Court of Appeal (WA)|2013-06-24|Before: Buss JA

BOMFORD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 153 (24 June 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BOMFORD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 153

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted after trial on one count of manufacturing methylamphetamine - Sentence of 2 years 9 months' immediate imprisonment - Whether the sentencing judge erred by failing to determine the factual basis for sentencing the appellant - Whether the sentence was manifestly excessive

Dooling v The State of Western Australia [2012] WASCA 95

Johnston v The State of Western Australia [2008] WASCA 221

Lovett v The State of Western Australia [2013] WASCA 78

Perry v The State of Western Australia [2012] WASCA 124

R v Storey [1998] 1 VR 359

Rumenos v The State of Western Australia [2011] WASCA 59

The State of Western Australia v Hyder [2011] WASCA 256

The State of Western Australia v Jenkin [2011] WASCA 171

1 BUSS JA: The appellant was convicted, after a trial in the District Court before Scott DCJ and a jury, on one count in an indictment which alleged that on a date unknown, between 27 January 2011 and 10 February 2011, the appellant manufactured a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA) (the Act).

2 On 27 September 2012, his Honour imposed a sentence of 2 years 9 months' immediate imprisonment. The sentence was backdated to 31 July 2012. A parole eligibility order was made.

3 The appellant has applied for leave to appeal against sentence.

4 The State alleged at trial that the appellant had committed the offence alone, alternatively with another or others.

5 The State's case was circumstantial. It contended that the only reasonable inference open on the evidence as a whole was that, shortly before 9 February 2011, the appellant manufactured methylamphetamine in a shed at a residential property in Greenwood where he was living, alternatively elsewhere, using medications containing pseudoephedrine and items found in the shed.

(a) Between 1 October 2010 and 3 February 2011, the appellant purchased and attempted to purchase medication containing pseudoephedrine. He made 17 separate purchases, and 18 other separate purchases which were classified as 'safety sales' because staff at pharmacies felt intimidated or threatened in some way. On another six occasions the appellant attempted to purchase medication containing pseudoephedrine, but sales were refused. He purchased in total 35 packets.

(b) Pseudoephedrine is used in the manufacture of methylamphetamine.

(d) These items included paper towels and coffee filter papers, some of which were damp.

(e) Pseudoephedrine, methylamphetamine, codeine and other by-products of the methylamphetamine manufacturing process were detected on filter papers and other items found in the shed.

(f) The appellant's fingerprint was on an acetone container found in the shed. This container was able to be used as a hydrogen chloride gas generator.

(g) DNA matching the appellant's DNA profile was detected on the inside surface of a facemask found in the shed.

(h) Chemicals and products were found in the appellant's bedroom at the Greenwood property which are commonly used in the manufacture of methylamphetamine.

(i) Methylamphetamine and pseudoephedrine were detected on the surface of filter papers found in the appellant's bedroom at the Greenwood property.

7 The appellant's case at trial was that the jury could not be satisfied beyond reasonable doubt that the only reasonable inference to be drawn from the facts established by the evidence was that the appellant was involved in the manufacture of methylamphetamine, as alleged by the State.

8 The trial judge said in his sentencing remarks that it was for him to decide the facts on which the appellant was to be sentenced and that his findings had to be consistent with the jury's verdict (ts 273).

The matter was left to the jury on the basis of you manufacturing methylamphetamine either alone or in company. It doesn't really matter whether it was alone or in company.

It seems to me more likely than not that the manufacture was a matter which was undertaken by and or for the benefit of you and your girlfriend. It doesn't really matter exactly what role you played except to say I'm satisfied that you would have played a significant role and it doesn't matter in sentencing whether you were an aider in real terms ... with respect [to] that finding or you did it all alone.

Both you and your girlfriend have a toxic relationship. Whether that has caused you to be addicted to methylamphetamine or the toxicity has been caused by a mutual use of methylamphetamine I don't know. But clearly from your record it's something that obviously is a matter that puts you at risk and has put you at risk in so far as your addiction is concerned.

I'm satisfied that you are a regular user, that she is a regular user and given your financial circumstances, manufacturing methylamphetamine is, for you and her, the only way in which you're going to be able to feed your needs (ts 273).

10 The appellant was aged 34 at the time of sentencing. Since 2009 he had been in receipt of unemployment benefits. He did not own any assets.

11 The trial judge accepted the State's concession that there was 'no commercial aspect' to the appellant's manufacture of methylamphetamine (ts 274). The drug was used by him and his girlfriend.

12 The appellant had a prior criminal record. Most of his convictions were for breach of community based orders, breach of violence restraining orders and breach of protective bail conditions. There were also convictions for damaging property, stealing, trespass on a place without lawful excuse, and common assault. He did not, however, have any prior drug related convictions.

13 The appellant relies on two proposed grounds of appeal.

14 Ground 1 alleges that the trial judge erred in law 'by failing to determine the factual basis for sentencing the appellant'.

15 Ground 2 alleges that his Honour erred by imposing a sentence that was manifestly excessive.

16 As to ground 1, counsel for the appellant complained that the trial judge did not make any findings of fact as to:

(b) whether the appellant carried on the manufacture of methylamphetamine himself or whether he aided another to do so.

17 Counsel also complained that his Honour concluded that the appellant played a 'significant role', without identifying the factual basis underlying this finding.

18 It was submitted that it was open on the evidence, and would have been consistent with the jury's verdict, for the trial judge to have found that the appellant was 'an aider by purchasing medication containing pseudoephedrine and providing it to another for the purposes of aiding the manufacture of methylamphetamine'.

19 According to counsel, if this finding had been made then a different, and more lenient, sentence should have been imposed.

20 As to ground 2, counsel for the appellant argued that the sentence imposed by his Honour was manifestly excessive having regard to the particular facts and circumstances of the offending and the sentences customarily imposed. Counsel emphasised the following matters:

(a) The appellant had no prior record of drug related offending.

(b) His offending could not be described as persistent.

(c) There was no elaborate manufacturing process in place at the appellant's place of residence and there was therefore a minimal risk of any explosion or imminent harm to others.

(d) No person's health or safety was put at direct risk as a result of the appellant's manufacturing activities.

(e) There was no 'commercial aspect' to the manufacture of the drug.

(f) The manufacture was for the purpose of feeding the appellant's addiction.

(g) There were 'no yield amounts, or information regarding potential yield', before his Honour.

21 The facts implicit in a verdict of guilty after a trial before a judge and jury cannot be controverted during the sentencing process. The trial judge must sentence according to those facts, whatever his or her personal views may be about the verdict. Usually, the facts implied by the verdict will be clear. See R v Storey [1998] 1 VR 359, 366 (Winneke P, Brooking & Hayne JJA & Southwell AJA).

22 If the trial judge is not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of that fact does not prove the converse fact, adverse to or in favour of the offender, as the case may be. Where the trial judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing. See R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32] (Martin J, Mullighan & Bleby JJ agreeing).

23 As I have mentioned, in the present case the State ran its case at trial on the basis that the appellant was the principal offender, alternatively an aider, in the manufacture of methylamphetamine. The jury's verdict of guilty did not, of course, identify the basis for the conviction. Before this court, counsel for the appellant conceded, correctly, that on the evidence the trial judge could not make a finding as to the identity of the principal (appeal ts 5).

24 His Honour found in substance that, irrespective of whether the appellant was the principal or an aider, he had played 'a significant role' in the offending. This finding was plainly open. I refer to the evidence that between 1 October 2010 and 3 February 2011 the appellant had purchased, on 35 separate occasions, medication containing pseudoephedrine. I also refer to the other evidence relied on by the State, as part of its circumstantial case, which I have summarised at [6] above. The absence of more specific findings by his Honour did not, in the circumstances, prejudice the appellant or occasion a miscarriage of justice.

25 The trial judge's view that it 'doesn't really matter', from a sentencing perspective, whether the appellant was the principal or an aider, was, in the present case, correct. The obtaining of the pseudoephedrine was critical to the manufacturing process. The evidence as to the appellant's role in acquiring that substance over a lengthy period, and the other objective evidence connecting him with the offence, revealed a high level of criminality. A different, and more lenient, sentence should not have been imposed if in truth the appellant was an aider and not a principal.

27 The principles to be applied in determining whether a sentence is manifestly excessive have been stated on countless occasions in judgments of the Court of Criminal Appeal and this court. It is unnecessary to repeat them.

28 The maximum penalty for the offence of manufacturing a prohibited drug, contrary to s 6(1)(b) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.

29 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. The guidance afforded by comparable cases is flexible rather than rigid.

30 The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

31 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range.

32 As to the offence of manufacturing methylamphetamine, contrary to s 6(1)(b) of the Act, McLure P (Buss JA & Mazza J agreeing) said in The State of Western Australia v Jenkin [2011] WASCA 171 [12] - [14]:

The offence of manufacturing a prohibited drug is, by any measure, serious. The maximum penalty for the offence is 25 years' imprisonment. It is the same maximum penalty as for the dealing offences in s 6(1)(a) and (c) of the MDA.

There has been a very significant increase in improvised clandestine drug laboratories in Western Australia in the past decade. In 2000 - 2001, 22 clandestine laboratories were found in Western Australia. In 2010, that figure had escalated to 133 clandestine laboratories. In the calendar year to 7 July 2011, 100 clandestine laboratories have been detected. Such laboratories present significant dangers to the people undertaking the manufacturing activity, people within its immediate vicinity and police and emergency services required to deal with them. Ammonia gas is extremely dangerous and can be fatal if inhaled. The WA Police now have to warn the public to be mindful of abandoned items of laboratory equipment in parks and bushland because of the dangers associated with it. The presence of a drug laboratory in bushland carries with it the real risk of a bush fire. Further, the close association between the use of methylamphetamine and the commission of criminal offences is well documented: The State of Western Australia v Higgins [2008] WASCA 157 [115].

Against that background it will come as no surprise that a sentence of immediate imprisonment will ordinarily be imposed for manufacturing methylamphetamine: R v Pallister [2002] WASCA 68 [31]; White v The State of Western Australia [2007] WASCA 119 [4]; Rumenos v The State of Western Australia [2011] WASCA 59 [34]; The State of Western Australia v Skaines [2006] WASCA 160.

See also The State of Western Australia v Hyder [2011] WASCA 256.

33 I have considered a number of prior cases involving the manufacture or attempted manufacture of methylamphetamine; in particular, Johnston v The State of Western Australia [2008] WASCA 221, Rumenos v The State of Western Australia [2011] WASCA 59, Jenkin, Hyder, Dooling v The State of Western Australia [2012] WASCA 95, Perry v The State of Western Australia [2012] WASCA 124 and Lovett v The State of Western Australia [2013] WASCA 78. It is unnecessary to reproduce the facts and circumstances of these cases. The most comparable cases, for present purposes, are Dooling and Perry, but there are some relevant distinguishing features.

34 In Dooling, the offender received a total effective sentence of 2 years' immediate imprisonment on two counts of attempting to manufacture methylamphetamine. He had aided other persons to attempt to manufacture the drug by permitting them to use his shed. The offender provided this assistance in order to obtain a share of the drug for his personal use. He entered fast-track pleas of guilty and he cooperated with the police and showed genuine remorse. His prior criminal record included one offence of burglary and a number of drug related offences, but he had not previously served a term of imprisonment. The offender had taken steps with a view to rehabilitation.

35 In Perry, the offender received 16 months' immediate imprisonment on one count of attempting to manufacture methylamphetamine. There were a number of substantial mitigating factors. The appellant entered an early plea of guilty and evinced genuine remorse. His personal circumstances, including his prospects of rehabilitation, were favourable. He had a prior criminal record, but the previous offences were minor and he had no previous convictions for drug related offences. The drug was manufactured for his personal use and not for commercial gain. Since his arrest he had stopped using methylamphetamine.

36 I am satisfied, in the present case, that when the sentence of 2 years 9 months' immediate imprisonment is evaluated in the context of the maximum penalty, the objective seriousness of the offence, the standards of sentencing applicable to offences of this kind, and the appellant's personal circumstances and antecedents, there is no merit in the contention that the sentence was unreasonable or plainly unjust.

37 During a period of about four months the appellant attempted on 41 occasions (35 successfully and six unsuccessfully) to purchase medication containing pseudoephedrine. That aspect of his offending can properly be described as persistent and demonstrating a high level of culpability. The Greenwood property was situated in a residential area. It was surrounded by houses.

38 The apparatus and chemicals found in the appellant's bedroom and the shed were consistent with the production of methylamphetamine by means of the 'Nazi' or 'Birch' reduction method.

39 There was little by way of mitigation. The discount ordinarily available on a plea of guilty was not available to the appellant. Although he did not have any prior drug related convictions, his prior criminal record showed that he was not a person who was otherwise of good character. The appellant was not gainfully employed. He did not evince any remorse and there was no evidence that he had taken any steps towards rehabilitation by endeavouring to address his addiction.

40 The matters emphasised by counsel for the appellant (except for par (b) of [20] above) are relevant and must be brought to account in assessing whether it is reasonably arguable that the sentence imposed by the trial judge was manifestly excessive. However, those matters do not carry significant weight. Personal and general deterrence are the primary sentencing factors.

41 The sentence imposed by his Honour was within the range of a sound exercise of the sentencing discretion. It was commensurate with the seriousness of the offence and was not inconsistent with the range of sentences customarily imposed.

43 Leave to appeal should be refused. The appeal must therefore be dismissed.

Dooling v The State of Western Australia

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BOMFORD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 153 (24 June 2013)

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