R v Spaull & Rush [1999] VSCA 18

Court of Appeal (Vic)|1999-02-22|Before: WINNEKE, P., BROOKING and ORMISTON, JJ.A.

Criminal law - "Sentence" - "Trafficking" by manufacture of amphetamines - Venture failing by reason of lack of expertise - Whether judge entitled to take account of "potential" of venture - Application dismissed. Crimes (Confiscation of Profits) Act 1986 - Forfeiture of motor vehicles as "tainted property" - Whether sentence "manifestly excessive" because of forfeiture.

The two applicants, Peter John Spaull and David John Rush, pleaded guilty in the County Court at Melbourne on 30 September 1998 to a count of trafficking in methylamphetamine contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981. The trafficking to which the plea was entered took the form of manufacture of the prohibited substance pursuant to the extended definition given to that word by the Act.

It was not in contest before the learned sentencing judge that for the purposes of penalty the two applicants were to be treated alike. Not only were they friends and of similar age, namely early to mid-forties, but it was accepted that they were joint venturers in the manufacturing operation and that their reasons for embarking on the venture and their personal circumstances did not warrant any significant distinction in the sentences which should be imposed upon them. On 5 October 1998 his Honour sentenced each of them to three years' imprisonment and directed that they serve a minimum term of 14 months before becoming eligible for parole. As each applicant had been taken into custody at the same time, a period of 48 days in respect of pre-sentence detention was made. In respect of each applicant the judge made an order pursuant to s.7 of the Crimes (Confiscation of Profits) Act 1986 forfeiting their respective motor vehicles as "tainted property". Orders were also made for the provision of body fluid samples pursuant to the provisions of the Crimes Act. These last-mentioned orders were not the subject of any contest.

Each applicant has now applied to this Court for leave to appeal against sentence on the same, or substantially similar, grounds. Each alleges that the sentence imposed is manifestly excessive and that the judge either gave too much weight to particular sentencing facts or too little weight to others. Each applicant contends that the judge made an erroneous finding as to the potential productive yield of the drugs which were the subject of manufacture. Furthermore, each alleges that in ordering confiscation of the vehicles the judge failed to take into account sufficiently the hardship imposed upon the applicant in the forfeiture order made and that as a consequence the overall penalty of three years was too great.

In view of the fact that the learned judge has, as is his custom, carefully reviewed the circumstances of the commission of the offence and the personal circumstances of each of the applicants in his fully recorded sentencing remarks, it is unnecessary for us to rehearse in any more than brief outline the facts which are relevant to these applications.

Each of the applicants, whilst not being able to claim an unblemished record, was nevertheless, as the judge was prepared to find, a man of substantially good character. They had each been hard workers in their respective chosen fields and each in his own way had been a good family man, enjoying support from his family. About each it could be said, and his Honour did say, that the offence to which he pleaded guilty was "out of character". Each applicant, for differing reasons, had apparently fallen on difficult financial times in the early 1990's, circumstances which it would seem had driven each of them to desperation. Their plight in this respect appears to have been the factor which precipitated them into this ill-fated drug manufacturing venture. Neither had the qualifications nor the experience to manufacture amphetamines, and although they had by the time of their arrest endeavoured on several occasions to distil a saleable and marketable quantity of amphetamine, their labours had been substantially in vain. By the time they were arrested it was accepted before the learned judge that no sales of the illicit substance which they had manufactured had occurred, and that such as had been manufactured was of small quantity and imperfect quality. When apprehended in January 1998 it would seem that they had closed down their laboratory and, it was said, had given the venture away "as a bad job". Although they made "no comment" records of interview to the police, they had each entered a plea of guilty at the earliest time said to have been available to them. These facts, for the purposes of sentencing, were on the credit side.

On the debit side, however, was the fact that they were two mature and intelligent men who, for the sole purpose of making money and alleviating their respective financial plights, had deliberately planned a criminal venture for the avowed purpose of making finance out of the sale of a drug which they must have known was targeted at young people. Their venture involved, in spite of their impecuniosity, the purchase of chemicals and equipment and the setting up of a laboratory concealed at a country property, no doubt with a view to avoiding detection. In this respect the hallmarks of the venture were little different from many others which come before the courts, namely a desire to manufacture a drug of harmful properties in circumstances which are difficult to detect. It is to deter people from embarking upon such projects that the law in this State prescribes heavy maximum penalties for those who have been detected.

Before the learned judge, counsel for each of the applicants conceded that the facts revealed a crime of sufficient gravity to warrant a punishment of imprisonment, although it was submitted that the judge should suspend the whole of the term save that part of it which had already been served, that is, the 48 days. In substance it was put to his Honour that this was an amateurish, almost comical endeavour to produce the drug, driven by desperation, which in turn was driven by circumstances said to be beyond the applicants' control. His Honour, however, regarded the offence as too grave to warrant such a disposition. Although, as he said, he could not make any accurate finding as to how much pure amphetamine had been manufactured, or as to its quality, nor that any had been sold, he none the less took the view that such production as had occurred had the potential to produce significant quantities of saleable quality. His Honour was also satisfied that it was the intention of the applicants to produce as much of the amphetamines as they could and to make as much money as they could out of its sale. Furthermore, although it had been contended that the applicants had embarked upon their venture without contemplation of how they were going to sell any drug produced, his Honour said he was not prepared to accept that they would have "gone into a venture such as this without having some idea or some contacts as to the disposal of any methylamphetamine manufactured, because the success of the venture in terms of making money depended upon it ultimately being sold".

His Honour took the view that the primary purpose of imprisonment which had to govern the sentencing disposition was that of general deterrence, and that the sentence had to be such as to indicate the seriousness of the conduct. In balancing the objectives of the punishment against matters of mitigation which his Honour accepted, he considered that it would be inappropriate to either wholly or partly suspend the term imposed, and he thus imposed a term of three years, but set what can be seen to be an unusually short non-parole period of 14 months.

His Honour also made forfeiture orders in respect of the vehicles driven by the applicants, stating that he was satisfied that each was "tainted property" within the meaning of the relevant legislation, having been used to transport materials, and indeed the applicants, to and from the laboratory where the illicit manufacture was carried out. Having found that the vehicles were tainted property, his Honour exercised his discretion given to him by the relevant legislation to forfeit the vehicles to the Crown because, as he put it, the vehicles were important tools in the commission of the crime and their significance in this regard outweighed any hardship which the forfeiture would impose upon the applicants.

On this application, Mr Danos on behalf of the applicant Spaull and Mr Trood on behalf of the applicant Rush contended that his Honour was in error in concluding that the criminality of the applicants was to be measured by the potential yield of the venture, when in fact the lack of sophistication of method and the inexperience of its participants ensured that for all practical purposes there was no yield, and that the applicants in any event, by the time of their arrest, had given away the venture, as we said, "as a bad job".

In our opinion there is no substance in this argument. His Honour was entitled, we think, to gauge the criminality of the conduct of the applicants not by reference to what they had in fact achieved but rather by the potential consequences of what they had set out to achieve. The fact that their own ineptitude prevented the consequences from inflicting more damage on the intended victims than they had hoped or intended does not, in our view, prevent the sentencing judge from considering the potential of their criminal conduct by reference to their intent when assessing its criminality. The criminality of a person who plants a bomb intending that it should explode in a department store is not to be measured by the fact that his lack of expertise prevented the objective from being achieved. In this regard the judge measures the level of criminality by reference to the potential of the consequences intended by the accused. That is what the judge has done here.

Mr Danos submitted that his Honour's reliance on the decision of R. v. Morgan and Byrnes (31 A.Crim.R. 248) was misconceived because the facts were different, and materially different, in that case. In this case, so it was submitted, his Honour had given too much colour to the potential consequences, which, so it was said, were unachievable because of a decision by the applicants to give their project away before their arrest. This is another way of contending that his Honour gave too much weight to the potential of the enterprise in the formulation of his sentencing disposition. It suffices to say that we cannot agree that his Honour did give too much weight to this aspect of his sentence. It was mentioned only as one aspect of the circumstances surrounding the commission of the offence, favourable and unfavourable. Mr Danos's submission went so far as to assert that the potential yield of four kilograms spoken of by his Honour was not supported by the evidence. However, this figure was accepted by counsel on behalf of each of the applicants before the sentencing judge, and the grounds of appeal do not assert that his Honour was in error in acting on those figures. Indeed, having regard to the concessions made below, it seems to us that it could not be so asserted.

We would, therefore, reject ground 1 of each of the applications.

Nor, in our view, is there any substance in the ground of appeal which asserts that his Honour failed to give sufficient weight to various sentencing factors. As this Court has often pointed out in cases where, as here, it is not in contest that the judge has considered the matters in question, such a ground really becomes no more than particulars of the assertion that the sentence is manifestly excessive, and that is how this ground was put to this Court. It was said on behalf of the applicants that this sentence was manifestly excessive particularly because the judge had said that the applicants were entitled to "high discounts" for the early pleas of guilty, and also because their "remorse" was accepted as genuine. Both Mr Danos and Mr Trood submitted that in these circumstances the three years was excessive to the point where this Court should say that it was outside the range available to his Honour given the criminality of the conduct involved in the offences.

In support of the ground, Mr Danos resorted, as is not infrequently done, to hypotheticals, which equally as frequently this Court has said are rarely helpful. The most helpful criterion to be adopted by an appellate court in determining whether a sentence is manifestly excessive is the impact which it makes as a matter of immediate impression upon the court.

This is not a sentence which strikes us as a manifestly excessive one. It should not be forgotten that the manufacture of amphetamines is a form of drug trafficking where general deterrence is regarded as high on the ladder of sentencing priorities. The fact that in retrospect a particular offender may be seen to have had no prospect of real success does not absolve a court from imposing a sentence which will deter others from trying. These offences were an attack upon the health and welfare of the community of this State, particularly the young community, and must be expected by those who commit them to be met with condign punishment.

It was conceded on behalf of these applicants before the sentencing judge that the gravity of the offence had to attract a prison sentence. Having regard to the maximum which the offence attracts, namely 15 years, it cannot in our view be said that the three-year sentence imposed by the judge was so excessive as to be outside the range available to him.

The minimum term which his Honour ordered is no doubt as short as it is in order to give effect to his view of the good prospects of each applicant. Mr Trood submitted before us that his Honour's findings as to the good prospects of the applicants, or particularly the applicant Rush, was a reason why the sentence should have been partially suspended rather than a non-parole period being fixed. These matters were peculiarly matters for his Honour and nothing, in our view, has been pointed to which suggests that his Honour was in error in choosing the method of disposition which he did.

We would accordingly reject the ground which asserts that the sentence imposed was manifestly excessive. We agree with Mrs Quin, who appeared for the Crown, that in arriving at the sentence which he did his Honour took account of all relevant matters and did not give inappropriate weight to those matters.

It was finally argued that his Honour's forfeiture of the vehicles involved, when looked at in the context of the whole sentence, rendered the sentences manifestly excessive. It was not suggested to us that his Honour erred in concluding that the motor vehicle of each applicant was tainted property. The contention rather is that his Honour failed to properly take into account the hardship imposed by the forfeiture order in arriving at the sentence of three years which he imposed. In making this submission it was put that the vehicle in each instance was only marginally connected with the offence and that that underscored the hardship imposed by the forfeiture when taken alongside the imposition of the penalty of three years. The grounds of appeal do not themselves attack the validity of the forfeiture order or ask that it be set aside. Indeed, no appeal has been instituted pursuant to s.51 of the Crimes (Confiscation of Profits) Act 1986. Rather, the grounds assert only that the forfeiture orders render the sentence manifestly excessive. We, however, cannot agree with that. His Honour carefully considered the relevant matters relating to the vehicles on the basis of the material which was before him, and we can find no reason in his conclusions which would suggest that his discretion was vitiated by forfeiting the vehicles in addition to imposing the sentences which he did.

Because, as we have said, the notices of application do not in the case of either applicant attack the terms or validity of the forfeiture order itself, as would require to be done pursuant to the provisions of the Crimes (Confiscation of Profits) Act, we gave leave to each counsel to seek instructions from his client as to whether he wished to amend his grounds of application to include a claim for relief against the forfeiture order. Having sought instructions, Mr Danos informed us that Spaull did not desire to do so, but Mr Trood told us that his client, Rush, did seek our leave to amend his grounds to make such a claim. Because in our view such a claim would have no prospects of success, we refuse that application.

In all the circumstances, and for the reasons given, we would dismiss each application for leave to appeal against sentence.

The formal order of the Court is that each of the applications for leave to appeal against sentence is dismissed.

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