Criminal law and procedure - Appeal against sentence - Manufacture of amphetamines - Manifestly excessive - Personal circumstances and good antecedents - Scale of operation - Amount produced and potential to manufacture - Turns on own facts

Misuse of Drugs Act 1981 (WA), s 6(1)(b), s 34(1)(a)

Lim v The Queen [1999] WASCA 296

Quach v The Queen [1999] WASCA 210

1 PIDGEON J: I agree with the reasons to be published by Wheeler J.

2 WALLWORK J: I agree with the reasons for judgment of Wheeler J. There is nothing I wish to add to those reasons.

3 WHEELER J: These are my reasons for reaching the decision announced by the court on 14 September 2000 to refuse leave to appeal against sentence. On 12 May 2000, the applicant was convicted by a jury of manufacturing a prohibited drug, namely, methylamphetamine. He was sentenced on 30 May 2000 to 7 years' imprisonment backdated to 8 May 2000 to take into account a few days during which he was in custody prior to being released to bail. He was made eligible for parole. The statutory penalty for the offence is a fine not exceeding $100,000 or a term of imprisonment not exceeding 25 years, or both (Misuse of Drugs Act 1981(WA), s 6(1)(b) and s 34(1)(a).

4 The two grounds of appeal are that the sentence was manifestly excessive in all the circumstances of the case, and that the learned trial Judge erred in having regard to the potential for the applicant to manufacture approximately 60 gms of methylamphetamine, rather than the actual amount manufactured, of 1.4 gms. So far as the manifestly excessive nature of the sentence is concerned, the particulars to that ground are that the learned Judge failed to give any or any sufficient weight to a number of matters, they being: the personal circumstances of the applicant; his past history, "credentials and standing"; the disparity with the sentence of a co-accused, Emery; and his lack of any criminal record. Those particulars can, I think fairly be summarised into a failure to give sufficient weight to the applicant's personal circumstances and antecedents and the disparity point.

5 The facts were as follows. The applicant was at the time of sentencing 58 years of age. He had no prior criminal history of any kind. He had a number of impressive references directed to his good character, previous hard work and community spirit. He had been involved in farming all his life, it seems, but had become involved in a farming venture of a somewhat speculative kind, which failed. As a result of that failure, he lost a very substantial amount of money and had to sell his farming property. It also appeared that some of the money, which had been lost, had been the property of his then wife, which had not surprisingly caused considerable family difficulties.

6 It was with the intention of making money that he entered into a plan with an uncharged third party, and the co-offender with whom he was tried, Tamsin. The initial venture appears to have been an enterprise of the three of them, with Emery being recruited by the third party at a time when the plan was somewhat advanced, in the hope that she would be able to provide some necessary technical expertise.

7 The applicant was the person who knew of and arranged for the use of some remotely located premises in the Southwest of the State in which the manufacturing process occurred. He and Tamsin spent considerable time in acquiring a range of hardware and glassware and chemicals in order to facilitate the manufacture, and he provided the vehicle in which he, Tamsin and Emery, travelled to the premises.

8 The applicant, Tamsin and Emery persisted in endeavours to make methylamphetamine over a period of two to three days. However, the manufacture took longer and proved to be somewhat more difficult than they expected. When they were interrupted by the arrival of the police, they had made at that stage only 1.4 gms of methylamphetamine. However, having regard to the quantity of chemicals on the premises, the learned sentencing Judge formed the view that something of the order of 60 gms of relatively pure amphetamine could have been produced had the police not interrupted the enterprise. Emery made a full confession and co-operated with the police, pleaded guilty at the earliest opportunity, and agreed to give evidence against her co-offenders. Cabassi and Tamsin entered pleas of not guilty and were tried and convicted together.

9 Amphetamines are now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibitive drugs. They may not be equated with heroin or cocaine but are to be regarded as "in the same category": Bellissimo v The Queen (1996) 84 A Crim R 465 at 467, 469 per Rowland J, at 471 per Anderson J, Darwell v The Queen (1997) 94 A Crim R 35 at 40 per Malcolm CJ (Kennedy and Franklyn JJ agreeing).

10 The manufacturer of a prohibited drug is at the highest end of the chain of supply. Accordingly, the conduct of a person who manufactures a prohibited drug with intent that it be distributed, should be viewed more seriously than the conduct of a person who merely obtains possession of the same quantity of that drug with intent to sell or supply it to another. Indeed, the legislative view of the seriousness of the offence is reflected in the maximum penalty to which I have already referred. The distribution of amphetamines in the community results in very serious consequences for both its consumers and the community generally. The courts have therefore recognised that in sentencing for offences involving the manufacture and distribution of amphetamines, deterrence and the protection of the community are the principal considerations, while matters personal to the offender will be of limited significance: Bellissimo, Darwell.

11 So far as the first ground of appeal is addressed to the applicant's personal circumstances, the sentencing Judge expressly referred to the fact that the applicant was a first offender and that his motivation for committing the offence was that he had fallen on economic hard times. His Honour was provided with the references, which testified to the applicant's good character, and indicated that he would read them. He adjourned the sentencing for a period of time in order that he could take time to consider the circumstances of each of the offenders. There is no reason, based upon anything said by his Honour, or omitted to be said by his Honour, to form a view that he was unaware of, or failed to have regard to the personal circumstances of the applicant. For the reasons which I have already outlined, those personal circumstances could, however, play only a limited role in sentencing of the applicant.

12 So far as parity with the co-offender Emery is concerned, his Honour had the advantage of not only reading the sentencing remarks of Hammond CJDC, who sentenced Emery, but also of hearing the evidence of Emery at trial. Based upon that material, his Honour formed the view that the role of this applicant and of Tamsin was to be regarded as more serious than that of Emery.

13 Emery, his Honour held, was pressured into her involvement by the third person and came in at a late stage. Her role was indeed critical in the technical sense, but was reluctant and was something she felt unable to resist given the pressure placed upon her. The applicant has not pointed to anything which suggests that his Honour was in error in that conclusion. The parity principle requires equality of sentence for the same offence, only if matters such as the age, background, previous criminal history and general character of the offender, and the part played in the commission of the offence, are not such as to require different sentences. In a case such as the present, it is my view that there can be no legitimate complaint of disparity.

14 Finally, turning to the question of the amount of drug actually manufactured, the conviction was one simply of manufacturing the drug, rather than of manufacturing any particular amount. It appears to have been indisputable that only a small quantity of drug was actually manufactured. It also appears clear that his Honour formed the view, based on the materials before him, that this was so only because the police intervened at a relatively early stage and at a time when the applicant and his co-offenders were still learning the rather complex procedures involved.

15 It is obvious that the quantity of drug actually manufactured must be a relevant factor in the sentencing for the offence. However, I do not accept that the potential of the manufacturing operation is irrelevant. It is relevant, particularly to the overall culpability of the offender. It is an accepted principle of sentencing that an offender who commits an offence with premeditation, after meticulous planning, and taking all possible precautions to ensure that the enterprise will be successful, may well, if all other things are equal, be regarded as more culpable than the offender whose participation is unplanned and impulsive.

16 The degree of danger to the community posed by an offender and the offender's need for personal deterrence may also fall to be evaluated against the context of the offender's overall plan or aim in carrying out the offence. It would not appear to me to be unreasonable for a sentencing Judge to reach a view that an offender, who manufactured methylamphetamine as part of a deliberate plan to produce a significant quantity of the drug for distribution into the community for his profit, required a sentence more severe than would an offender who produced an identical quantity of the drug either for his own consumption or as a matter of idle curiosity, intending to produce no more than that amount.

17 To take account of these matters is not to sentence the offender for an offence which he has not committed, or for the manufacture of methylamphetamine which has not in fact been manufactured; rather, it is, as the Sentencing Act requires, an evaluation of the offence against the whole of the surrounding circumstances, and the circumstances personal to the offender (which circumstances include his understanding and his intentions in relation to the offence).

18 In this case, the learned sentencing Judge recognised that this offender had in fact produced only what he described as a "small quantity" of the drug but also had regard as in my view he should have, to the premeditation and planning, to the scale of the enterprise and to its potential.