Cashel v R

Court of Criminal Appeal (NSW)|2018-07-16|Before: Beazley P, Button J, Hulme J

Solicitors: Murphy's Lawyers Inc (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/61473 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Law Date of Decision: 25 September 2015 Before: Syme DCJ File Number(s): 2013/161473

Introduction

On 25 September 2015, Mr Neil Bruce Cashel (the applicant) was sentenced by Syme DCJ for one offence of breaching a suspended sentence, and three serious drug offences. The total head sentence imposed was imprisonment for 9 years 5 months, and the total non-parole period was 6 years 8 months.
At the hearing of an application for leave to appeal, the following grounds were pressed: Ground 1: The learned sentencing judge erred by imposing double punishment upon the applicant. Ground 5: The conviction for count 1 should be quashed because it impermissibly exposed the applicant to double punishment. Ground 6: The conviction for count 2 should be quashed because it is not supported by the evidence.
Grounds 1 and 5 are so closely related that they can be thought of together. In a nutshell, the submission of counsel for the applicant is that count 1 (an offence of manufacturing pseudoephedrine, a well-known precursor to the manufacture of methylamphetamine) should not have led to any effective punishment, or indeed any conviction at all. That is because, it was said, the criminality captured by count 1 was entirely subsumed in the criminality captured by count 2 (an offence of manufacturing a commercial quantity of methylamphetamine).
Ground 6 focused on a different aspect of count 2. In a nutshell, the submission is that the applicant pleaded guilty to manufacturing a commercial quantity of methylamphetamine. And yet, in truth, he never actually achieved that outcome or result, in that he was arrested before he could bring the process of manufacture to its intended end. The submission of the applicant is that the conviction for manufacturing a commercial quantity of methylamphetamine should be quashed, and replaced by a substituted verdict of knowingly taking part in the manufacture of a commercial quantity of that prohibited drug, with the consequence that this Court must consider re-sentence on that different count.
That submission calls for reflection on the nature of the offending captured by those two offences, each to be found in s 24 of the Drug Misuse and Trafficking Act 1986 (NSW) (the DMT Act). In particular, it calls for analysis of whether the central physical element of the offence of manufacturing a prohibited drug focuses on the process of manufacturing, or upon the completed outcome of having actually manufactured the subject matter of the process.
The final introductory matter is to note the procedural history of this appeal. It began as an application for leave to appeal against sentence only. Late in the piece, many of the grounds of such an appeal were abandoned, and the grounds for an appeal against conviction were added. Those grounds also require leave in my opinion, pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW), because they are founded on matters of mixed law and fact. I think that that leave should be granted, because the grounds were fully argued before us; the Crown did not oppose such leave; and the resolution of the grounds raise at least two important questions about criminal liability.

Facts

Because they were not the subject of dispute before us or at first instance, the facts of the matter can be recounted quite briefly. The following is based largely on the remarks on sentence, themselves based largely on agreed facts that were placed before her Honour in documentary form.

Objective features

The applicant and a man called Mr Fox took part in a joint criminal enterprise to manufacture methylamphetamine, unquestionably for profit. Two other men, Mr Bourrigan and Mr Franklin, were also involved in the enterprise.
The process was to begin with the extraction of pseudoephedrine. The applicant and Mr Bourrigan played the principal roles in that regard. They arranged for premises in the Sydney suburbs of Annandale and Strathfield to be set up for the extraction of that substance.
Moving forward in time for a moment, the applicant was eventually arrested on 24 May 2013. After his arrest, police searched the premises at Annandale and also his home at Rozelle. It was clear that the applicant had been using his home to supply prohibited drugs. A number of different drugs were located, and it was accepted by the applicant by way of the agreed facts that he had, at the least, possessed them for the purposes of supply. A large number of offences of supply and possession of prohibited drugs were placed on a Form 1, pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW). Three offences of possessing a false driver's license, an offence of possession of a prohibited weapon in the form of a flick knife, and an offence of possession of five rounds of ammunition also ended up being taken into account on sentence by way of the Form 1.
The applicant admitted to police that, a couple of days before his arrest, he had purchased a number of items of hardware to use in the extraction process at the Annandale premises. On that occasion, he had also stolen some items. That offending ended up on the Form 1 as well, as did an offence of "goods in custody" with regard to a sum of $2,600 in cash.
The police also located 35.08 grams of the drug buprenorphine at the home of the applicant. That was more than the commercial quantity. The resultant count 3 on the indictment was an offence of supplying a commercial quantity of buprenorphine. That offence carries a maximum penalty of imprisonment for 20 years, and a standard non-parole period of 10 years.
Returning to the Annandale premises, the applicant, Mr Bourrigan and Mr Franklin were using the garage at that location to manufacture pseudoephedrine by extracting it from cold and flu tablets. As I have said, the three men were intending to convert that pseudoephedrine into methylamphetamine.
At the Annandale premises, the police located 89.88 grams of pseudoephedrine that had already actually been extracted. It was an agreed fact that that quantity of pseudoephedrine could be used to manufacture approximately 79 grams of methylamphetamine. At the Annandale premises, the police also located a number of items that demonstrated unequivocally that pseudoephedrine was being unlawfully extracted at that location.
That criminality was reflected in count 1 on the indictment: an offence of manufacturing pseudoephedrine, an offence that carries a maximum penalty of imprisonment for 15 years, and no standard non-parole period.
As for the Strathfield premises, Mr Bourrigan resided there. In a detached garage, Mr Bourrigan was manufacturing pseudoephedrine, again by extracting it from cold and flu tablets.
The applicant, Mr Bourrigan and Mr Franklin were intending to convert the pseudoephedrine extracted there into methylamphetamine. At the Strathfield premises, the police located a total of 272 grams of pseudoephedrine already extracted. It was an agreed fact that it had been calculated that that quantity of pseudoephedrine could be converted into approximately 241 grams of methylamphetamine.
Mr Bourrigan had also succeeded in actually manufacturing a quantity of methylamphetamine at the Strathfield premises. A total of 12.7 grams of methylamphetamine was located by police there.
Again, the things located at the Strathfield premises showed unequivocally that a clandestine laboratory was in place.
In summary then, 89.88 grams of pseudoephedrine was located at the Annandale premises. As I have said, the agreed calculation was that that quantity of the precursor could be converted into approximately 79 grams of methylamphetamine.
A total of 272 grams of pseudoephedrine was located at the Strathfield premises. As I have also said, the agreed calculation was that that quantity could be converted into approximately 241 grams of methylamphetamine.
That means, as a matter of simple addition, that approximately 320 grams of methylamphetamine could have been manufactured from the pseudoephedrine actually extracted at the Annandale premises and the Strathfield premises.
As well as that, it is to be recalled that 12.7 grams of methylamphetamine actually produced was located at the Strathfield premises.
That leads to a grand total of methylamphetamine - that had either actually been manufactured, or could have been manufactured - of approximately 332 grams. That is well over the commercial quantity of that prohibited drug, and led to count 2 on the indictment: the offence of manufacturing a commercial quantity of methylamphetamine, which carries a maximum penalty of imprisonment for 20 years, with a standard non-parole period of 10 years.
The Form 1 offences were taken into account in the sentence for count 2, the details of which I have provided immediately above.

Objective seriousness

As for the objective seriousness of this offending generally, the remarks on sentence record that counsel then appearing for the applicant agreed that "his client and Mr Borogan [sic] were the primary offenders in both the manufacturing process [sic, processes?]". It was also recorded by her Honour that "[i]t is not submitted that [the applicant] was involved in anything other than a well organised drug manufacture process which was conducted over at least two premises and was highly organised."
A little later in the remarks on sentence, and after having detailed the items found at the home of the applicant that led to count 3 and the various offences on the Form 1, the sentencing judge recorded: "The combination of the drugs at his home, and the other items, support a finding that [the applicant] was significantly involved in the supply, and of course, as accords with my previous finding, the manufacture of drugs, and [the applicant] does not dispute this." (Remarks on sentence (ROS) page 227)

Subjective features

Turning from the offending to the offender, the sentencing judge recorded that the applicant had "a long criminal record for similar offences".
That criminal record included a number of offences of supplying a prohibited drug in 2003, for which he was imprisoned, and with regard to which offences were taken into account on a Form 1 of unlawfully possessing unlicensed ammunition and possessing a prohibited weapon. For that offending, he received a total head sentence of imprisonment for 4 years with a total non-parole period of 2 years.
The criminal record also included an offence of supplying a prohibited drug in 2009, for which he was placed on a suspended sentence for 18 months in the District Court at Sydney. Although the offences for which the applicant was sentenced by her Honour did not constitute a breach of that suspended sentence, it had been separately breached, and it was incumbent upon her Honour to sentence the applicant for that supply as well.
Separately, the applicant was on bail for a number of offences when he committed these three serious drug offences.
Regrettably, the applicant has suffered from his own problem with prohibited drugs for years. His use of those substances commenced in approximately 2002, and quickly developed into addiction. He had been able to be abstinent at various times, but emotional problems have often led him to relapse.
Quite apart from his life being blighted by drug dependence and incarceration, he has also suffered the death of his daughter in 2005 whilst he was imprisoned, and also the suicide of a girlfriend in 2011.
By the time of sentencing, the applicant was almost 35 years of age, and had spent well over two years in custody since his arrest. He had been stabilised by a methadone program, and had sought psychological help in custody, including with regard to grief. His family remained supportive, both logistically and emotionally. He had held various unskilled positions in the past, and her Honour expressed the view that, if he were able to free himself from prohibited drugs, there was no reason why he could not be employed in the future.
With regard to the pleas of guilty on all matters that were entered after the matter was listed for trial in the District Court, but before the trial commenced, her Honour allowed a discount of 12.5% for their utilitarian value.

Sentences imposed

The diagram attached to this judgment sets out the structure of the sentences imposed upon the applicant in readily comprehensible form.
In a nutshell, for the breach of the suspended sentence for supply, her Honour imposed a fixed term of 1 year 6 months to commence on 24 May 2013 and expire on 23 November 2014.
For count 1, the offence of manufacturing pseudoephedrine, her Honour imposed a fixed term of imprisonment for 3 years, to commence on 24 September 2013, and to expire on 23 September 2016.
For count 3, the offence of supplying a commercial quantity of buprenorphine, her Honour imposed a head sentence of imprisonment for 4 years 9 months, with a non-parole period of 3 years 6 months, each to commence on 24 March 2014.
With regard to count 2, manufacturing a commercial quantity of methylamphetamine, and taking into account the offences on the Form 1, her Honour imposed a head sentence of imprisonment for 7 years 10 months with a non-parole period of 5 years 1 month, each to commence on 24 December 2014.
It can therefore be seen that the total sentence imposed is a head sentence of imprisonment for 9 years 5 months with a non-parole period of 6 years 8 months, each to commence on 24 May 2013, the head sentence to expire on 23 October 2022, and the applicant to be eligible for possible release to parole not before 23 January 2020.
Two further matters are apparent. The first is that, in the total sentence, a small reduction away from the "statutory ratio" was allowed.
The second is that there is a marked degree of partial concurrency between the sentences. By that I mean, the sentence for count 1 commences four months after the sentence for the breach of the suspended sentence; the sentence for count 3 commences six months after the sentence for count 1; and the sentence for count 2 commences nine months after the sentence for count 3.

Ground 6 The conviction for count 2 should be quashed because it is not supported by the evidence.

Counsel for the applicant requested that we consider Ground 6 first, and I agree that that makes sense in the resolution of the appeal.

Submissions of the applicant

The straightforward point made on behalf of the defendant was that the indictment averred, by way of count 2, that the applicant manufactured methylamphetamine in an amount that was not less than the commercial quantity. And yet the evidence did not show that that quantity of methylamphetamine was actually manufactured. Rather, the applicant was in the process of manufacturing that prohibited drug, with the intention of achieving the ultimate outcome that more than the commercial quantity would be produced.
It was said that, as a matter of statutory interpretation, the offence of manufacturing a prohibited drug to be found in s 24 of the DMT Act is restricted to cases in which the drug (in whatever quantity) actually comes into existence. The offence-creating provision is as follows: 24 Manufacture and production of prohibited drugs … (2) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
It was submitted that, as a matter of objective reality, the applicant only actually manufactured 12.7 grams of methylamphetamine, which is, of course, very far from the applicable commercial quantity of 250 grams.
The submission was made that the offence of knowingly taking part in the manufacture of a prohibited drug is apposite and perfectly available here, by way of s 7(1) of the Criminal Appeal Act. It was also said that, if the applicant has pleaded guilty to the "wrong" offence ill-advisedly, then that should not stand in the way of a conviction for a substituted offence and subsequent reflection on re-sentence.
Underlying that submission was the proposition that there is a qualitative difference between the offence of manufacturing a prohibited drug and the offence of knowingly taking part in the manufacture of a prohibited drug, even though those two offences are to be found in the same offence-creating provision, s 24 of the DMT Act. And it was submitted that, although a little unusual, it is not unknown for an offence-creating provision to contain more than one offence, especially when, as here, they carry the same maximum penalty.
The definition of "take part in" is found in s 6 of the DMT Act, and is as follows: 6 Meaning of "take part in" For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug or psychoactive substance if: (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply, (b) the person provides or arranges finance for any such step in that process, or (c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates.
In contrast, s 3 of the DMT Act provides an inclusive definition of manufacture as follows: manufacture, in relation to a prohibited drug, includes the process of extracting or refining the prohibited drug.
Counsel for the applicant submitted that, as a matter of grammar, the offence is orthodox: the statute speaks of doing something prohibited in the present, but an indictment will allege something prohibited having been done in the past. And, as here, the indictment will not speak of an offender who "was manufacturing" a prohibited drug (which perhaps has a flavour of focus upon process, rather than outcome), but will rather simply aver, again as here, that the offender "manufactured a prohibited drug", in the sense of an action completed by way of its outcome.
It was also said that, as a matter of simple English, if a person says (by way of one of countless commonplace examples) "I manufactured a home-made clothesline in my backyard", one takes that to mean that the clothesline was actually produced, not that there was a process that went on that may or may not have been completed.
During argument, counsel addressed the question whether the verb "to manufacture" focuses on a process rather than an outcome, in contrast to, for example, the verb "to assault", which (in the context of a battery) almost inevitably encompasses the completed application of force to another person. His submission was that it makes structural sense, in terms of the DMT Act as a whole, for the offence of manufacturing a prohibited drug to be limited to completed processes. That was said to be because the offence of knowingly taking part in manufacture readily and amply covers the criminality of persons who undertake steps in the process of manufacture, with the intention of producing a prohibited drug in a certain quantity, and yet end up not producing the intended quantity, or perhaps any quantity at all, of the substance. He referred to the seminal decision of R v Thomas (1993) 67 A Crim R 308 for the proposition that knowingly taking part in manufacture is the appropriate offence here.
Counsel also referred to McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51, in particular at [48] and [49], as supporting his proposition. In a nutshell, that decision of the Court of Criminal Appeal of Western Australia dealt with the meaning of "manufacture" pursuant to the different but analogous statute to do with prohibited drugs in that State. It was noteworthy that, in contrast to almost all other Australian jurisdictions, Western Australia (at least at that time) did not have an offence of "knowingly taking part" in a separate serious drug offence. The Court of Criminal Appeal held that an uncompleted manufacture did not fall within the definition of manufacture within that statute: at [49]-[50].
It was said by counsel that that decision with regard to a statute of another jurisdiction, albeit different from ours but nevertheless similar, supports the interpretation for which he contends.
Separately, counsel for the applicant invited attention to s 24(2A) of the DMT Act. It appears immediately after the subsection under consideration, and is as follows: 24 Manufacture and production of prohibited drugs … (2A) A person who: (a) manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug, and (b) exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process, is guilty of an offence. …
His point was that s 24(2A)(b) is focusing on exposure of a child to the danger of the process of manufacture, not the danger of the outcome of a prohibited drug such as methylamphetamine, and the subparagraph explicitly speaks of the process in order to achieve that aim. In contrast, the subparagraph under consideration does not directly focus upon the process of manufacture in the same way.
Counsel for the applicant also referred to the definition of manufacture now to be found in Part 2C (offences involving psychoactive substances) within s 36ZD of the DMT Act. It is as follows: manufacture, in relation to a psychoactive substance, means to make up, prepare, produce, process (including by extracting or refining), package or label the psychoactive substance.
I understood the point to be that that definition does, in its terms, focus upon the process, in contrast to the provision under consideration. Having said that, counsel made it clear that the reference was "for completeness" only, for the simple reason that that provision was not within the DMT Act at the time when the applicant committed the offences under consideration.
Finally, counsel for the defendant told us that he had been unable to find a decision of this Court in which a person had been convicted and sentenced for manufacturing a particular quantity of a particular drug when, as a matter of actual outcome, he or she had simply not achieved it.
In short it was said that this Court would conclude that the facts showed that the applicant first, manufactured an "indictable" quantity of methylamphetamine, namely 12.7 grams; secondly, manufactured an indictable quantity of pseudoephedrine, namely 272 grams; and thirdly, knowingly took part in the manufacture of a commercial quantity of methylamphetamine; namely 332.7 grams. Nevertheless, he submitted, there was simply no evidentiary basis upon which one could say that the applicant actually manufactured a commercial quantity of methylamphetamine. It was on that basis that he submitted that the conviction for that offence should be quashed, and that a substituted verdict should be entered.

Crown submissions

In written and oral submissions, the Crown submitted that the process of manufacturing methylamphetamine was undoubtedly underway, indeed had occurred in a small amount, and therefore the count of manufacturing that prohibited drug was appropriate.
Counsel also invited attention to the use of the word "process" in the inclusive definition of "manufacture".
He emphasised that, although only a small quantity of methylamphetamine had actually been produced, the process of producing a commercial quantity was "underway", and "clearly ready and able" to bring the desired quantity into existence.

Determination

In my opinion, although the answer to this question is contestable, counsel for the applicant is correct: in order for a person to be guilty of the offence of manufacturing a prohibited drug, including but not limited to the "aggravated offences" of manufacturing a commercial quantity or a large commercial quantity, he or she needs to have actually produced the prohibited drug. I say that for the following reasons, in generally descending order of importance.
First, it is well established by authority that a person can knowingly take part in the manufacture of a prohibited drug without actually producing it. There is a multitude of authority of the Court to that effect: R v Thomas, R v Deng (1996) 91 A Crim R 80, R v Blyth [2001] NSWCCA 402.
Because the offence of knowingly taking part in manufacture captures the criminality under discussion, there is no "structural need" for the offence of manufacturing a prohibited drug to capture it. And whilst one accepts that there are many overlapping provisions and concepts in the DMT Act, speaking generally, one might think that by including both concepts in the one offence-creating provision, Parliament intended them to deal with two separate forms of offending.
Second, it is clear that the offence-creating provision should actually be thought of as an offences-creating provision, because it does indeed contain two offences, not two ways of describing the one offence, nor two ways of being guilty of one offence: R v Deng, Dayment v R [2018] NSWCCA 132 at [66], Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444 at [39]. That structural aspect lends support to the thesis that they are conceptually separate, in that one can capture a process that does not come to fruition, but the other focuses on a completed process that does, and in which the aim is realised.
Third, it is certainly true that there is a reference to the idea of a "process" that is included within the concept of manufacture by way of its definition. Inevitably, that gives one significant pause for thought as to whether Parliament intended that the offence of manufacturing should be thought of generally as a process rather than an outcome.
But on reflection I think that that reference can be understood as merely ensuring that the concept of manufacture extends beyond creating or producing a prohibited drug to include extracting it from some other substance, or refining it in the sense of purifying it. In that regard, in R v Bucic [2016] NSWCCA 297, this Court held that extracting dissolved cocaine, from the pieces of paper upon which the drug had been impregnated, fell squarely within s 3 of the DMT Act; because the count in that appeal was knowingly take part in manufacture, however, the question under consideration here did not arise.
In other words, I think that the inclusion in the definition can be understood as extending the parameters of the physical act of manufacture, not as focusing the offence upon the process and not the outcome. Although it is an undoubtedly significant statutory signpost towards a broad reading of the concept of manufacture, I have come to the view that the reference to a "process" in the definition is not determinative.
Fourth, it is true that the provision under consideration criminalises "a person who manufactures or produces…a prohibited drug" (emphasis added by me). That could arguably suggest that the concept of production focuses on outcome, and the concept of manufacture focuses on process, especially since the definition of manufacture, as I have shown, includes the process of extraction or refinement of a prohibited drug. But on reflection, I am of the view that the transitive verbs "manufactures" and "produces" are used in this context as "catch-all" synonyms, not in order to draw an obscure distinction between the two of them.
Fifth, I respectfully think that the DMT Act possesses a structural oddity, whereby conspiracy to commit an offence pursuant to the Act, and accessorial liability with regard to an offence within the Act, are explicitly spoken of as statutory offences (at s 26 to 28 of the DMT Act), but attempting to commit such an offence is not (except, as I have discussed, within the statutory definition of supply).
Still and all, an attempt to commit an offence created by statute is undoubtedly itself a common law offence: see Haughton v Smith [1975] AC 476 at 491A; Britten v Alpogut [1987] VR 929, referring to R v Roderick (1837) 7 Car. & P. 795; 173 ER 347, which itself refers to R v Butler (1834) 6 Car. & P. 367; 172 ER 1280; and Peter Gillies, Criminal Law (4th ed,1997, LBC Information Services) at 669-670.
In other words, even leaving aside knowingly taking part in manufacture for a moment, a person who does acts sufficiently proximate to completion of manufacture of a prohibited drug will, on my interpretation, be liable to a charge of attempting to manufacture a prohibited drug, even though he or she does not complete the process.
Again, the availability of the offence of attempted manufacture argues for a narrow definition of the offence of manufacture.
Sixth, although the second reading speech to the DMT Act when first introduced into Parliament speaks of the "new concept" of "take part in" an offence, it does not speak of any noteworthy breadth of the offence of manufacture: see New South Wales Legislative Council, Parliamentary Debates (Hansard), 28 November 1985 at 11122. That supplies some small support for the proposition that this statutory ambiguity is to be resolved in favour of narrowness rather than width. By that I mean, if Parliament had intended that the serious offence of manufacturing a prohibited drug is to encompass circumstances in which no drug was actually produced, and in the context of the creation of the offence of knowingly taking part in that exercise, one might have expected it to say so.
Seventh, I accept the submission that, speaking very generally, if one uses the verb "to manufacture", in a transitive sense with regard to a particular object, the most natural meaning of the statement that a person manufactured a particular object or product or substance is that the object or product or substance did indeed come into existence. And while the position is less intuitively clear if one uses the present tense ("he manufactures something") or the present or past progressive tense ("she is manufacturing something" or "she was manufacturing something"), I remain of the view that the most natural meaning of the verb is that something is actually brought into existence.
Eighth, the Macquarie Dictionary and Oxford English Dictionary definitions of the verb "manufacture" are as follows: Macquarie Dictionary: "4. to make or produce by hand or machinery, especially on a large scale. 5. to make in any manner. 6. to work up (material) into form for use. 7. to invent fictitiously; concoct; devise: *I was thinking that I had manufactured my love for him.-GLENDA ADAMS, 1982. 8. to produce by mere mechanical industry without inspiration." Oxford English Dictionary: "To make (a product, goods, etc.) from, of, or out of raw material; to produce (goods) by physical labour, machinery, etc., now esp. on a large scale. Also in extended use."
I accept entirely that dictionary definitions are a blunt tool indeed with regard to the construction of statutory concepts. And I also accept that the definitions extracted above are not conclusive of the question. Still and all, I believe that their flavour tends towards the meaning of something actually coming into existence.
Ninth, the decision in McKeagg v The Queen, albeit to do with a different Act in a different jurisdiction in which different basic principles of criminal responsibility apply, nevertheless provides some small support for the proposition of the applicant. And it is noteworthy, I think, that, in response to that reference by counsel for the applicant, the Crown did not point to any decision of an Australian superior court construing the concept of manufacture within any other Australian Act pertaining to drug prohibition that indirectly supported the contrary interpretation of our provision.
Tenth, I think there is some force in the proposition that s 24(2A)(b) of the DMT Act is advisedly focusing upon exposure of a child to a dangerous process (or dangerous substances to be used in that process), in contrast to the focus of the portion of s 24(2) under consideration: not process but outcome.
Eleventh and finally, it is not unimportant that neither counsel were able to find authority to gainsay the proposition of the applicant. (I interpolate that R v Pellegrino [2014] NSWCCA 287 was a case in this Court in which an offender was convicted on indictment of manufacturing a prohibited drug, even though no drug was actually produced. Because that matter proceeded by way of a plea of guilty, however, the question raised here was not the subject of any analysis). Of course, if there has been misinterpretation in the past, it will be corrected by this Court. Still and all, it is not easy to accept that, over the past 32 years, this fundamental aspect of the DMT Act has been misinterpreted, and I would exercise caution in coming to that view.
Separately, although it does not underpin my determination, for the reason that I regard it as ultimately neutral, I think that I should record for completeness nevertheless my analysis of whether or not the definitions of "cultivate" and "supply" could inform the question of the breadth of the concept of manufacture. I say that because those three offences constitute the three most serious offences able to be committed under the DMT Act. It is also because they share the mechanism whereby serious offences pursuant to that Act are created by being based upon one of those three physical elements; the subject matter being a prohibited drug by way of Schedule 1; and (as appropriate) the allegation of an aggravating quantity. Broadly speaking, in those circumstances one might expect the definitions of manufacture, supply and cultivate to be analogous.
As I have shown, the definition of manufacture is as follows: manufacture, in relation to a prohibited drug, includes the process of extracting or refining the prohibited drug.
The definition of supply is as follows: supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
And the definition of cultivate is as follows: cultivate, in relation to a prohibited plant, includes: (a) sow or scatter the seed produced by the prohibited plant, and (b) plant, grow, tend, nurture or harvest the prohibited plant.
Reflecting on those definitions, however, one sees that the definitions of cultivate and supply are not of great assistance.
For one thing, the definition of supply is so broad as to render it only a very tenuous analogue with the definition of manufacture: it can be seen that it includes attempts to do certain things; possession for the purpose of supply; and discussions about the purported transaction, none of which concepts appears in the definition of manufacture.
For another thing, the definition of cultivate squarely focuses on the process of cultivation rather than the culmination of it (although harvesting is included, the definition extends well before that final process). (Having said that, the full extent of the meaning of cultivation - in particular, whether one can cultivate an aggravated quantity of a prohibited plant without ever harvesting it, and indeed without ever doing anything that could possibly lead to that outcome - need not be reflected upon here; see generally Mouroufas v R [2007] NSWCCA 58).
For at least those two reasons, I consider that, although at first blush one might think the definitions of cultivate and supply could inform the definition of manufacture, their breadth renders them of little or no value in this exercise of statutory interpretation. As I have said, my determination with regard to the meaning of manufacture is not founded upon those other two definitions.
In summary then, I accept the proposition that what occurred here, according to the statement of agreed facts and the findings of fact made in the remarks on sentence, did not constitute the offence of manufacturing a commercial quantity of methylamphetamine.
That is not entirely the end of the matter, of course, because a plea of guilty constitutes a solemn public admission of all elements of the offence charged. That has the result that, in some circumstances, a plea of guilty can provide evidence of an otherwise "missing" or unproven element of the offence in question. But I do not think that that can be relied upon by the Crown here: it is clear from the entirety of the proceedings at first instance and indeed before us that the Crown has never alleged, and the applicant has never suggested, that a commercial quantity of methylamphetamine was actually produced by the participants in the joint criminal enterprise.
In short, applying my interpretation of the parameters of the offence of manufacturing a prohibited drug to the evidence in the proceedings on sentence, I do not believe that the conviction for manufacturing a commercial quantity of methylamphetamine should stand. I propose that it be quashed, and replaced by this Court with a conviction for knowingly taking part in the manufacture of a commercial quantity of that prohibited drug. Whether that substitution should lead to a lesser sentence is, to my mind, another matter entirely.

Ground 5 The conviction for count 1 should be quashed because it impermissibly exposed the applicant to double punishment.

Ground 1 The learned sentencing judge erred by imposing double punishment upon the applicant.

Counsel for the defendant asked us to regard Ground 1 as an alternative to Ground 5. Again, I am content to adopt that approach.

Submissions of the applicant

The basic point underlying these two grounds was the following. The quantity of pseudoephedrine underpinning count 1 was undoubtedly taken into account in arriving at the quantity of methylamphetamine that was said to be able to be manufactured, and that underpinned count 2. As a matter of simple arithmetic, in arriving at the commercial quantity of methylamphetamine for count two of 332.7 grams, the sentencing judge must have included the quantity of 89.8 grams of pseudoephedrine at Annandale that underpinned count 1. In other words, there was a profound overlap between the two offences that should not have been reflected by conviction or sentence for both of them.
Reliance was placed on Jidah v The Queen [2014] NSWCCA 270; 246 A Crim R 368, in particular at [46] where is was said by this Court: "However, even if it is accepted that a plea in bar would not be available on the conviction or acquittal on one or other of the counts in the indictment and the inclusion of both counts on the indictment was not vexatious or oppressive, there remains the question whether, in the particular factual circumstances of the present case, the conviction and sentence on both counts exposed the appellant to double punishment, such that the conviction on one or the other of the counts should be quashed to avoid a miscarriage of justice."
Counsel for the applicant submitted that, in applying the above reasoning to the circumstances of this case, and bearing in mind how the sentencing judge took into account the pseudoephedrine for count 1 to arrive at the 332.7 grams of methylamphetamine for count 2, the inclusion of count 1 exposed the applicant to double punishment.
Attention was also invited to Jidah at [49], which summarised the judgment of R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151, to support the proposition that the conviction on count 1 should simply be quashed, as its criminality was totally subsumed within count 2.
Reliance was also placed on the decision of the Victorian Court of Appeal in R v Langdon and Langdon [2004] VSCA 205; 11 VR 18. In that case, the offenders were charged with possession and trafficking in relation to an identical drug. The possession conviction was quashed, as there were no "remnants" of criminal conduct in the possession count not captured by the trafficking count. It was submitted that, in the circumstances of this case, there is no remnant of criminal activity in count 1 that was not properly taken into account in relation to 2, and thus count 1 has no appropriate work to do.
It was said that the fact that a plea of guilty was entered on count 1 would not stand in the way of interference by this Court if it were satisfied that a "miscarriage of justice" had occurred, for the purposes of s 6(1) of the Criminal Appeal Act. Counsel referred in this context to the decision of R v Jackson [2004] NSWCCA 110 at [25] for the proposition that: "… if an appellant can demonstrate that he stands convicted of an offence of which, as a matter of law, he cannot properly be convicted, then it must follow that there has been a miscarriage of justice in proceeding to that conviction".

Crown submissions

The Crown submitted that the elements of the two offences are separate, as there is no evidence that the manufacture of pseudoephedrine is an essential step in the manufacture of methylamphetamine.
Furthermore, as methylamphetamine can be manufactured in other ways, and as there were two labs, one in Annandale with the sole purpose of extracting pseudoephedrine and one in Strathfield that was both extracting pseudoephedrine and manufacturing methylamphetamine, it was submitted that separate criminality was involved in count 1 and count 2. That was despite acceptance by the Crown that considerable overlap between the two offences exists, as the quantity of pseudoephedrine found at Annandale has indeed been utilised to establish an intention to manufacture the commercial quantity of methylamphetamine. However, as separate conduct and separate criminality were relied upon at first instance, the charges were said to be entirely separate, and appropriately pursued.
It was submitted that the real issue is whether the appropriate degree of concurrency and accumulation was allowed for in the sentence structure, rather than the question of double punishment or inappropriate conviction. And as separate offences with separately identifiable criminality arose from the circumstances, some degree of accumulation was appropriate.

Determination

Turning to my determination of this ground, I analyse it on the assumption that Ground 6 is upheld as proposed above, and therefore the two offences that are in play are manufacturing the precursor pseudoephedrine, and knowingly taking part in the manufacture of a commercial quantity of methylamphetamine.
As a matter of legal theory, there is no occasion to quash the conviction on count 1. That is because its elements are by no means fully subsumed within the elements of substituted count 2: see Pearce v the Queen [1998] HCA 57; 194 CLR 610 and Island Maritime Limited v Filipowski [2006] HCA 30; 226 CLR 328.
And, leaving aside legal theory and focusing on practical evidential matters, one can readily knowingly take part in the intended manufacture of a commercial quantity of methylamphetamine without committing a separate offence to do with the extraction of a precursor to methylamphetamine. To give but one example, buying a large plastic bucket from a hardware store may well constitute the physical element of the former offence, but it is not of itself an offence that bears with it "extra" criminality.
As it happened, in this case the applicant knowingly took part in one offence, and one way in which he did so was by committing another, separate offence. In my opinion, there is no theoretical legal difficulty in the applicant being convicted of both offences. An analogue that springs to mind is a person possessing a prohibited weapon, and brandishing it in an attempt to commit an armed robbery. It is true that the first offence has been committed as an essential part of the attempt to bring the second offence to fruition. But that is no reason why the hypothetical offender should not be convicted of both offences.
Nor, in my opinion, is there any difficulty in the sense of there having been a practical injustice in the applicant being convicted of two offences. Although there was an overlap between them, they were discrete. And it is to be recalled that the manufacture of the pseudoephedrine at Annandale was merely one of the factors that underpinned the calculation of the quantity of methylamphetamine that was intended to be manufactured, and which now underpins the substituted count of knowingly taking part in the manufacture of the latter prohibited drug. Count 1 was merely one of a number of evidential components of count 2.
Finally, it is true that circumstances such as these - that is, where there is considerable factual overlap between two separate offences - should have applied to them the solution of which the High Court spoke more than 20 years ago in the decision of Pearce v the Queen. But reference to the sentencing diagram shows that that is exactly what occurred: as I have already noted, the degree of concurrence between the three counts is very pronounced, and the degree of accumulation is to be measured in months only. One way of looking at the sentencing structure is that the period of incarceration solely referable to the manufacture of the pseudoephedrine that founds count 1 is no more than six months (that is, the period between 24 September 2013 and 24 March 2014). And another way of looking at the structure, even more adverse to the contention of the applicant, is that the sentence for the manufacture of pseudoephedrine is entirely subsumed by the sentence for the breach of the suspended sentence and the sentences for counts 2 and 3. In my opinion, nothing about that structure calls for intervention.
In short, I would uphold neither Ground 5 nor Ground 1.

Re-sentence on count 2?

Finally, in light of the proposed substitution of a conviction for knowingly taking part in the manufacture of a commercial quantity of methylamphetamine rather than the completed offence, I turn to the question of the imposition of sentence for that substituted offence. As a practical matter, and because I think it inconceivable that the applicant could receive a greater sentence for that substituted conviction, I have considered whether a lesser sentence is warranted in law, by way of broad analogy between the concluding words of s 7(1) and of s 6(3) of the Criminal Appeal Act.
Evidence was placed before us as against the possibility of re-sentence to the following effect. The applicant has been continuing with vocational training in custody, and indeed has completed an apprenticeship; he has been engaging in group psychological therapy; he has been employed in gaol; he has developed a religious faith; and he has been free of disciplinary charges in custody. I understood the submission to be that he has commendably served his sentences as quietly and constructively as he can.
I accept that submission. Nevertheless, substituted count 2 was a serious crime, committed in order to make money, with regard to a prohibited drug that is notoriously damaging to and distorting of persons who are unfortunate enough to become dependent upon it, and thereby does great harm to the Australian community. The offending was not unsophisticated or disorganised, and involved a substantial commitment of time, trouble, and money. The applicant is a person who has offended with regard to prohibited drugs in the past, and indeed had been previously imprisoned for a not insubstantial period for that kind of offending.
Separately, the sentence originally imposed by the sentencing judge, although pertaining to an offence of which the applicant was not, in my opinion, guilty, nevertheless unquestionably reflected the understanding that the vast majority of the methylamphetamine that underpinned count 2 had not actually been produced by way of the joint criminal enterprise. And it is to be recalled that knowingly taking part in the manufacture of a prohibited drug carries the identical maximum penalty to the offence of actually manufacturing it. Furthermore, there is nothing to suggest that, if the police had not intervened, the process in which the applicant was taking part would not have come to fruition. Finally, it is to be recalled that the sentence for count 2 must reflect the "attachment" of the Form 1.
Exercising the sentencing discretion afresh on the substituted count, and taking into account the progress that the applicant has made in custody, I would not impose a lesser sentence on substituted count 2. Nor would I adjust its commencement date in order to provide an even greater level of concurrence than it already possesses within the overall sentencing structure.
In short, although I would substitute the conviction on count 2, and accept that there must be a fresh sentence with regard to it, I would nevertheless impose an identical sentence for it.

Conclusion and proposed orders

I propose the following orders: 1. Leave to appeal against conviction on count 1 granted. 2. Appeal against conviction on count 1 dismissed. 3. Leave to appeal against conviction on count 2 granted. 4. Appeal against conviction on count 2 allowed. 5. The conviction on count 2 for manufacturing a commercial quantity of methylamphetamine quashed, and substituted with a conviction for knowingly taking part in the manufacture of a commercial quantity of methylamphetamine. 6. The sentence imposed at first instance on count 2 is accordingly quashed. 7. On substituted count 2, the applicant is sentenced to a non-parole period of 5 years 1 month, to commence on 24 December 2014, and expire on 23 January 2020, with a parole period of 2 years 9 months, to expire on 23 October 2022. 8. The first date upon which the applicant is eligible for possible release to parole remains 23 January 2020. Cashel Sentence Diagram (2.91 KB, pdf)

Amendments 14 December 2018 - Added the sentence diagram at the end of the judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2018

Drug Misuse and Trafficking Act 1986(NSW)

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