Court of Appeal (WA)|2001-10-03|Before: Roberts-Smith J, Wallwork J, Smith J, Einfeld AJ

Worth v The Queen [2001] WASCA 303 (3 October 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WORTH -v- THE QUEEN [2001] WASCA 303

Criminal law and procedure - Appeal against sentence - Manufacture of amphetamine - Actual production of 16.1 gm - Crown allegation of potential yield of up to 6 kg of amphetamine from precursor seized - Whether potential yield relevant to sentence

Criminal law and procedure - Appeal against sentence - Parity principle - Appropriate discount for plea of guilty

Applicant : Unrepresented Criminal Appellants Scheme

Darwell v The Queen (1997) 94 A Crim R 35

De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996

Jarvis v the Queen (1993) 20 WAR 201

Legeng v The Queen, unreported; CCA SCt of WA; Library No 950391; 4 August 1995

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998

1 WALLWORK J: I agree with the reasons for judgment of Roberts-Smith J and with the conclusions reached by his Honour. There is nothing I wish to add.

2 ROBERTS-SMITH J: This is an application for leave to appeal against sentence.

3 On 29 November 2000 in the District Court at Perth, the applicant pleaded guilty to one count of manufacturing a prohibited drug, namely amphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA). He had been jointly charged on an indictment dated 3 May 2000 with Barry James Worth, his brother, and Sussan Marie Crofts, his brother's fiancee.

4 On 20 December 2000 he was sentenced by Yeats DCJ to a sentence of 6 years 6 months imprisonment with an order that he be eligible for parole. At that time his brother had pleaded not guilty and had not been dealt with; Crofts had pleaded guilty and had been sentenced by a different Judge on 2 June 2000 by placement on an intensive supervision order for a period of 18 months subject to a program requirement and a community work requirement of 120 hours. The applicant's brother later pleaded guilty and was sentenced to 4 years imprisonment suspended for a period of 2 years.

5 By notice dated 8 January 2001 the applicant sought leave to appeal against the sentence imposed on him on the sole ground that it was manifestly excessive in all the circumstances.

6 When the application came on for hearing before this Court on 11 September 2001, Ms Farley for the applicant, referred to a document dated 3 September 2001 entitled "Further and better particulars of grounds of application for leave to appeal against sentence" which particularised the ground of appeal by complaining the 6-1/2 year sentence of imprisonment was manifestly excessive in that:

(a) it failed to give adequate discount for the applicant's plea of guilty, and

(b) it failed to adequately reflect the degree of criminality of the applicant when compared to the sentences imposed on his co-offenders.

Leave was granted to amend the notice of application for leave in those terms and for the further and better particulars document to stand as the amended notice of appeal.

7 At the sentencing hearing before the learned sentencing Judge on 29 November 2000, the Crown prosecutor first outlined the history of the matter to that point. There had been no preliminary hearing. The applicant was first arraigned in the District Court on 3 May 2000 and entered a plea of not guilty. Counsel appearing for him at that time indicated to the Court that the matter may not proceed to trial, but nonetheless a plea of not guilty was entered with an indication that discussions were needed about an issue which was apparently in dispute. The applicant was released on bail and remanded to appear again on 25 September. On that date he appeared before the learned sentencing Judge in a status conference list. Counsel appearing for him indicated an intention to plead guilty, but effectively gave notice that an issue of fact would need to be determined. The matter was therefore listed for a trial of the issues on 29 November. Following that, the Crown wrote to the applicant's instructing solicitors seeking details as to what issue or issues were in dispute. The Crown wrote first on 2 and then again on 8 November, but it was not until 14 November 2000 that a facsimile reply was received from the applicant's solicitors advising that the applicant disputed the Crown estimate of the expected yield of the prohibited drug from the chemicals located by the police. They indicated to the office of the Director of Public Prosecutions that the applicant proposed, if necessary, to call a Dr Tilbrook, a copy of whose report they forwarded. That necessitated the Crown seeking instructions and consulting with its own expert witness whose material formed part of the prosecution brief, a senior chemist, named Mr Colin Priddis, from the Western Australian Chemistry Centre. That facsimile letter and the copy report of Dr Tilbrook were received by the DPP on 14 November 2000.

8 It was against that background that the applicant pleaded guilty to the charge before her Honour on 29 November 2000.

9 The facts as outlined to her Honour by the Crown prosecutor may be summarised as follows.

10 On 17 August 1999, uniformed police officers conducting van patrols in the Armadale police district received a complaint regarding a noise of shots being fired. As a result of that they attended Castle Place in Armadale. The applicant's brother and his fiancee occupied a duplex-style dwelling at No 5 Castle Place. Several police officers approached the front of the premises. The officers first noticed a male person walking in and out of a shed located at the rear of the premises and also detected the smell of a chemical of some kind. Two constables approached the rear of the premises from an adjoining property at the back of No 5 Castle Place and observed the applicant and his brother in the shed. The two officers climbed the fence, approached the applicant and his brother, and asked them to leave the shed. Two other police officers then also approached at that time. The officers noticed a large metallic cylinder full of liquid on a hotplate and sounds of liquids bubbling from it. There were also tubes and a power cord seen to have been connected to the cylinder.

11 It was apparent to the police officers that the premises were being used as a clandestine drug laboratory.

12 The police officers were told that there were other persons inside the residence and so two of them entered the house after being let into it by Crofts, where they spoke to her and another person who was present.

13 Whilst inside the house the officers also noticed a strong smell of ammonia and other chemicals. They arranged for the occupants, including the applicant, to be escorted and detained at the front of the house as a precaution whilst specialised police assistance was called for.

14 Officers attached to the Organised Crime Investigation clandestine laboratory team and detectives from the Armadale detectives' office, together with chemists (including Mr Priddis) attended at different stages thereafter.

15 A search of the premises and shed was undertaken pursuant to a warrant issued under the Misuse of Drugs Act. One of the detectives searched the applicant and found in his right jeans pocket a small card with amounts of liquid written on it. Items found in the premises and shed included glassware, apparatus, equipment and various chemicals. There were various accounts in Crofts' name, recipe cards on three pieces of card found on the kitchen bench and a pistol in a canvas bag was found in a drawer of the kitchen bench. The police search of the dwelling and shed were videotaped and the tape was tendered to her Honour as being of some significance to her in judging the scale and sophistication of the manufacturing process that the police officers had uncovered.

16 The prosecution also tendered a number of photographs of the premises, the laboratory set-up and the chemicals.

17 Following their apprehension, the applicant and his co-offenders were taken to the Armadale detectives' office where two interviews were conducted with the applicant. Videotaped recordings were made of those interviews. The tapes and transcripts of the interviews were before her Honour.

18 In the course of the interviews, the applicant effectively maintained that all that had been found by police belonged to him and that his brother was "kind of helping" him. Otherwise he generally declined to specifically answer most of the police questions.

19 At the time of the events leading to his apprehension the applicant had been living at 20 Teak Way, Maddington. Police went there on 18 August and executed a search warrant under the Misuse of Drugs Act. A number of items were seized, chemical swab samples were taken from various locations within the premises and these were subsequently identified as revealing traces of precursors, reagent products and amphetamine. Some compounds located there were the same as those which had been located at Castle Place in Armadale. The Crown position was that the evidence showed that amphetamine manufacturing had taken place at the applicant's Teak Way premises. This was advanced by the Crown only for the purpose of demonstrating that the offence to which the applicant had pleaded guilty was not to be seen as an isolated offence.

20 According to the report by Mr Priddis, analysis of the material found at Castle Street showed that 16.1 gms of 100 per cent pure amphetamine had been produced, although it was in liquid form and would have to have been extracted from the liquid to be used as a drug.

21 It was at this point that the Crown came to the issue in respect of which the dispute had been flagged. To understand that, it is necessary to say something about the process of manufacturing amphetamine which was being used by the applicant. The process involved the combining of two chemical precursors, namely benzaldehyde and nitroethane. Their combination gives an intermediate product known as 1-phenyl-nitropropane. From that, another intermediate product can be produced, that being 1-phenyl-2-propanone. This is sometimes known as P2P. By the subsequent addition of other chemicals (all of which were amongst those found at the Castle Place address), amphetamine can ultimately be produced.

22 Mr Priddis found that amongst the materials located by police, there were 1338 gms of P2P. From that quantity, Mr Priddis estimated that about 500 gms of amphetamine could be produced. However, there was also found a total of 16 litres of the unused precursor benzaldehyde. The Crown prosecutor acknowledged that if the whole of that precursor was to be used in the production of amphetamine, it could only have been done if a further quantity of P2P had been obtained. However, if an additional quantity of P2P had been procured so as to be used in combination with that quantity of benzaldehyde, those precursors would have produced a yield of not less than 6 kilos of amphetamine. There were various calculations set out by Mr Priddis in his report based on varying quantities of these chemicals, but the Crown position may, I think, properly be summarised as being that if all of the benzaldehyde had been used, not less than 6 kilos of amphetamine would have been produced but if no further P2P had been obtained, and having regard to the fact that there was only 500 millilitres of nitroethane available, the maximum yield would only have been somewhere between 265 to 210 gms (AB 23).

23 Prior to the conclusion of his outline of the facts to her Honour, the Crown prosecutor pointed out that having regard to the advice received from the applicant's solicitors concerning the issue in dispute, Mr Priddis was in court and available to give evidence. Mr Monaghan, appearing there for the applicant, said that on the facts outlined by the Crown prosecutor there did not appear to be any dispute in relation to the issue of yield and there would be no need for a trial of the issue. Mr Priddis was accordingly released from further attendance.

24 Mr Monaghan then made detailed submissions in mitigation on behalf of the applicant. In her sentencing remarks delivered on 20 December 2000, her Honour made extensive reference to the applicant's circumstances and the circumstances of the offences as they had been put to her by his counsel. It was rightly submitted that this offence was a departure from the type of earlier criminal conduct disclosed on the applicant's criminal history. It was put that the applicant had been approached by a male (whom he refused to identify) in a context in which the applicant was a casual recreational user mainly of cannabis, but sometimes of amphetamines. This individual suggested to the applicant that he should become involved in manufacturing amphetamines for him and that he would be paid to do so. The applicant was in difficult financial circumstances at the time and so agreed to become involved. This other person provided him with the equipment and the necessary chemicals. They were originally stored at the applicant's residence at Teak Place where amphetamines were initially produced. It was put that the applicant allowed that to occur but did not participate in the actual manufacture; the situation was that the other person was showing the applicant how the manufacture was done. That person then told the applicant the equipment and chemicals had to be moved to another location and so he approached his brother and the latter's fiancee. That was how the materials came to be moved to 5 Castle Place, where they were subsequently found by the police. It was said that the equipment and chemicals had been set up only the night before the search warrant was executed.

25 The applicant had no knowledge of the discharge of a firearm which had resulted in the attendance of the police; the pistol found in the drawer of the kitchen bench belonged to his brother, who was charged with possession of an unlicensed firearm and pleaded guilty to that offence.

26 Mr Monaghan referred the learned sentencing Judge to Lim v The Queen [1999] WASCA 296 and Paparone v The Queen [2000] WASCA 123. He relied upon Lim for the proposition that although the presence of other material from which further amphetamine could have yielded was relevant on sentence, that relevance was confined to preventing the applicant from contending that the manufacture of the 16.1 gms was an entirely isolated incident. He was not to be sentenced for attempting to produce more than that. Notwithstanding this, Mr Monaghan later submitted (AB 43) that this was an example of an isolated offence in the sense that it was the first time the applicant had ever been involved in the manufacture of amphetamines and was discovered by police only shortly after commencing that process.

27 It was further submitted that the applicant was a worker, rather than an organiser or instigator of the offence.

28 Finally, concerning the plea of guilty, Mr Monaghan pointed out that s 8(2) of the Sentencing Act 1995 (WA) states that a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation. He pointed out that the indication had been given on 3 May when it was expressed in terms that the matter may not proceed to trial; then on 25 September a "very clear indication that a firm plea of guilty would be entered..." was given. Counsel told her Honour that the applicant would have been quite happy to have entered a plea on that occasion but the matter had simply been remanded to 29 November. The submission therefore was that from a sentencing perspective, the applicant should have been sentenced on the basis that he gave a clear indication of his plea on 3 May.

29 In terms of actual sentence, it was submitted by Mr Monaghan that a sentence of 5 years imprisonment would be well outside the appropriate range in all the circumstances and that indeed, a suspended sentence would be appropriate. He pointed out that Paparone had pleaded guilty to a charge of manufacturing 15 gms of amphetamine and was sentenced to 3 years imprisonment. In Lim the quantity of amphetamines manufactured was in excess of 1-1/2 kilos, but even then the sentenced imposed on appeal was 5-1/2 years imprisonment.

30 In his submissions on sentence the Crown prosecutor emphasised the seriousness of the offence, the sophistication of the operation and that as the manufacturer, the applicant should be regarded as "very high up on the scale of culpability" (AB 55). He contended that the plea of guilty was not one that should attract full mitigatory value because it was not entered at the first reasonable opportunity.

31 Her Honour expressly queried whether the prosecution disagreed with Mr Monaghan's suggestion that the sentencing range for that quantity of amphetamines would be around 3 years imprisonment. His response was that he would not necessarily disagree that it was within that range (AB 58). That was how the submissions concluded before her Honour on 29 November 2000 when she adjourned the matter to 20 December.

32 On that last date Mr Monaghan handed to her Honour a letter from the applicant dated 19 December 2000. This appears at p 95 of the appeal book. It is a typewritten letter. Having read it, her Honour was perturbed because she considered it contradicted submissions which had earlier been made to her on behalf of the applicant. The most significant differences, I think, were that Mr Monaghan had earlier told her Honour that at that time he was a casual recreational user of mainly cannabis but sometimes amphetamines, whereas in his letter he stated that he had been a user of drugs, particularly cannabis, since he was 14 years old, that he became involved with people with underworld connections who unknown to him were heavily involved in the manufacture and supply of amphetamines in Western Australia and was eventually directed to do things he was reluctant to do after they had lent him money which he could not repay. He stated there that he turned to heavier use of drugs and supported his habit by both using and dealing and was forced to become involved in the manufacture of amphetamines. He stated that the spectre of drugs and alcohol hung around him all the time and that he recalled very little of the details of the offences or the months before his arrest as he was constantly in a numbed state from the use of drugs and alcohol. As her Honour understandably observed (AB 63), she was in some difficulty in light of that material if it was expected that she would sentence the applicant as a person who was so much under the influence of drugs that he became involved in the manufacture of them in order to pay his drug debts, when that had not previously been put to her.

33 The Crown prosecutor relied upon the decision of this Court in Cabassi v The Queen [2000] WASCA 305 published on 25 October 2000 in support of a submission that the potential yield of amphetamine is relevant as demonstrating that the manufacture was part of a deliberate plan to produce a significant quantity of the drug for distribution into the community for profit, which would require a more severe sentence than production of an identical quantity by an offender for his own consumption.

34 Her Honour pointed out that it seemed to her Cabassi did not sit well with what had been said in Lim, but as Cabassi was the later case, she should proceed on the basis that she was bound by it. In his submissions on that point, Mr Monaghan conceded that her Honour was bound to follow the general principles in Cabassi, and said he would not seek to dissuade her from doing so. Her Honour then pointed out that:

"But Mr Monaghan, you rather indicated to me that I was limited to something much less than 3 years imprisonment for this offence because of the small amount of drugs that were actually manufactured. That just isn't true.

MONAGHAN, MR: Well your Honour...

YEATS DCJ: I mean, based on Cabassi's case, it just can't be true." (AB 67)

35 Counsel then referred to what he submitted were relevant points of distinction between the cases.

36 Her Honour delivered detailed sentencing remarks.

37 As I have noted, the applicant's ground of appeal that the sentence is manifestly excessive raises two particulars. They are first that the learned sentencing Judge failed to give an adequate discount for the plea of guilty and secondly, that the sentence failed adequately to reflect the degree of criminality of the applicant when compared to the sentence imposed on his co-offenders. The latter is an argument of parity. It is convenient to deal with that first.

38 The relevant legal principle in respect of parity in sentencing is that an appeal court will set aside a sentence imposed on an offender if there is such a marked disparity between it and the sentence imposed on a co-offender as to give rise in the offender to a justified sense of grievance and in the objective observer to the appearance that justice has not been done (Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 323, 328, 341; Cooper [1998] VSCA 39; (1998) 103 A Crim R 51, per Winneke P at 58 and Callaway JA at 60-62; Diefenbach [1999] WASCA 4; (1999) 108 A Crim R 19 per Malcolm CJ at 25 - 26). In circumstances where the offender is significantly higher in the hierarchy of the criminal enterprise the requirement for parity may have little or no application (Christianos [2000] WASCA 184; (2000) 114 A Crim R 215 per Kennedy J, at 221 - 222).

39 In this case it is apparent that there were very significant differences between the applicant and his co-offenders which not only justified, but called for, differential treatment in sentencing. On the facts found by her Honour, this was a large and relatively sophisticated operation. The evidence of the prior production at Teak Way, Maddington, indicated that the Armadale offence was not an isolated one. Thus, the applicant came to be sentenced as a man who had established a relatively large, sophisticated, clandestine laboratory for the manufacture of amphetamine and had in fact manufactured 16.1 gms of the drug. The applicant was not merely a worker. Her Honour found that on his admissions on the videotape, this was his operation. The sentence imposed on Crofts had been fixed primarily because the sentencing Judge took the view that the applicant had threatened her and forced her to assist in the operation. Her Honour correctly saw that not as exacerbating the applicant's position but as reflecting the appropriate disposition in respect of Crofts, whom she noted had also pleaded guilty at a much earlier stage in the proceedings than had the applicant. Crofts had been dealt with by way of the "fast track" procedure. Her Honour found the applicant to be the principal offender and that the manufacture was for commercial purposes and not to support his own drug habit.

40 Although as I have observed, the applicant's brother had not been sentenced at that stage, these findings would also demonstrate a proper basis for the sentence imposed on him being greater than that imposed upon his brother. His brother pleaded guilty and was sentenced to 4 years imprisonment which was suspended for 2 years. So far as the actual terms of imprisonment are concerned, the differential sentences of 4 and 7 years imposed on his brother and the applicant respectively, are entirely appropriate to their different roles in the commission of the offence. The suspension of a sentence of imprisonment will often, if not usually, reflect the personal circumstances or antecedents of the particular offender. That includes, but is certainly not confined to, the prospects of rehabilitation for that offender (Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538).

41 This Court was not provided with the material before the learned District Court Judge who sentenced the applicant's brother. For that reason alone, the applicant would have failed to demonstrate there was any substance in the ground. Even so, on the material before Yeats DCJ, there were obvious factors justifying the differential treatment.

42 In light of her Honour's findings - which were not challenged by the applicant in this Court- and for the above reasons, there could be no basis upon which the applicant could reasonably have a justifiable sense of grievance about the different sentences imposed upon him and his co-offenders, nor to give rise in the mind of an objective observer to the appearance that justice had not been done. This ground must fail.

43 Before dealing specifically with the ground that her Honour erred in that she failed to adequately allow for the applicant's plea of guilty, it is necessary that I say something about the issues raised in Lim and Cabassi.

44 There is some immediate force in the observation made by Ms Farley in this Court that upon conclusion of the hearing before her Honour on 29 November 2000, the matter was expressly left on the basis that a term of 3 years imprisonment was about right for an offence of manufacturing 16.1 gms of amphetamine, yet when he next came before the Court on 20 October 2000, the applicant was sentenced effectively to 7 years imprisonment, reduced then by 6 months for his plea of guilty. Be that as it may, however, the fact that her Honour was of the view that Cabassi indicated a much higher sentencing range (in the order of 7 or 8 years) was made clear to the applicant's counsel on 20 October and he had an opportunity to make submissions in that regard.

45 In Lim the applicant had been sentenced to an aggregate of 6 years imprisonment on an indictment containing five counts of manufacturing methylamphetamine, together with three offences taken into account pursuant to the notice procedure contained in s 32 of the Sentencing Act 1995 (WA), they being two offences of possession of ecstasy and one offence of possession of methylamphetamine. The latter offences involved relatively small quantities of the drugs obtained by the applicant casually for his personal use. In that case the applicant had set up a clandestine laboratory in the bathroom of his parents' house and there was evidence of five successful attempts to produce methylamphetamine. The learned sentencing Judge calculated that in pure form the applicant had achieved the manufacture of about 60 times the trafficable amount of amphetamine. He had learned the process as he went along and admitted to the police that he had attempted the process about ten times until he was ultimately successful. He had been working at the process over a two week period. The drug was not for his use but was manufactured for profit, the applicant's plan being to sell it to a friend whom he had reason to believe would purchase the drug for further sale. The learned sentencing Judge inferred that the applicant would have continued with the manufacture of the amphetamine had he not been apprehended. She found there was the potential for the manufacture of some 600 gms of high purity drug, but expressly concluded that the applicant was to be sentenced on the basis of the amount of drug which he had actually manufactured. Notwithstanding that, it was argued on appeal that her Honour had erred in having regard to the potential for further yield. She imposed sentences of 5 years 6 months imprisonment for each of the manufacturing offences, each to be served concurrently and a further 6 months imprisonment to be served cumulatively in respect of the three offences the subject of the s 32 notice.

46 On the appeal, Murray J (with whom Pidgeon and Anderson JJ agreed) did not accept that the learned sentencing Judge fell into error. His Honour said [22]:

"22 The nature of this enterprise was, as found by O'Brien J, that the applicant was a mature intelligent man. He deliberately embarked upon a process of mastering the skills needed to manufacture the amphetamine. The five charges resulted from five different, but obviously related processes of production. The quantity of the drug produced was substantial and of a high degree of purity. It was no doubt readily marketable and it was produced entirely for profit, the applicant knowing that he had a friend who would take the drug he produced, no doubt himself for the purpose of selling it on down the distribution chain.

23 So the applicant was proposing to be the source of the drug and he was succeeding in that enterprise. Whilst there may have been elements of a lack of sophistication in the laboratory setup he established, he got it to work, using a bathroom in his parents' home during their absence overseas. Fortunately, he was apprehended only two weeks into the enterprise which her Honour was satisfied would have continued had he not been apprehended. In my respectful opinion her Honour was right to refer to "the pre-meditation, the planning, the expertise and perseverance needed to reach the stage that [the applicant] did".

24 Her Honour's reference to the potential to manufacture more of the drug than was actually seized from the applicant does not reveal error because her Honour expressly reminded herself that she was to impose sentences only for the drug which was actually manufactured. As I have said, she did not commit the error to which the High Court referred in Pearce and there is nothing to suggest that she breached the obvious rule that an offender may not be punished for an offence of which he has not been convicted: cf R v Newman [1997] 1 VR 146 per Winneke P at 150 - 151."

47 It was further held on appeal that her Honour had not made an error in relation to the allowance made for that applicant's pleas of guilty, it being apparent that she took all the relevant mitigatory matters into account together with the pleas of guilty and reduced the sentences which she would otherwise have imposed by about 30 per cent.

48 In Cabassi the applicant had been convicted after trial of manufacturing methylamphetamine and was sentenced to 7 years imprisonment. The two grounds of appeal were that the sentence was manifestly excessive and that the learned trial Judge erred in having regard to the potential for the applicant to manufacture approximately 60 gms of methylamphetamine rather than the actual amount manufactured of 1.4 gms. The applicant was 58 years of age and had no prior criminal history of any kind. He had been involved in farming all his life but as the result of a somewhat speculative farming venture, lost a very substantial amount of money and had to sell his property. He was in serious financial difficulties and it was with the intention of making money that he entered into a plan with an uncharged third party and a co-offender with whom he was tried. The applicant arranged for the use of remotely located premises in the south-west in which the manufacturing process took place and was actively involved in that. They endeavoured over some two or three days to manufacture methylamphetamine but the process was longer and more difficult than they anticipated. When they were interrupted by the arrival of the police, they had made only 1.4 gms of the drug. However, having regard to the quantity of chemicals on the premises, the learned sentencing Judge formed the view that something in the order of 60 gms of relatively pure amphetamine could have been produced had the police not interrupted the enterprise.

49 On the point pertinent to the present appeal, Wheeler J (with whom Pidgeon and Wallwork JJ agreed) pointed out that the conviction was one simply of manufacturing the drug, rather than manufacturing any particular amount. It was indisputable that only a small quantity of the drug was manufactured. But it was also clear that the learned sentencing Judge formed the view, based on the materials before him, that this was so only because the police intervened at a relatively early stage when the applicant and his co-offenders were still learning the rather complex procedures involved. Her Honour went on to say ([15] - [18]):

"15 It is obvious that the quantity of drug actually manufactured must be a relevant factor in the sentencing for the offence. However, I do not accept that the potential of the manufacturing operation is irrelevant. It is relevant, particularly to the overall culpability of the offender. It is an accepted principle of sentencing that an offender who commits an offence with premeditation, after meticulous planning, and taking all possible precautions to ensure that the enterprise will be successful, may well, if all other things are equal, be regarded as more culpable than the offender whose participation is unplanned and impulsive.

16 The degree of danger to the community posed by an offender and the offender's need for personal deterrence may also fall to be evaluated against the context of the offender's overall plan or aim in carrying out the offence. It would not appear to me to be unreasonable for a sentencing Judge to reach a view that an offender, who manufactured methylamphetamine as part of a deliberate plan to produce a significant quantity of the drug for distribution into the community for his profit, required a sentence more severe than would an offender who produced an identical quantity of the drug either for his own consumption or as a matter of idle curiosity, intending to produce no more than that amount.

17 To take account of these matters is not to sentence the offender for an offence which he has not committed, or for the manufacture of methylamphetamine which has not in fact been manufactured; rather, it is, as the Sentencing Act requires, an evaluation of the offence against the whole of the surrounding circumstances, and the circumstances personal to the offender (which circumstances include his understanding and his intentions in relation to the offence).

18 In this case, the learned sentencing Judge recognised that this offender had in fact produced only what he described as a "small quantity" of the drug but also had regard as in my view he should have, to the premeditation and planning, to the scale of the enterprise and to its potential."

50 In my view there is no conflict between what was said by this Court in Lim and what was said in Cabassi: in both of those cases it was recognised that an offender may not be punished for an offence of which he has not been convicted and that accordingly it would be wrong to impose a sentence on the basis that a greater quantity of the drug had been produced than had in fact. In both cases it was nevertheless recognised that the practical potential of the operation (either admitted or demonstrated by the evidence) is a relevant consideration in the assessment of the seriousness of the offence actually committed.

51 In the present case the learned sentencing Judge fully appreciated the point and expressly referred to it when she observed (at AB 70):

"I note, of course, that the offender has only been charged with manufacturing amphetamine and therefore I will be sentencing him on the basis of the 16.1 gms of an amphetamine that had been manufactured. I accept that the potential of the laboratory is not a matter that has been charged and he should be sentenced on the basis of the amount of drug that he had in fact manufactured at the time the police arrived...."

52 Her Honour then went on to say that the potential of the manufacturing operation is not irrelevant in sentencing, thus according with the principles articulated in Lim and Cabassi.

53 I turn now to the allowance for the applicant's plea of guilty by the learned sentencing Judge in reducing the 7 year sentence by 6 months, a discount of 7 per cent.

54 It is now generally accepted that a discount of between 25 per cent and 35 per cent should be given for a plea of guilty (Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995; Little v The Queen [2001] WASCA 87; McKeagg v The Queen [2001] WASCA 99; Radebe v The Queen [2001] WASCA 254). As in the imposition of sentence generally, the determination of an appropriate discount for a plea of guilty in a particular case is a matter of discretion. Nonetheless, it is a discretion which must be exercised judicially, in accordance with principle and having regard to relevant considerations. Her Honour gave no reasons for giving such a minimal discount here.

55 As I have previously noted, the applicant initially entered a plea of not guilty on 3 May 2000, although his counsel then indicated to the Court that the matter "may not" proceed to trial. At the status conference on 25 September 2000 his counsel indicated again that there was an intention to plead guilty but that plea was not actually taken and the matter was listed for a trial of certain issues on 29 November 2000. It was not until that date that the applicant actually entered his plea of guilty and in the course of those proceedings it was determined that there would not in fact be a need for a trial of the issues.

56 I would not regard what was said on 3 May as a sufficient indication within the meaning of s 8(2) of the Sentencing Act to warrant any discount in sentence. The actual plea entered was one of not guilty and neither the Court nor the Crown could have placed any practical reliance on the indication that it might be changed. I would accept that credit should be given for the "firm indication" on 25 September.

57 In my opinion, the circumstances called for a sentencing discount of something in the order of 20 per cent. It follows that the exercise of her Honour's discretion miscarried in allowing a discount effectively of only 7 per cent. To that extent I consider the sentence should be varied.

58 I would grant leave to appeal, allow the appeal, set aside the sentence imposed by the learned Judge and substitute for it a sentence of 5 years 6 months imprisonment with a direction that it commence on 21 December 1999. I would make an order that the applicant be eligible for parole.

59 EINFELD AJ: I have read the reasons of the Hon Justice Roberts-Smith. I am in agreement with those reasons and have nothing further to add.

Worth v The Queen [2001] WASCA 303

At a glance

Court

Decision date

Before

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Judgment (80 paragraphs)

Worth v The Queen [2001] WASCA 303 (3 October 2001)

Parties

Legislation Cited (1)

Cases Cited (4)