R v Pallister [2002] WASCA 68

Court of Appeal (WA)|2002-03-28|Before: Anderson J, Wallwork J, Wheeler J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : R -v- PALLISTER [2002] WASCA 68

Criminal law and procedure - Crown appeal against sentence - Manufacture of amphetamines - Scale of operation - Actual production of 64 grams - Potential yield of 1.1 kilograms - Personal circumstances - Need for general deterrence

Criminal law and procedure - Sentencing - Time spent in custody awaiting trial on unrelated charges - Whether credit can be given for time spent in custody - Hardship

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Donatelli v The Queen, unreported; CCA SCt of WA; Library No 980505; 3 September 1998

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

R v Grein [1989] WAR 178

R v Ruich [2000] WASCA 84

1 WALLWORK J: I agree with the reasons for judgment of Anderson J and to the conclusions which have been reached by his Honour.

3 ANDERSON J: This is a Crown appeal against sentence.

4 The respondent was presented in the District Court on 7 September 2001 on an indictment charging him that:

"On a date unknown between 1 January 2000 and 9 September 2000 at Manjimup [he] manufactured a prohibited drug, namely methylamphetamine."

5 This offence is created by s 6(1)(b) of the Misuse of Drugs Act 1981 which provides that:

(a) ...

(b) manufactures or prepares ...

(c) ...

a prohibited drug commits an indictable offence ... "

6 A "prohibited drug" includes a "drug of addiction". For the purposes of the Act, a "drug of addiction" means a drug of addiction as defined by s 5 of the Poisons Act 1964. The definition of "drug of addiction" in the Poisons Act includes methylamphetamine.

7 By s 34(1)(a), the maximum penalty for an offence under s 6(1) is a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years, or both. Parliament therefore manifestly takes the view that the manufacture of methylamphetamine is a very serious offence indeed.

8 The respondent entered a plea of guilty and, in the statement of facts which was read to the court, counsel for the Director of Public Prosecutions said:

" ... on Friday 8 September 2000, detectives executed a search warrant at Lot 4 Keegens Road in Manjimup, the home of the offender. On entering the premises, detectives located a large workshop adjoining the main living area to the house. They there located a clandestine laboratory which included chemicals

and apparatus used in the manufacture of methylamphetamine. At the time of entry, a reaction flask with a chemical substance inside was on a hot plate being mechanically stirred ...

The laboratory set-up was sophisticated and capable of producing a high yield of drug. A report prepared by an analyst from the Chemistry Centre indicated the laboratory had already produced 64 grams of methylamphetamine of an estimated purity of 70 per cent."

9 Counsel also informed the court that a video record of interview was conducted with the respondent in which he admitted manufacturing methylamphetamine in the laboratory on a number of occasions claiming that he did so for his own personal use.

10 In the plea in mitigation made on his behalf by his counsel, this claim was repeated. It was submitted that the respondent's activities did not involve manufacture for sale or supply to others. It was accepted that 64 grams of the drug had been manufactured in the eight-month period referred to in the indictment, but it was said on behalf of the respondent that the whole of the 64 grams had been used by the respondent himself. It was submitted that he had a legitimate reason for operating a chemical laboratory in that he was a pyrotechnician who made fireworks so that the existence of the laboratory and its capacity to produce large quantities of chemical substances could not of itself lead to an inference that its purpose was to produce large quantities of methylamphetamine.

11 The analyst's report referred to above, and which was tendered as part of the hand-up brief, revealed not only that 64 grams of methylamphetamine with an approximate purity of 70 per cent had already been manufactured in the laboratory, but also that there was other material, pseudoephedrine hydrochloride and allyl chloride, capable of yielding up to 14.5 grams of methylamphetamine and 1.1 kilograms of methylamphetamine respectively with a purity of approximately 70 per cent.

12 Some 300 laboratory items were seized and examined at the Government Chemistry Centre and the analyst's general conclusions were as follows:

"The equipment and many of the solvents and reagents identified were suitable for use in the manufacture of Methylamphetamine.

Methylamphetamine was detected in items, including surface swabs, from three locations, namely the main 'workarea' of the workshop, a side room labelled the 'Prep room' and the 'Shed' next to the dam. This indicated Methylamphetamine has been produced at each of these locations.

Ephedrine/Pseudoephedrine in combination with Methylamphetamine were detected in a number of items. This indicates that Methylamphetamine has been produced by at least one of the methods of reducing pseudoephedrine, namely the Red Phosphorous/Iodine method, the Hypophosphorous acid/Iodine method or the Dissolving metal reduction method."

13 The report continued to the effect that other compounds indicated the preparation or attempted preparation of methylamphetamine "via the allyl chloride/benzene method".

14 Therefore, not only was there evidence of the past manufacture of a substantial quantity of methylamphetamine, there were chemicals and equipment capable of yielding a very substantial quantity in the future. Whilst the respondent was not to be sentenced in respect of methylamphetamine not yet manufactured, on those bare facts, the sentencing court would have been entitled to conclude that the respondent was engaged in a continuous medium to large-scale manufacturing operation involving at least two different processes of manufacture. Obviously, a question of some significance for sentencing purposes was whether the respondent's claim that he was manufacturing only for his personal use should be accepted. Regrettably, the Judge made no finding with respect to that important fact. It is also a matter for regret that counsel for the Director of Public Prosecutions did not make it entirely clear to the Court whether the prosecution accepted the respondent's claim that he was engaged exclusively in manufacture for his personal use. In response to the submission of counsel for the respondent to the effect that there had been no sale or supply to others in the past and no intention to do so in the future, counsel for the prosecution said:

"Your Honour, the crown's submission is that the quantity and high purity of the methylamphetamine that would have been produced at that stage, as the report states had been produced, suggests that at least some of it would have been for sale or supply. However, the crown accepts that there is no paraphernalia relating to dealing that was located at the time. The crown also accepts that this offender did have a significant drug habit in his own right, so the crown accepts that he would have used at least some portion of it for himself."

15 The sentencing Judge did give consideration to the question whether the respondent was manufacturing for his own use and appears to have resolved the issue by observing that:

"It is significant, I think, that you were not charged by indictment with the offence of manufacturing with intent. There seems to be an acceptance either that there wasn't sufficient basis to charge you with the more serious offence or alternatively that it was accepted that you were using some, if not the majority, of this methylamphetamine for yourself."

16 In this respect, the sentencing Judge misdirected himself. There is no offence of "manufacturing with intent". The presentation of an indictment charging an offence under s 6(1)(b) does not involve "an acceptance ... that there wasn't sufficient basis to charge you with the more serious offence ... ". There is no offence relating to prohibited drugs which is more serious than manufacturing them. It is that act which is punishable by up to 25 years' imprisonment.

17 In my opinion, the first ground of appeal alleging that the Judge erred in holding that "it was significant that the respondent was not charged by indictment with the offence of manufacturing with intent" must be upheld.

18 The remaining grounds of appeal are that the sentencing Judge placed too much emphasis on matters personal to the respondent and the sentence failed to adequately reflect the seriousness of the offence.

19 In my opinion, these grounds of appeal are also made out.

20 It has been said on many occasions in recent years that amphetamines are now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. Whilst they cannot be equated with heroin or cocaine in the sense of their addictive effect, the amphetamines are to be regarded as "in the same category": Bellissimo v The Queen (1996) 84 A Crim R 465 at 467, 469 and 471; Darwell v The Queen (1997) 94 A Crim R 35 at 40; Cabassi v The Queen [2000] WASCA 305.

21 In Cabassi, a sentence of 7 years imposed on a 58-year-old male with no previous record who had manufactured 1.5 grams of methylamphetamine for profit in a laboratory with material capable of yielding a total of 60 grams of methylamphetamine was not set aside as excessive. The respondent's activities in this case were very much larger than that. Unless the respondent made good his claim that he was manufacturing entirely for his own use and not for distribution, a sentence of like severity was called for. See also Worth v The Queen [2001] WASCA 303 (51/2 years for manufacturing 16.1 grams for profit).

22 This Court has no power to send the matter back to the sentencing Judge with a direction that he make findings of fact and resentence. We must do the best we can to come to our own conclusions on the important question (important for sentencing purposes) whether there was a commercial element in this operation, or whether the respondent was manufacturing exclusively for his personal use. It is regrettable that the Court is placed in this position. It was the duty of the sentencing Judge to determine the facts relevant to sentencing on a trial of issues if necessary, and I would venture to suggest that it was for the Crown to give to the sentencing Judge all the assistance which might reasonably be required to enable such findings to be made. That would call for, at the very least, a clear statement of the matters of importance which were disputed by the Crown after hearing the plea in mitigation. Doing the best that can now be done, I have come to the conclusion that this matter should be disposed of on the basis that the respondent was manufacturing entirely for his own use. I would make that finding on the balance of probabilities. There are some contraindications such as the quantity of methylamphetamine which had been manufactured in the past and the quantity of chemicals found on the premises which were said to be capable of yielding in excess of 1.1 kilograms of methylamphetamine, the multiple methods of production which had been used or attempted and the various locations on the premises in which manufacturing appears to have taken place, or been attempted. It was a well-established and well-equipped laboratory, and included in the items seized was a set of scales. On the other hand, there is material before the Court which reveals that the respondent was a rather unusual person with a high level of interest in chemical experimentation unrelated to drug manufacture, and which therefore might provide an innocent explanation for what would otherwise be highly suspicious quantities of laboratory equipment and chemicals of no obvious use in the production of compounds for fireworks. As appears from the portion of transcript set out above, the Crown accepted that there was "no paraphernalia relating to dealing that was located at the time" and that "this offender did have a significant drug habit in his own right". There is no evidence of the involvement of any other person. There were no suspicious quantities of cash and no other evidence of illicit drug dealing. The respondent's finances were in a poor state.

23 Accepting that the manufacture of methylamphetamine was undertaken by the respondent exclusively for his own purposes, the respondent's culpability was, nevertheless, of a high order, and, in my opinion, a sentence of immediate imprisonment was called for, having regard for the maximum penalty which parliament has prescribed for the offence which the respondent committed.

24 The legislation, by s 6(1)(b), is aimed specifically at the activity of manufacture simpliciter. It is manufacture which is the crime and it is a crime in respect to which parliament has laid down a maximum penalty of 25 years' imprisonment. It is a crime which is difficult to detect and which brings into existence a highly destructive drug, the use of which is more likely to result in harm to others than to the user. Its use often leads to antisocial behaviour and serious criminal conduct: Bellissimo (supra) at 467. The dominant sentencing consideration is deterrence, so that matters personal to the offender cannot be given much weight in passing sentence. There was a fast-track plea of guilty which must be rewarded, although two things should be noted. The first is that the material seized under the search warrant and the chemist's report with respect to that material left little or no scope for a plea of not guilty. Secondly, the pre-sentence material reveals that the respondent is not remorseful. He made it very clear that he believes the drug laws of this State are stupid and that there is nothing wrong in manufacturing amphetamine for personal use. I do not believe the plea of guilty should be rewarded by more than a 20 per cent discount from what would otherwise be the appropriate sentence.

25 In my opinion, treating this as a case in which the drugs were manufactured for the respondent's own use, the starting-point should have been 4 years' imprisonment before other matters of mitigation were taken into account. It would have been appropriate to reduce that by 20 per cent for the plea of guilty. For the purpose of resentencing, it must be borne in mind that this is a Crown appeal against sentence so that there is an element of double-jeopardy calling for a further downwards adjustment. It is always a hardship when a person has already received a sentence and must then suffer the anxiety and stress of facing the court again to have that sentence reconsidered through no fault of his own. Furthermore, the respondent has undergone approximately six months of intensive supervision pursuant to the original sentence, which should also be taken into account.

26 After taking into account these matters, and were it not for an additional matter about to be mentioned, I would have quashed the sentence below and imposed a term of imprisonment of 2 years and 6 months. The additional matter is that the respondent has spent a considerable time in custody since his arrest on this charge and questions arise as to whether that should now be taken into account at all and if so to what extent and on what principle. It was submitted on behalf of the respondent that any sentence of immediate imprisonment which is now imposed should be backdated so as to allow for the whole of the time which the respondent has spent in custody. The Court has no authority to backdate sentences except pursuant to s 87 of the Sentencing Act 1995. No reasoned argument was presented in support of the submission that this sentence could be backdated. The submission appeared to be based on a rather vague concession which was made by counsel for the prosecution to the sentencing court that the time spent in custody "ought to be taken into account in some form". With due respect to counsel for the prosecution, that was an uninformative and unhelpful concession. Insofar as it was a concession that the Court was entitled to apply s 87 of the Sentencing Act 1995 in passing sentence, I doubt that it was properly made. Section 87 provides:

"If when an offender is being sentenced to imprisonment for an offence --

(a) he or she has previously spent time in custody in respect of that offence and for no other reason; and

(b) the sentencing court decides that that time should be taken into account,

the court may take that time into account --

(c) if it imposes a fixed term, by reducing that term by an appropriate period; or

(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."

27 The words "for no other reason" in this section are a statutory limitation on the authority of the sentencing court to take account of time spent on remand. Unless the time in custody was only in respect of the offence in question, the section in inapplicable. From the information that has now been supplied to this Court by the Director of Public Prosecutions, it appears that the respondent was taken into custody on 9 September 2000 in respect to this offence and released to bail three days later on 11 September 2000. On 14 February 2001, he was remanded in custody on other charges, and on 20 February 2001 he was again remanded in custody on yet other charges. He was refused bail in respect of these offences. It is therefore not the case that the time he spent in custody after 11 September 2000 was "in respect of that offence [the offence in question] and for no other reason", and this Court, in resentencing, cannot have recourse to s 87 in order to backdate the sentence, or to reduce the sentence on the basis that some part of the sentence should be taken to have been served by the time spent in custody.

28 It would seem to me, however, that the fact that the respondent has been in custody for a lengthy period until shortly before the hearing of this appeal should be taken into account as a relevant circumstance, even although the matters in respect to which he spent time in custody were quite unrelated to the offence in respect of which he is now to be resentenced. It is perhaps a rather unusual case. The charges that were preferred against him and in respect to which he was refused bail, were tried in the District Court. He was acquitted of all charges and discharged from those indictments only a few days before the hearing of the appeal. He therefore presents as a person who spent approximately 7 months in custody awaiting trial on charges in respect to which he was found to be not guilty. I think that considerations of mercy require this hardship to be taken into account in resentencing for these offences. Another basis for adjusting the sentence downwards on account of this time spent in custody is that suggested in Palmer v The Queen [1999] WASCA 253 - the Court is entitled to exercise clemency in the context of ensuring that there is no sense of injustice that might prejudice the respondent's efforts at rehabilitation.

29 Justice will be adequately served in this case if the respondent is now sentenced to 2 years' imprisonment with eligibility for parole.

30 I wish to deal briefly with some other submissions made on behalf of the respondent.

31 It was submitted that, as this was a case of manufacturing for "own use", it was appropriate that personal factors should have been given weight and that considerations of rehabilitation should have been given prominence and that general deterrence was of less significance. I would reject each of these submissions. As has already been observed, s 6(1)(b) is directed squarely at the activity of manufacturing, and the penalty which is prescribed is a clear expression of parliament's intention that the crime is deserving of severe punishment whatever may have been the motivation to commit it. Whilst, obviously, the offender's culpability will be increased if it is shown that he is manufacturing for profit and to participate in the drug trade, the main sentencing consideration remains that of deterrence, whatever the offender's present intentions may be. The point is that methylamphetamine is an addictive and highly destructive drug. The clear policy of the legislation is that people must be deterred from bringing it into existence.

32 It was submitted on behalf of the respondent that a less serious view should be taken of his manufacturing activities because his laboratory was not "clandestine". This refers to the fact that the laboratory was used in the production of explosive substances as part of the respondent's pyrotechnics business. I must say I do not fully understand this submission. It can hardly be suggested that the respondent was not clandestine in his manufacture of methylamphetamine. That he was able to use his non-criminal pursuits to mask his criminal activity does not mitigate the latter. It cannot assist him to say that his other activities were conducted "openly".

33 It was submitted on behalf of the respondent that, because allyl chloride can be used as a solvent and in the manufacture of glycerine and that both of these substances were "relevant to the pyrotechnical experiments conducts conducted by the respondent", it would be wrong to conclude that, because the respondent possessed a quantity of allyl chloride, he had an intention to produce methylamphetamine from it. In my opinion, the fact that three litres of allyl chloride were found in the laboratory in three sealed one-litre metal containers, is a circumstance properly to be taken into account, together with all the other circumstances, in coming to a conclusion about what was going on in this laboratory. The respondent admitted manufacturing methylamphetamine. There was evidence that it had been produced in three separate locations on the respondent's property. Whilst allyl chloride no doubt has innocent uses, the fact is that when used to produce methylamphetamine an intermediate 1-phenyl-2-chloropropane is produced and during the production of this substance a by-product 1, 2-diphenylpropane is produced due to side reactions. The chemist reported that "1-phenyl-2-chloropropane (intermediate) and 1, 2-diphenylpropane (reaction by-product) from the allyl chloride/benzene method were detected on various items. 1-phenyl-2-chloropropane was also detected

on a number of items, both on its own and in combination with methylamphetamine. Detection of these compounds indicates the preparation, or attempted preparation, of methylamphetamine, via the allyl chloride/benzene method".

34 This evidence leaves it clearly open to infer that the respondent had mastered the technique, or was attempting to master the technique, of producing methylamphetamine by the allyl chloride/benzene method. Therefore the Court is entitled to treat this as a case in which the respondent had secretly manufactured 64 grams of methylamphetamine in a well-equipped laboratory ostensibly used only for innocent purposes, in which there was present substances from which in excess of 1.1 kilograms of methylamphetamine could be produced using methods which the respondent had, in fact, used, or attempted to use, in order to produce the 64 grams admittedly manufactured. In short, the Court was entitled to treat the manufacture of methylamphetamine in this laboratory as a going concern, not an isolated event.

35 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Anderson J. I agree with them and have nothing to add.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : R -v- PALLISTER [2002] WASCA 68 (S)

Criminal law - Sentence - Application to re-open Crown appeal - Applicant had served longer in prison prior to sentence than allowed for by Court of Appeal - Whether he should be credited with full period - Whether custody related to relevant offence

R v Pallister [2002] WASCA 68

Rayner & Anor v ANZ Banking Group Ltd [2002] WASCA 82

1 WALLWORK J: These are reasons for judgment after the hearing of an application to re-open the hearing of a Crown appeal against sentence.

2 The applicant was originally arrested on the charge the subject of this application on 9 September 2000. He was released on bail three days later. He was arrested again on 14 February 2001 on some other charges resulting from his conduct after he had been released on bail. On that occasion he was charged with aggravated burglary, unlawful wounding, threatening to kill and deprivation of liberty. Those charges had arisen from a visit by the applicant to a neighbour whom he thought had reported his earlier conduct with drugs to the police.

3 Two days after the applicant was arrested on 14 February 2001 his home was searched for a second time. The police officers claimed that they had discovered evidence that he had been manufacturing methylamphetamine between 1 January and 14 January 2001. He was charged with that offence. He was also charged in February 2001 with possession of cannabis, cannabis resin and methylamphetamine with intent to sell or supply.

4 The applicant was later acquitted of all the charges arising from his visit to his neighbour prior to 14 February 2001. With respect to the charges concerning the possession of cannabis, cannabis resin and methylamphetamine with intent to sell or supply it will be contended that the applicant did not have possession of the drugs with intent to sell or supply but rather for his own use.

5 On 7 September 2001 the applicant pleaded guilty in the District Court to the charge, the subject of this application, of manufacturing methylamphetamine between 1 January and 9 September 2000. At that time that the applicant had been in custody from February to September 2001, being a period of approximately seven months. The Judge imposed an intensive supervision order. That disposition was appealed to this Court and the order was replaced by a sentence of 2 years' imprisonment. It had been conceded by the Crown before the Judge in the District Court that the seven months custody could be taken into account on the sentencing for the offence.

6 The applicant was not released from custody after the ISO was imposed on 7 September 2001, due to other unresolved charges. However, after he was acquitted on 8 February 2002 of the charges relating to his visit to his neighbour's premises he was released on bail on 11 February 2002. On 13 February 2002 he was acquitted of the second manufacturing methylamphetamine charge.

7 By the time he was released on bail on 11 February 2002 the respondent had been continuously in custody for approximately 12 months.

8 When this Court gave its decision in this matter on 28 March 2002 it was said [28]:

" ... the fact that the respondent has been in custody for a lengthy period until shortly before the hearing of this appeal should be taken into account as a relevant circumstance, even though the matters in respect to which he spent time in custody were quite unrelated to the offence in respect of which he is now to be re-sentenced."

9 It was contended for the respondent on this application that all the charges against him had been related. For example, the Crown had contended on the trial of the charges related to his visit to his neighbour, that his conduct was a payback or retribution for what he thought his neighbour had reported. With respect to the second manufacturing charge on which the respondent was acquitted, counsel contended that the drug, the subject of that charge, was drug from the manufacture which is the subject of these proceedings. He made the point, that on the original hearing of this appeal, this Court took the view that the period the respondent had spent in custody prior to the hearing of the appeal should be taken into account.

10 It was contended for the respondent that two questions arise from the fact that the respondent had spent so much time in custody prior to the hearing of the appeal in February 2002. They are firstly, how that period should be taken into account, and secondly whether the asserted rehabilitation of the respondent should be taken into account.

11 It was submitted for the respondent that although he had served approximately 12 months in prison prior to the appeal in February 2002, he had not been sentenced to imprisonment for any offence other than the one being considered at present.

12 In the appeal decision delivered on 28 March 2002, it was said [28]:

"The charges that were preferred against him and in respect to which he was refused bail, were tried in the District Court. He was acquitted of all charges and discharged from those indictments only a few days before the hearing of the appeal. He therefore presents as a person who spent approximately seven months in custody awaiting trial on charges in respect to which he was found to be not guilty."

13 The respondent had spent approximately 12 months in custody prior to the hearing of the appeal.

" ... that considerations of mercy require this hardship to be taken into account in re-sentencing for these offences. Another basis for adjusting the sentence downwards on account of this time spent in custody is that suggested in Palmer v The Queen [1999] WASCA 253 - the Court is entitled to exercise clemency in the context of ensuring that there is no sense of injustice that might prejudice the respondent's efforts of rehabilitation."

15 On the appeal, the Court reduced a proposed sentence of 2 years and 6 months' imprisonment by 6 months to allow for the 7 months which the respondent had spent in prison before sentence. That, however, did not allow for the subsequent 5 months the respondent had spent in custody prior to the appeal.

16 It was said from the bench on the hearing of this application:

"There is no question that the man has been held in custody over a prolonged period immediately before his conviction in respect of matters, whether related or unrelated, for which he's been found not guilty. He presents as a person who has suffered hardships. It's a consideration in the sentencing process."

17 A question in this application is how much reduction the respondent should have been given in the sentence and whether the decision of this Court given on 28 March 2002, should be reconsidered in this aspect.

18 It was argued for the respondent that because the proposed sentence was reduced by six months on the basis that it was thought that the applicant had been in prison for seven months rather than 12 months, the applicant should be given a credit of 12 months at least for the 12 months he had spent in prison. It was further submitted that 12 months in prison is the equivalent time which a person who has been sentenced to a 3 year term with eligibility for parole will actually serve; alternatively it is the equal of an 18 month sentence without parole.

19 In my view, had this Court been increasing a sentence of imprisonment which had been imposed in September 2001, rather than substituting a sentence of imprisonment for an ISO, it would have been correct to allow for the 7 months the respondent had spent in custody prior to the sentence, because the adjusted sentence would have dated from the time of the original sentence. However, as there was a term of imprisonment imposed which replaced the ISO, that term of imprisonment commenced from the time of the handing down of the decision in the appeal which was 28 March 2002 and not when the original sentence was imposed in September 2001. That did not allow for the extra 5 months the respondent had been in prison after the time when the ISO was imposed.

20 Counsel for the respondent contended that sentences under 3 years result in automatic parole. He also relied on the words of Kennedy J in El Noor [2001] WASCA 231; (2001) 123 A Crim R 123 at 126 where his Honour said:

"Four hundred days imprisonment is equivalent to the period in custody served by a person sentenced to a term of slightly more than 3 years and 3 months before becoming eligible for parole."

21 Reliance was also placed upon the views expressed by Callaway JA in Arts and Briggs (1997) 93 A Crim R 56 at 57 where his Honour said:

"2. The law should not depart from community standards of fairness unless there are good reasons for doing so. The person in the street would not understand why Briggs should run the risk of being acquitted on the charge of murder and not being given credit for pre-sentence detention if that could lawfully been done, nor would taking such detention into account give a co-offender a justifiable sense of grievance. Arts should understand, for example, that Briggs was in prison and he was not, and that Briggs' imprisonment is being taken into account. In substance their sentences remain the same.

There are, of course, many cases where a person cannot be given credit for pre-sentence detention. He or she may be on remand for several months and then acquitted. The time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody, but that is not the case here. As Lord Bingham of Cornhill, CJ, said on behalf of the Divisional Court in Governor of Brockhill Prison; Ex parte Evans 1997 2 WALR 236 at 252:

'It has in our experience been the practice to assume that all periods of custody for sentence, other than custody wholly unrelated to the sentences for which sentence is passed, will count against the period of the sentence to be served' (emphasis added)

Applying Heaney and Renzella, I would therefore deduct from the head sentence of 6 months to be imposed on Briggs a period that takes account of the time during which his detention was doubly warranted. As explained in the authorities, that is done as part of the exercise of the sentencing discretion and not pursuant to s 18."

22 The s 18 referred to by his Honour made reference to the prisoner being "held in custody in relation to proceedings for that offence or for proceedings arising from those proceedings and for no other reason." It was similar to s 87 of the Sentencing Act 1995 (WA) the effect of which was discussed in Quartermaine v The Queen [2002] WASCA 60, 21 March 2002.

23 In Quartermaine v R (supra) it was said [33]:

"When it is recognised that 38 weeks in custody equates to a sentence of 14 months imprisonment where no parole eligibility order has been made, in all the circumstances of this case, in my view, 14 months should have been deducted from the appropriate sentence to be imposed for the armed robbery offence."

24 Counsel for the respondent secondly contended that in sentencing the respondent to the term of 2 years' imprisonment this Court had acted without any information as to what had been the effect of the 12 months custody upon the respondent; that he had been given no opportunity to present material to the Court on this question. It was submitted that there had been no evidence before the Court with respect to his rehabilitation.

25 Reference was made to the decision in Palmer v The Queen [1999] WASCA 253 where the Chief Justice said that the culmination of the prior imprisonment and its effect upon the applicant's rehabilitation had justified a discount in the sentence.

26 It was submitted that in the unusual circumstances of this case there ought to have been an opportunity given to the respondent to put before the Court material relating to his rehabilitation; that where there has been a non-custodial disposition imposed at the first sentencing and then a custodial disposition imposed after a Crown appeal, the period of the time between the imposition of the first sentence and the re-sentencing by the Court of Appeal is a very relevant period of time and that the person concerned should be given the opportunity of presenting material to the Court as to his progress between the time of the original sentence and the subsequent sentence.

27 It was submitted for the respondent that because counsel had not addressed this aspect at the hearing of the appeal on 15 February 2002, an injustice had occurred when the 2 year sentence was imposed on 28 March 2002 because such evidence had not been before the Court. It was accepted that there had been an opportunity at the arguing of the appeal in February 2002 for that information to have been put before the Court. However, that had not happened.

28 Reliance was placed on the decision in Brittain v The Queen [2001] WASCA 92 where an appeal against sentence was allowed. At the hearing of that application counsel for the applicant had indicated that if the appeal was allowed he wished to make submissions as to the correct sentence which should be imposed. That procedure was adopted - Brittain [2001] WASCA 117; (2001) 121 A Crim R 525 at 528. Another case in which a similar procedure was applied was Thompson [2000] WASCA 186; (2000) 113 A Crim R 295. In that case, after an appeal to the High Court had been allowed, this Court remitted the matter to the learned Judge in the District Court for further submissions. It was submitted that in this case, and partly because that process had not been followed, there had been an injustice to the respondent.

29 On this aspect, counsel for the respondent relied upon the reasons of Anderson J, which were agreed with by Pidgeon and Ipp JJ, in Vlek v The Queen, unreported; SCt of WA; Library No 990153; 29 March 1999. Anderson J there said:

"I think it is also recognised (and this may be simply another aspect of the totality principle) that when a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately: Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993, especially per Ipp J. Furthermore, as was pointed out in Mill, the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude. See Cross: 'The English Sentencing System' (Butterworths 1971) at p 104. Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case. Therefore the conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not cumulative. That these are very real factors in cases where successive or cumulative sentences are to be imposed is well illustrated by this case."

30 It is my opinion that those words of Anderson J are applicable in a case such as this, where a person has been imprisoned for approximately 12 months, and is then acquitted of some of the charges which had resulted in him being held in custody.

31 In this case the respondent had been in custody for 12 months before the Court of Appeal in March 2002 decided that an appropriate sentence for his offence would be 2 years and 6 months' imprisonment before having regard to the time he had already served in custody. If the 12 months prior custody was scaled up to 18 months, which would be an equivalent sentence if no parole had been ordered, or to 3 years, on the basis that eligibility for parole was ordered, and the other matters referred to by Anderson J in Vlek were taken into account, in my view, a sentence of imprisonment should not be imposed.

32 This is because, if 18 months (at the minimum) is deducted from the proposed 21/2 year sentence, there would be approximately 12 months left. If 3 years were allowed for the 12 months custody, the sentence would be entirely subsumed. When the additional matters referred to by Anderson J in Vlek are taken into account, in my view the respondent should not have been imprisoned in March 2002.

33 In addition to the abovementioned matters counsel for the respondent submitted that at the hearing of the appeal in February 2002 it had not been accepted by the respondent that the materials found at the original search had indicated that 1.1 kilograms of drugs could have been produced. It had been submitted that certain necessary materials were not present, which would have made it impossible for a court to reach a conclusion that 1.1 kilograms could have been produced.

34 It was submitted to this Court that the respondent had always maintained that there were not substances on the premises from which in excess of 1.1 kilograms of methylamphetamine could have been produced. Reference was made to the written submissions on the appeal.

35 It was submitted that the potential to produce had been regarded by this Court as a very important factor in aggravating the crime of manufacturing the amphetamine but there had been much more than one ingredient missing. Reference was made to p 40 of the original Appeal Book.

36 In the light of the proposed order referred to below, it is not necessary to discuss this question or any of the other matters raised by the respondent.

37 In my view, for the reasons discussed above, the application to re-open the hearing should be allowed. I would review the order made on

28 March 2002 and leave undisturbed the original ISO which was imposed in the District Court. The authority for taking this step is to be found in Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 and Postigilione v The Queen [1997] HCA 26; (1997) 189 CLR 295. In Postigilione Dawson and Gaudron JJ said at 300:

"The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order been perfected." - Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 474 per Mason CJ and Brennan J; at 484 per Deane, Toohey and Gaudron JJ.

38 ANDERSON J: I agree with Wheeler J that the respondent was not denied natural justice on the hearing of this appeal. There is nothing I can usefully add to the reasons of her Honour for coming to that conclusion. I also concede that I was in error in stating that this Court has no power to remit the matter to the sentencing Judge with a direction that he make findings of fact and resentence. However, I agree with Wheeler J that this error caused no prejudice because this Court approached resentencing on the basis most favourable to the respondent: that manufacture was entirely for own use. The sentencing Judge might well have come to a different conclusion, to the disadvantage of the respondent.

39 To my mind, the only ground upon which this Court should agree to reopen the hearing of the appeal is that, on the face of it, I made a mistake when I said in par 28 of the judgment:

"He therefore presents as a person who spent approximately 7 months in custody awaiting trial on charges in respect to which he was found to be not guilty."

40 Whilst I agree with Wheeler J's analysis of the various sets of offences and as to which of them the time spent in custody should be allocated, and whilst I certainly agree with her that on one view of the case the relevant time spent in custody was 7 months, the plain fact is that, by the time he came to be resentenced on appeal, the respondent had spent 12 months in custody, not 7 months. Because of the way my judgment was expressed, I accept that the respondent is entitled to believe that he was resentenced on the wrong basis, even if he was not. I agree with Wallwork J that the whole matter should be looked at afresh. In the light of all that has happened and bearing in mind the sentencing principles set out in Vlek v The Queen, unreported; SCt of WA; Library No 990153; 29 March 1999 justice will be best served now if the

application to reopen is allowed, the sentence of 2 years' imprisonment withdrawn and instead an order be made that the intensive supervision order imposed by the primary Judge be confirmed.

41 WHEELER J: This appeal was originally heard by the Court on 15 February 2002 and judgment delivered on 28 March 2002. It was a Crown appeal, and the background is set out in the reasons for decision of Anderson J with whom Wallwork J and I agreed in [2002] WASCA 68. I do not propose to repeat them. After delivery of that judgment, by letter dated 17 April 2002 the solicitor for the respondent requested the Court of Criminal Appeal be reconvened to correct certain errors which he alleged were to be found in the judgment. At that time, the errors alleged in the letter were: that in par [28] of the judgment the relevant custodial period should have been one of 12 months rather than 7 months, so that an inadequate reduction in sentence was made; and that the respondent was denied natural justice in that he had been deprived of the opportunity of putting before the Court submissions as to mitigating factors which had arisen since the original date of sentence, including the facts that the respondent had effectively served a custodial sentence of 3 years imprisonment with eligibility for parole and that he had been rehabilitated. The Court was reconvened and the matter was mentioned before it on 10 May this year. There was a formal application dated 10 May 2002 which reads as follows:-

"1. The Applicant applies to re-open the hearing of this Crown appeal against sentence, upon four bases.

(i) That he was denied natural justice in that he has been deprived of the opportunity of putting before the Court submissions as to mitigating factors that had arisen since the original date of sentence (see Brittain v R [2001] WASC 92 (23 March 2001) and [2001] WASCA 117 (12 April 2001)) including the fact that the Respondent had effectively 'served' a custodial sentence of 3 years' imprisonment with eligibility for parole and that that he had effected rehabilitation.

(ii) That he was denied natural justice by this Court's failure to provide any indication that the Court intended to 'treat the manufacture of methylamphetamine in [the Respondent's] laboratory as a going concern, not an isolated

event', when this matter was not the subject of a finding in the Court below.

(iii) That a significant error is apparent in the judgment of Anderson J (with whom Wallwork and Wheeler JJ agreed) in that the custodial period referred to in paragraph [28] of the judgment ought to have been found to be 12 months and not 7 months, resulting in the sentence not being adequately reduced.

(iv) That an error of law is apparent in the holding of this Court that there was no power to remit the matter to the sentencing court."

42 These matters were eventually argued on 7 August 2002.

43 I do not propose to deal with the principles governing the circumstances in which it is appropriate for an intermediate appellate court in a criminal matter to re-open its own earlier decision. It is unnecessary to do so, since it is my view that there is no matter which would require reconsideration in any event. The application raises three main issues.

44 The issue here arises out of the following passage from par [22] of the reasons of Anderson J:

"This Court has no power to send the matter back to the sentencing Judge with a direction that he make findings of fact and re-sentence. We must do the best we can to come to our own conclusions on the important question ... whether there was a commercial element in the operation, or whether the respondent was manufacturing exclusively for his personal use."

45 The first sentence of that passage is in error. The decisions of this Court of R v Wong (1995) 16 WAR 219 and Thompson v The Queen [2000] WASCA 186 are both authority for the proposition that the Court of Criminal Appeal has power to remit a matter to the District Court so that a convicted person may be re-sentenced. However, nothing turns on the error in this case. Although the Court has power to remit the matter to the sentencing Judge, this is a case where there had been a plea of guilty and submissions made on the basis of the materials before the sentencing Judge, which materials were available to this Court. It was not a case in which any advantage, by way of observation of witnesses or the like, was enjoyed by the sentencing Judge. Nor, for reasons with which I will deal later, was it a case in which there was new material which should be the subject of evaluation and submission before the sentencing Judge.

46 Most importantly, the finding of fact which was made by this Court on the issue identified by Anderson J is to be found in the same paragraph of his Honour's reasons, and is as follows:

"I have come to the conclusion that this matter should be disposed of on the basis that the respondent was manufacturing entirely for his own use."

47 This was the conclusion most favourable to the respondent and there would be no utility in remitting it to the sentencing Judge.

48 It was submitted that the respondent was denied natural justice, in that he did not have the opportunity to put before this Court material and submissions in relation to a number of matters. They appear to relate on the one hand to matters personal to him, and to be to the effect that he had been rehabilitated, and on the other hand to go to the question of whether it was open to this Court, relying upon a forensic science laboratory report prepared by a Mr Priddis, which was before the learned sentencing Judge, to reach the view that the manufacture of methylamphetamine in the respondent's laboratory was a going concern rather than an isolated event. It is convenient to deal with the natural justice question first as a matter of principle before examining the particular issues.

49 The respondent's argument in relation to this issue appeared to me to be a startling one. It was to the effect that re-sentencing by an appellate Court, at least where there is a Crown appeal, should be carried out as a two-stage process in two distinct hearings. First the Court of Criminal Appeal reaches a view as to whether or not an error has been demonstrated. If it does so, it then publishes that finding and affords the respondent to the appeal the opportunity to call evidence and to make submissions. Further, the effect of finding error on the part of the sentencing Judge is said to be "re-open the whole sentencing process" so that it is at such a hearing open to the respondent to put in issue any material which was before the sentencing Judge, whether the respondent saw fit to dispute it at the time of his original sentencing or not. It is said that the High Court decision of Thompson v The Queen [1999] HCA 43; (1999) 165 ALR 219 and [1999] HCA 43 is authority for these propositions.

50 In Thompson, the applicant had been convicted in the District Court and sentenced to a fixed term. The trial Judge also ordered that the applicant be imprisoned indefinitely after the completion of that fixed term pursuant to s 98 of the Sentencing Act. On appeal to the Court of Criminal Appeal, that Court accepted a submission of the applicant that the pre-sentence and psychological reports which were obtained by the trial Judge prior to sentencing were inadequate and unreliable. The Court of Criminal Appeal itself commissioned further psychological and psychiatric reports, granted leave to appeal against the sentence, considered the further reports and dismissed the appeal. It was argued by the applicant, and accepted by the High Court, that this telescoped the steps necessary to the proper consideration of the evidence relevant to sentence imposed upon the applicant by the primary Judge, and the discharge of its own function as an appellate Court. The appropriate course would have been to consider whether on the evidence at first instance error had been shown in the sentencing procedures and, if that question were answered in the affirmative, then to consider whether it was appropriate to set aside the sentencing orders of the primary Judge, remit the matter for re-sentencing or re-sentence the applicant itself. Only in the last event would it have been permissible for the Court of Criminal Appeal to receive fresh evidence on the appeal.

51 Thompson seems to me to be a case concerned principally with the question of when it is not appropriate for the Court of Criminal Appeal to receive further evidence and submissions. It is not appropriate for the Court to receive evidence bearing on the question of the appropriate sentence which should be passed on re-sentencing unless it is first established that the original sentence was in error. If it is established that the original sentence was in error, and if the Court concludes that it is appropriate or necessary to receive further evidence, the offender must be afforded full opportunity to consider that further evidence, if necessary to call evidence rebutting it, and to make submissions upon it. So understood, Thompson is far from an authority justifying the proposition that wherever the Court does find error the sentencing process is then completely at large and that it must afford the offender an opportunity to call further evidence.

52 The submission made is not only in my view not required by Thompson, but it is also inconsistent with a line of authority in this Court as to when it is appropriate for a Court of Criminal Appeal to receive further evidence bearing on a sentence. In Anderson v The Queen (1996) 18 WAR 244 the issue of when fresh or new evidence in relation to sentence should be received by the Court of Criminal Appeal was given some consideration. Although, because of the particular circumstances of that case, the Crown had conceded that the Court was entitled to have regard to the evidence, it is clear that all members of the Court had reservations about the extent to which it would be proper to do so. Malcolm CJ (at 247) took the view that generally the principles to be applied should be those which would apply to the admission of fresh or new evidence on an appeal against conviction. His Honour made reference to the power conferred by s 697 of the Criminal Code to receive evidence if the Court considered it "necessary or expedient in the interests of justice", and to the proviso to that section that a sentence may not be increased by reason of any evidence not given at the trial. His Honour thought it was implicit in that section that the sentence may be reduced by reason of evidence not given in the Court below. However, it is clear that his Honour did not form the view that it was desirable that the calling of such new or fresh evidence should be the rule. Steytler J, with whom Murray J generally agreed, referred to the decision of R v Campbell (No 2) (1981) 6 A Crim R 208 at 209, in which Burt CJ said, considering s 689(3) of the Criminal Code that:-

"In terms, the Court 'shall, if they think that a different sentence should have been passed, quashed the sentence passed at the trial, and passed such other sentence ... in substitution therefore as they think ought to have been passed ...'. Those words would seem to require that this Court should consider the case as it was at the time of sentencing and not, save to the extent already indicated, have regard to events which have subsequently happened."

"While that may well be so, that does not mean, as seems to have been recognised by Burt CJ, that the Court may not have regard to events which have subsequently happened in so far as those events do no more than reveal, or explain the full significance and any necessary consequences of, something which had already happened at the time of sentencing but which, or the significance or necessary consequences of which, had not then been known to the sentencing Judge."

54 Because of the provisions of s 693 of the Criminal Code, appeals against sentence both by an offender and by the Crown necessarily involve two questions. The first question is whether the sentencing discretion appealed from has miscarried. If it has, it then falls to this Court to determine what sentence should have been passed, and argument is addressed to that question at the hearing of the appeal. That is in my view not only the course which is appropriate having regard to s 693 of the Criminal Code, and the usual course, but it is also a course which is desirable in the public interest for two reasons. The first is that it promotes finality in decision making, if it is recognised that neither an offender nor the Crown will generally have the opportunity to put before an appellate Court additional material which could and should have been put before a sentencing Judge. The second is that it is likely to lessen the sense of grievance which may be felt when a sentence is increased, if the offender is notified of the increased sentence at the earliest practicable time. Having regard to the need to convene the same coram at some later time to deal with additional materials, and the difficulty of doing so (illustrated by the delays in this case) offenders would otherwise be in the unhappy position of being aware that the Court of Appeal considered the sentence imposed unduly lenient, but of waiting perhaps many months for the "axe to fall" in the sense of the new sentence being fixed.

55 There may be occasions when, for particular reasons, it is desirable that there be a further and separate set of submissions dealing with what sentence should be passed by the Court of Criminal Appeal. On occasion, counsel for an offender has sought and been granted the opportunity to make such submissions: eg Brittain v The Queen [2001] WASCA 92. No such opportunity was sought here.

56 As to rehabilitation, the question of the extent to which an offender may have rehabilitated himself may be of relevance in determining whether, notwithstanding that error has been established, it is desirable to interfere with the sentence which has been passed. In this case, there was no issue raised by counsel as to whether the respondent had commenced a process of rehabilitation. Rather, the question for this Court was whether, notwithstanding favourable personal circumstances which were referred to, the appropriate sentence was one of imprisonment. There was no request before the Court that it receive further evidence or afford an opportunity of making further submissions in relation to the issue of rehabilitation, and there was nothing in the circumstances of this case which suggested that the Court should of its own motion have enquired into those issues.

57 So far as the report of Mr Priddis is concerned, the Court's error is said to be a denial of natural justice in a failure to provide any indication that it intended to treat the manufacture of methylamphetamine in the respondent's laboratory as a going concern rather than an isolated event. The short answer to this proposition is that, as Anderson J noted at par [10] of his reasons for decision, it was accepted on all sides (and as I understand it was not disputed at any stage before us) that 64 gms of the drug had been manufactured in an 8-month period by the respondent. How this can be other than manufacture "as a going concern, not an isolated event" remains a mystery to me, despite considerable argument on that issue.

58 However, the conclusion that the manufacture was a "going concern" was drawn not only from the manufacture of 64 gms over 8 months but also from the fact that there were present substances from which in excess of 1.1 kg of methylamphetamine could be produced using methods which the respondent had used or attempted to use. It is complained that this finding should not have been made. The finding follows directly from the report of Mr Priddis. The report of Mr Priddis was tendered to his Honour the learned sentencing Judge. It was not disputed by the respondent. Not only was it not disputed by the respondent, but counsel for the respondent said to the sentencing Judge, in explaining the delay between the respondent's first court appearance and his sentence:

"There was a significant delay obtaining that report, rather than having to go to a trial of the issues which ultimately, once the report was provided, that's a report dated 14 May 2001 from Colin Roderick Priddis, principal chemist of the Forensic Science Laboratory. That has eliminated the need to have a trial of issues in that the ultimate production or the ultimate production that they say or the chemist says was manufactured, we accept now being 64 gms."

59 It is to be noted that the reference to the 64 gms refers to Mr Priddis' conclusion that past production had resulted in a practical yield of 64 gms of methylamphetamine. That conclusion appears on the same page as a table showing Mr Priddis' conclusions in respect of future production, including his conclusion that a quantity of allyl chloride present on the premises could have produced 1.1 kgs of methylamphetamine.

60 The question of what inferences should be drawn from that report were canvassed in the submissions of both the appellant and the respondent at the hearing of the appeal on 15 February 2002. It was subsequent to the delivery of the judgment in the appeal that the respondent indicated for the first time, through his counsel, that he wished to allege that that report of Mr Priddis was factually wrong. The factual error was not identified. I can see no failure of natural justice in this Court drawing inferences from a report which was tendered to the sentencing Judge and which was not only not disputed by the respondent but was - at least in part - relied upon by him.

61 It was complained under this heading, as I understand it, that there was a factual error in par [28] of the reasons of Anderson J in which his Honour said that the respondent "presents as a person who spent approximately 7 months in custody awaiting trial on charges in respect to which he was found to be not guilty". The short answer to this complaint is that it appears to me that his Honour was correct or, if there was an error, it was an error which operated in the respondent's favour.

62 It is necessary to look first at the way in which the matter was dealt with in the hearing of the appeal on 15 February. On that date, a member of the Court raised with counsel a newspaper report which suggested that the respondent had spent time in custody and had been acquitted in relation to certain offences. The Court enquired whether these offences had anything to do with the matters then before it, and whether any periods in custody might be relevant. The Court was advised by counsel for the respondent that the respondent had been charged with three sets of offences, and was advised that "until Monday of this week ... he had spent 12 months in custody. I should say also that in respect of the first 7 months of those, my understanding was that they were spent in custody in respect of these offences which are the subject of this appeal ..." (Page 14 of transcript). That was the basis upon which this Court dealt with the matter.

63 A more comprehensive chronology reveals that there were in fact four sets of offences. It also revealed that the applicant appears to have spent three days in custody solely in relation to these offences, and further periods in custody, from February 2001 to his sentence in September 2001, in relation to these offences and in relation both to two further sets of offences in respect of which he was later acquitted, and to yet another set of offences in respect of which he has not yet been dealt with. From September 2001 until February 2002 he was in custody in relation to those three sets of offences (that is the two in respect of which he was acquitted and the further one in respect to which he has yet to be dealt with) and in February 2002 he was acquitted of two of those sets of offences and released to bail on the other. The full chronology is set out below:

Arrested and charged with manufacturing methylamphetamine between 1 January 2000 and 9 September 2000 at Manjimup (Indictment BUN 131 of 2000) (offences the subject of this appeal)

Arrested and charged with aggravated burglary, unlawful wounding, threat to kill and deprivation of liberty. Remanded in custody. (Indictment BUN 75 of 2001)

Charged with manufacturing methylamphetamine between 1 January 2001 and 14 February 2001 at Manjimup. Remanded in custody. (Indictment BUN 71 of 2001)

Charged with possession of cannabis, cannabis resin and methylamphetamine with intent to sell or supply on 8 September 2000 at Manjimup. Remanded in custody. (Indictment BUN 86 OF 2001)

Plea of guilty in District Court to Indictment BUN 131 of 2000. Receives two year ISO.

Acquitted by District Court jury in relation to Indictment BUN 75 of 2001

Released to bail on Indictments BUN 71 OF 2001 and BUN 86 of 2001

Acquitted by Trial Judge (sitting without jury) in relation to Indictment BUN 71 of 2001

DPP appeal against sentence of two year ISO on Indictment BUN 131 of 2000, heard by Court of Criminal Appeal

DPP Appeal upheld. Sentence of two years' imprisonment with eligibility for parole substituted.

Application to re-open Appeal hearing heard by Court of Criminal Appeal and adjourned to a date to be fixed. Respondent bailed."

64 It can be seen then that from 9 to 11 September 2000 the respondent was in custody in relation to this matter. From 11 September 2000 to 14 February 2001 he was at liberty. From the week extending from 14 February 2001 through to 20 February 2001 he was taken into custody in relation to three sets of offences.

65 It may be the case that there was some practical relationship between his custody in relation to those offences and his having been earlier charged with the offences the subject of this appeal, in that it may be that he would have been granted bail in relation to one or more of the other sets of offences had he not been the subject of the charges on 9 September 2000. It may also be that there is a relationship between some of the sets of charges laid in February 2001 and the offences the subject of this appeal. In particular, we were advised that in relation to Indictment BUN 71 of 2001, the respondent was ultimately acquitted because the trial Judge was of the view that it was not possible to establish beyond reasonable doubt that the methylamphetamine the subject of that indictment had not already been dealt with as part of the indictment the subject of this appeal. It was argued that the other two sets of offences were also "related". It was submitted that they were so related because those laid on 14 February 2001 arose in circumstances where the respondent thought that certain persons had provided information to police about his offending and the charges which arose then were said to be a reaction by him to his suspecting that that person had provided such information. I would not see those matters as related for sentencing purposes. Those laid on 20 February 2001 related to drugs which it was said had been pointed out to attending officers at the time at which they attended his premises in their investigation of the offences subject to the present appeal, but there appears to be no other connection. I would not see them as related, so far as they concern drugs other than methylamphetamine.

66 From the time of his sentencing in relation to the offences the subject of this appeal in September 2001, the respondent was not in custody in relation to the offences the subject of this appeal, self-evidently, since he had at his sentencing received a non-custodial sentence in respect of them. Had he been in custody only in relation to the further offences of which he was acquitted, there may well have been an argument that it would have been appropriate to have full regard to that period in custody as a hardship to him which it was appropriate to take into account in fixing the term of his sentence, while bearing in mind the observation, which I would respectfully adopt, that time spent on remand "cannot be regarded as a bank balance on which to draw in relation to offence unconnected with the reason for custody" (Arts and Briggs (1997) 93 A Crim R 56 at 59 per Callaway JA). However, the respondent was not in custody solely for those offences, but also for offences in relation to which he has not been dealt with. The amounts of cannabis and cannabis resin alleged to have been possessed by him in relation to those offences are, we were advised by the Crown without objection, substantial, being 622 gms of cannabis and 25 gms of cannabis resin. If he is ultimately convicted of those offences, it will be open to the sentencing court to take into account the unusual circumstance that his custody from September 2001 to February 2002, whilst it was not solely in relation to those matters, was in relation to those matters and in relation to matters of which he was acquitted.

67 It is my view that whatever may be the proper construction of the words "for no other reason" in s 87 of the Sentencing Act 1995, they do not apply to the position here, where for 7 months the respondent was in custody in relation to not only the offences the subject of this appeal, but also in relation to numerous other alleged offences, in respect of some of which he has been acquitted and in respect of others he has not yet been dealt with. It is appropriate, in the unusual circumstances of this case, to have regard to the fact that he has spent a substantial period in custody, and that some of that custody must be attributed to offences in respect of which he has been acquitted. It does not follow that he should be given credit for the full period of 7 months between February 2001 and September 2001, and still less does it follow that that period should be "scaled up" as if it had been a period in custody in relation to these offences only. In my opinion, no error has been demonstrated in the allowance which was made.

68 I should note for the sake of completeness that there is, having regard to the chronology, apparently an error in par [25] of Anderson J's reasons, which reads: "the respondent has undergone approximately 6 months of intensive supervision pursuant to the original sentence, which should also be taken into account". In fact, the chronology demonstrates that the respondent was in custody for other offences until 11 February 2002 and that any period of supervision in respect of these offences can only have been from that date until 28 March 2002 when judgment was delivered in relation to this appeal. However, that error was one favourable to the respondent, was of a minor nature and does not require correction.

69 I should also add, for the sake of completeness, that the Crown did not object to the further chronology being placed before this Court. It does not seem to me that those authorities which deal with the question of when it is appropriate for an intermediate Court of Appeal to re-open its own judgements would generally permit the reception of such material but, given the considerable confusion which surrounded this issue when the Court first raised it of its own motion, and given the lack of objection, it seemed to me appropriate to deal with the issue raised by the chronology.

Conclusion for the Reasons Which I have Given

70 It is my view that there is no error demonstrated by the reasons of this Court which could justify the Court's re-opening the earlier decision.

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