. In my opinion, the proposed ground of appeal has no reasonable prospects of success. Leave to appeal is refused and the appeal is dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.