DPP v Downing [2007] VSCA 154

3 The respondent was charged with two accomplices: Laurie Allen and Michael Thomas. They also pleaded guilty. The charge against all three men was that they were involved in the manufacture for sale of not less than 12.8 kilograms of MDMA, but the period of offending was not the same in each case. In the case of Allen and Thomas, the presentment alleged, and they pleaded guilty to involvement extending over the period from October 2002 to November 2003. In the case of the respondent, the presentment alleged, and he pleaded guilty to involvement over a lesser period of March 2003 to November 2003.

4 The judge found that Allen was "the financier and the boss". He designed the operation to produce large quantities of MDMA and thereby secure large financial returns. He played the major role as an organiser in regard to a long-term endeavour on a large scale in order to make a profit. His criminality was both of a high order and flagrant and it was exercised with contempt for the legal system. But there were exceptional circumstances. Allen was a C4 quadriplegic who had chronic problems with pressure sores, needed to be turned every couple of hours when sleeping, needed temperature control when sleeping to avoid hypothermia, and required assistance with grooming and medication. He also suffered from gross renal failure necessitating dialysis three to four times per week, and he was afflicted by respiratory ailments requiring the use of artificial ventilation and a coughing machine. In light of those exceptional circumstances, the judge imposed a head sentence on Allen of only twelve years' imprisonment, with a non-parole period of seven years.

5 The judge found that Thomas was at all times the MDMA cook, albeit, as the judge put it, that he was "unskilled in a pharmacological sense". The judge found that there was also no doubt that Thomas intended to benefit to a large degree from the enterprise. He was in fact the major employee at the factory and the person who effected subterfuge with other employees and surrounding factories, and he was the packager of liquid in Coke bottles or powder. Consequently, the judge said, Thomas fell to be sentenced as a person who had played a very important role in the criminal enterprise. The judge accepted, however, that by the time of sentencing Thomas had become truly remorseful for "such grave criminality" and that he was a candidate for rehabilitation. The judge also considered that Thomas had been naïve as to the consequences of his offending, albeit that he willingly entered into the criminal enterprise for the money and with the view that he would earn considerable money. Somewhat beneficently, perhaps, the judge found that Thomas lacked a full understanding of the "dangerous game he was playing". He was, however, a first offender who was otherwise a law-abiding person of good character. On that basis the judge sentenced Thomas to ten years' imprisonment, with a non-parole period of six years.

6 Turning then to the respondent, the judge rejected a prosecution submission that he ought find the respondent to have been intimately involved in directing not only Thomas but at times also Allen, and therefore ascribe equal culpability to the respondent as to Allen. The judge placed the respondent's position in the hierarchy as being below that of both Allen and Thomas. The judge found that the respondent was well aware of the profit motive of the scheme, the large dimensions of the scheme, and the large amounts of MDMA to be produced by the scheme. His Honour further found that the respondent was in effect the consultant chemist to the project and, as such, an enthusiastic adviser, and that he was too the conduit for the movement of large amounts of funds and that he arranged drop-off points. His Honour accepted, therefore, that the respondent played an important role throughout the period of his involvement in the scheme. But his Honour found, too, that the respondent was not an organiser and was not involved in the initiation of the project, and consequently that the respondent's role must be seen as different and at a lower order than that of Allen and Thomas. Furthermore, the judge said, to have held the respondent's involvement was as grave as that of Allen or Thomas would have been "to defy the presentment", (in the sense that Allen and Thomas were alleged to have trafficked over the period October 2002 to November 2003, whereas the respondent was alleged to have trafficked only from March 2003 to November 2003).

7 On that basis the judge sentenced the respondent on the count of trafficking in a large commercial quantity of MDMA to a term of seven years' imprisonment and on the count of possession, which it was accepted was for his own use only, to a term of imprisonment of six months to be served concurrently with the non-parole period of four years.

8 The essence of the Crown's argument in support of this appeal is that the judge erred in placing the respondent's involvement in the criminal enterprise at a level below that of Thomas. It is contended that the judge should have assessed the respondent's level in the pecking order as between Allen and Thomas, and so imposed a head sentence on the count of trafficking of between ten and twelve years' imprisonment. Counsel for the Crown submits in support of that contention that the judge was led into error by submissions for the respondent below, to the effect that the respondent was merely the consulting chemist to the enterprise and as such an enthusiastic adviser. As counsel for the Crown would have it, a more accurate characterisation of the respondent's role was that of production manager, arguably below Allen's position in effect of general manager of the enterprise, but well above the job of cook performed by Thomas. Counsel for the Crown further submits that the true nature of the respondent's position in the enterprise was demonstrated by a covertly taped conversation between the respondent and Allen concerning problems with the production process. In that conversation the respondent told Allen to go the facility and sit there the whole time, and also that he would place $30,000 to $40,000 in a shed. Counsel contends that it is evident from the terms and tone of the conversation that the respondent had assumed the role of at least the number two man in the organisation.

9 I do not accept the Crown's argument. In my view the judge was right to place the respondent's level of involvement below that of Allen and Thomas. It is true that the respondent's role was perhaps more cerebral than that of Thomas. So much perhaps was inevitable, given that the respondent was a professional chemical engineer and Thomas was a welder who had turned his hand to MDMA manufacture. It may also be that the respondent was inclined to speak to Allen in confident and sometimes emphatic terms on matters pertaining to the technical processes of manufacture. But the fact that a technical adviser may think at levels above that of the works foreman or give advice to the general manager of the enterprise in terms less respectful than the foreman would employ does not necessarily imply that the adviser is more involved in the enterprise or stands above the foreman in the hierarchy of the enterprise. In the scheme of things it would be unusual if he were.

10 Further, as is pointed out by counsel for the respondent, whereas Allen and Thomas were engaged in the enterprise full time, the respondent worked full time in his family business and was involved only at odd times in the conduct of the criminal enterprise.

11 I am inclined to agree with the judge too that the presentment required that the respondent's level of involvement be placed below that of Allen and Thomas. For although all 12.8 kilograms of MDMA were taken to have been manufactured during the period March 2003 to November 2003, the evidence was clear that Allen and Thomas were involved in the enterprise in production before February 2003, and, as the judge observed, Thomas acknowledged delivering product in that period.

12 That said, however, I take the opportunity to observe that all of the sentences imposed in this case appear very lenient. The maximum sentence for trafficking in a large commercial quantity of a drug of dependence is life imprisonment, and the quantity of 12.8 kilograms involved in this case was therefore almost 13 times a large commercial quantity, and it was of a purity of 80%. Indeed, as the judge observed, this was the largest clandestine ecstasy factory unearthed by police at the time of discovery. Other things being equal, therefore, one might have expected to see head sentences of very much more than twelve years that was imposed on Allen.

13 It seems to me, however, that the judge was in a difficult position when sentencing Allen, in that his Honour was faced with an offender whose physical condition and consequent suffering were bound to make life in prison almost unbearable. Rightly, the judge very substantially reduced the sentence imposed on Allen for that reason. Having done that, his Honour had also to deal with the demands of parity when it came to sentencing Thomas and the respondent. So, while allowing that the special circumstances applicable to Allen were not applicable to the other two offenders, it was perhaps inevitable, or at least likely, that some of the leniency shown towards Allen was reflected in the sentences imposed on the others.

14 Generally speaking there are unlikely to be many cases of offending of this scale where it will be necessary or appropriate to show the sort of leniency that Allen received. Further, it may be that, if there is another case in which one offender qualifies for special leniency, it will not be viewed as necessary or appropriate to maintain the sort of parity in relation to co-offenders as was observed in this case. But that said, it is not the basis on which this appeal has been argued, and it is unnecessary to express a concluded view on it at this stage. The Crown has confined its case to relativities and so questions of the kind to which I have referred are matters for another day.**

**15 For the present, it is sufficient to say that, in the way in which the Crown has put its case, I am not satisfied that the sentence imposed on the respondent was manifestly inadequate. I would, therefore, dismiss the appeal.

16 I agree. This appeal is to be determined by the rejection, for the reasons stated by Nettle JA, of the narrow basis upon which it was mounted. The circumstances attending the respondent's offending and his character, and the manner in which his co-offenders were sentenced, to some extent explain a sentence substantially less than that which is generally appropriate to participation in the production of such a significant quantity of a drug of dependence.

18 The order of the Court is that the appeal is dismissed.

19 The Court grants to the respondent an indemnity certificate pursuant to s 15 of the Appeal Costs Act.**