Sumner v The Queen [2010] VSCA 298

1 After a trial in the County Court, the applicant was found guilty on a count of trafficking in a drug of dependence, phenyl-2-propanone (count 1), a count of possession of a drug of dependence, methylamphetamine (count 2) and a count of possession of substances, equipment and documents for the purpose of trafficking in a drug of dependence (count 3).

2 A plea was conducted and the applicant was sentenced to be imprisoned for a term of eight years on count 1, for a term of 12 months on count 2 and for a term of four years on count 3. It was ordered that six months of the sentence on count 2 and one-and-a-half years of the sentence on count 3 were to be cumulated upon each other and upon the sentence upon count 1. The total effective sentence was ten years' imprisonment. It was ordered that the applicant serve a term of seven years' imprisonment before he was to be eligible for parole.

3 The applicant seeks leave to appeal against conviction and sentence.

4 The Crown case may be shortly stated. In the early hours of a winter's day police officers executed a search warrant at a country property of some 125 acres at Christmas Hills.

5 Two men escaped into the bush. The applicant was discovered by police leaving a house on the premises. He was arrested.

6 Police found a locked drug laboratory in the shed next to the house. The key to the laboratory was hanging up in the kitchen of the house. In the laboratory were two vessels in which a mixture of liquids and solids was being cooked. The mixture was found to contain 792 grams of pure phenyl-2-propanone, a precursor for the manufacture of methylamphetamine and amphetamine (count 1). The trafficable quantity of phenyl-2-propanone was 2 grams. One of the ingredients of phenyl-2-propanone is phenyl acetic acid, which has a distinctive chemical odour. The odour permeated the laboratory.

7 In the laboratory, house and surrounding property the police found a large quantity of substances, equipment and documents relating to manufacturing and trafficking in methylamphetamine and amphetamine, the subject matter of count 3. The substances included methylamphetamine, sodium acetate, acetone, methylated spirits, caustic soda and hydrochloric acid. The equipment included glassware, heating regulators, temperature gauges, scales and small Ph meters. The documents were a book entitled 'Amphetamine Synthesis' and two other books dealing with pharmacology and techniques employed in chemistry laboratories. Other documents, including what were described as 'drug recipes', were found in the applicant's bedroom in the family home in East Keilor and a chemistry textbook was found on a bookshelf forming part of a sideboard in the living room of that house.

8 The Crown alleged that, when the applicant was arrested, he was found to be in possession of a small packet of white powder, being methylamphetamine. It was further alleged that when his clothing was searched at the police station, another packet of white powder, methylamphetamine, was found. The total amount of the methylamphetamine was .369 grams, and constituted count 2.

9 There was a considerable body of evidence of the applicant's connection with the property and with the manufacture of methylamphetamine.

10 The owner of the property gave evidence that, although leased to an associate of the applicant, it had been taken over and used by the applicant from about 2000. The applicant admitted to the police that he slept at the property from time to time. DNA material connected to the applicant was found on a rifle and a rifle cover in a bedroom in the house. The applicant's dog was lying on a bed in the bedroom. Intercepted telephone conversations between the applicant and members of his family revealed his occupation of the land and the premises. Those conversations disclosed that the applicant knew of the laboratory. When the applicant was arrested, the smell of phenyl acetic acid upon his person was noticed by some of the police. DNA material from the applicant was found on a latex glove and a respirator in the laboratory. When he was arrested, the applicant was in possession of a roll of black electrical tape, which matched tape on chemical glassware in the laboratory. The applicant's t-shirt, which he was wearing when he was arrested, had a number of holes consistent with acid burns, which could have been caused by chemicals used in the process of manufacturing methylamphetamine.

11 The applicant gave evidence. He said that he had attended at the property on the occasion on which he was arrested for the purpose of fixing the lights on a truck. He said he had been to the property some 20 or 30 times over the last couple of years. He denied that, when he was arrested, he had any drugs in his possession. He denied any knowledge of a clandestine laboratory on the property and said that he had never been into the laboratory. He denied having anything to do with the manufacture of drugs at the property.

12 There were 12 grounds of the application for leave to appeal against conviction. Most of them were abandoned; only three were pursued.

13 The first ground was that the trial miscarried as a result of the direction of the trial judge as to the defence response that had been filed by the applicant's former solicitors.

14 At trial, the defence contended that the two small amounts of methylamphetamine found in the applicant's clothing had been planted by the police. In a written defence response to the Crown opening filed by the applicant's former solicitors, the allegation that 'a small snap lock bag was found on (the applicant) that contained ... methylamphetamine' was admitted. The written opening and the defence response were tendered by the prosecutor.

15 In the course of his charge, the trial judge referred to the defence response. He commented that lawyers:

... act on what are called instructions, that is what the accused says about particular issues - just as you saw (defence counsel) throughout the trial put propositions to different witnesses. The defence counsel, or defence solicitors don't make things up. That's not part of their function. If they did, you might think that they wouldn't last long as defence lawyers.

His Honour pointed out that the solicitor had not given evidence and told the jury that they were not to speculate as to what he may have said. He reminded the jury that they were to determine 'whether the prosecution has proved beyond reasonable doubt that the accused was in possession of two packets of methylamphetamine'.

16 An accused is entitled to withdraw an admission. If he does, however, a trial judge may make a strong comment about the withdrawal.[1] The comment made here by the trial judge could have been better expressed, not in categorical terms, but in terms of a generally applicable proposition that may admit exceptions. The trial judge's directions were generally proper,[2] however, and their force was not affected by the ill expressed comments. Counsel for the applicant submitted, however, that the trial judge was required to go further and point out to the jury that the form of the response may have been the result of the applicant's solicitor misunderstanding his instructions.

17 No such direction was sought by counsel at the trial and, in my opinion, no such direction was necessary. In the absence of any evidence, the conclusion that the solicitor misunderstood his instructions was entirely speculative. I think that the issue was adequately dealt with by telling the jury that they were not to speculate as to the evidence the solicitor might have given and reminding them of the onus of proof borne by the Crown.

18 The second ground of the application was that the charge was unbalanced. Counsel for the applicant complained about the directions relating to the admission contained in the defence response to the Crown opening and the fact that the one example of a prior inconsistent statement provided by the judge concerned that admission. He also complained of a series of questions as to the planting of the drugs posed by the judge to the jury. His Honour said:

The first is why would Mr Garbutt as part of a police conspiracy plant drugs in the same pocket that Mr Thatcher found the other packet of drugs in so it could be said that Mr Thatcher would have or should have found both at the same time? That is one question for you to consider. Another one is why did not Thatcher find both packets in the same pocket at the same time if he was putting his finger in the fob pocket? Another is why would the police plant two lots of drugs instead of just one? Why not just all of the powder in one pocket if they were intending to compromise the accused man and act corruptly?

If Mr Garbutt and Mr Thatcher were corrupt, why would they not also say that the accused was smelling of cat urine, which you know is the smell of phenylacetic acid, to hence make the case worse for the accused. Mr Thatcher said the opposite, he did not notice any smell even though he was close to the accused and Mr Garbutt said, 'I didn't notice any peculiar smell at the police station'.

Another question, why plant any drugs at all when they had arrested the accused at the place where the clandestine laboratory was. That was strong enough evidence for the police you might have thought. If the police were not expecting anyone to be present and it was a covert raid, why would they bother to bring along methylamphetamine because there was not anyone there that they could have planted it on because no-one was expected to be there?

Finally, why would the accused volunteer that he had methylamphetamine in his pocket and not expect the police to find both packets at the same time if he had both on him in that fob pocket?

19 Another criticism was levelled at the trial judge's reference to the order in which the defence witnesses were called. His Honour said:

You will remember that both Leigh Revell and Mrs Sumner gave evidence to you before the accused gave evidence himself. That is because he exercised his right to call them in that order, in other words he called his witnesses before he gave you his evidence. That is his choice to do that, he is allowed to do it if he wants to do it that way, but it means that he had the advantage to be hearing their accounts in evidence before he gave his account and was cross-examined in his evidence. Obviously if he had given evidence first then called those witnesses then it could not be said that he had had that advantage - but he did have that advantage, and you will bear that in mind when you assess the evidence of those two witnesses and the evidence of the

accused man about matters, which might have pertained to their evidence. Another criticism was that the trial judge told the jury that they could take into account the applicant's failure to give evidence on particular topics. His Honour reminded the jury that the applicant had not given evidence about the chemistry book found in his house and said:

I've said a couple of times, and this is a good example, that there was not evidence given by the accused about that particular topic, I don't mean by that to imply that the accused man has in any way an onus of proof in terms of responding, but of course it is the Crown that must satisfy you, as I have explained a number of times. But it is important if the accused has chosen to give evidence about relevant matters and given the issues in the case, whether he has or has not given any evidence about a particular topic or issues for you to know, if that is the case, because obviously he has, that is something you need to take into account.

Finally, counsel for the applicant referred to references by the trial judge to the failure of the applicant's counsel to cross-examine witnesses on certain matters or to elicit particular evidence from witnesses.

20 In large measure I consider that the apparent imbalance in the charge was a reflection of the difficulties under which the defence case laboured or, putting the matter another way, reflected the relative strength of the Crown case. When the charge is read as a whole, it accurately conveyed the principal strengths and weaknesses of the cases advanced by the parties. The subject matter of particular complaints of lack of balance were comments that could be made having regard to the case advanced by the applicant at trial.

21 It is a pity that his Honour did not expressly describe his remarks as comments the jury were not obliged to accept. I have been troubled by the evident enthusiasm of the trial judge for the Crown case and the efforts he made to ensure it was fully presented. A more disinterested position would have been preferable. It is, perhaps, particularly important that the appearance as well as the reality of strict judicial impartiality be maintained where the Crown case seems to be very strong. At the end of the day, however, I am satisfied that his Honour's attitude did not cause the trial to miscarry. His efforts were, in a sense, unnecessary: the Crown case was compelling and the judge's interventions did not unduly enhance it.

22 The third ground of the application was that by cross-examining the applicant as to why he had not called the witness Raymond Hammet, who, the applicant said, was with him at the farm on the day before the applicant was arrested, and asking the applicant whether he would call his solicitor as a witness, the prosecutor in effect reversed the onus of proof. The trial judge reminded the jury of the prosecutor's criticism of the applicant not calling Hammet as a witness. Counsel for the applicant submitted that the jury should have been expressly warned that there was no obligation upon the applicant to call Mr Hammet or his solicitor and that no adverse inference should be drawn against the applicant on the basis that neither witness was called.

23 The trial judge did not direct the jury that they could infer from the failure to call Hammet or the solicitor that the evidence of those persons would not have assisted the applicant. His Honour did direct the jury that they were not to speculate as to the evidence which Hammet or the solicitor might have given if called as witnesses. Further, the jury were instructed in clear terms that the burden of proof remained on the Crown throughout the trial to establish its case beyond reasonable doubt and there was no burden upon the applicant. In my opinion, there was no risk that the jury might have thought that the applicant did bear an onus in respect of matters as to which Hammet or the solicitor could have given evidence.

24 For the foregoing reasons, I would refuse leave to appeal against conviction.

25 I turn to the application for leave to appeal against sentence.

26 The grounds of the application which were pursued were that the sentencing judge failed to have sufficient regard to the applicant's age and ill health and the principle of totality, and that the sentence was manifestly excessive.

27 The grounds require consideration of the applicant's personal circumstances.

28 The applicant is 63 years' old. He was born and raised in Cobram, one of eight children, in a supportive and happy family.

29 The applicant left home at the age of 18 years and married at the age of 19 years. The applicant left school at an early age and then worked as a panel beater, apprentice electrician, builder's labourer, farm labourer, and seasonal agricultural worker. The applicant's principal occupation has been that of a truck driver.

30 The applicant suffered from a hiatus hernia when he was a child and in 1986 he sustained a lower back injury, and has since been unemployed.

31 A psychologist reported in 1992 that the applicant had an average intellectual capacity, affected by alcohol and drug addiction. The applicant began abusing alcohol at about the age of 19 years. The applicant was introduced to stimulants, principally amphetamine, when he was driving semi-trailers.

32 The applicant and his wife have six children. One child suffered a brain injury in a motor vehicle accident, which left him with psychiatric problems. Another son was raped when he was in his early teens and now suffers serious psychiatric problems with no prospect of ever working. Yet another son was convicted of murder and is currently serving a sentence of imprisonment. The applicant has nine grand children. His wife is in poor health, suffering from diabetes, which requires daily insulin injections.

33 The applicant had a significant criminal history. He had 13 prior convictions from nine court appearances, including, significantly, convictions for armed robbery and trafficking in a drug of dependence, offences in respect of which substantial terms of imprisonment were imposed.

34 In the course of the plea, a report by the applicant's treating doctor was tendered. The doctor said that the applicant suffered from hypertension, anxiety, hepatitis C, chronic lower back pain and gout. The sentencing judge apparently accepted that the applicant suffered from the maladies listed by his doctor, but said:

I am unable to conclude that your ill health would make imprisonment a greater burden for you, which I would be need to be satisfied of before it could be taken into account as a mitigating factor. I am satisfied that, if imprisoned, you would be able to receive appropriate medical treatment for your conditions, as conceded by your counsel.

35 The question was not simply whether the applicant's ailments could be treated appropriately in prison. As King CJ made clear in R v Smith:[3]

Ill health is a mitigating factor when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.

The sentencing judge in the present case had regard only to the second matter. It is settled that there are indeed two different ways in which ill health may be a factor mitigating punishment.[4] The question is not whether imprisonment will make it more difficult for an offender to cope with his illness or disability, but whether the offender's ill health will make imprisonment a greater burden. The ailments from which the applicant suffered in my view were likely to render imprisonment more burdensome to the applicant. His Honour gave no reason to saying that he could not conclude that the applicant's ill health would make imprisonment a greater burden. The very nature of the conditions from which the applicant suffered would normally lead to the conclusion that imprisonment would weigh more heavily upon him.[5]

36 In my opinion, it is apparent that from the sentencing remarks that his Honour did not take into account and properly weigh a mitigating factor. Further, I consider that the sentence itself failed properly to reflect the mitigating factors upon which the applicant could rely, particularly his mental and physical health and his age, notwithstanding the serious nature of the offences and the applicant's prior history.

37 Accordingly, the sentencing discretion has been reopened. A report by a psychologist dated 23 October 2010 was tendered by counsel for the applicant. It appears from the report that the applicant's mental condition has deteriorated since the report by the psychologist made in 1992. The recent report revealed that the applicant was suffering from a major depressive disorder with extremely severe anxiety, possibly associated with post-traumatic stress disorder. The psychologist reported:

It would appear that Mr Sumner is finding his current period of incarceration more onerous than his past experiences. He feels more vulnerable due to his age and diminished capacity to defend himself in what he sees as a dangerous environment.

38 I would grant leave to appeal against the sentence and allow the appeal.

39 I would set aside the sentence passed below and in lieu thereof sentence the appellant to be imprisoned for a term of six years on count 1, for a term of six months on count 2 and for a term of three years on count 3. I would cumulate 18 months of the sentence on count 3 on the sentence on count 1, creating a total effective sentence of seven years and six months' imprisonment. I would fix a minimum term of five years' imprisonment before the appellant is to be eligible for parole.

40 I have read in draft the reasons for judgment of Buchanan JA, and I respectfully agree with them.

41 In my opinion, leave to appeal against conviction should be refused for the reasons stated by Buchanan JA.

42 I would allow leave to appeal against sentence, and allow the appeal, for the reasons stated by Buchanan JA.

43 I agree with the sentencing disposition proposed by Buchanan JA.

[1] R v Shalala [2007] VSCA 199, [26].

[2] See s 16(3) of the Crimes (Criminal Trials) Act 1999.

[3] (1987) 44 SASR 587.

[4] See, for example, R v McDonald (1988) 38 A Crim R 470, 475; R v Morgan (1996) 97 A Crim R 104, 107.

[5] See R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258, 267-8 (Callaway JA).