R v McBride

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3140 FILE NUMBER(S) : LOWER COURT Moore DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60151/03

FOSTER AJA GROVE J DOWD J

Friday 3 October 2003 REGINA v ANDREW JAMES McBRIDE Judgment 1 FOSTER AJA: I agree with Dowd J. 2 GROVE J: I agree with Dowd J. 3 DOWD J: This is an appeal under s5D of the Criminal Appeal Act 1912 ("the Appeal Act") in respect of a sentence imposed on the respondent, Andrew James McBride, by Moore DCJ on 31 March 2003. 4 The respondent entered a plea of guilty to and was convicted and sentenced for an offence of Knowingly Take Part in the Manufacture of a Prohibited Drug, namely pseudoephedrine, on 19 December 2000 contrary to s24 (1) of the Drug Misuse and Trafficking Act 1985 ("the Drug Act") for which the maximum penalty is two thousand penalty units or imprisonment for fifteen years or both. 5 The sentence also took into account two charges on a Form 1, being a charge of Deemed Supply of Prohibited Drug, namely pseudoephedrine, on that same date contrary to s25 (1) and s29 of the Drug Act which carries a similar penalty, and a second charge of Deemed Supply Prohibited Drug, namely cannabis leaf, contrary to s25 (2) and s29 of the Drug Act which carries a maximum penalty of two thousand penalty units and/or imprisonment for ten years. 6 The sentence imposed was five hundred hours of community service. The respondent had been in custody for twenty three days before bail was granted which the learned sentencing judge took into account on sentence. At the time of lodging of the Crown appeal the respondent had served some eighty hours of community service. 7 The grounds of the appeal were: i. That there was error in the exercise of the sentencing judge's discretion in a finding of fact that was against the weight of the evidence; ii. That even if open to the sentencing judge to make the finding of fact, having made that fact his Honour made an error of law in accepting the plea of guilty to the charge of Knowingly Take Part in the Manufacture of Pseudoephedrine and taking into the account the offence of Supply Prohibited Drug; and iii. That there was error in the exercise of the sentencing discretion by reason of the imposition of a manifestly inadequate sentence. 8 The respondent entered a plea of not guilty to an indictment containing three charges as at 26 April 2002 but a fresh indictment including the charges set out above, was presented on 5 August 2002. This plea was taken as an early plea and an undertaking was given by the Crown that the respondent would not be asked to name the person who used the shed on his property for manufacturing purposes due to the respondent's fear of reprisal.

The Facts 9 On 19 December 2000 police executed a search warrant at the premises of the respondent in Kemps Creek and found a total of 823.4 grams of cannabis leaf in the respondent's wardrobe at his premises. An additional 1.5 kilos of leaf being mainly stems was located in the garage but not attributed to the respondent. 10 In the respondent's wardrobe, in a paste rock form was 386.1 grams of pseudoephedrine with a purity of 49.5%. Traces of pseudoephedrine were also found in items seized from the kitchen and around the house. Blister packs containing 810 Sudafed tablets were located in the respondent's pantry and a further 168.3 grams of tablets were in two plastic bags in the lounge room. In a shed at the back of the premises were buckets and pots containing pseudoephedrine in paste form and the general paraphernalia of a drug manufacturing factory. Pseudoephedrine is extracted from the Sudafed tablets.

Respondent's Subjective Matters on Sentence 11 The evidence on the sentencing hearing was that the respondent had the benefit of a loving and supportive family. The pre-sentence report noted that the respondent is described as a person likely to allow others to exploit him. The respondent has been in constant employment in semi-skilled jobs and the pre-sentence report opined that the respondent had the ability to learn from his mistakes. The respondent had been in constant employment since leaving school working long hours. He said he would not take drugs again.

12 The respondent had been a regular user of marijuana and up to four times a week used amphetamines until apprehended. His evidence was that he had been free since arrest and lives with his eldest sister who said he is no longer using any drug. 13 The respondent's evidence on sentence was, and it was part of the agreed facts, that he had allowed a person that he barely knew to use the respondent's shed for a week and that he did not know the person was making pseudoephedrine until half way through the week. No money was paid for the use of the shed. The respondent had been in the habit of allowing many people to use the shed to work on cars and other matters. It was a constantly used workshop. As the respondent was working long hours and the shed was constantly in use, a key was made available for others to use the shed. 14 The respondent's evidence was that he did not know that manufacturing pseudoephedrine was a breach of the law and if he had known it was illegal he would not have allowed the use of the shed. The manufacture of pseudoephedrine had not become an offence until 1995. 15 The respondent's evidence on sentence was that about a month after the user of the shed vacated the shed the respondent had brought many of the items up to his house out of curiosity and that he had put them in various cupboards throughout the house for tidiness in the event of a rent inspection and that he thought the left-over pseudoephedrine paste was probably worth something, but not very much, and that he might be able to obtain some small reward if it were given or sold to a friend. 16 In cross-examination the respondent said that he knew cold tablets were expensive but did not know how many tablets it took to manufacture pseudoephedrine. His evidence was that the 823 grams of cannabis was a large amount for him to smoke but that he smoked twenty to thirty cannabis cigarettes a day and gave some to friends. He said the cannabis consumption together with alcohol did not affect his functioning. He said that he only now knew that pseudoephedrine was used to make methylamphetamine which latter drug he knew was illegal. He did not know that possession of the pseudoephedrine was illegal. 17 Character evidence was given by Mr Peppernell, his employer for four years, who said that he had taken him to and from work. He said that there was always someone at the respondent's property either in the house or in the shed and that he had seen large numbers there. Peppernell's evidence was that the respondent was very gullible and a soft touch and was very generous to people and trusted others too much and was often put upon by others. Mr Peppernell said he had never noticed any evidence of drug taking on the part of the respondent, even when he had picked him up for work. 18 During the course of the hearing there was some discussion, and in the course of his Honour's remarks on sentence his Honour made a finding that any defence under Proudman v Dayman (1941) 67 CLR 536 did not arise. The Crown had contended that a defence that the respondent knew the substance was pseudoephedrine but did not know that possession or manufacture of the substance was illegal was not available. The respondent, before his Honour, did not raise any such purported defence. His Honour had expressed concern in the hearing about whether he could accept a plea of guilty but found that he was able to do so, notwithstanding that his Honour did not believe that, at the time, the respondent became aware of its manufacture that pseudoephedrine was a prohibited drug. His Honour found that the question of the honesty of his belief of its legality were still proper matters to take into account on assessment of the level of criminality in the sentencing process which is quite separate from the question of guilt itself. 19 The learned sentencing judge commented in his remarks on sentence that the respondent's account was a "tall story" and that there was a lot to be said for the Crown's submission that it ought not be accepted. After extensive cross-examination and observation of the respondent in the witness box and taking into account the sworn evidence of the respondent's employer as to the respondent's gullibility, his Honour accepted the story of the respondent as to the circumstances of the manufacturing, notwithstanding the unlikely nature of the story. His Honour found that he was thoroughly convinced of the respondent's reliability. 20 His Honour found that the respondent had no prior knowledge of the manufacturing that was going on in the shed and had no knowledge until half way through the week. His Honour also found that the respondent had no interest in the manufacture and had no awareness that what was going on was wrong. His Honour found that the offence was at the very bottom end of criminality on the scale applicable to the crime. 21 His Honour accepted the previous good character of the respondent and the very generous, very sympathetic references for the character of the respondent. His Honour, the learned sentencing judge, found that the respondent had rehabilitated himself and was genuinely regretful for what he had done. 22 His Honour found that the two matters on the Form 1 were not simply subsumed in the crime on the indictment and that they were obviously matters which of their own impetus would require not insubstantial sentences. 23 His Honour also found that the offence for which sentence was imposed was a "significantly criminal prohibited drug" and his Honour found: "If it were not for the findings that I have made, which are special to the offender, it would have resulted in a substantial gaol sentence."

Appellant's Case 24 The first ground of appeal was that there was an error in the exercise of the sentencing judge's discretion in finding a fact against the weight of the evidence. 25 The appellant submitted that the respondent claimed that he had let a barely known acquaintance use his shed and that he did not know what the person was doing until half way through the week and that after the person had left, he brought many of the items up to his house out of curiosity. The appellant further submitted that the sum of 823 grams of cannabis was a large amount for personal use. The appellant also pointed out that the respondent had lied as to the contents of a bucket being for fire-fighting purposes. His Honour had found that there was no other explanation other than guilty conscience. 26 In reviewing the facts that I have set out above, the appellant then submitted that the respondent's evidence should be rejected and the respondent should be sentenced on the basis that, while not knowing the production or possession of pseudoephedrine to be illegal he, nevertheless, permitted his premises to be used for a substantial manufacturing process. 27 The appellant submitted that his Honour, the learned sentencing judge, erred in the exercising of his discretion in making a finding of fact in that his Honour found that although the respondent knew that pseudoephedrine was being manufactured on the premises he did not believe that pseudoephedrine was a prohibited drug; that his Honour acknowledged that the respondent's account was a "tall story"; and that his Honour inappropriately relied on the evidence of the respondent's employer Mr Peppernell. 28 The appellant submitted that it emerged in cross-examination that Mr Peppernell was completely unaware that the respondent was an amphetamine user and a heavy user of cannabis and that his Honour made no mention of Mr Peppernell's ignorance of the respondent's drug use, suggesting that his Honour may have overlooked that evidence in relying on the evidence of Peppernell. 29 The appellant submitted that the cross-examination evidence significantly undermined the value of Mr Peppernell's assessment of the respondent's personality and that, as Mr Peppernell knew nothing of the respondent's drug use, his opinion that the respondent would not put himself at risk in relation to the law was of little value. 30 The appellant further submitted that, had his Honour taken into account the fact that Mr Peppernell was completely unaware of the respondent's drug use, then he would not have used Mr Peppernell's assessment of the respondent's personality, on the basis that Mr Peppernell was unaware of the respondent's drug use, in order to conclude that the respondent's account was reliable and that his opinion that the respondent would not commit drug offences was of little use. It was thus not open to his Honour to rely on his assessment of the respondent as a gullible person, easily put upon. I do not accept that submission. 31 It was further submitted that because the respondent was not just a simple drug user, but an amphetamine user, this contradicted the respondent's claim that he did not know that pseudoephedrine was a prohibited drug. The appellant relied on the respondent's amphetamine use to suggest that it was incomprehensible that the respondent did not understand that pseudoephedrine was used to make amphetamines and further submitted that it was inherently unbelievable that at the sight of that manufacturer, clearly using drug manufacturing apparatus, he was not alerted to the fact that the manufacturer was involved in an illegal activity. 32 The appellant also submitted that the explanation given by the respondent about moving items from the shed to the house and garage was implausible and pointed to the fact that the respondent retained the pseudoephedrine and the additional Sudafed tablets for many months after it was clear that the manufacturer was not coming back, and further, that he lied when the police found substances in buckets. 33 It was further submitted by the appellant that, notwithstanding the limits on appeal of an exercise of discretion by a sentencing judge, acceptance of facts by the judge can still be the subject of review. 34 In the substance of the findings made from the relevant witnesses and a carefully expressed judgment, it is abundantly clear findings of fact were reasonably open to his Honour. The evidence of Mr Peppernell as to the respondent's gullibility is not diminished by the fact that the witness was not aware of the other drug associations of the respondent. It is clear that his Honour took into account all of the relevant matters and made the necessary findings of fact to form the judgment that he did of the respondent and that his Honour's findings were within the bounds of his discretion. In my view, the findings were not against the weight of the evidence and, thus, did not constitute error.

Error of Law in Accepting the Plea of Guilty 35 It was submitted by the appellant that his Honour, having accepted the respondent's claim that he had no knowledge that pseudoephedrine was a prohibited drug and that it was illegal to manufacture it, should have rejected the plea of guilty to the offence of Knowingly Take Part in the Manufacture of a Prohibited Drug. The appellant submitted that from the wording of s24 (1) of the Drug Act that an essential element of the offence of Knowingly Take Part in the Manufacture of a Prohibited Drug is knowledge that the drug is prohibited or illegal. 36 It was further submitted by the appellant that the use of the word "knowingly" in s24 (1) of the Drug Act imports a guilty mind as an element of the offence and it is, therefore, necessary that the respondent have knowledge that he was taking part in, by suffering of permitting the manufacturer, and that what he was doing was wrong. 37 It was further submitted by the appellant that it was not open to his Honour to find the facts as he did. The appellant submitted that his Honour erred in finding that the respondent had no knowledge that the drug was prohibited yet still accepted his plea of guilty to the offence of "knowingly" and similarly, with the offence of Supplying the Prohibited Drug, pseudoephedrine. 38 The error further asserted by the appellant in not rejecting the plea of guilty was that the finding that Moore DCJ made, that the criminality to be attributed to the offence was at the low end of the scale applicable to the crime, is an error which had consequences on the imposition of a manifestly inadequate sentence. 39 Proudman v Dayman does not have application to an offence where the statute makes it clear that knowledge of the substance is a relevant part of the offence. Proudman v Dayman only applies where the legislature has excluded guilty intent as an ingredient of the offence. 40 To crystallize the offence the Crown in the conviction proved the necessary elements of the offence. That does not preclude ignorance of necessary facts being taken into account on sentence. It is manifestly clear that permitting the manufacture of illegal substance is a worse offence to be taken into account on sentence if one knows that producing a substance is illegal to not so knowing. This is true of many other offences where it is no defence that the perpetrator did not know the act was illegal, that it may be taken into account on sentence that the perpetrator of the offence did not know it was illegal. 41 In my view, therefore, there was no error of law on the part his Honour in accepting the plea of guilty or in taking the matter into account on sentence.

Manifest Inadequacy 42 The appellant submitted during the course of this sentencing hearing, as originally outlined in the grounds of appeal that, notwithstanding the court not finding error in terms of the entry of the plea of guilty or the other findings of fact, that the sentence was nonetheless manifestly inadequate. 43 It is necessary, in considering this ground, to take into account not only the maximum penalty for the offence but that, as found by his Honour, the two matters taken into account on sentence were not subsumed into the principal offence and that the matters on the Form 1 had to be given weight in the sentencing process. For each of these offences there is an appropriate penalty, notwithstanding the fact of the ignorance on the part of the respondent on manufacture of the substance being illegal. In each offence there is a substantial quantity of the illegal substance. 44 In my view, his Honour was in error in not imposing a period of imprisonment. Without such a sentence there is inadequate denunciation of the offence in the imposition only of a community service order. The court should, therefore, quash the sentence and proceed to re-sentence the respondent. 45 In re-sentencing, however, the sentence imposed ought not be the sentence that this court would have itself imposed and should be restrained by the principles often described as double jeopardy. 46 In my view, taking into account the restraint in sentencing appropriate for this court on re-sentencing, I consider that for the principal offence, taking into account the matters on the schedule, the subjective factors and the fact that it is a re-sentencing, the appropriate sentence should be two year's periodic detention. 47 I would, however, take into account that the respondent served twenty three days of pre-sentence custody and that he had also served some eighty hours periodic detention before lodging of the appeal. I would also take into account the fact that he had substantial reporting conditions whilst at large on bail. On that account I would reduce the period of sentence from twenty four months to twenty months. 48 However, I do not see any basis for reducing the non-parole period below three quarters of the sentence. I would, therefore, impose a sentence of twenty month's periodic detention with a non-parole period of fifteen months. 49 I would propose the following orders:

i. That the sentence imposed by Moore DCJ be quashed; and ii. That, in lieu thereof, taking into account the matters on the Form 1, a sentence of one year and eight months be imposed to be served by way of periodic detention with a non-parole period of one year and three months. **********

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