REGINA v. DOLMAN [2001] NSWCCA 99

No. 60393 of 2000 CORAM: GREG JAMES, J. SMART, AJ. MONDAY 26 MARCH 2001

1 GREG JAMES, J: The applicant seeks leave to appeal from a sentence imposed on him by his Honour Judge Woods, QC. in the District Court of 30 May 2000. That sentence was imposed upon him for the crime of knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, an offence under s.24(1) of the Drug Misuse and Trafficking Act 1985 punishable by a maximum penalty of 15 years imprisonment. 2 His Honour sentenced the applicant to imprisonment for three years and six months to date from 30 May 2000 and to expire 29 November 2003, with a non-parole period of 18 months to commence 30 May 2000 and to expire 29 November 2001. 3 The applicant has no relevant prior record, although he has been convicted of an offence in 1961 which, for present purposes, may be ignored. 4 In his remarks on sentence the learned trial judge gave to the applicant the benefit of a plea of guilty, both as indicating contrition and as having a pragmatic benefit. He regarded it as an early plea. 5 His Honour referred to the applicant's age, 62, and his prior good character, referred to his long and successful work history in legitimate businesses, he referred to how the applicant had come into association with a criminal named Kidd and, in consequence, with a man named Launt, an industrial chemist, who was involved in supplying materials for the illicit manufacture of drugs. 6 His Honour summarised how Kidd and Launt had involvement with a man named Kalache, who became involved in the supply of drugs. 7 His Honour referred to the applicant's involvement in Launt's legitimate drug producing activities and to his involvement in those activities of Launt which went beyond the limit of the legitimate. 8 In particular, he referred to a record of facts tendered before him and setting out what was said to be a summary of the illegal activities of the applicant. He quoted from that facts document as follows (page 3 his Honour's remarks on sentence):- "As a result of requests on the criminal network, Launt arranged for a William John Dolman, an industrial chemist, to assist with manufacturing phenylacetic acid and other compounds. Launt paid Dolman as a consultant flying into his property, [which I interpolate was in Queensland] in March 1996 where about 100 kilograms of phenylacetic acid was produced on site, along with quantities of other precursor agents to the end drug methylamphetamine". 9 His Honour found that Dolman had been paid $50 an hour for that work at a scale comparable with that for a chemical industry consultant in legitimate work, the payments totalling some $3,000. 10 His Honour referred also to a record of interview between Dolman and the police. He referred to Dolman having, in that document, admitted that which was also referred to in the statement of facts, that is, the teaching of two persons sent by Kalache to Launt's Queensland property of the procedure to convert phenylacetic acid to a precursor of methylamphetamine. This teaching occurred on two separate occasions. 11 The teaching was admitted by the applicant and, importantly, in his admission, he set out that he realised that the persons, or at least one of them, that he was teaching was a person who had previously been imprisoned for drug matters. 12 His Honour gave particular attention to paragraph 38 of the applicant's interview and quoted it in his remarks on sentence. In that paragraph, the applicant admitted that he knew that the persons he had instructed were intending to manufacture methylamphetamines, using the process he had shown to them. 13 His Honour referred to the more expansive answer that the applicant had earlier given and, in particular, to the realisation by the applicant that the quantity of the phenylacetic acid that Launt had asked him about, would produce 100 kilograms of the forbidden substance. 14 Although his Honour's reasons in this regard are not entirely clear, it would seem that there his Honour is referring to the process of manufacture occurring in Queensland, to which I had earlier referred. 15 That production of the 100 kilograms of phenylacetic acid seems to be referred to by his Honour not so much as an offence that might have shed light upon what was, in fact, produced, but as evidencing the applicant's knowledge of the activities in which he engaged and for which he was prosecuted in New South Wales and his realisation of the illegality of those activities. 16 Indeed, his Honour had referred to the state of mind of the applicant in relation to those matters in the context of a suggestion that the applicant equated the precursors of amphetamine manufacture to that of producing the common salt and baking soda. 17 In an extensive discussion of the matters to which the applicant adverted, his Honour referred to the applicant's reply that he "wouldn't have a bar of drugs and that is for sure and I would say that under oath". 18 His Honour did accept the applicant's denial of knowing that Kalache and others were principals in various Sydney operations involved in the illegal production of methylamphetamine. 19 After examining Launt's statement, his Honour concluded:- "Some measure of the same flavour of reality is reflected in my view in Dolman's account of the present matter". 20 His Honour inferred that the main basis upon which the plea had been entered was what I have referred to as set out in paragraph 38 of the document to which I have already referred, that is, the instruction of the two men in the process and the knowing that that process could conclude in the manufacture of the illegal amphetamine. 21 His Honour concluded that he was satisfied beyond reasonable doubt the offender did have a state of mind sufficient to sustain, "what he says in paragraph 38". Thus, his actions of educating the two men were, in each case, a knowing step by the offender in the commission of the offence. 22 His Honour held that paragraph 38, "in its context, is the basis for the sentence which I intend to impose". 23 These observations as to the basis for his Honour's sentence are important, having regard to the nature of the challenge to that sentence which is made on this application. 24 In particular, it is contended that the sentence passed upon the applicant was manifestly excessive in all the circumstances, there had been an error arising by reason of failure to have proper regard for the principle of proportionality, particularly when one has regard to the sentence passed upon others engaged in this wide-ranging operation, which seemed to embrace a number of independent sub-conspiracies to produce and market the drug, and that the applicant's medical circumstances were such that he should not be held responsible to the fullest extent for the role that he performed in this regard. 25 Those considerations seemed to underlie all of the five grounds of appeal originally asserted, and the further submission, which particularly brought the matters underlying those grounds to the fore, that the applicant had a justifiable sense of grievance, having regard to his own particular circumstances when the sentence passed upon him was compared to sentences passed upon others who had been involved, more or less directly, in the various sub-conspiracies or the operation. 26 The submissions that have been put in that regard seem really to have been put as relevant to the schedule which has been provided to us on the appeal of the various sentences passed upon those others involved. No issue has been taken by the Crown with the correctness of the schedule. 27 Nonetheless, although it is extensive, it appears that there were only two matters in that schedule to which our attention was specifically directed as having bearing upon the case now said to be made for the applicant. 28 Indeed, even though a most detailed comparison was made with various of the sentences passed either at first instance, or on appeal, against certain of the persons involved, that comparison has tended to disclose, not some common features in consequence of which the applicant had been dealt with more severely than others, but that the applicant's case was peculiar, if not unique, so as to enable little basis of direct comparison with the case for the others. 29 His Honour, in his remarks, as I have already said, gave particular attention to the applicant's state of mind and knowledge. This was in the context that his Honour turned from examining that matter directly, as I have set out, to examining the evidence to show that the applicant, as a consequence of repeated exposure to noxious chemicals and as having suffered an industrial accident in which he was exposed to noxious chemicals, sustained brain damage, mildly suggestive of a frontal lobe syndrome. 30 His Honour examined the report of Dr. Jolly in that regard. Dr. Jolly's report was a most detailed and extensive report. He summarised at page 7 of that report, the two quite separate types of pathology which may have underlain what he saw as the reasoning difficulty the applicant suffered from, including, organic brain disease, as evidenced by subdural haematoma in a prematurely aged or aging brain. 31 Dr. Jolly referred to that as, "pre-senile dementia". He was unable to predict what the consequences might be, but was of the view that the diagnostic formulation of the likely cause of the organic damage was that exposure to toxic chemicals, to which I have referred, exacerbated by, "binge drinking". 32 Dr. Jolly also referred to a cyclothymic personality approaching the boundaries or aegis of frank/manic depressive psychosis and referred to that in the context of the applicant retaining a sharp knowledge and appreciation, as well as a willingness to persevere with research with chemicals, but as a condition producing a proclivity to address things in ways that other people of more conventional disposition, might not, eg., to take risks where others would not. 33 The psychiatrist was of the view that, as a consequence, perhaps of those conditions, but undoubtedly, the applicant exhibited a gross deficit in thinking and reasoning such as would effect good judgment and that his organic pathology was not trivial but serious. 34 Dr. Jolly did not believe that the applicant, "ever had a 'guilty mind' in the sense of knowingly contributing to the manufacture of large commercial amounts of illegal amphetamine", and referred to him as lacking intellectual capacity. He considered that his culpability was very substantially reduced. 35 He did find that, in his opinion, the applicant was well aware, when he went to the Queensland property in 1997, something illegal was going on, or had been going on, but was of the view that the applicant could not, because of his intellectual deficits, postulate what the whole consequences would be of his own behaviour notwithstanding that. 36 The trial judge, having identified the references to organic problems and an early dementing process, also noted reference to the psychological testing which confirmed quite significant cognitive impairment. He referred to the mood swings the psychiatrist had referred to as accompanying the personality problems. He refers to what the applicant had told the psychiatrist and, in particular, says:- "The implication is that Mr. Dolman was telling him, as he had said in the December record of interview, that what he was doing was lawful." 37 His Honour examined that material and concluded it was not suggested there was any ground of insanity or that the plea of guilty should be withdrawn on some mental state basis akin to that which would absolve all criminal responsibility by reason of the doctrines in M'Naghten's case. 38 His Honour did conclude that the medical material required him to find that the accused had a limitation on his knowledge and thus the subjective culpability was significantly mitigated by comparison with that with which would otherwise have been the case, because of the peculiarity of this man's mental state, but His Honour held that he did not accept that the applicant lacked the knowledge of the criminality involved in educating others in production of the relevant material. He was of the view that mitigation should be extended to the applicant, but only mitigation to a certain degree. 39 Further, his Honour was of the view, and I consider entirely appropriately, that the objective culpability of this man's conduct was quite high. He possessed chemical skills which he made available to those who would produce the drug for illegal purposes and equipped them with the opportunity to disseminate those skills further. 40 His Honour moved from making a finding to that effect to conclude that, notwithstanding the regard he had for the medical evidence as mitigating the culpability of the offender, it was necessary to impose the sentence which he did. He found special circumstances, in particular arising from the mental condition of the applicant and, in that regard, varied the proportions between the minimum and additional term. 41 Of the challenges presently made to his Honour's sentence, that challenge relating to proportionality, to which I have already referred, should be considered in the light of the submissions later made as to disparity of sentencing. 42 The submission that the sentence was manifestly excessive in the circumstances also should await consideration of the other grounds. 43 As to the challenge the suggestion that his Honour erred by failing to have any or proper regard for the medical evidence, it is clear from what I have said that that challenge cannot succeed. 44 His Honour did have regard for the applicant's medical circumstances and gave him substantially the benefit of those circumstances in mitigating the sentence he would otherwise have imposed. 45 It is suggested that his Honour erred in failing to refer to Dr. Jolly's concern that the applicant would be at risk in goal by reason of those circumstances. 46 In my view, it cannot be taken that his Honour did not have regard to this matter. That is one matter that is a consequence of the very condition his Honour found. Further, it is plain that his Honour did have regard to the general principles arising from such a finding in mitigating sentence and, in particular, regard to the principle in Scognamiglio v. The Queen (1991) 56 A. Crim R. 81 that persons suffering from significant mental deficit are not appropriate for the whole rigours of personal deterrence or to be made such an example as others might be by way of the application of the doctrine of general deterrence. 47 It was suggested that his Honour erred by taking into account matters irrelevant to the sentencing exercise that he found to be aggravating features. 48 The reference there appears to be to the relationship with the person Kidd, to whom I have referred, but it is plain that, when one has regard to what his Honour has said, he has not erred, at least not in the sense likely to have borne in any way adversely to the applicant in his Honour's final decision, in referring to the association with Kidd, and certainly not in the way suggested by taking into account offences for which the applicant had not been convicted. 49 Indeed, it seems to me that when his Honour adverted to what had occurred in Queensland and what had occurred with Kidd, he did so for the sake of ascertaining the applicant's ability to appreciate the culpability of the conduct the applicant engaged in and for which he was charged and sentenced. 50 I turn now to the question of the principle of parity and the issue of proportionality. 51 Much that has already been said would indicate that the sentence imposed upon the applicant, whilst a severe one in the context of the applicant's personal circumstances as proved, was nonetheless a sentence which could not be shown to be disproportionate or disparate in the sense referred to in Postiglione v. The Queen (1996) 189 CLR 295, when one has regard to the circumstances involved in each of the individual matters to which the applicant's counsel has drawn attention. 52 In that sense, it does not appear that the applicant's peculiar circumstances are such that his Honour should not have regard to his vulnerability, or willingness, to make available to others his knowledge such that the drug might be produced and marketed or others become aware of that knowledge amongst those minded to commit the offence of producing the drug and marketing it. 53 Notwithstanding the subjective circumstances which his Honour found were to the applicant's advantage, hence notwithstanding those matters to which this applicant has pointed by way of mitigating features in his case, I am of the view that I am not satisfied his Honour fell into appealable error. I am therefore of the view the sentence is not manifestly excessive. 54 In those circumstances, not being satisfied that his Honour's discretion miscarried, it is not open to this court, I consider, to intervene. 55 Having regard, however, to the Crown's submission that the appropriate course to take in this case, since it might be that, as a result of appeals or applications for leave to appeal by others involved in this wide-ranging operation, reconsideration might have to be made of the sentence in consequence of some later judgment of the Court of Criminal Appeal, that the better course would be to leave such reconsideration open by refusing leave to appeal, even accepting that no such leave is likely to be granted, unless the Court of Criminal Appeal were minded to publish a judgment that would afford a basis for it, notwithstanding there has been full argument on the applicant's case and, with a view to reserving his rights in that regard, I propose that, rather than the appeal being dismissed, leave to appeal be refused. That course is acceded to by the applicant's counsel. 56 SMART, AJ: I agree. 57 GREG JAMES, J: The orders of the court will be leave to appeal refused. ********

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