R v Howden [1999] VSCA 130

Court of Appeal (Vic)|1999-08-16|Before: WINNEKE, P., CHARLES and CHERNOV, JJ.A.

The applicant was presented in the County Court at Melbourne on 18 January 1999 on one count of trafficking in a drug of dependence between 1 February 1997 and 3 December 1997, the drug being methylamphetamine and the quantity being not less than a commercial quantity. The maximum penalty was 25 years' imprisonment. The applicant, who was 32 years old during the period of offending, pleaded guilty. He admitted four previous convictions from three earlier court appearances.

On 3 February a plea was heard, during which the applicant's counsel tendered a psychiatric report from Dr Lester Walton, in which Dr Walton concluded that the applicant "exhibits specific cognitive deficit in relation to literacy and numeracy skills but does not suffer from global intellectual disability". During the plea evidence was given by the informant, Detective Senior Constable Green of the Drug Squad, who told the judge that the applicant was under a strong influence from someone referred to only as "Tony" and that the whole methylamphetamine enterprise had been organised by Tony. The applicant himself gave evidence that he was not involved in the manufacture of the amphetamine and that his reward for his involvement was to be in the purchase of cabinets to renovate his house. He said that he permitted his house to be used by Tony for the manufacture of amphetamine because Tony was a close friend to whom he felt greatly obligated. The applicant's wife also gave evidence that she had been married to the applicant since 1989 and that there were three children of the marriage.

The judge on 10 February sentenced the applicant to be imprisoned for six years and fixed a non-parole period of four years. The applicant now seeks leave to appeal on the ground that the sentence imposed was manifestly excessive in all the circumstances.

The facts giving rise to this offence appear in an agreed statement of facts tendered during the plea. On 19 February 1997 a fire occurred at a house at 9 Downes Street, Brunswick. Firefighters at the premises drew the attention of police to containers of chemicals in the driveway and rooms that contained an assortment of glass vessels and piping apparently set up as some sort of laboratory. Scientists from the Victoria Forensic Science Centre then examined the premises on 20 February and found a large quantity of chemicals, glassware and apparatus consistent with the manufacturing of methylamphetamine. There were chemical drums and containers in the hallway of the house and two large reaction vessels fitted with condensers and hosing seated in heating mantles on a washing machine at the rear of the house. White plastic drums containing liquid with separating funnels sitting on top of them were found and further chemicals were located in a bungalow attached to the rear porch area.

The house had been owned by the applicant's father, George Edward Howden since 1958, and occupied by him until 1995. Since then it had been generally unoccupied but the applicant had been paying the utility accounts for the house, had changed the locks and was renovating the premises.

A scientist from the Victoria Forensic Science Centre gave evidence that in the vessels and containers found in the premises liquid containing methylamphetamine was found and that the quantity of methylamphetamine present was 28.65 kilograms. The applicant's fingerprints were found in the doorway and on the passenger window of a Tarago van found in the driveway of the premises and on two reaction vessels located in heating mantles. The applicant had been seen by various persons going to 9 Downes Street.

The fire at the premises was probably caused by the ignition of acetone and/or other volatile organic solvent vapours within the kitchen. There were open containers found in the kitchen that could have allowed a build-up of vapour within the premises particularly on a day when the temperature had been approximately 40 degrees celsius.

Meanwhile the applicant himself had on 19 February 1997 attended at the Emergency Department of the Preston and Northcote Community Hospital with burns to approximately 30% of his body. He had burns to his upper arms (front and back), both hands (front and back) and extensive burns to both legs (front and back) and left foot. The applicant at first refused to explain how he had sustained his injuries but later on 19 February said his burns had been caused by acetone. Later still he said his injuries had been caused while doing welding work during which an acetone solution had caught fire. The clothes he was wearing at the time were taken away for examination and in the rinsing of his shorts and underpants, methylamphetamine, pseudoephedrine (or ephedrine), amphetamine and two naphthalene derivatives were found. The applicant was transferred to the Alfred Hospital Burns Unit where he was treated for some weeks. He made "no comment" answers when interviewed by the police but was ultimately charged with trafficking in methylamphetamine.

During the second half of 1997 police received information that a quantity of methylamphetamine was stored in the yard area of premises used by the applicant at 14 Main Street, Coburg. After entry to the premises had been obtained and samples taken, a sample of powder found in plastic bags within a barrel on a shelf on the premises tested positively for methylamphetamine. After further surveillance, the applicant was observed on 3 December 1997 to visit the yard. He was seen to unlock the gates of these premises and proceed directly to the barrel stored on the shelf. He removed something from the barrel and placed it inside his left sock. He replaced the lid and put the barrel back on the shelf. Upon leaving the premises and closing the gates he was arrested, and a small plastic snap-seal bag containing powder was found in his left sock. A search of the premises was then conducted and the items found included approximately 13.5 kilograms of powder containing methyl-amphetamine at approximately 40% purity and 10 kilograms of powder containing methylamphetamine at approximately 80% purity, approximately 38 kilograms of red phosphorous, two empty 20-litre containers of acetone and various other implements. The analysis of the powders located at these premises indicated that the total quantity of pure methylamphetamine present was 12.6 kilograms.

The applicant was subsequently interviewed by the police and again made "no comment" answers to the allegations put to him. He was again charged with trafficking in methylamphetamine.

The total quantity of pure methylamphetamine the subject of the count to which the applicant pleaded guilty was 41.25 kilograms. At the relevant time the commercial quantity of methylamphetamine for the purposes of s.71(1)(a) of the Drugs Poisons and Controlled Substances Act 1981 was 2 kilograms pure. The estimated value of the amount of methylamphetamine the subject of the charge is $6,352,500 if sold in pound amounts without dilution or $78,059,520 if sold at street level purity of 3% at $60 per gram.

In this Court Mr Holdenson for the applicant submitted that he pleaded guilty at an early stage. The plea had been entered in circumstances of remorse, which had been expressly accepted by the judge and should have resulted in a significant sentencing discount. The involvement of the applicant in the commission of the offence, he submitted, was limited in that the applicant did not know how to manufacture methylamphetamine nor the quantity which was manufactured, he did not take part in the actual process, and his role was little more than providing the house and had been characterised by the informant as that of "dumb stooge". The reason behind his involvement had been a sense of indebtedness or obligation and a misguided sense of loyalty to another person, all of which was relevant to an assessment of the magnitude of his moral culpability. It was submitted that the material reward he expected to receive was very minor indeed and that whilst engaged in the commission of the offence he had been seriously injured, as a result of which he had not only been incapacitated by his severe burns but had remained so for some months. He still continues to suffer much pain and has many disfiguring scars. Accordingly, so it was submitted, the commission of the offence had already caused and would continue to cause the applicant to be punished, his injuries serving as a savage reminder to him of his criminality.

Mr Holdenson also relied on a number of other matters personal to the applicant which he said constituted a significant mitigating factor. It was put that the applicant's injuries had impacted upon his children and his relationship with them, causing them to require counselling and leaving the applicant to feel much guilt. There had been much evidentiary material placed before the judge to the effect that upon his release the applicant had a family awaiting his return and a good position of employment, so that his prospects of rehabilitation were good, all of which had apparently been accepted by the judge. Accordingly specific deterrence was of less consequence. Furthermore, although the applicant had some prior convictions, the Crown had conceded, and the judge had accepted, that these were not relevant to the exercise of the sentencing discretion in this case.

Accordingly it was submitted that the sentence imposed was manifestly excessive, being out of proportion to the applicant's misconduct and outside the range of sentences appropriate.

The judge was told during the plea that the applicant is illiterate, innumerate, dyslexic and autistic. He became a plumber, joined his father's plumbing business, and is recognised as a good and competent tradesman. He has unquestionably had far more than his fair share of bad luck. In 1983 he suffered neck injuries when he was a passenger in a vehicle which collided with a tree. In 1986 he was involved and seriously injured in the Russell Street bombing. His truck was blown across an intersection, and his head struck the steering wheel. When he got out of his vehicle to assist Policewoman Taylor, who was killed in the incident, a second explosion occurred, leaving him with residual loss of hearing. In December 1991 he was riding a trail bike which collided with a truck. He was severely injured, with a fractured left femur and ruptured left knee ligaments and an aggravation of his neck injuries. He was in hospital for a month, and was unable to work for two years. He never fully recovered from these injuries. At the same time he was identified as suffering from some form of heart murmur, with some enlargement of his heart and an associated arrhythmia. Then in February 1997 he was very severely burnt in the explosion at 9 Downes Street. He suffered excruciating pain for lengthy periods and has markedly disfiguring scarring particularly to his legs. There can be no doubt that his time spent in custody will be more burdensome in consequence of the injuries he suffered in February 1997.

Central to the argument made on the plea to the judge, and in Mr Holdenson's submissions to us, was the limited nature of the applicant's involvement in the offence. His involvement was indeed found by the judge to have been less than that of others, but it was none the less knowing, continuing, and by no means insignificant. The applicant had allowed the house at 9 Downes Street to be used for the manufacture of a very large quantity of amphetamine. He played a role there, watering the plants and visiting the premises to make the place look lived in, as though the activity there was normal. After having been charged with trafficking in relation to the first episode, he had then allowed the yard of the plumber's premises at 14 Main Street to be used for storage of the very large quantity of amphetamine which had been produced in the first "cook" at 9 Downes Street, awaiting distribution. The judge appropriately commented on the sheer size and sophistication of the project. As his Honour said, the applicant certainly knew and understood what he was doing, that he was significantly involved in the manufacture of a large quantity of drugs which were to be sold.

In so far as reliance was placed the absence of prior convictions related to drug use or trafficking, it must be remembered that in sentencing for drug trafficking, a clear earlier record has less significance than in other fields of crime (Leroy (1984) 13 A.Crim.R. 469, at 474). I have no doubt that the applicant's wife and family suffer hardship as a result of his incarceration, but so do the families of most prisoners. Such hardship only becomes significant to a sentencing exercise when exceptional (R. v. Yates (1998) 99 A.Crim.R. 483, at 486-7). Although the applicant was very seriously injured in the explosion and fire of February 1997, he continued his involvement in amphetamine trafficking thereafter. The judge referred in his reasons on a number of occasions to the applicant's injuries (and expressly to the severity of his burns) and took them all into account.

All the matters mentioned by Mr Holdenson were, I think, carefully considered by the sentencing judge, as appears from the reasons. It cannot be said that the judge erred in failing to take any relevant matter into consideration. His Honour's conclusions were, if anything, unduly favourable to the applicant.

This was indeed a very serious offence. Both incidents of trafficking involved enormous quantities of amphetamine. To my mind, there is little distinction to be drawn between those who traffick in methylamphetamine and those who deal in heroin. I entirely agree with the sentencing judge that amphetamine is a very deleterious substance the use of which can lead to severely psychotic and destructive behaviour, and, as this case vividly demonstrates, the rewards for those who distribute the drug can be enormous.

Less than a month ago this Court considered the issues involved in sentencing a prisoner for trafficking in a commercial quantity of heroin in R. v. Berisha & Ors. [1999] VSCA 112. I shall not repeat what this Court said in Berisha, save to say that the judgments emphasised that those involved in trafficking in drugs such as amphetamine and heroin can expect little mercy, and condign punishment from the courts. A sense of loyalty or obligation to the criminal or criminals principally involved is really no justification at all for this applicant's involvement in this offence and does little to mitigate it. General deterrence, the protection of the community and the necessity for denunciation of such conduct all, in my view, provide ample justification for the sentence imposed.

In R. v. Otene [1998] VSCA 92, this Court considered an appeal against sentence by an applicant who had been involved in the distribution of amphetamines. When police raided his home they seized 15.839 kilograms of amphetamine of a purity of 72.4%, giving a weight of about 11 kilograms pure. The quantity seized was described at the plea as the largest seizure in Victorian history. Otene's total effective sentence (on two counts) of nine years' imprisonment with a non-parole period of seven years was said by the Court to be "well within the range" open to the sentencing judge. Here, the sentence of six years and the non-parole period were unquestionably within range. The matters submitted in the applicant's favour during the plea, and which have been forcefully argued by Mr Holdenson today, were no doubt the basis for the comparative moderation in the sentence imposed.

We were informed by Mr Holdenson, with the agreement of Mr McArdle who appeared for the Crown, that the declaration of pre-sentence detention denied the applicant either ten or eleven days, and that the correct figure should have been not 424, but 435, days at the date of sentence, including 10 February 1999. On that basis the applicant has now served, including today in the calculation, 621 days of his sentence. I have recorded the correct agreed figures as at 16 August 1999, and the fact that the Crown accepts this calculation, to enable the information to be conveyed to the prison authorities. If the applicant's advisers regard this as insufficient, the matter can be brought on again before the sentencing judge to enable the correction of the records of the County Court.

In my view, the application should be dismissed.

The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

In doing so the Court notes that the pre-sentence detention which the sentencing judge ought to have declared pursuant to s.18 of the Sentencing Act was 435 days including the day of sentence, and not the 424 days which was in fact declared. That means that the applicant has now served 621 days, including today, of the sentence which was imposed.

These matters should be brought to the attention of the relevant prison authorities or, if necessary and if the applicant is so advised, the matter should be referred back to the County Court for correction. We further note that the Crown has agreed with the figures which we have noted.

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