Court of Appeal (WA)|2011-11-24|Before: Mr J, Lure P, Buss JA, Mazza J

THE STATE OF WESTERN AUSTRALIA -v- HYDER [2011] WASCA 256 (24 November 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- HYDER [2011] WASCA 256

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Manufacture of methylamphetamine - Whether conditionally suspended sentence manifestly inadequate - Incidence of offending in Western Australia - Need for general deterrence - Admission of additional evidence in appeal against sentence - Turns on own facts

Conditional suspension and cumulation of the sentences on counts 1 and 2 set aside

Sentence on count 1 to be served concurrently with sentence on count 2

Cabassi v The Queen [2000] WASCA 305

Cartwright v The State of Western Australia [2010] WASCA 4

Fogg v The State of Western Australia [2011] WASCA 11

Johnston v The State of Western Australia [2008] WASCA 221

McKeagg v The Queen [2006] WASCA 26

Paparone v The Queen [2000] WASCA 127

R v Pallister [2002] WASCA 68

Rumenos v The State of Western Australia [2011] WASCA 59

The State of Western Australia v Jenkin [2011] WASCA 171

The State of Western Australia v Skaines [2006] WASCA 160

Wheeler v The Queen [No 2] [2010] WASCA 105

White v The State of Western Australia [2007] WASCA 119

Worth v The Queen [2001] WASCA 303

1 McLURE P: This is a State appeal against sentence. The respondent was convicted on his plea of guilty of one count of manufacturing methylamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA), one count of possession of methylamphetamine contrary to s 6(2) of the Misuse of Drugs Act and two counts of possession of an unlicensed firearm contrary to s 19(1) of the Firearms Act 1973 (WA).

2 On 28 July 2011, Braddock DCJ sentenced the respondent as follows:

- Manufacture of methylamphetamine - 3 years' imprisonment conditionally suspended for 2 years (count 1).

- Possession of methylamphetamine - 1 year's imprisonment (cumulative) conditionally suspended for 2 years (count 2).

- Possession of an unlicensed submachine gun - $2,000 fine (count 3).

- Possession of an unlicensed handgun - $2,000 fine (count 4).

3 Thus, for the drug offences the respondent was sentenced to a total effective sentence of 4 years' imprisonment, conditionally suspended for 2 years. The sentencing judge also ordered the respondent to perform 120 hours of community service. That order was beyond power and subsequently recalled but only after the respondent had performed approximately 73 hours of community service.

4 The State's only ground of appeal is that the type of sentence imposed on counts 1 and 2 (conditional suspension of the term of imprisonment) is manifestly inadequate. However, it was conceded in the appeal that in the event a term of immediate imprisonment is the only appropriate sentencing option, the sentences of imprisonment should be made concurrent, resulting in a total effective sentence of 3 years' immediate imprisonment.

5 The facts of the respondent's offending are as follows. At about 2.30 pm on 9 November 2009 the respondent landed his aircraft at Jandakot Airport, having flown the plane from his home in Busselton. The respondent was arrested as he got out of the aircraft. Police executed a search warrant. Located behind the front two seats of the aircraft were beakers containing a small quantity of liquid, measuring containers, a lithium battery, a four litre container of toluene and a four litre container of acetone. These items are used in the manufacture of methylamphetamine by the 'Nazi' method. The respondent was questioned about the items in the aircraft but declined to comment.

6 Also located in the respondent's aircraft were two firearms. One was a 9 mm calibre long-barrelled automatic submachine gun with no markings or identification numbers on it and a 40-round capacity magazine. Located with the submachine gun was a suppressor device, the purpose of which is to muffle the noise on discharge. The gun was privately manufactured by the respondent and was operational when test-fired. The second firearm was a Felk 40 calibre self-loading handgun with a detachable box magazine. The handgun, which had the serial numbers removed, could not be fired in the state in which it was seized. However, if the missing parts were replaced, it would be fully functional.

7 The search warrant was also executed at the respondent's rented hangar located at Jandakot Airport. Located within the hangar were numerous items consistent with the manufacture of methylamphetamine by the Nazi method. One item was found to contain 240 millilitres of a liquid containing both methylamphetamine and pseudoephedrine. The bulk of this liquid was identified as being xylene, a solvent used in the manufacturing process. The concentration of methylamphetamine and pseudoephedrine in the liquid were consistent with the remains of a manufacture process whereby the bulk of the methylamphetamine had already been extracted. It was not possible to determine the quantity of methylamphetamine previously extracted from the liquid.

8 Also located in the hangar were multiple beakers, funnels, filters, sulphuric acid, acetone, toluene, lithium batteries, sulphate of ammonia, an ammonia generator, 9.2 g of a common cutting agent (dimethyl sulphone) and numerous other items with residues of methylamphetamine on them. Two crude gas containers with heavy corrosion were found to contain ammonia gas. There was also a clipseal bag containing 2.93 g of methylamphetamine with a purity of approximately 3%. That was the subject of count 2.

9 Hundreds of rounds of ammunition were found on the respondent's person and in the hanger.

10 On the same day a short time before the respondent was arrested another person, Joseph Martin, was in a vehicle stopped by police in Jandakot, not far from the respondent's hangar. In Mr Martin's vehicle was a bucket of dry ice and two full packets of Sudafed. Several telephone calls were made between Mr Martin and the respondent just prior to the respondent's arrest.

11 The respondent was aged 48 when he committed the offences. He was aged 50 at the time of sentencing. He had boarded at a private boys' school in Perth and after leaving school at the end of Year 12 went into the family business. In around 1994 the respondent left what was a very successful family business and set up his own business manufacturing beef jerky. That business was initially very successful but failed in 2007, following which the respondent established an engineering research and development company providing services to the family business. In 2007 the respondent's father died in a motor vehicle accident.

12 The respondent has never married and has no children. He is described as a talented tradesman. He built the aircraft he was flying and the submachine gun located in it on the day of his arrest. By his own account, the respondent is a wealthy man, having approximately $8 million in assets.

13 The respondent has a relatively lengthy record of prior convictions. The record includes multiple traffic convictions (17) which include using an unlicensed vehicle, false plates and a false registration label; a conviction in September 2006 for possessing an unlicensed firearm; and offences committed in October 2009 of possessing methylamphetamine and possessing a smoking utensil.

14 The pre-sentence report dated July 2011 (PSR) notes that the respondent reported having no psychological or psychiatric issues and no history of mental illness in his family. He also reported commencing to use amphetamines on a recreational basis in 2001 with his use slowly and steadily escalating to become daily use by 2005.

15 The respondent had not ceased using prohibited drugs at the time of sentencing and had not undertaken any counselling or other treatment for his substance abuse. The author of the PSR notes the respondent as being in 'the contemplative stage of change in relation to his substance abuse'.

16 The sentencing judge also had before her a private psychiatric report from Dr S Febbo who confirmed that the respondent had continued to use amphetamines on a regular basis up to July 2011. The psychiatrist said that from 2007, the respondent experienced a significant depressive illness. That diagnosis is inconsistent with what is reported in the PSR. The presence of obsessive-compulsive personality traits was also noted. Dr Febbo concluded that it was necessary for the respondent to address his substance abuse/dependence. On the risk of reoffending he said:

In my opinion the likelihood of [the respondent] reoffending in the context of drug-related offences is closely related to his ability to address the substance abuse/dependence and his significant depressive syndrome. I do note that there is an absence of significant personality pathology ... and ... an absence of a significant forensic history. In my opinion, [the respondent's] risk of reoffending is very much at the lower end of the spectrum.

17 The relevant findings made by the sentencing judge are as follows. The manufacture of methylamphetamine by the respondent was sophisticated and a process he had engaged in over a period of time. The drug was manufactured solely for the respondent's consumption (ts 43, 46). However, the unchallenged evidence was that the respondent and Mr Martin together manufactured methylamphetamine and shared what was produced (ts 39).

18 The sentencing judge found that the respondent was aware of the dangers associated with the manufacture of methylamphetamine but accepted that he had taken steps to minimise the risk to which the respondent and others might be exposed. The sentencing judge did not make any finding as to the steps taken or the extent of their effectiveness in reducing the risks. The matters relied on by the respondent's counsel in submissions to the sentencing judge were that the hangar was not accessible by members of the general public and the use of dry ice minimised the risk of explosion (ts 29).

19 Although experts had been unable to determine how much methylamphetamine had been manufactured by the respondent, the sentencing judge accepted it was 'probably very little' (ts 45). She also accepted that the respondent continued to purchase amphetamines from time to time and used some of the substances in his possession to 'wash' the drugs to remove impurities and add his own cutting agent (ts 46). She characterised the respondent as being, in effect, a victim. She said:

You are, in a sense, yet another good person dragged down and dragged before these courts by the pernicious effects of illicit drugs but with particular reference to methylamphetamine.

...

I've already indicated that I accept that [you are of good] character, I accept your family ethic and I accept the degree of addiction which led you to take the steps that you did. I accept that, due to adverse life circumstances and stresses from 2002 on, you were probably struggling under undiagnosed mental illness which participated to a considerable extent in the degree of addiction, particularly after the death of your father (ts 46).

20 The sentencing judge found that the respondent was truly remorseful, that there was no commerciality in his offending and that there was no link between his possession of the firearms and the manufacture of drugs. She continued:

[C]onsidering your low risk of re-offending, the good prospects of your rehabilitation, although I accept these things do not occur overnight and that treatment both for addiction and depression in its very nature is not one straight line continuum towards success, I accept that you have good support, good family, good friends and good skills which points you in the direction of being both rehabilitated and therefore not re-offending (ts 47).

21 The statement that the respondent was at low risk of reoffending with good prospects of rehabilitation is not supported by the evidence. Dr Febbo's assessment of the risk of the respondent re-offending was conditional upon him addressing his substance abuse problem and his 'depressive syndrome'. The unchallenged evidence was that the respondent had continued to use amphetamines in the lengthy period between the discovery of his offences in November 2009 and his sentencing on 28 July 2011 and had not undertaken any treatment for his substance abuse (or for depression).

22 After imposing the sentences the subject of this appeal the trial judge continued:

In my view, society can be served if you can recover from this addiction and contribute your skills to society in an appropriate manner and that the needs of general deterrence can also be served by the holding up of that term of imprisonment that I have imposed hanging over your head for that period of time without further destroying your life (ts 48).

23 The sentencing judge accepted Dr Febbo's opinion that the respondent's depression was directly related to his drug abuse and that the plea of guilty was not at the earliest opportunity.

State application to adduce additional evidence

24 The State sought to rely on additional evidence in affidavits sworn by David Robson, a police officer, as to the incidence of clandestine drug laboratories in Western Australia in the years 2009 - 2011 and by Kevin Smith, Operations Manager of Jandakot Airport. Mr Smith deposed that Jandakot Airport is one of the busiest airports in Australia and that Jandakot Airport Holdings had assessed the risk of manufacturing prohibited drugs within the boundaries of the airport to have a very high rating with potentially disastrous results. He also attached two photographs showing the hangar in which the respondent manufactured methylamphetamine relative to other hangars, planes, airport buildings, other infrastructure and surrounding bushland. The respondent objects to the admission of the additional evidence.

25 Generally, an appeal court must decide an appeal on the evidence and material before the primary court: s 39(1) of the Criminal Appeals Act 2004 (WA) (the Act). However, it has a broad power to admit other evidence under s 40(1)(e) of the Act: Wheeler v The Queen [No 2] [2010] WASCA 105 [52] (Owen JA). The general test to be applied in determining whether additional evidence should be admitted is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed: Wheeler [3], [53].

26 It is unnecessary in this case to rule on the State's application as the appeal can be determined without reference to the additional evidence. If, as I have concluded, the appeal should succeed, the additional evidence can be relied on in resentencing.

Whether sentence for manufacturing methylamphetamine manifestly inadequate

27 Manifest inadequacy (like manifest excess) depends on establishing an implied error from the type or length of sentence imposed. In this case the State challenges the type of sentence imposed. When considering whether an implied error has been made by the sentencing judge, regard is had to the maximum penalty and the standards of sentencing customarily imposed for the offence, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

28 The maximum penalty for the offence of manufacturing a prohibited drug contrary to s 6(1) of the Misuse of Drugs Act is 25 years' imprisonment. The type of sentence customarily imposed for the offence is a term of immediate imprisonment: Cabassi v The Queen [2000] WASCA 305; Worth v The Queen [2001] WASCA 303; R v Pallister [2002] WASCA 68; White v The State of Western Australia [2007] WASCA 119; McKeagg v The Queen [2006] WASCA 26; Johnston v The State of Western Australia [2008] WASCA 221; Paparone v The Queen [2000] WASCA 127; Rumenos v The State of Western Australia [2011] WASCA 59; The State of Western Australia v Jenkin [2011] WASCA 171.

29 In The State of Western Australia v Skaines [2006] WASCA 160, this court dismissed an appeal against a sentence of 4 years 8 months suspended for 2 years for the offence of conspiring to manufacture methylamphetamine. The respondent and his co-offender were found at premises containing a clandestine drug laboratory used to manufacture methylamphetamine. The respondent was to receive $1,000 for organising the delivery of equipment and ingredients to his co-offender who was to receive a quantity of the manufactured product. The respondent suffered from a diagnosed psychiatric illness at the time of the offence and was the sole carer of two dependent children, at least one of whom required special attention. With some hesitation, the appeal was dismissed. It was said:

A suspended sentence for the offence committed by the [respondent] could only be appropriate if it fell within that category of case calling for the exercise of mercy because the sentencing Judge's sympathies are reasonably excited by the circumstances of the case ... If regard is solely had to the nature and circumstances of the offence and the [respondent's] personal antecedents, there could be no doubt that a term of immediate imprisonment was the only appropriate penalty. That is so notwithstanding that the [respondent's] role was comparatively minor, he had no relevant prior convictions, had pleaded guilty at an early opportunity and was genuinely remorseful. However, in my assessment those matters are an essential precondition to any exercise of mercy in this case. They are essential but of themselves insufficient [51].

30 The relevant principles relating to suspension of a term of imprisonment are detailed in Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10] as follows:

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences ...

However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].

31 The sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed. Different types of sentences may be reasonably open in borderline cases: Fogg v The State of Western Australia [2011] WASCA 11.

32 In submissions advanced on behalf of the respondent, primary emphasis was given to the fact that the methylamphetamine was manufactured for the respondent's own use (and that of his co-offender). As explained by Anderson J in Pallister, that does not alter the fact that the dominant sentencing consideration is deterrence. Anderson J said:

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 [31].

33 Since Pallister was decided in 2002, there has been a very significant increase in the incidence of the manufacture of methylamphetamine in improvised clandestine drug laboratories in Western Australia: Jenkin [13].

34 A sentence of immediate imprisonment for the offence of manufacturing methylamphetamine committed by the respondent is the only appropriate sentencing option. This case falls well short of being borderline. The offence is serious. The manufacturing process used by the respondent was sophisticated and had been engaged in over an extended period. There was no finding, and no evidence to support one, that the steps taken by the respondent to minimise the risks to himself and others in the manufacturing process had the effect of materially reducing the dangers associated with the manufacturing process or the chemicals involved, in particular, ammonia gas. The dangers are discussed in Rumenos and Jenkin. The choice of location, an airport hangar, cannot seriously be regarded as mitigatory.

35 The need for general deterrence is underscored by the significant increase in the incidence of this type of offending in recent times. Weight must also be given to the need for personal deterrence in this case. The risk of reoffending is linked with the respondent's capacity and motivation to overcome his substance abuse problem. The respondent's conduct during the lengthy delay between the date of the offence and his sentencing gives scant cause for optimism on that score. The respondent is a wealthy, educated and inventive person. He is the antithesis of many offenders in the criminal justice system who are true victims of life's terrible circumstances. There is little to suggest that the respondent has insight into the public policy underpinning the criminalisation of conduct involving the manufacture and possession of prohibited drugs.

36 I would allow the appeal and set aside the conditional suspension of the sentence of 3 years' imprisonment on count 1. Under s 81(3)(b) of the Sentencing Act 1995 (WA), a conditional suspended imprisonment order is not to be imposed if the offender is serving, or is yet to serve a term of imprisonment that is not suspended. Accordingly, the order conditionally suspending the term of 1 year's imprisonment on count 2 must also be set aside. I would set aside the order for cumulation and in lieu thereof order the sentence of 3 years' immediate imprisonment on count 1 to be served concurrently with the sentence of 1 year's immediate imprisonment on count 2, resulting in a total effective sentence of 3 years' imprisonment for those offences. The respondent is to be eligible for parole after serving 18 months' imprisonment.

THE STATE OF WESTERN AUSTRALIA -v- HYDER [2011] WASCA 256 (24 November 2011)

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Judgment (73 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- HYDER [2011] WASCA 256 (24 November 2011)

Legislation Cited (2)

Cases Cited (1)