Court of Appeal (WA)|2011-08-05|Before: Mr J, Lure P, Buss JA, Mazza J

THE STATE OF WESTERN AUSTRALIA -v- JENKIN [2011] WASCA 171 (5 August 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- JENKIN [2011] WASCA 171

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against presentence order - Respondent convicted of manufacturing methylamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA) - Whether open to sentencing judge to impose a presentence order - Personal use - Prevalence of offending in Western Australia - Turns on own facts

Matter remitted to District Court for respondent to be sentenced by a different judge

R v Pallister [2002] WASCA 68

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

The State of Western Australia v Hatch [2008] WASCA 162

The State of Western Australia v Higgins [2008] WASCA 157

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

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

1 McLURE P: This is a State appeal against a pre-sentence order made by McCann DCJ on 9 May 2011.

2 The respondent was convicted on his own plea of guilty on five counts of manufacturing methylamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA) (MDA). The background is as follows. On 8 April 2010 police discovered a methylamphetamine laboratory in bushland near Wonnerup in the Busselton area. They placed a guard at the site. At approximately 1.20 am on 9 April 2010 police observed the respondent driving a vehicle towards the site. The respondent, having seen the police, reversed his vehicle in an attempt to get away. The police intercepted and searched the respondent's vehicle. It contained drug making equipment associated with the manufacture of methylamphetamine including an 8.5 kg gas cylinder, a glass jar containing white residue and 875 ml of biphasis liquid (analysed to be a mixture of toluene and pseudoephedrine), lithium batteries and 500 g of caustic soda.

3 The respondent was arrested and taken to the Busselton police station where he was interviewed. The respondent admitted to taking part in the manufacture of methylamphetamine on five or six separate occasions at the Wonnerup location since January 2010. The respondent also admitted that he had been actively involved in the manufacture of methylamphetamine on or about 50 occasions in the Busselton and Margaret River areas over the previous nine months.

4 He said his role was to procure the ammonia gas required for the manufacture process. To enable this, he had fabricated an apparatus which he used to create ammonia gas from the precursor components. On each occasion he produced ammonia gas, an associate would be present and take the necessary steps to complete the manufacture process. For his role, the respondent was provided with half the methylamphetamine produced. He said he received approximately 1.5 g of methylamphetamine on each occasion. The sentencing judge found that the manufactured product was for the personal use of the respondent and his co-offender.

5 On 5 October 2010 the respondent appeared in the Busselton Magistrates Court and pleaded not guilty to six charges of manufacturing methylamphetamine. On 1 March 2011 the respondent appeared in the District Court and was arraigned on an indictment containing five counts of manufacturing methylamphetamine. The respondent entered pleas of guilty in relation to all five counts. On 9 May 2011 he appeared before McCann DCJ for sentencing. Instead of sentencing the respondent, the judge made a pre-sentence order for a period of 15 months with programme and supervision requirements.

6 The State's sole ground of appeal is that the sentencing judge erred in making a pre-sentence order because a sentence of immediate imprisonment was inevitable. This court in The State of Western Australia v Hatch [2008] WASCA 162 [6] - [12] considered the legislative framework relating to a pre-sentence order (PSO). It is sufficient for present purposes to note that the purpose of a PSO, which is not a sentence, is to give an offender who is facing a term of imprisonment an opportunity to take steps to address their offending behaviour prior to the court proceeding to sentence. The power to impose a PSO is only enlivened if the court considers, inter alia, that if the offender were to comply with the PSO the court might not impose a term of imprisonment under pt 13 of the Sentencing Act 1995 (WA) for the offence or offences (s 33A(3)(c)). The State can only succeed in this appeal if it establishes that it was not open to the sentencing judge to be satisfied of that requirement. It would not be open to make a PSO if, at the time it was made, a sentence of immediate imprisonment was and would remain the only appropriate sentencing option even if the respondent were to comply with the PSO.

7 The respondent was aged 34 when he committed the offences. He grew up in a loving family, left school after completing year 10 and entered paid employment. However, as at April 2011, he had been unemployed for most of the previous 18 months. The respondent has a long, entrenched history of substance abuse. He commenced using prohibited drugs, notably cannabis and amphetamines, in his teenage years. He has a lengthy criminal record including convictions for numerous drug related offences (possession of a prohibited drug and possession of a smoking utensil) and property related offences (aggravated burglary, burglary, possession of stolen property, fraud and stealing). The respondent's prior record is associated with his substance abuse.

8 The respondent was released to bail in relation to these offences. He failed to fully comply with a condition requiring him to attend substance abuse counselling sessions. A psychological report was ordered for sentencing purposes. After missing his first appointment and being late for the second, the psychologist noted evidence of the respondent being under the influence of illicit substances. Whilst the respondent spoke of his desire to address his substance abuse, the psychologist identified personality characteristics that were significant obstacles to the respondent achieving that outcome. The psychologist concluded that the respondent 'remains at the [c]ontemplative [s]tage of change concerning his substance use, indicating that while he is aware of the potential benefits of abstinence, the costs of achieving this outweigh such benefits'.

9 By April 2011 the respondent had been in a relationship with a woman for about 18 months and she was expecting their first child who has since been born. The respondent's partner also has four other children from previous relationships, two of whom were living with her and the respondent. She also has substance abuse problems.

10 The materials before the sentencing judge demonstrate the respondent's readiness to volunteer negative information about his activities. In 2005 he volunteered to police that he had been cheating on his urine tests which were conducted pursuant to the conditions of a parole order. When being interviewed by the psychologist in relation to these offences, he admitted having been engaged in the selling of illicit drugs to finance his drug addiction. His behaviour is consistent with the psychologist's assessment of the respondent having over-exuberant self-confidence, difficulty grasping the reality of a situation and a subsequent sublime belief in a positive outcome. It has little to do with demonstrating any insight into the seriousness of his offending or taking personal responsibility for his past misconduct or control of his future.

11 The sentencing judge was critical of the fact that the respondent did not receive a drug rehabilitation programme on the last occasion he was in prison in 2008 or after he was released on parole. He identified this as a strong case for a therapeutic approach to sentencing. Against that background, the sentencing judge identified two matters that caused him to make a pre-sentence order. The first was the respondent's cooperation in providing police with information leading to the discovery of offences which would otherwise have gone undetected and the second was the fact that he was shortly to be a father.

12 The offence of manufacturing a prohibited drug is, by any measure, serious. The maximum penalty for the offence is 25 years' imprisonment. It is the same maximum penalty as for the dealing offences in s 6(1)(a) and (c) of the MDA.

13 There has been a very significant increase in improvised clandestine drug laboratories in Western Australia in the past decade. In 2000 - 2001, 22 clandestine laboratories were found in Western Australia. In 2010, that figure had escalated to 133 clandestine laboratories. In the calendar year to 7 July 2011, 100 clandestine laboratories have been detected. Such laboratories present significant dangers to the people undertaking the manufacturing activity, people within its immediate vicinity and police and emergency services required to deal with them. Ammonia gas is extremely dangerous and can be fatal if inhaled. The WA Police now have to warn the public to be mindful of abandoned items of laboratory equipment in parks and bushland because of the dangers associated with it. The presence of a drug laboratory in bushland carries with it the real risk of a bush fire. Further, the close association between the use of methylamphetamine and the commission of criminal offences is well documented: The State of Western Australia v Higgins [2008] WASCA 157 [115].

14 Against that background it will come as no surprise that a sentence of immediate imprisonment will ordinarily be imposed for manufacturing methylamphetamine: R v Pallister [2002] WASCA 68 [31]; White v The State of Western Australia [2007] WASCA 119 [4]; Rumenos v The State of Western Australia [2011] WASCA 59 [34]; The State of Western Australia v Skaines [2006] WASCA 160.

15 It is apparent from the judge's reasons as a whole that he was primarily focussed on increasing the respondent's prospects of rehabilitation, he not having the necessary will or capacity to achieve progress himself. The focus on rehabilitation is at the expense of the other sentencing objectives including protection of the public and general deterrence. General deterrence is important when prevalence of the offending is a problem, particularly amongst offenders with similar issues as the respondent. Moreover, the two factors expressly relied on as justifying a PSO fell well short of taking the respondent outside the ordinarily appropriate sentence for offending of this nature and seriousness.

16 Having regard to the very serious nature of the offence, the very serious circumstances of his offending (the five counts were representative of a long course of conduct), the alarming increase in the incidence of the offence, the respondent falling squarely within the demographic likely to engage in manufacturing and the respondent's unfavourable antecedents, it was not open to the sentencing judge to consider that if the respondent were to comply with the PSO he might not impose a term of immediate imprisonment. Accordingly, the sentencing judge erred in imposing the PSO.

17 Thus, I would allow the appeal, set aside the PSO and remit the matter to the District Court for the respondent to be sentenced by a different sentencing judge in accordance with these reasons.

THE STATE OF WESTERN AUSTRALIA -v- JENKIN [2011] WASCA 171 (5 August 2011)

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THE STATE OF WESTERN AUSTRALIA -v- JENKIN [2011] WASCA 171 (5 August 2011)

Legislation Cited (1)