Application for leave to appeal against sentence refused

Miles v R (1997) 17 WAR 518

Mill v R (1988) 166 CLR 59

Pelham v R (1995) 82 A Crim R 455

Postiglione v R [1997] HCA 26; (1997) 189 CLR 295

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Doyle (1994) 71 A Crim R 360

R v Pecora [1980] VicRp 47; [1980] VR 499

R v Rowe (1991) 52 A Crim R 196

Schulz v The Queen, unreported; CCA SCt of WA; Library No 950051; 7 February 1995

Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997

Vartzokas v Zanker (1989) 51 SASR 277

2 I do for the reasons to be published by Murray J with which reasons I am in entire agreement.

3 MURRAY J: The applicant was on 16 July 1999 presented before O'Brien J in the District Court on an indictment containing five counts, all allegedly committed between 30 September 1998 and 29 October 1998, of manufacturing methylamphetamine, contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(b). Such an offence is punishable under s 34(1)(a) of the Act by a fine of $100,000 or imprisonment for 25 years, or both. The applicant pleaded guilty. Indeed, it appears he had already done so in the Court of Petty Sessions on the day appointed for the holding of a preliminary hearing and he had been committed to sentence, so although the pleas were not entered at the earliest possible opportunity, they were entered early and in circumstances which, in my view, stood substantially to the credit of the applicant for sentencing purposes.

4 In addition, the applicant pleaded guilty to three offences which came before the court by way of the notice procedure contained in the Sentencing Act 1995 (WA), s 32. Those were two offences of possession of the drug colloquially known as ecstacy on 28 October 1998 and a further offence of possession of methylamphetamine on the same date. They were simple offences contrary to the Misuse of Drugs Act, s 6(2). As such they were punishable under s 34(1)(e) of the Act by a fine of $2,000 or imprisonment for 2 years or both. It is convenient to say immediately that those charges resulted from searches by the police under warrant of both the applicant's residence and that of his parents. The drugs were relatively small quantities and were said by the applicant to have been obtained by him casually for his personal use.

5 On 23 July 1999 when her Honour came to sentence the applicant, at an early stage of her remarks she referred to the entry of the pleas of guilty. She said she was prepared to accept that the applicant pleaded guilty at "the first reasonable opportunity", but she said that in view of the fact that the applicant was caught "red-handed" the mitigatory power of the pleas was somewhat diminished.

6 Most of her Honour's attention was devoted to the facts concerning the manufacturing offences. She found that during the absence of the applicant's parents, he took over a bathroom in their house to set up a clandestine laboratory for the purpose of attempting to manufacture amphetamine. There was evidence of five successful attempts yieldingquantities of the drug in high concentrations. There was a quantity of material to be used as part of the manufacturing process to cut the amphetamine produced to lower the concentration of drug. Her Honour calculated that in pure form the applicant had achieved the manufacture of about 60 times the trafficable amount of amphetamine.

7 He had apparently learned the process as he went along. He admitted to the police that he had attempted the process about 10 times and, as can be seen, he was ultimately successful. He had been working at this process over a two week period. The drug was not for his use, but was manufactured for profit, the applicant's plan being to sell it to "a friend" whom he had reason to believe would purchase the drug for further sale. Her Honour inferred that the applicant would have continued with the manufacture of the amphetamine for this purpose had he not been apprehended.

8 It is perfectly clear, as her Honour found, that there was a degree of pre-meditation involved in the manufacturing offences in the sense that after a deliberate decision to commence the process of manufacture it was not easy, and had to be learned. The equipment used had to be purchased together with the materials, over a period of time and from a variety of sources. The applicant was not initially successful, but he persevered. Having regard only for the materials on hand her Honour found that there was the potential for the manufacture of some 600 grams of high purity drug. Her Honour concluded, however, that the applicant was to be sentenced:

"...on the basis of the amount of drug which you actually manufactured and also, as I have said, taking into account your expressed intention to sell the drug for financial gain. Your counsel, Mr Dane, asked me to classify your offences at the lower end of the scale. I do not do so given the pre-meditation, the planning, the expertise and perseverance needed to reach the stage that you did, also, the amount of drug manufactured and the potential to manufacture more of the drug than was actually manufactured by you, ...."

9 Her Honour observed correctly that amphetamines were regarded by the courts as being in the most serious category of drugs of addiction with such drugs as heroin and cocaine because of their destructive effects and the harm they do. Although there was no evidence that the applicant was involved in a large scale drug enterprise involving a number of people, her Honour said of the applicant:

"Given your age and your sophistication you cannot have been unaware of the terrible social effects of amphetamines. You either chose to ignore them or you were indifferent to them. It was not suggested to me that you were in any financial difficulty and there is no other inference to draw other than that you embarked on this enterprise out of sheer greed. The courts consistently say that the primary issues to take into account in offences of this kind are personal and general deterrence, the main objective being to stop people committing offences of this sort."

10 Her Honour had regard to the applicant's personal circumstances. He was 33 years of age and, apart from traffic offences, he had no prior criminal history. Her Honour said she regarded him as a first offender. She reviewed his history and particularly commented upon his success in business and his entrepreneurial activities. She said that since the applicant had been charged, his business associates had disowned him, he had lost his job and his income, and the prospects of re-establishing himself in business were considerably diminished because of the public opprobrium attaching to the offences.

11 He had deeply embarrassed and humiliated his parents and her Honour accepted that he was extremely ashamed. The offences were out of character and were regarded by her Honour as an aberration. Testimonials were provided to the court. He is a religious man, a Buddhist, who, her Honour said, continued to be in the process of atoning for what he had done. However, these were consequences of the offending of the applicant's own making, her Honour found, carrying little weight in mitigation.

12 Her Honour accepted that it was most unlikely that the applicant would offend in this manner again, but she added that, "What I have said about your worthy attributes in a sense makes your offending in this way more serious." That I think was simply a reference to the fact that the applicant had engaged upon this criminal enterprise from a background of privilege and success, purely for personal gain, rather than from a background of drug addiction and the desperate need to obtain funds to sustain a habit. I am sure her Honour did not mean to convey that she regarded the offences as being the more serious because committed by a person of otherwise good character.

13 Her Honour went on to say that in those circumstances personal deterrence was not her primary focus, but general deterrence was. She said that she understood that much manufacture went undetected and that any penalty "must send a message to those manufacturers of amphetamines that, if apprehended, they will be dealt with severely by the courts." Her Honour determined that imprisonment was the only option available and she expressed the view that the case was much too serious to warrant suspension of the sentence. Her Honour expressed her conclusion about sentence as follows:

"I must fix a sentence designed to ensure that the aggregation of sentences appropriate to each offence is a just and appropriate measure of the criminal conduct involved. In my view, the starting point for sentencing in all of the circumstances of the offences to which you have pleaded guilty is 8 years 6 months imprisonment. Taking into account your plea of guilty and the mitigating circumstances and factors put on your behalf, I reduce the starting point by 2 years and 6 months."

14 Her Honour then went on to structure the sentences by imposing 5 years and 6 months imprisonment for each of the manufacturing offences, each sentence to be served concurrently. So far as the offences the subject of the s 32 notice were concerned, her Honour imposed 6 months imprisonment with respect to each such offence to be served concurrently with each other, but cumulatively on the sentences previously imposed, thus achieving the aggregate of 6 years imprisonment to which her Honour had previously referred. She ordered eligibility for parole.

15 From those sentences the applicant now seeks leave to appeal on grounds which challenge the correctness of her Honour's decision, both in respect of the manufacturing offences and the simple offences. It is said that what was evidently an 8 year starting point for the manufacturing offences was excessive, having regard to the quantity of drug produced, the fact that it was an "unsophisticated enterprise" and the fact that there was no evidence of any detailed plans for sale. Insufficient weight, it is argued, was given to the personal circumstances of the applicant and his prospects of rehabilitation. Her Honour is said to have erred in having regard to the potential to manufacture more of the drug than was actually produced, and it is said that she erred "by treating as an aggravating factor the premeditation of the applicant in the manufacture of the amphetamine". As to the simple offences the argument was effectively that these offences should not have attracted a sentence of imprisonment in all the circumstances, including for the reason that to add 6 months imprisonment provided a total outcome which was too great.

16 I consider that her Honour's approach to the sentencing exercise was meticulous and thorough and I do not accept that she fell into error in the ways canvassed in the argument presented in support of the grounds of application. In the first place, she did not, I think, adopt the procedure criticised by the High Court in Pearce v R (1998) 194 CLR 610 per McHugh, Haine and Callanan JJ at [45] - [48], 623 - 624. Her Honour did not start at the wrong end of the process by dealing with the totality issue first, with all the dangers which that involves, as explained by the High Court and which I had occasion to discuss recently in W (A Child) v The Queen [1999] WASCA 235; 5 November 1999. As her Honour's quoted remarks reveal she simply expressed what she took to be the appropriate outcome of the process of aggregation of the sentences she was required to impose before she announced what those sentences were individually.

17 This Court recently discussed the approach to sentencing in drug trafficking cases in Quach v The Queen [1999] WASCA 210; 15 October 1999. That was undoubtedly a more serious case than this. It involved the possession of 653 grams of heroin of a high degree of purity with intent to sell it. A sentence of 15 years imprisonment with eligibility for parole was imposed. It was upheld. The leading judgment was that of Ipp J. His Honour, with whom Wallwork and White JJ agreed, endorsed the approach which accepted a hierarchy of criminality in such cases.

18 The uppermost level is occupied by an importer or manufacturer handling substantial quantities for high profits and making it available for further distribution. Further down the chain one often encounters an intermediary who is effectively a wholesaler and who shields the person or persons at the top of the pyramid by supplying the drug to those who resell it in the community. Of course there are those who become involved also as mere couriers, transporting the drug through the different levels of the chain of distribution.

19 The higher one gets into the chain of distribution, the more there is a need for punishment and a proper reflection of the principles of particular and general deterrence in the attempt, by imposing appropriately severe punishments, to deter those who promote the drug trade with all its dreadful consequences to victims and the community. In the case of such individuals, circumstances proffered in mitigation have little force to reduce proper punishment. As Ipp J put it at [13] when speaking of heroin trafficking in that case:

"In my view, his Honour did not err in finding that mitigating factors were of little consequence. The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force."

20 For heroin trafficking involving the sort of quantity which was before the court in that case, of a high degree of purity, and in the case of an offender at the upper end of the distribution chain, Ipp J concluded after a thorough review of the authorities that an appropriate range of sentence would be between 11 to 15 years imprisonment, particularly having regard to the view accepted by the court that there was presently considerable justification to "firm up" sentences generally for offences of drug trafficking: [26].

21 One of the authorities upon which Ipp J relied in that case was the decision of this Court in Darwell v R (1997) 94 A Crim R 35 where at 40 Malcolm CJ, with whom Kennedy and Franklyn JJ agreed, said:

"In my opinion, having regard to the increasing prevalence of the use of MDMA or ecstacy, which is one of the drugs in the amphetamines group, and taking into account the increasing prevalence of the use of amphetamines generally, including methylamphetamine, the courts have tended to firm up the sentences for the sale or supply of such drugs or their possession with intent to sell or supply.

It is important to note that methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If not equated to heroin and cocaine, it is close enough to those drugs to be regarded as in the same category."

Among the cases cited by his Honour in support of that proposition were two reported decisions, Bellissimo v R (1996) 84 A Crim R 465 and Krakouer v R (1996) 16 WAR 1, 33 - 35 per Anderson J with whom Rowland and Franklyn JJ agreed. Of course, those were the drugs involved in this case and so their place in the hierarchy of seriousness of prohibited drugs is clear.

22 The nature of this enterprise was, as found by O'Brien J, that the applicant was a mature intelligent man. He deliberate embarked upon a process of mastering the skills needed to manufacture the amphetamine. The five charges resulted from five different, but obviously related processes of production. The quantity of the drug produced was substantial and of a high degree of purity. It was no doubt readily marketable and it was produced entirely for profit, the applicant knowing that he had a friend who would take the drug he produced, no doubt himself for the purpose of selling it on down the distribution chain.

23 So the applicant was proposing to be the source of the drug and he was succeeding in that enterprise. Whilst there may have been elements of a lack of sophistication in the laboratory setup he established, he got it to work, using a bathroom in his parents' home during their absence overseas. Fortunately, he was apprehended only two weeks into the enterprise which her Honour was satisfied would have continued had he not been apprehended. In my respectful opinion her Honour was right to refer to "the pre-meditation, the planning, the expertise and perseverance needed to reach the stage that [the applicant] did".

24 Her Honour's reference to the potential to manufacture more of the drug than was actually seized from the applicant does not reveal error because her Honour expressly reminded herself that she was to impose sentences only for the drug which was actually manufactured. As I have said, she did not commit the error to which the High Court referred in Pearce and there is nothing to suggest that she breached the obvious rule that an offender may not be punished for an offence of which he has not been convicted: cf R v Newman [1997] 1 VR 146 per Winneke P at 150 - 151.

25 As to the circumstances advanced in mitigation her Honour did not take the view that these were irrelevant to the sentencing process. She was in my respectful opinion right to take that approach because she correctly categorised this series of offences as being indicative of a nascent commercial enterprise in which the applicant was motivated solely by greed and oblivious to the terrible consequences of the consumption of such drugs. It was a serious case, but not of the highest order of seriousness, as her Honour found. She held that there was "no evidence that you were involved in any large-scale drug enterprise", and so it was not the sort of case to which Ipp J referred in Quach where the mitigatory power of personal circumstances is extremely limited.

26 As I have said her Honour had regard to what had been put before her to demonstrate that the applicant was otherwise of good character. She said she regarded the commission of these offences as "an aberration on your part" and she concluded from the material presented to her that "it is most unlikely that you will offend in this manner again". She reviewed in some detail the applicant's history, the destruction of his reputation in business and in the community, the support of family and his girlfriend, the testimonials tendered on his behalf, the fact that he was a religious man, a practising Buddhist, and the fact that he was deeply remorseful. It is clear that she took all those matters into account together with the pleas of guilty and she reduced the sentences which she would have otherwise imposed by about 30 per cent. In other words, a significant discount was allowed.

27 Her Honour's discussion of the question of the applicant's rehabilitation occurred in the context of her consideration of the suspension of sentence, an option she rejected. Her decision in that regard is not challenged by this application. Her Honour referred herself to the leading authority in this State on the question of suspension of sentence, the case of R v GP (1997) 18 WAR 196 where it was held that a suspended sentence of imprisonment would be appropriate where the case was such that it was not so serious as to preclude the suspension of sentence and it was established that there was a real prospect that the rehabilitation of the offender would be assisted by the suspension, or that there are special reasons why the court should be merciful in that way. It is clear that her Honour concluded that this was not a case of that kind. She thought it was too serious for suspended imprisonment to be justified and in the course of her remarks she said this was not a case where the applicant might derive special assistance towards his rehabilitation from the process of suspension. Her comments in that regard are unexceptional and irrelevant for present purposes.

28 As to the offences of simple possession of prohibited drugs, it is to be noted that the manufacturing offences were properly treated as being reflections of the one enterprise to be punished by concurrent sentences. On the other hand if the simple offences were to be punished by imprisonment, it was right I think to consider them separately and punish cumulatively upon the sentences for the manufacturing offences, although again, one could not argue with the decision that the three sentences of 6 months imprisonment imposed for those offences should have been allowed to run concurrently. They were quite separate offences of acquisition of drugs by the applicant for his personal use and having nothing to do with the manufacturing offences.

29 Whilst such offences will not invariably attract punishment by imprisonment, they are, as I have mentioned, in their most serious form, punishable by a fine of $2,000 or imprisonment for 2 years or both. Although relatively small, the quantities of drugs involved were by no means trivial and I am not persuaded that the imposition of sentences of 6 months imprisonment in this case reveals that the discretion of the sentencing Judge has miscarried.

30 Nor am I persuaded that her Honour fell into error from the point of view of the total term of 6 years imprisonment having regard to the overall criminality involved: see generally Jarvis v R (1993) 20 WAR 201. Her Honour clearly had regard to this principle and I am not persuaded that the circumstances of the case required other than the conventional approach to the imposition of the sentences which her Honour took.

31 In my opinion leave to appeal should be refused.

32 ANDERSON J: I have had the advantage of reading the judgment of Murray J in draft. I entirely agree with it and can add nothing useful. In my opinion, leave to appeal should be refused.