Brady v The Queen
[2003] WASCA 154
•18 JULY 2003
BRADY -v- THE QUEEN [2003] WASCA 154
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 154 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:248/2002 | 22 MAY 2003 | |
| Coram: | MURRAY J WHEELER J HASLUCK J | 18/07/03 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | RODERICK PETER BRADY THE QUEEN |
Catchwords: | Criminal law Sentencing Manufacture of methylamphetamine Possession of methylamphetamine with intent to sell or supply Conviction on late plea of guilty to both counts Cumulative sentence of 91/2 years Totality principle "One transaction" Turns on own facts |
Legislation: | Nil |
Case References: | Herbert v The Queen [2003] WASCA 61 Jarvis v The Queen (1993) 20 WAR 201 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Pallister [2002] WASCA 68 R v White [2002] WASCA 112 Cabassi v The Queen [2000] WASCA 305 Cameron v The Queen (2002) 209 CLR 339 Lim v The Queen [1999] WASCA 296 Worth v The Queen [2001] WASCA 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BRADY -v- THE QUEEN [2003] WASCA 154 CORAM : MURRAY J
- WHEELER J
HASLUCK J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Manufacture of methylamphetamine - Possession of methylamphetamine with intent to sell or supply - Conviction on late plea of guilty to both counts - Cumulative sentence of 91/2 years - Totality principle - "One transaction" - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Leave granted
Appeal allowed
Category: B
Representation:
Counsel:
Applicant : Mr B G Illari
Respondent : Mr D Dempster
Solicitors:
Applicant : Bruno Illari
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Herbert v The Queen [2003] WASCA 61
Jarvis v The Queen (1993) 20 WAR 201
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Pallister [2002] WASCA 68
R v White [2002] WASCA 112
Case(s) also cited:
Cabassi v The Queen [2000] WASCA 305
Cameron v The Queen (2002) 209 CLR 339
Lim v The Queen [1999] WASCA 296
Worth v The Queen [2001] WASCA 303
(Page 3)
1 MURRAY J: I have had the advantage of reading in draft the reasons for decision published by Wheeler J. I agree that the applicant should be granted leave to appeal and that the appeal should be allowed. I would vary the sentences as proposed by Wheeler J to achieve an aggregate term of 6 years imprisonment. The only change required would be to delete the order for the cumulative service of the sentence of 3 ½ years imprisonment imposed for the offence of possession of methylamphetamine with intent to sell or supply.
2 As to her Honour's reasons for that conclusion I would prefer for myself not to rest my conclusion upon the application of the so-called one transaction rule in relation to the decision to order the sentences to be served cumulatively: cfR v White [2002] WASCA 112 at [15] – [26] per McKechnie J, with whom Wallwork and Murray JJ agreed. In my opinion, of itself the order for cumulative service of the terms was entirely defensible. The offence of manufacturing the drug was complete once that process was itself completed so as to produce a quantity of the prohibited drug. If that was done, as in this case, for the mixed purpose in part of producing the drug for the applicant's own use and in part to sell or supply the drug to others, that would seem to me to place the offence of manufacture in a more serious category and would warrant more severe punishment.
3 The possession of part of that which was produced for the purpose of its sale or supply seems to me to be a quite distinct offence constituted by an act which is quite separate from the act of manufacture. In my opinion therefore while separate cumulative sentences may have been warranted, the matter fell to be decided by the ultimate consideration whether the imposition of cumulative sentences would produce a total term greater than that which was truly warranted by the criminality involved in the whole enterprise.
4 As I have intimated, in my opinion an aggregate term of 9 ½ years imprisonment is simply disproportionate to the total criminality involved and infringes the totality principle as it was discussed in Jarvis v The Queen (1993) 20 WAR 201, Postiglione v The Queen (1997) 189 CLR 295 and most recently by this Court in Herbert v The Queen [2003] WASCA 61. That is a decision to which I come, having regard to the circumstances of the commission of the offences (probably on the one day), the quantity and the degree of purity of the drug apparently involved and the personal circumstances of the applicant, as discussed by Wheeler J.
(Page 4)
5 WHEELER J: On 5 December 2002 the applicant pleaded guilty to one count of manufacturing methylamphetamine and one count of possession of methylamphetamine with intent to sell or supply. In relation to the first count he was sentenced to 6 years' imprisonment and in relation to the possession count, to 3-1/2 years' imprisonment to be served cumulatively on the sentence imposed on count 1, with an order for parole eligibility in respect of each count. He seeks to appeal from that sentence of a total of 9-1/2 years' imprisonment with parole eligibility.
6 The grounds of appeal raise a number of issues, and can be categorised as follows:
• grounds 1 and 2 allege that the sentences imposed in relation to each count were manifestly excessive, having regard to certain matters which are particularised;
• grounds 3 and 4 complain of the total overall sentence, ground 3 being directed to the order that they be served cumulatively and ground 4 to the so-called "totality principle";
• grounds 5 and 6 complain of certain factual errors which are alleged to have been made by his Honour, and of his Honour's failing to have regard to a submission which counsel wished to make concerning those facts;
• ground 7 complains of a misapplication of the principle of parity, having regard to the sentence imposed on the applicant's co-offender.
7 It is my view that there is, somewhat inelegantly, contained within grounds 3 and 4, reference to an error which should in my view result in an alteration of the overall sentence imposed on the applicant. Before I turn to those matters however, it is convenient to deal with the other grounds of the application, none of which in my view disclose any error by his Honour.
"Manifestly excessive"
8 The particulars to these grounds, save for one which refers to the parity principle, are all variations of three principal themes, they being:
• the applicant's plea of guilty;
(Page 5)
- • the applicant's personal circumstances;
• the contention that the applicant manufactured the methylamphetamine to sustain his own habit.
9 Before I turn to the particular matters referred to by the applicant, it is desirable to restate the principle which has been enunciated on many occasions now that amphetamines are to be regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs, and that deterrence is a principal consideration in the sentencing of those who manufacture and distribute the drug: R v Pallister [2002] WASCA 68 per Anderson J at [20] - [21]. Where manufacture is not solely for personal use, and where there is the potential to manufacture on a significant scale, or an operation of some sophistication, sentences of 5-1/2 to 7 years have been considered appropriate: R v Pallister at [21].
10 So far as the plea of guilty was concerned, his Honour noted that the plea was a very late one. It was entered on the Friday immediately prior to the Monday when the applicant's trial was due to commence. His Honour noted that an early plea and cooperation with the authorities will always be recognised as a factor in mitigation but that neither of those factors was indicated in the applicant's case. Although his Honour said that the plea was and would be recognised in the sentence to be imposed, it "counts little by way of mitigation". I am unable to detect error in that approach. It was open to his Honour to find that any remorse and willingness to cooperate with authorities and facilitate the course of justice came late indeed in the applicant's case. It was a case in which there had been extensive surveillance of the applicant's premises carried out, and in which he was, as will appear from the facts that I will recount shortly, apprehended in a vehicle containing electronic scales, a variety of items containing traces of methylamphetamine and a number of containers which contained quantities of methylamphetamine of a relatively high level of purity, varying from 19 per cent to 51 per cent and totalling approximately 26 grams. The Crown case was therefore a relatively strong one. In all those circumstances, it was not inappropriate for his Honour to give limited weight to the plea of guilty.
11 So far as the personal circumstances are concerned, as I have observed, the principal considerations in offences of this kind are those of general and personal deterrence. In any event, it is not clear to me, either from the applicant's submissions or from the transcript before his Honour, what significant mitigating factors existed. The applicant had had an uneventful childhood, although he had as an adult experienced the loss of his younger sister and of his mother. He had a lengthy history of
(Page 6)
- offending behaviour including dishonesty, assault and drug offences. In his favour, he was in a stable de facto relationship with a young child, and had had significant periods of time in work as an employee and while self-employed. He had a significant history of substance misuse and a pre-sentence report indicated that he was considered to be at high risk for further offending behaviour. He had attempted to deal with substance misuse to some extent during his remand period.
12 In relation to the purpose of the manufacture, his Honour accepted that the applicant had a significant addiction to methylamphetamine and that his setting up of the laboratory had been to an extent at least, prompted by his desire to obtain sufficient of the drug to sustain his own drug habit. The principal difficulty in the way of his Honour's acceptance of the proposition that the sole purpose of the laboratory was only to sustain the applicant's drug use was the applicant's own plea of guilty to the offence of possession with intent to sell or supply in relation to a quantity of methylamphetamine which plainly had been produced at the laboratory not long beforehand. The expert report of the chemist who analysed various items associated with drug manufacture and various substances found at the laboratory was to the effect that numerous items had detected on them various residues indicating the past production of methylamphetamine, and that certain of the quantities of material found, comparing them with the quantities which it might be inferred had originally been present, suggested that very significant quantities of methylamphetamine had been produced. For example, in relation to the quantity of sodium metal present on the premises, the chemist reported that two cans originally would have contained a total of 500 gms of solution. The amount remaining in them suggested 353 gms had been used in previous reactions and that based on that data, approximately 307 gms of high purity methylamphetamine could reasonably have been expected to have been produced from the sodium which had been used.
13 The general circumstances of the surveillance and of the applicant's apprehension also tended to suggest production on a significant scale and production which included some production for the purpose of sale or supply. Surveillance commenced on 7 December 2000 and the applicant was seen moving about the premises going to and from a rear shed. On the next day, smoke was observed to come from the shed and an unpleasant odour was detected. The applicant was observed to leave the premises in a vehicle on 8 December, and was apprehended with, as I have noted, a set of electronic scales which were found to have traces of methylamphetamine, various plastic bags and containers, the containers of quantities of methylamphetamine to which I have referred and $800 in
(Page 7)
- cash. The applicant was unemployed at the time at which this cash was found. As I have noted, the methylamphetamine with which he was apprehended was of significant purity. The laboratory itself contained very many items used or adapted for use in the production of methylamphetamine. The vast majority of them were containers of one kind or another, but in my view it was open to his Honour to find that the sheer quantity indicated a manufacturing operation of significant scale. His Honour found that the manufacturing operation was a "large scale and sophisticated operation designed to manufacture the drug in substantial quantities, obviously for dissemination in the community", and in my view this finding was open to him. His Honour did accept that the applicant engaged in manufacture to support his own habit and that the manufacturing operation, although substantial, was "not a commercial operation".
Alleged errors of fact
14 Although it is alleged in counts 5 and 6 that his Honour misdirected himself in fact, it is not clear to me how it is asserted that these errors affected the sentence which was imposed. The alleged errors relate to the question of whether it was open to his Honour to infer that the methylamphetamine found in the applicant's possession had been cut to a "street level percentage" by the applicant after processing. The purity of the drug found in the applicant's possession does not itself suggest that it was cut to "street level", although it was of a lesser purity than the expert analyst suggested might have been able to be obtained from the manufacturing process.
15 So far as I can tell, the only significance of any of these matters would be in relation to the finding made by his Honour that his manufacturing operation was one of significant scale and conducted at least in part for the purpose of selling the drug so manufactured to others. There was in any event, on my view, ample material to justify that conclusion. Indeed, when his Honour said during the course of the applicant's submissions, that the laboratory was set up to support the applicant's drug habit "presumably, by selling some of the product to other people", the applicant's counsel replied "On occasion. On occasion".
16 Although in my view nothing turns on it, I should note in relation to the allegation in ground 6 that his Honour "wrongfully refused to listen to counsel's submissions …", the submission in question was one which was made at a time subsequent to the submissions in mitigation made by the applicant's counsel, when counsel had already extensively canvassed the
(Page 8)
- question of the scale and sophistication or otherwise of the manufacturing operation. The point at issue at that stage appears to have been whether s 32A of the Misuse of Drugs Act was applicable and, the Crown having conceded that it was not, there was no need for the applicant's counsel to deal further with that question.
The parity principle
17 The complaint here is that the applicant's co-offender, who pleaded guilty on the "fast-track" system to a charge of manufacturing methylamphetamine, received a period of only 2 years' imprisonment.
18 It was alleged by the applicant that the co-offender, one Melvin, had a culpability equivalent of that of the applicant. However, there are a number of respects in which the circumstances of the co-offender are quite different from those of the applicant. Melvin was only 25 years of age and had relatively good antecedents, having only a short record of prior convictions, and some very minor drug-related convictions. The applicant by contrast was 37 years of age and had convictions not only for possession of cannabis but for possession of amphetamine with intent, a further possession of amphetamine, possession of a prohibited drug, and had served a term of imprisonment in the United States for possession of cocaine. Melvin had pleaded guilty on the fast-track system, whereas the applicant pleaded guilty only at the last moment. Finally, it was accepted at Melvin's sentencing that it was the applicant who had instigated the offence, making the methylamphetamine, and directing Melvin to acquire pharmaceuticals throughout the Perth metropolitan area on a daily basis over a two month period. It was accepted at Melvin's sentencing that the applicant supplied Melvin with methylamphetamine for his own use in return for those services. So far as Melvin was concerned, he had been sentenced on the basis that his role was a secondary one.
19 At his sentencing the applicant did not attempt to contend that he had not been a principal in the enterprise of manufacture; the evidence would not have sustained such a contention. Rather, he maintained that Melvin had been an equal participant in that enterprise. The difficulty with this position is of course, that the only conclusion which could flow from the applicant's submissions, if accepted, would be that Melvin had been the beneficiary of an unjustified assumption or error of fact at the time of Melvin's sentencing. The principle of parity does not require that where an unduly lenient sentence has through some oversight been imposed on one offender, a co-offender is entitled to be sentenced on a basis which is plainly inappropriate.
(Page 9)
Concurrency and totality
20 One factual error which his Honour did make in relation to this matter was to suggest that the smoke and unusual smells noted at the shed had been noted on 7 December rather than 8 December. That is significant, because it was on 8 December that the applicant was found in possession of the methylamphetamine. Other evidence in the depositions and in the expert report suggested that methylamphetamine could be manufactured quite quickly (within 30 minutes to an hour) and only very small quantities of methylamphetamine were located in the shed. The inference one would draw from all of that would ordinarily be that the methylamphetamine which was in the applicant's possession on 8 December, was the product of that day's manufacture. His Honour said that that "may or may not be the case" so that he was plainly not ruling it out, but his lack of attention to that question may have influenced the way in which he structured the sentence.
21 So far as concurrency was concerned, it was submitted to his Honour there was in truth "one transaction". His Honour noted however, that there were two distinct and separate stages or processes, manufacturing being one stage and going out with a quantity of methylamphetamine with scales and plastic bags and so on, being a distinctly different and separate operation. It was in that context that his Honour suggested that the methylamphetamine found in the applicant's possession may not necessarily have been simply that manufactured on that day. In coming to sentence the applicant, his Honour then imposed a term of 7 years in relation to the first count and 5 years in relation to the second. That total of 12 years' imprisonment his Honour then reduced, expressly for totality reasons, to sentences of 6 and 3-1/2 years respectively.
22 In my view, his Honour was quite correct in the conclusion that a total of 12 years' imprisonment was disproportionate to the total criminality involved here. However, it appears to me that a total of 9-1/2 years' imprisonment is likewise disproportionate to the total criminality. A sentence of 6 years' imprisonment in relation to a manufacturing operation on a significant scale, with the intention that some of the drug manufactured should be for distribution, is towards the upper end of sentences imposed for offences of this type. The sentence of 3-1/2 years' imprisonment was within the ordinary range of sentences for possession with intent, having regard to the quantity and purity of the drug, and the plea. The sentence of 9-1/2 years' imprisonment is well in excess of that which one would expect to be imposed for either of those offences, having regard to the circumstances of each of them.
(Page 10)
23 Although the offences were distinct, having no elements in common, it is clear that in the way in which his Honour approached the appellant's culpability, there was a significant factor in common, that being the applicant's willingness to supply the methylamphetamine he had produced to others. That was an element of the offence of possession with intent; however, the applicant's willingness, as his Honour found it, to supply methylamphetamine (including that the subject of count 2), to others, was a factor which aggravated the offence of manufacturing. It is to be noted that count 1 on the indictment alleged manufacture "between 6 November and 9 November 2000" while count 2 alleged an offence on 8 November, linking the two offences temporally There was therefore, it seems to me, an element of double counting of the same factor in the sentences which were imposed.
24 In Pearce v The Queen (1998) 194 CLR 610, the High Court emphasised the need to ensure that where the boundaries of offences overlap, an offender should not be punished twice for conduct falling within the area of overlap, notwithstanding that he or she may properly be convicted of both offences. In the present case, as I have noted, the distribution of methylamphetamine which had been manufactured was not strictly an element of the offence of manufacturing. Nevertheless, the appellant's willingness to distribute methylamphetamine which he had manufactured was, together with the scale of the manufacturing enterprise overall, plainly a significant factor in his Honour's fixing a sentence of the severity of that imposed for the manufacturing offence. Recognition that that factor was operating in relation to both sentences could have been achieved by a conclusion that, having found that the manufacture was, at least in part, for the purpose of distribution, by treating the possession for the purpose of sale or supply the subject of count 2 as part of the "transaction" represented by count 1.
25 I do not intend to suggest by these reasons that wherever there is an offence of manufacturing on a significant scale, all subsequent distribution of the drug produced must be regarded as "one transaction" with the manufacturing offence. Obviously, there may well be cases in which a drug is distributed on more than one occasion, or is distributed in such quantities, that the offender's culpability can only be appropriately recognised by the imposition of distinct and cumulative sentences. Having regard to the circumstances of this case however, and particularly to what appears to me to be the clear inference that the drug the subject of count 2 was that which had been produced on that day by the manufacture the subject of count 1, it was appropriate to treat the two offences as one transaction.
(Page 11)
26 For these reasons, I would grant the applicant leave to appeal against his sentence, and would vary the sentence imposed by ordering that the sentence in respect of count 1 be served concurrently with that the subject of count 2.
27 HASLUCK J: I agree with the reasons of Wheeler J and with the orders proposed. There is nothing I wish to add.
4
11
1