Abela v The Queen - [2002] WASCA 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ABELA -v- THE QUEEN [2002] WASCA 279

CORAM: MALCOLM CJ
WALLWORK J
STEYTLER J

HEARD: 22 APRIL & 22 JULY 2002

DELIVERED : 10 OCTOBER 2002

FILE NO/S: CCA 154 of 2001

BETWEEN: DAVID MICHAEL ABELA
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law on procedure - Sentencing - Conviction on plea of guilty to six counts of manufacture of prohibited drug - Four counts of manufacturing P2P and two counts of manufacturing amphetamine - Concurrent sentences imposed of imprisonment for 7 years for each offence - No distinction made between the two drugs or distinct transaction - Application of totality principle

Legislation:

Misuse of Drugs Act 1981, s 6(1)(b), s 34(1)(a)

Result:

Leave to appeal granted
Appeal allowed to extent that sentences are varied in accordance with reasons
of Malcolm CJ
Effective sentence remains unchanged

Category: B

Representation:

Counsel:

Applicant: Mr N J Mullany
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Unrepresented Criminal Appellants' Scheme
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465
Cabassi v The Queen [2000] WASCA 305
Cameron v The Queen [2002] 76 ALJR 382
Greenberg (1993) 68 A Crim R 392
Jarvis v The Queen (1998) 20 WAR 201
Lim v The Queen [1999] WASCA 296
Little v The Queen [2001] WASCA 87
Miles v The Queen (1997) 17 WAR 518
Pearce v The Queen (1998) 194 CLR 610
R v Black [2002] WASCA 26
R v Pallister [2002] WASCA 68
Radebe v The Queen [2001] WASCA 254
Trescuri v The Queen [1999] WASCA 172
Vaitos v The Queen (1981) 4 A Crim R 238
Veen v The Queen (No 2) (1988) 164 CLR 465
Worth v The Queen [2001] WASCA 303

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for leave to appeal against sentence. On 29 October 2001 the applicant was convicted on his plea of guilty to an indictment containing six counts of manufacturing prohibited drugs between 24 September 1999 and 13 November 1999. Counts 1 to 3 and 6 involved the manufacture of 1‑phenyl‑2‑nitropropene and counts 4 and 5 involved the manufacture of amphetamine.
Approximately seven or eight weeks prior to 12 November 1999, the applicant had taken up residence at a unit in Maylands. At approximately 11.20 am on the morning of Friday 12 November 1999 police officers attended at the premises where the applicant was found in company with a Mr Paramor. The two men were seen by two uniformed police officers, namely, Officers Taylor and Greaney, at the Maylands Train Station on the morning in question. The applicant was sitting on what appeared to be a large plastic chemical container. The suspicions of the two officers were aroused and they saw the applicant put the container, later found to be a 25 litre container, in the boot of a taxi. Police followed the taxi to an intersection near the applicant's residence. When they got out of the taxi the two officers approached the applicant and his companion. When the applicant was asked what he had been sitting on earlier, he lied to the police, claiming that it was only a drum of water. When the drum was opened the officers noted a strong chemical smell. The applicant then said that the drum contained vinegar. He claimed to have found the container at the Perth Train Station. Later, the witness Paramor admitted that the applicant had provided him with $130 in cash approximately an hour earlier to purchase the 25 litre container of chemicals from a chemical store.
The applicant was then arrested on suspicion of manufacturing prohibited drugs. A search warrant was obtained in respect of the unit in Maylands. A search of the premises was later conducted and recorded on video. Police located in the unit a further quantity of acetic acid, which was the same chemical as that in the container, numerous gas flasks, separating funnels, condensers, pipes, various fittings, a gas heating mantle and a large retort stand. As a result of forensic testing, all of these items were found to have been used in the manufacture of the prohibited drug the subject of counts 1 to 3 and 6, namely, 1‑phenyl‑2‑nitropropene, sometimes referred to in the scientific literature as "P2P".
Further forensic examination of the exhibits, which were the subject of a holding order, indicated that five not quite full sets, but five identifiable fingerprints were found on five of the items which were shown to be the applicant's fingerprints. His fingerprints were also found on four pages of an exercise book. A report from the Chemistry Centre concluded that, from the materials found as a result of the search, a yield of approximately 1 kilogram of amphetamine hydrochloride of between 70 and 80 per cent purity would reasonably be expected , using the approximately 2.5 litres of benzaldehyde found on the premises.
The production of P2P represents a halfway stage in the manufacture of amphetamines. It is a specifically prescribed substance under the Poisons Act 1964 (WA) for that reason.
Section 6(1)(b) of the Misuse of Drugs Act 1981 (WA) provides that, subject to subs (3) (which has no application to the present case), a person who manufactures a prohibited drug commits an indictable offence, except when authorised by or under that Act or the Poisons Act 1964 (WA). In this case, the maximum penalty for each offence as provided in s 34(1)(a) of the Act was a fine not exceeding $100,000 or imprisonment not exceeding 25 years or both.
The applicant had one previous conviction in the District Court on 20 August 1996 for conspiring to manufacture prohibited drugs, in respect of which he had been placed on probation for a period of two years and ordered to do 200 hours of community service. Apart from that he had been convicted of a number of minor traffic offences and one offence in 1997 of possessing an unlicensed firearm, in respect of which fines had been imposed. He had, however, a prior conviction in Victoria on 12 April 2001 for possession and use of amphetamine for which he was fined an aggregate of $750 and an earlier conviction in Springvale Magistrates' Court in Victoria on 10 June 1987 on one count of possessing amphetamines for which he was fined $100.
There was also found at the premises an exercise book containing references to various drugs. These were used in the calculation of the amounts of drugs followed by reference to an amount of $50,000.
On 30 October 2001 L A Jackson DCJ sentenced the applicant to a total effective sentence of imprisonment for 8 years backdated to commence on 6 February 2001 and ordered that the applicant be eligible for parole. His Honour adopted a starting point of imprisonment for 8 years and allowed a discount of 1 year to reflect the applicant's pleas of guilty. The applicant was also sentenced for an additional 12 months' imprisonment for breach of bail to be served cumulatively.
As the learned Judge pointed out, the offences of which the applicant was convicted were serious. The maximum penalty for each offence is imprisonment for 25 years or a fine of $100,000 or both. In passing sentence the learned Judge said:
"There is no evidence of the quantity of illegal drugs that had been manufactured by the plant. The practical potential of the operation, namely, the production of 1 kilogram of amphetamines as demonstrated by the evidence is a relevant consideration in the assessment of the seriousness of the offence [sic offences] actually committed.
It is a guide to the degree of criminality involved in this manufacture. On your behalf it was argued that you were not the main offender who was one Kindred, a well‑known amphetamine manufacturer who has since died. Your fingerprints on the vessels containing traces of amphetamines indicate a greater involvement than you admit. In any event, you well knew the purpose for which you were manufacturing the P2P even if that is only as far as it went. I do not think you can gain much comfort even if you only did part of the manufacturing of the amphetamines."
The learned Judge concluded that this was not a case of manufacture for the applicant's own use, noting that amphetamine:
"… is a most serious drug. It is one that results in considerable harm to the youth in this country. Many people die as a result of amphetamine use. Crimes are committed because of the use of amphetamines, people stealing, burglaries and armed robberies and the like, for the purpose of obtaining money for the purchase of drugs. It causes countless deaths and illnesses. It is a most serious offence and in my view appropriate deterrent sentences need to be imposed, partly to deter others but also partly as a sentence and punishment to the offenders."
In my opinion, the learned Judge was entitled to adopt that approach. This Court has made it clear on many occasions that amphetamines are at the high end of the scale of seriousness in the hierarchy of prohibited drugs. As Anderson J (with whom Wallwork and Wheeler JJ agreed) said in R v Pallister [2002] WASCA 68 at [20]:
"It has been said on many occasions in recent years that amphetamines are now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. Whilst they cannot be equated with heroin or cocaine in the sense of their addictive effect, the amphetamines are to be regarded as "in the same category": Bellissimo v The Queen (1996) 84 A Crim R 465 at 467, 469 and 471; Darwell v The Queen (1997) 94 A Crim R 35 at 40; Cabassi v The Queen [2000] WASCA 305."
His Honour specifically referred to the decision of this Court in Worth v The Queen [2001] WASCA 303. In that case, the potential yield of a manufacturing process was held to be a proper factor to take into account in fixing a sentence for manufacturing prohibited drugs. In Worth, Lim v The Queen [1999] WASCA 296 was relied upon for the proposition that, although the presence of other material from which further amphetamine could have been produced was relevant on sentence, the relevance was confined to preventing the applicant from contending that the manufacture of the specific quantity was an entirely isolated incident. In Lim the quantity of amphetamines manufactured was in excess of 1.5 kg in respect of which the sentence imposed on appeal was 5 years and 6 months. In Worth it was contended on behalf of the Crown that, in Cabassi v The Queen [2000] WASCA 305, a submission was upheld that the potential yield of amphetamine was relevant as demonstrating that the manufacture was part of a deliberate plan to produce a significant quantity of the drug for distribution in the community for profit. This would justify a more severe sentence than production of an identical quantity by an offender for his own consumption.
In Worth, Roberts‑Smith J, with whom Wallwork J and Einfeld AJ agreed, at [43] – [48] explained why there was no conflict between that decision and the decision in Cabassi. It is clear from these decisions that the potential yield of the production estimated on the basis of the forensic evidence is a material factor in the sentencing process.
The learned Judge noted that the decision of Worth had been referred to him as a guide. In that case the starting point before a plea of guilty was 7 years. The learned Judge pointed out that, unlike Worth, who had no previous convictions, the applicant had the previous convictions which I have mentioned. In imposing sentence the learned Judge said:
"In all of the circumstances, in my view, a starting point for this offence should be one of 8 years. Your plea of guilty was very late and should attract only a very small discount, considerably less than the 20 per cent in Worth whose plea of guilty was indicated fairly early. In my view, a proper discount would be to discount 1 year from the starting point of 8 years, down to 7 years, so that's a discount of 12 and a half per cent which I think is not inappropriate.
You will be sentenced with respect to each of these counts to a sentence of 7 years' imprisonment, each to be served concurrently with each other."
A sentence of 12 months' imprisonment to be served cumulatively was imposed for the breach of bail, so that the total sentence was imprisonment for 8 years. An order was made that the applicant be eligible for parole. The sentences were backdated to 6 February 2001.
The applicant does not appeal against the cumulative sentence for breach of bail, either as to the length of the term or the imposition of a cumulative sentence. As reflected in the amendments made to the grounds of appeal at the hearing, two submissions were made. First, it was said that the total effective term of imprisonment was manifestly excessive having regard to:
(i)the place which the criminal conduct of the applicant occupied in the scale of seriousness of crimes of this nature and, in particular, his limited role in the manufacturing process; and
(ii)the standards of sentencing customarily observed for offences of this nature.
Secondly, it was said that the 12.5 per cent discount applied to reflect the applicant's pleas of guilty was, in all the particular circumstances, inadequate in that it was out of step with the customary reduction.
As to the first of these contentions, it was submitted that the applicant was initially only involved in the storage of chemicals. It was accepted that he subsequently participated in the first of four stages only of the manufacturing process necessary to produce amphetamines. Significantly, it was contended that the applicant was not involved personally in the other three stages of the manufacturing process. It was contended that the manufacture of P2P was stage 1. It was conceded, however, that he knew what was going on.
Counsel for the applicant accepted that the manufacturing process in the production of amphetamine described by Roberts‑Smith J in Worth at [21] was applicable to this case. Roberts‑Smith J said:
"… 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 being 1-phenyl-2-propanone. This is sometimes known as P2P. By the subsequent addition of other chemicals … amphetamine can ultimately be produced."
It was submitted that there was no evidence of the quantity of illegal drugs that had been manufactured at the laboratory. That is true, but it must be considered in the context. As has already been seen, the potential of the operation in progress was the production of 1 kg of amphetamines. It was submitted, however, that the conviction in each case was one of simply manufacturing a prohibited drug rather than manufacturing any particular amount. That is true but, contrary to a submission by counsel for the applicant, it is not the case that sentences are to be imposed only for the quantity of the drug actually manufactured. The authority for the submission was said to be Lim v The Queen, supra, at [24] in the judgment of Murray J (with whom Pidgeon and Anderson JJ agreed). Murray J said at [22] – [24]:
"The nature of this enterprise was, as found by O'Brien J that the applicant was a mature intelligent man. He deliberate [sic] 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.
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'.
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."
Significantly, in my view, his Honour went on to say in [25]:
"As to the circumstances advanced in mitigation her Honour did not take the view that these were irrelevant to the sentencing process. She was in my respectful opinion right to take that approach because she correctly categorised this series of offences as being indicative of a nascent commercial enterprise in which the applicant was motivated solely by greed and oblivious to the terrible consequences of the consumption of such drugs. It was a serious case, but not of the highest order of seriousness as her Honour found. She held that there was 'no evidence that you were involved in any large-scale drug enterprise', and so it was not the sort of case to which Ipp J referred in Quach [Quach v The Queen [1999] WASCA 210] where the mitigatory power of personal circumstances is extremely limited."
Counsel for the applicant submitted that the applicant was found in possession of only traces of amphetamine. By comparison, in Worth, the laboratory had in fact produced 16.1 gms of amphetamine and in R v Pallister, supra, the amount of amphetamine was 64 gms. Only 6.7 gms of P2P was found. It was submitted that this was the only quantity of drugs actually produced capable of providing a basis for the sentence, in addition to what was described as the "traces" of amphetamine. In this context, the learned Judge, commenting on the relevance of the potential of the operation, said, "It is a guide to the degree of criminality involved in this manufacture." His Honour also remarked that he did not think that the applicant could gain "much comfort" even if he "only did part of the manufacturing of the amphetamines".
It was contended for the applicant that at no stage was he involved personally in the subsequent three stages of the manufacturing process. His participation was limited to the first stage. In my opinion, the significance of his involvement was that he was producing P2P knowing that it was an essential part of the manufacturing process and probably the most difficult part of it. The contention was that, as distinct from Worth, where the offender in that case was the instigator, chief operator and controller of the whole process, the sentence imposed in the present case should acknowledge that distinction. In other words, the overall involvement of the applicant was what had to be assessed. While the applicant was clearly a participant in the manufacturing process, it was submitted that he was not a principal. As against this, there were traces of amphetamine found which indicated that at least one complete process of manufacture of amphetamine had previously occurred.
It was submitted to the learned sentencing Judge that the chemicals in the applicant's possession and the notebook indicated that his involvement was in the first stage of the manufacture of amphetamines, namely, the production of P2P. It was suggested that the P2P would be collected by Mr Kindred who would be responsible for the balance of the manufacturing process. The learned Judge queried that proposition on the basis that there were traces of amphetamine found on the equipment in the applicant's unit. What his counsel then told his Honour is as follows:
"What I'm saying is that the process had been done previously. He had mixed up the precursor previously and then obviously the end product had been carried out. He accepts that he was aware that it was going to be used for that but he says it wasn't done at his premises and not done personally by him. I might add in that regard, if your Honour sees the scene video, you will note that the items are readily transportable and the police also located on top of a wardrobe, three boxes with shredded paper at the bottom indicating obviously the transporting of fragile goods, such as the glassware. His instructions are that he mixed up the first stage and then the rest was done elsewhere and no doubt that would have been, I imagine, a mechanism on Kindred's part to distance himself from the stages of production."

Mr Kindred, of course, was deceased by the time the applicant was sentenced, although he had been charged with a number of manufacturing counts in relation to manufacture at different places. It was said that Mr Kindred's operation was conducted on the basis that he got different people to carry out different stages of production. There were also outstanding charges against Mr Kindred of supplying large quantities of amphetamines of around a pound.
It was acknowledged by counsel for the applicant before his Honour that there was at least one batch of amphetamines produced with the equipment previously, although the applicant had only been in Western Australia for about 2 months at the time of his apprehension, and had only been occupying the unit for about 6 weeks. The equipment was provided by Mr Kindred, who had since died.
The learned sentencing Judge noted the decision of this Court in Worth and, in particular, noted that the starting point in that case before taking account of mitigating factors was 7 years. His Honour considered Worth was to be distinguished because Worth had no prior convictions. By contrast, the applicant had the three convictions to which I have referred, two of which were at the lower end of the scale.
It was accepted by counsel for the applicant that Worth was a useful reference point from which to approach the imposition of sentence in this case. However, it was submitted that the learned Judge erred in classifying Worth as less serious than the present case for a number of reasons. First, the potential production in Worth was 6 kg of amphetamines whereas the maximum possible yield in the present case was 1 kg. Further, the involvement of the applicant in the manufacturing process was significantly less than that of Worth. Worth was involved in the entire manufacturing process while the applicant was involved only in the first of four stages. Worth was the instigator, organiser and person in charge of the illegal laboratory. In other words, he was the equivalent of the late Mr Kindred in the present case.
It was submitted that Worth was found in possession of 16 gms of amphetamine whereas the applicant was found in possession only of traces of the drug and only 6.7 gms of P2P was found. Finally, it was submitted that the applicant did not profit personally from his involvement to any meaningful extent. Counsel for the applicant who appeared before the learned Judge pointed out to his Honour that the notebook referred only to the chemicals needed for "the precursor", namely, the production of P2P. It was submitted that the applicant was arrested because he had been given money to obtain the acetic acid and get a taxi to and from the chemical company. He decided to catch a train instead of getting a taxi and save money to buy himself a drink. While there was a reference to $50,000 in the notebook, it was submitted that there had been no discussions with Mr Kindred of any amount in the region of $50,000, although there would have been "some benefit" from his involvement. It was submitted that the only amount of amphetamine that could have been manufactured directly from the raw materials in his possession was about 3 gms of amphetamines from the 6.7 gms of the P2P. The potential for the manufacture of 1 kg was on the basis of mixing up the 2.5 litres of benzaldehyde and then moving that through each of the four stages of production.
It was submitted on behalf of the Crown to the learned sentencing Judge that, while it was accepted that Mr Kindred appeared to be the main instigator and the final distributor of the amphetamine in question, the applicant played a vital and integral role in the manufacturing process. The applicant had the necessary expertise. It was also submitted that the evidence indicated that the applicant was involved in the production of more than precursors, because of the traces of the end product, amphetamine, which were found on at least two items.
The starting point in Worth before taking account of a plea of guilty was imprisonment for 7 years. He was sentenced to 6‑1/2 years' imprisonment. This sentence was reduced to 5‑1/2 years to adequately reflect his plea of guilty. In R v Pallister, supra, at [31], Anderson J (with whom Wallwork and Wheeler JJ agreed) said in relation to submissions made on behalf of the offender:
"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."
The starting point in Pallister, before a plea of guilty was taken into account, was imprisonment for 4 years. It was not suggested that this was the position here. The submission was that the starting point of 8 years was, in all the circumstances, too high. The learned Judge considered the "practical potential of the operation" to be "a relevant consideration in the assessment of the seriousness of the offence actually committed". His Honour also said that it is "a guide to the degree of criminality involved in th[e] manufacture".
While in Lim v The Queen at [22] – [24] there was a suggestion that the applicant was to be sentenced on the basis of the amount of the drug actually manufactured, it was also recognised in Cabassi, supra, at [15] – [18] that the potential of the manufacturing operation was not irrelevant, but was relevant to the overall culpability of the offender. At the same time, the offender was not to be sentenced in respect of amphetamine not yet manufactured: Pallister at [14] per Anderson J. However, his Honour was also of the view that it was relevant that the offender in that case "was engaged in a continuous medium to large-scale manufacturing operation involving at least two different processes of manufacture". While in this case the offender was involved directly in the production of P2P as the first step in the process, there was clear evidence that the equipment had been used for the manufacture of amphetamines on previous occasions.
As has been seen, this Court determined in Worth that there was no conflict between Lim and Cabassi. In this context, it was submitted that, although the potential yield was not an irrelevant consideration for the purposes of sentencing, the quantity in this case was significantly less than that in Worth. Further, the degree of involvement by the applicant in the manufacturing process was less than that in Worth. In the end, the plain fact is that the potential of 1 kg of amphetamines of 70 to 80 per cent purity is a very substantial quantity of the drug. In my opinion, nothing has been put before the Court which would prevent the inference being drawn that it was intended by those persons involved, including the applicant, to produce 1 kg of amphetamines of a purity of between 70 and 80 per cent.
It was submitted that the starting point of 8 years adopted by the learned sentencing Judge was, in all the circumstances, too high. His Honour appears to have adopted this starting point in respect of each of the counts in the indictment. In considering the manner in which the counts were constructed, there is a substantial question whether there should have been a single count charged of which the six counts pleaded in the indictment were pleaded as particulars.
In my opinion, the approach adopted by the prosecution of charging six separate offences of manufacture had the result that the case became unnecessarily complicated. In my view it would have been preferable to rely on one charge of manufacturing if that were possible, as was suggested during the hearing. However, on reflection, the evidence was such that it suggested that there had been six different manufacturing processes for which the equipment had been used, so that, on the particular facts, the laying of the separate charges reflected in the six counts was justified. The learned Judge imposed a sentence of imprisonment for 7 years on each of the six counts to be served concurrently with each other. This immediately raises a question whether this approach was consistent with the decision in Pearce v The Queen (1998) 194 CLR 610 in which McHugh, Hayne and Callinan JJ said at [43] – [45]:
"The trial Judge sentenced the applicant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.
Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. (Mill v The Queen (1998) 166 CLR 59)"
In the present case, there is no indication at all that the learned Judge gave any consideration to the individual circumstances of each of the alleged offences. Rather, he appears to have adopted an entirely global approach. As Wallwork J rightly pointed out during the hearing of the application, if it is the potential total yield of the manufacturing process which is relevant in the particular case, then only one charge would be laid rather than to plead six separate offences each related to some stage in the production process. However, properly analysed, as the Director submitted, given the results of the chemical analysis, there were in fact six separate manufacturing processes identified as specified in the particulars of the different offences.
It is apparent that the learned Judge adopted a global approach when he said that the practical potential of the operation, namely, the production of 1 kg of amphetamines, was a guide to the degree of criminality involved in the manufacture. In my opinion, the significance of the potential production of 1 kg of the drug from the process gives a guide to the potential total sentence imposed in respect of the various component parts of the operation upon which traces of the drug were found. In the way in which the case was pleaded, his Honour was required to impose appropriate sentences for each of the component parts of the process the subject of the separate counts. Another justification for the separate counts is that the manufacture of P2P is a separate offence from the manufacture of amphetamines. In my view, it would have been preferable if there had been but one charge with appropriate particulars.
It was in this context that counsel for the applicant was asked what he submitted would have been the appropriate sentences for each of the individual offences before giving any consideration to the application of the totality principle. It was submitted that, looking at the matter in the light of the decisions in Worth and Pallister, a sentence in the range of 5‑1/2 to 6 years would have been appropriate as a starting point before taking into account the plea of guilty in respect of each offence. In Worth the sentence of 6‑1/2 years imposed by the sentencing Judge was reduced on appeal to 5‑1/2 years. In Pallister, before a plea of guilty was taken into account, the starting point was 4 years on the basis that the drugs were manufactured for his own use. It was acknowledged that this was not the position here and it was also relevant that Pallister was a Crown appeal.
In the light of those submissions the difficulty remained that counts 1 to 3 and 6 related to the manufacture of P2P whereas counts 4 and 5 related to the manufacture of amphetamine which, on a scale of seriousness I consider to be a more serious offence than the manufacture of P2P.
As has been seen, while an offender is not to be punished for an offence of which he has not been convicted, the practical potential of the operation is a relevant consideration in the assessment of the seriousness of the offence actually committed. In Pallister, which was a Crown appeal, the offender pleaded guilty to one count that he had manufactured a prohibited drug, namely, methylamphetamine. The expert evidence in that case was that Pallister's laboratory had already produced 64 gms of the drug with an estimated purity of 70 per cent. In addition, there were other chemicals found capable of yielding up to 14.5 gms of methylamphetamine and 1.1 kg of methylamphetamine, respectively, with a purity of approximately 70 per cent. Some 300 items were seized from the laboratory. The Government Chemical Centre reported that:
"The equipment and many of the solvents and re‑agents identified were suitable for use in the manufacture of methylamphetamine."
Traces of the drug were found in various locations in the laboratory indicating the production of the drug. There was also past evidence of the manufacture of the drug and there were chemicals and equipment in the laboratory capable of yielding a very substantial quantity in the future. Anderson J (with whom Wallwork and Wheeler JJ agreed) said at [14]:
"Whilst the respondent was not to be sentenced in respect of methylamphetamine not yet manufactured, on those bare facts, the sentencing court would have been entitled to conclude that the respondent was engaged in a continuous medium to large-scale manufacturing operation involving at least two different processes of manufacture."
Nonetheless, this Court held that the sentencing Judge had placed too much emphasis on matters personal to the respondent and that the sentence imposed was inadequate and a sentence of 2 years' imprisonment with eligibility for parole was imposed after taking into account a period of approximately 7 months which the respondent had been in custody. In my opinion, the decision in Pallister gives no significant guidance in respect of the present case.
Although the applicant pleaded guilty to all six counts, he did so at a late stage only after the matter had been listed for trial. In this context, as has been seen, the learned Judge allowed a discount of 1 year from a starting point of 8 years on account of the applicant's pleas of guilty, so that a discount of 12‑1/2 per cent was allowed in respect of the sentence on each count.
It was submitted that this discount was inadequate. While it was accepted that the applicant was not entitled to the full discount, reference was made to the comment by Kirby J in Cameron v The Queen [2002] 76 ALJR 382 at [66] that:
"The main features for the public interest relevant to the discount for a plea of guilty are purely utilitarian [R v Perry [1969] QWN 17; Shannon (1979) 21 SASR 442 at 445 – 446; R v Grey [1977] VR 225; Verschuren (1996) 17 WAR 467 at 473]. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken [Shannon (1979) 21 SASR 442 at 447; Atholwood (1999) 109 A Crim R 465 at 467 [9].] It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service [Thompson and Holton (2000) 115 A Crim R 104 at 134 (131)]. Even a plea at a late stage, indeed one often on the day of trial or during a trial, may, to some extent, involve savings of all these kinds."
I accept that the discount applied for a plea of guilty under the fast‑track system commonly ranges between 20‑25 per cent and 30‑35 per cent depending on the circumstances. It has been said that it would be unusual if a fast‑track plea did not result in a reduction of sentence of at least 25 per cent: cf R v Black [2002] WASCA 26 at [10] – [12] per White AUJ with whom Malcolm CJ and Wallwork J agreed; and see Worth, supra, at [54] per Roberts‑Smith J (with whom Wallwork J and Einfeld AJ agreed); Radebe v The Queen [2001] WASCA 254 at [28] per McKechnie J (with whom Malcolm CJ and Anderson J agreed); Little v The Queen [2001] WASCA 87 at [13] per Malcolm CJ, Wallwork and Anderson JJ; Trescuri v The Queen [1999] WASCA 172 at [25] per Anderson J (with whom Ipp and White JJ agreed); and Miles v The Queen (1997) 17 WAR 518 at 521 (with whom Pidgeon and White JJ agreed).
In this case, the applicant did not plead guilty under the fast‑track system. In my opinion, the lateness of the plea, of itself, warranted a substantial reduction of the discount which would otherwise be appropriate. I am unable to say that the discount of 12‑1/2 per cent which was allowed by the learned Judge was outside the scope of the available discretion. I accept that in Worth 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 a 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. The matter was then listed for a trial of certain issues on 29 November 2000. It was on that day that the applicant actually entered his plea of guilty. It was then determined there would not be a need for a trial of the issues. In this respect, Roberts‑Smith J said at [56] – [57]:
"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.
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."
This resulted in a reduction of the sentence from 6 years and 6 months to 5 years and 6 months from what would otherwise have been a sentence of 7 years. In my opinion, the discount applied in Worth was one obviously related to the specific facts and circumstances in that particular case. In this case, in my opinion, the plea of guilty did justify a discount considerably less than 20 per cent. While views on this may differ, I am of the opinion that the discount which was applied was not beyond the limits of a sound discretionary judgment. In reaching that conclusion I have taken full account of what was said in Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465 at [9]. Ipp J (with whom Malcolm CJ and Wallwork J agreed) said:
"A bare plea of guilty (that is, a plea that is not accompanied by genuine remorse), even when made at the last moment, is a mitigating factor as it avoids the expense of a defended trial, inconvenience to witnesses and delay to other cases in the list. This is so even where the case of the prosecution is strong: Simpson (1993) 68 A Crim R 439; Doyle (1994) 71 A Crim R 360. Of course, the mitigatory effect of such a plea is not as strong as a plea made at the earliest opportunity by an offender who expresses genuine contrition. That is because the earlier the plea is made, the greater the savings to the administration of justice and genuine remorse is an indication of an intention to reform and is conduct that tends to show that the offender is unlikely to offend again: Grey [1977] VR 225 at 230 – 231. Thus, the timing of the plea (and the general circumstances of the offence) will have a bearing on the credit to be given therefore: Holder [1983] 3 NSWLR 245; (1983) 13 A Crim R 375; Bulger [1990] Qd R 559; (1990) 48 A Crim R 239."

The final submission on behalf of the applicant was that on "taking a last look" at the total effective term of imprisonment, it was disproportionate to the degree of criminality involved: cf Jarvis v The Queen (1998) 20 WAR 201; and Greenberg (1993) 68 A Crim R 392.
In Jarvis, supra, Ipp J (with whom Murray J agreed), after referring at 205 – 207 to a number of cases dealing with multiple offences and the totality principle, including Vaitos v The Queen (1981) 4 A Crim R 238; and Veen v The Queen (No 2) (1988) 164 CLR 465, said:
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, where a sentence of 7 years may be appropriate for one set of crimes and a sentence of 8 years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because the additional severity brought about by the significantly longer period the defendant will be required to spend in prison."
See also Greenberg, supra, at 408 per Kennedy, Pidgeon and Rowland JJ.
In my view the lateness of the plea in this case was such that it did not indicate remorse. Nor did it significantly facilitate the course of justice in that the plea was made extremely late when preparations for the trial had been completed. While it may be the effect of Cameron, supra, that no discount at all would be an error, I am unable to say that the discount allowed in the present case was one made outside the limits of the appropriate judicial discretion.
The Director of Public Prosecutions, who appeared for the Crown, contended that there were six separate manufactures. The Crown brought the charge on that basis and it was submitted that that was the basis upon which the pleas of guilty were entered. Reference was made to an extensive report from a Mr Priddis, a chemist, who tested all of the equipment which was found on the appellant's premises. This material should have been incorporated in the appeal book by the Director if it was not incorporated by the applicant. It should have been before the Court. The reason why it was not is that it was only during the course of the hearing that the point arose from Pearce, supra, bearing in mind the six separate counts of manufacturing. According to the report, there was a 24 cm metal bowl which had white and orange residue which was found to be P2P. This was the manufacture the subject of count 1. There was also a further manufacture in count 2 where liquid P2P was found still sitting in a long glass tubing elbow, which was different in form and style to the P2P the subject of count 1. That was pleaded as a second manufacture. There was a metal mixing rod which was also found to have P2P on it which was in a yellow powder form leading to the inference that there was a third separate manufacture of P2P. This was the subject of count 3. There were then a number of traces of amphetamines. One trace of amphetamine found in a funnel had no benzaldehyde. Benzaldehyde is an "occasional" ingredient in amphetamine. It is used in the process of manufacture and sometimes is produced at the end process. Another funnel had no benzaldehyde, but amphetamine and that was the subject of count 4. An additional funnel of the same kind with both benzaldehyde and amphetamine was found and this was concluded to be a separate manufacture of amphetamine because benzaldehyde was brought through to the final process on that occasion. There were also similar funnels which would only be needed once in the process so there must have been two processes. This explains count 5. In respect of count 6 on the indictment, that was based upon the fact that there were 6.7 gms of crystallised P2P found in two plastic containers. Because of the similarity of the material in each, the Crown concluded that there was an additional manufacture in that case. It was for these reasons that the Crown asserted six separate manufactures, to each of which the applicant pleaded guilty. It follows from those pleas that the applicant was accepting that there were six separate manufactures.
When the applicant was interviewed by police he indicated that he was merely interested in chemistry. He made no confession and denied his involvement in the manufacture of illicit drugs. Even upon his plea of guilty he has made no explanation about how many separate manufactures there were or how and when any of them occurred and how much was produced. Nonetheless, he has pleaded guilty to all six offences. The total quantity of the drug which would have been produced by the process was estimated as 1 kg of methylamphetamine.
It was submitted that the proper approach would be to allocate an appropriate sentence to each of the separate manufactures and then apply the totality principle in accordance with the decision of the High Court in Pearce. Consequently, it was not appropriate to reduce the case to one overall charge. Given that it was to be treated separately, then of course it was wrong to simply state that the combination of processes would produce 1 kg of methylamphetamine.
In the chemical report tendered on the basis of the chemicals identified, the equipment present and the synthetic impurities detected in various items, it was concluded that what was found was consistent with the manufacture of amphetamine via the intermediaries 1‑phenyl‑2‑nitropropene and 1‑phenyl‑2‑propanone, using benzaldehyde and nitroethane as precursors. This is a well‑established synthesis route for the manufacture of amphetamine. It was stated that the 6.7 gms of 1‑phenyl‑2‑nitropropene, which had been identified as 99F2260001, would produce 4.2 gms of an intermediate product 1‑phenyl‑2‑propanone from which in turn 2.8 gms of amphetamine hydrochloride could reasonably be expected.
A further quantity of amphetamine hydrochloride would be produced from the 2.5 litres of benzaldehyde. Each litre of benzaldehyde may be expected to produce 1 kg of 1‑phenyl‑2‑nitropropene. The complete use of the 2.5 litres of benzaldehyde would produce approximately 2.5 kg of 1‑phenyl‑2‑nitropropene. Based upon the data, a yield of approximately 1 kg of amphetamine hydrochloride would be reasonably expected using the 2.5 litres of benzaldehyde.
The circumstances of this case make it very difficult to apply the approach required by the High Court in Pearce. It is necessary, however, to do the best that one can.
The offences charged on the indictment were each created by s 6(1)(b) of the Misuse of Drugs Act 1981 which relevantly provides that:
"… a person who –
…
(b)manufactures or prepares …
… a prohibited drug commits an offence …"
A "prohibited drug" includes a "drug of addiction". For the purposes of the Act, a "drug of addiction" means a drug of addiction as defined by s 5 of the Poisons Act 1964 (WA). The definition of a "drug of addiction" in the Poisons Act includes methylamphetamine and P2P. The latter is used in the manufacture of methylamphetamine.
By s 34(1a) of the Misuse of Drugs Act the maximum penalty for an offence under s 6(1) is a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years or both. It is plain therefore that Parliament has taken a position that the manufacture of methylamphetamine is a very serious offence.
I note that in Pallister, supra, in a case where the manufacture was undertaken by the respondent exclusively for his own purposes, Anderson J (with whom Wallwork and Wheeler JJ agreed) said at [23] – [24]:
"Accepting that the manufacture of methylamphetamine was undertaken by the respondent exclusively for his own purposes, the respondent's culpability was, nevertheless, of a high order, and, in my opinion, a sentence of immediate imprisonment was called for, having regard for the maximum penalty which parliament has prescribed for the offence which the respondent committed.
The legislation, by s 6(1)(b), is aimed specifically at the activity of manufacture simpliciter. It is manufacture which is the crime and it is a crime in respect to which parliament has laid down a maximum penalty of 25 years' imprisonment. It is a crime which is difficult to detect and which brings into existence a highly destructive drug, the use of which is more likely to result in harm to others than to the user. Its use often leads to antisocial behaviour and serious criminal conduct: Bellissimo (supra) at 467. The dominant sentencing consideration is deterrence, so that matters personal to the offender cannot be given much weight in passing sentence. There was a fast‑track plea of guilty which must be rewarded, although two things should be noted. The first is that the material seized under the search warrant and the chemist's report with respect to that material left little or no scope for a plea of not guilty. Secondly, the pre‑sentence material reveals that the respondent is not remorseful. He made it very clear that he believes the drug laws of this State are stupid and that there is nothing wrong in manufacturing amphetamine for personal use. I do not believe the plea of guilty should be rewarded by more than a 20 per cent discount from what would otherwise be the appropriate sentence."
In those circumstances, the starting point adopted was imprisonment for 4 years before other matters of mitigation were taken into account. Anderson J considered that it would be appropriate to reduce that by 20 per cent for the plea of guilty. His Honour also said at [25] that there would have to be a further downward adjustment on account of the fact that the case involved a Crown appeal against sentence. In the result, on account of those matters, a sentence of imprisonment of 2 years and 6 months would have been imposed. There were some further considerations, not relevant in the present case, which led the Court to further reduce the sentence on account of some time spent in custody to a sentence of imprisonment for 2 years with eligibility for parole. In my opinion, in the present case, the approach adopted by the learned Judge was in error in that he failed to apply the approach dictated by the High Court in Pearce, supra. The sentences imposed in respect of each count of imprisonment for 7 years were imposed indiscriminately without regard to the relevant facts and circumstances comprising each of the offences charged. That is a task which must now be undertaken by this Court.
In my opinion, in all the circumstances, looking at each offence separately, the manufacture of the P2P the subject of count 1 justified a sentence of imprisonment for 2 years. Count 2 involved a separate manufacture where liquid P2P was found in a long glass tubing elbow, which was a distinct batch from that the subject of count 1. In respect of that offence, I would also impose a sentence of 2 years. Count 3 involved a third manufacture in which there was P2P found in powder form. In my opinion, that would also have justified a sentence of 2 years.
The funnel containing traces of amphetamine was rightly held to be related to a separate manufacture and was the subject of count 4. In my opinion, that count would have justified a sentence of 3 years. There were also similar funnels which would only be needed once in the process, so there must have been at least two processes. This explains the separate offence the subject of count 5. In my opinion, an appropriate sentence in respect of this manufacture would also have been 3 years. As has been seen, count 6 was based on the discovery of 6.7 gms of crystallised P2P found in two plastic containers which was dealt with as a sixth separate manufacture. In my opinion, this offence justified the imposition of a sentence of 2 years.
In my view, given that the combined potential of the operation was the production of 1 kg of amphetamines and the clear inference was open that this was part of an activity of a continuing nature, these offences were very serious. However, if all of the sentences were imposed cumulatively, that would result in a total sentence of 14 years. In my view, such a sentence, in all the circumstances, would be crushing and offend the totality principle as stated in Pearce, supra. In my opinion, the applicant would be entitled to a discount on account of his pleas of guilty. As the learned Judge concluded, those pleas were made very late with the result that the learned sentencing Judge adopted a discount of 12.5 per cent. In my view, given the lateness of the plea, the limitation of the discount to 12.5 per cent was appropriate. The total of the sentences imposed, if directed to be served cumulatively, would be 14 years. A discount of 12.5 per cent would further reduce the sentences for each of counts 1, 2, 3 and 6 to 1 year and 9 months and the sentence for each of counts 4 and 5 to 2 years and 7½ months' imprisonment. If these sentences were discounted, this would reduce the total to 12 years and 3 months. In my view, however, taking into account the totality principle, such a sentence would still be crushing and offend the principle as stated in Pearce.
In order to avoid a crushing sentence which would offend the totality principle, I would direct that the sentences be adjusted so that the total sentence would be reduced to 7 years. This result would be achieved by directing that the sentences imposed in respect of counts 4 and 5 be served cumulatively upon each other and upon the sentence imposed in respect of count 1 and that the sentences imposed in respect of counts 2, 3 and 6 be served concurrently with each other and with the sentences imposed in respect of counts 1, 4 and 5.
It would then be necessary to add the sentence of an additional year for the breach of bail to be served cumulatively with the result that the total effective sentence to be served remains at 8 years as fixed by the learned sentencing Judge. In the result, therefore, while I would grant leave to appeal and allow the appeal to the extent indicated by restructuring the sentences. The total sentence will not, in the end result, be reduced.

WALLWORK J: I agree with the reasons for judgment and the conclusions of Malcolm CJ.

STEYTLER J: I have had the advantage of reading the reasons for decision of the Chief Justice. It is consequently unnecessary for me to restate the facts and circumstances giving rise to the appeal.
There are only two grounds of appeal. The first, as it was amended during the course of the hearing, is to the effect that the overall sentence of 7 years' imprisonment imposed upon the applicant was manifestly excessive having regard to his limited role in the manufacturing process, sentences imposed in other cases involving greater quantities of amphetamines and what was said to be the failure to apply an adequate discount to reflect the applicant's plea of guilty. The second, also a product of amendment at the hearing of the appeal, is to the effect that the sentence of imprisonment for a period of 7 years imposed in respect of each count was manifestly excessive having regard to all the circumstances surrounding the commission of each offence.
It is convenient to deal, first, with the second ground of appeal.
When the search warrant to which the Chief Justice has referred was executed at the applicant's premises, the police located a quantity of acetic acid (in addition to that which had been contained in a drum earlier found in the possession of the applicant), numerous glass flasks, separating funnels, condensers, pipes, various fittings, a gas heating mantle and a large retort stand. Forensic testing established that all of these items had been used in the manufacture of the prohibited drug 1‑phenyl‑2‑nitropropene or P2P. Traces of amphetamine were also discovered.
Count 1 of the indictment related to a white and orange residue found in a 24‑centimetre metal bowl which, on testing, was shown to be P2P. Liquid P2P was found in a long glass tubing elbow and this was the subject of count 2. The liquid P2P was different in form and style to the P2P the subject of count 1. Other P2P, the subject of count 3, was found on a metal mixing rod in a yellow powder form. Still other P2P was also found in two plastic containers which, together, contained 6.7 grams of the drug in a crystallised form. This P2P was the subject of count 6 on the indictment. The traces of amphetamine, the subject of counts 4 and 5, were found in two funnels amongst all of the other equipment. It was apparent that the two funnels had been used in separate processes. While the sentencing Judge said, in the course of his sentencing remarks, that the offences were "not entirely different offences in the sense of having taken place separately", the scientific evidence adduced by the Crown established, as has been mentioned by the Chief Justice, that there had been six separate manufactures and it was for that reason that six separate charges were brought. In any event, the applicant has pleaded guilty to each of those charges upon that basis and no complaint has been made in that respect.
Each of the charges was required to be considered separately for sentencing purposes. The High Court, in Pearce v The Queen (1998) 194 CLR 610, has said, at [45], per McHugh, Hayne and Callinan JJ, that:
"To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing Judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1998) 166 CLR 59)."
In this case, no account was taken, at all, of the difference between P2P and amphetamine, there being no dispute that amphetamine is the more damaging drug of the two of them. Instead, as the Chief Justice has said, the sentences were imposed indiscriminately without regard to the relevant facts and circumstances comprising each of the offences charged. Moreover, a sentence of 7 years' imprisonment was, in my respectful opinion, unacceptably high for each offence, given the small quantity of the prohibited drug involved in each case. To increase each penalty by virtue of the fact that there were other instances of manufacture of a prohibited drug would be to impose multiple punishments for each offence (cf Pearce at [43]).
I consequently agree with the Chief Justice, for those reasons, that ground 2 of the amended grounds of appeal should be upheld and that the sentences imposed in the Court below should be set aside.
In considering what sentences should be imposed in lieu of those imposed by the sentencing Judge, and how those sentences should be structured, it is necessary to take into account, inter alia, issues raised by ground 1 of the grounds of appeal.
As to the first of these, that relating to the applicant's role in the manufacturing process, it is true that the applicant's participation appears to have been limited to the first stage of the process and that he was only a participant in that process rather than a principal ultimately responsible for the manufacture of amphetamines. However, as the Chief Justice has pointed out, that part of the overall manufacturing process carried out by the applicant was an essential part of the process and the applicant knew, full well, that he was undertaking one stage in the production of amphetamines.
Next, in considering what sentence might be appropriate on each count, and as a matter of totality, it seems to me that the sentencing Court is entitled to take into account the fact that what was done was part of an overall process, known to the applicant, of manufacturing amphetamine for sale at a profit. While it would, in my opinion, be wrong to sentence the applicant upon the assumption that, ultimately, one kilogram of amphetamine was to be manufactured, merely because that was the "practical potential of the operation" given the materials and chemicals available to the applicant, it is relevant to take into account the fact that the applicant was engaged in what, on the face of it, was an ongoing manufacturing operation of some sophistication and complexity.

This is an issue which has been considered by this Court on a number of occasions.
In Lim v The Queen [1999] WASCA 296, the applicant had been charged with a number of counts of manufacturing methylamphetamine. The trial Judge, in the course of sentencing the applicant, mentioned, inter alia, that there had been "the potential to manufacture more of the drug than was actually manufactured". It was suggested that this comment revealed error. Murray J (with whom Pidgeon and Anderson JJ were in agreement) said, at [24], in that respect:
"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."
Then, in Cabassi v The Queen [2000] WASCA 305, Wheeler J (with whom Pidgeon and Wallwork JJ were in agreement) said (pars 14 to 17):
"Finally, turning to the question of the amount of drug actually manufactured, the conviction was one simply of manufacturing the drug, rather than of manufacturing any particular amount. It appears to have been indisputable that only a small quantity of drug was actually manufactured. It also appears clear that his Honour formed the view, based on the materials before him, that this was so only because the police intervened at a relatively early stage and at a time when the applicant and his co‑offenders were still learning the rather complex procedures involved.
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.
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.
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)."
In Worth v The Queen [2001] WASCA 303, Roberts‑Smith J (with whom Wallwork J and Einfeld AJ were in agreement) considered a submission to the effect that there was some conflict between what had been said by the Court in Lim and Cabassi respectively. His Honour said, in that respect, at [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."
Most recently, in R v Pallister [2002] WASCA 68, Anderson J (with whom Wallwork and Wheeler JJ were in agreement) expressly acknowledged that the respondent, in that case, "was not to be sentenced in respect of methylamphetamine not yet manufactured".
It seems to me, after considering these cases, and as a matter of principle, that a person who has in fact been convicted of manufacturing only a small quantity of amphetamine cannot be sentenced upon the assumption that he would, if he had not been caught, have manufactured a significantly greater quantity, merely because it is proved that the materials at his disposal were sufficient to enable him to manufacture that quantity. To do so would be to punish the offender for an offence of which he had not been convicted and with which he had not even been charged.
However, that does not mean that a Court, in sentencing an offender of that kind, cannot take into account the fact that the manufacture of the prohibited drug, which had been charged and proved, was carried out as part of a sophisticated and ongoing operation requiring premeditation and careful planning, in the course of a scheme to distribute the drug into the community for a profit. As has been pointed out by Wheeler J in Cabassi, above, at 17, to take into account such matters is not to sentence the offender for an offence which he has not committed. Rather, it is to evaluate the offence in the whole of the surrounding circumstances.
Consequently, in sentencing the applicant in this case, it seems to me that the Court should take into account the fact that each manufacture was one involving premeditation, planning, a sophisticated manufacturing process and a motive of monetary profit. Counsel for the applicant acknowledged, in this last respect, that the applicant had not produced the prohibited drugs for his own use. The Court should, of course, also take into account the fact that the applicant, while playing an integral role in the manufacturing process, was not the main instigator of the drug manufacturing scheme or the final distributor of the drugs and that he played an essentially subsidiary role. When those circumstances are taken into account, together with the various other matters personal to the applicant which were mentioned by his counsel in the course of the initial sentencing process (and which, as his then counsel said, were "really fairly unremarkable", although it is noteworthy that the applicant has previous convictions for drug offences, including one of conspiring to manufacture amphetamine), it seems to me that the sentences proposed by the Chief Justice are appropriate.
I would consequently also impose sentences of 2 years' imprisonment in respect of each of the counts of manufacture of P2P, and sentences of 3 years' imprisonment in respect of each of the two counts of the manufacture of amphetamines. It should be borne in mind, in this respect, that the crime of manufacture of a prohibited drug is one which is regarded seriously by the legislature and which carries (by virtue of s 6(1)(b) and s 34(1)(a) of the Misuse of Drugs Act 1981) a maximum penalty of 25 years' imprisonment and a $100,000 fine. As has been pointed out by Anderson J, in Pallister (at [24]), a crime of this kind is difficult to detect and it is one which brings into existence a highly destructive drug, the use of which is more likely to result in harm to others than to the user.
I agree, also, with the Chief Justice that, given the lateness of the plea of guilty (which came almost a year after the applicant was first charged with these offences), and the absence of any real remorse, a discount of 12‑1/2 per cent in respect of the punishment imposed on each offence would be appropriate, with the result that the sentence for each of counts 1, 2, 3 and 6 would be 1 year and 9 months' imprisonment and that for each of counts 4 and 5 would be one of 2 years and 7‑1/2 months' imprisonment.
That leaves only the question of totality. I agree with the Chief Justice that a total of 7 years' imprisonment in respect of the six counts on the indictment is appropriate to reflect the overall criminality of the applicant involving, as it does, the planned and sophisticated manufacture of prohibited drugs by him with a view to profit, albeit only limited quantities of the prohibited drugs were proved to have been manufactured. That result might best be achieved by directing that the sentences imposed in respect of counts 4 and 5 be served cumulatively upon each other and upon the sentence imposed in respect of count 1 and that the sentences imposed in respect of counts 2, 3 and 6 be served concurrently with each other and with the sentences imposed in respect of counts 1, 4 and 5. The applicant should, in each case, be eligible for parole. There is, as the Chief Justice has said, no challenge to the sentence of 12 months' imprisonment imposed in respect of the applicant's breach of bail or in respect of the proposition that that sentence should be served cumulatively upon those imposed in respect of the drug offences.