Dodd v The Queen
[2002] WASCA 55
•15 MARCH 2002
DODD -v- THE QUEEN [2002] WASCA 55
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 55 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:92/2001 | 21 FEBRUARY 2002 | |
| Coram: | WALLWORK J WHEELER J MILLER J | 15/03/02 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Applications for leave to appeal against sentence refused | ||
| B | |||
| PDF Version |
| Parties: | PETER GEOFFREY DODD THE QUEEN GREGORY JAMES KING PETA NARELLE HARRIS |
Catchwords: | Criminal law Conspiracy to manufacture methylamphetamine Whether evidence sufficient to support conviction Turns on own facts Criminal law Sentencing Whether 6 years' imprisonment manifestly excessive Relevance of drug that could have been produced Prior good character of applicants |
Legislation: | Nil |
Case References: | Ahern v R (1988) 165 CLR 87 Cabassi v The Queen [2000] WASCA 305 Christianos v The Queen [2000] WASCA 184 Etrelezis v The Queen [2001] WASCA 327 Lowndes v The Queen (1999) 195 CLR 665 M v The Queen (1994) 181 CLR 487 Nobes v The Queen, unreported; CCA SCt of WA; Library No 980097; 5 March 1998 Poyner v R (1986) 17 A Crim R 162 Punevski v The Queen [2000] WASCA 71 Savvas v The Queen (1995) 183 CLR 1 Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Taouk v R (1992) 65 A Crim R 387 Townsend v The Queen [2001] WASCA 249 Wong v The Queen (2001) 76 ALJR 79 Bellissimo v R (1996) 84 A Crim R 465 Darwell v R (1997) 94 A Crim R 35 Dinsdale v R (2000) 175 ALR 315 Jones v The Queen (1997) 72 ALJR 78 Lim v The Queen [1999] WASCA 296 Lowe v The Queen (1984) 154 CLR 606 Paparone v The Queen [2000] WASCA 127 Postiglione v The Queen (1997) 189 CLR 295 R v Grein [1989] WAR 178 The Queen v Kane [1975] VR 658 Veneziani v The Queen [2001] WASCA 246 Watt v The Queen [2000] WASCA 354 Worth v The Queen [2001] WASCA 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DODD -v- THE QUEEN [2002] WASCA 55 CORAM : WALLWORK J
- WHEELER J
MILLER J
- CCA 118 of 2001
- Appellant
AND
THE QUEEN
Respondent
- Applicant
AND
THE QUEEN
Respondent
- Applicant
(Page 2)
- AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Conspiracy to manufacture methylamphetamine - Whether evidence sufficient to support conviction - Turns on own facts
Criminal law - Sentencing - Whether 6 years' imprisonment manifestly excessive - Relevance of drug that could have been produced - Prior good character of applicants
Legislation:
Nil
Result:
Appeal against conviction dismissed
Applications for leave to appeal against sentence refused
Category: B
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Representation:
CCA 92 of 2001
CCA 118 of 2001
Counsel:
Appellant : Mr S J Jones
Respondent : Mr R E Cock QC
Solicitors:
Appellant : Lisa Boston
Respondent : State Director of Public Prosecutions
CCA 120 of 2001
Counsel:
Applicant : Mr P J Hogan
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Patrick Hogan
Respondent : State Director of Public Prosecutions
CCA 126 of 2001
Counsel:
Applicant : Mr R E Lindsay
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Ian Hope
Respondent : State Director of Public Prosecutions
(Page 4)
Case(s) referred to in judgment(s):
Ahern v R (1988) 165 CLR 87
Cabassi v The Queen [2000] WASCA 305
Christianos v The Queen [2000] WASCA 184
Etrelezis v The Queen [2001] WASCA 327
Lowndes v The Queen (1999) 195 CLR 665
M v The Queen (1994) 181 CLR 487
Nobes v The Queen, unreported; CCA SCt of WA; Library No 980097; 5 March 1998
Poyner v R (1986) 17 A Crim R 162
Punevski v The Queen [2000] WASCA 71
Savvas v The Queen (1995) 183 CLR 1
Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Taouk v R (1992) 65 A Crim R 387
Townsend v The Queen [2001] WASCA 249
Wong v The Queen (2001) 76 ALJR 79
Case(s) also cited:
Bellissimo v R (1996) 84 A Crim R 465
Darwell v R (1997) 94 A Crim R 35
Dinsdale v R (2000) 175 ALR 315
Jones v The Queen (1997) 72 ALJR 78
Lim v The Queen [1999] WASCA 296
Lowe v The Queen (1984) 154 CLR 606
Paparone v The Queen [2000] WASCA 127
Postiglione v The Queen (1997) 189 CLR 295
R v Grein [1989] WAR 178
The Queen v Kane [1975] VR 658
Veneziani v The Queen [2001] WASCA 246
Watt v The Queen [2000] WASCA 354
Worth v The Queen [2001] WASCA 303
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1 WALLWORK J: I agree with the reasons for judgment and the conclusions which have been reached by Miller J. There is nothing I wish to add.
2 I also agree with the additional comments which have been made by Wheeler J.
3 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Miller J. I agree with his Honour that Dodd's appeal against conviction should be dismissed, and that leave should be refused in relation to each of the applications for leave to appeal against sentence. I am generally in agreement with his Honour's reasons, and wish to add only some brief observations of my own in relation to the question of sentence.
Quantity of drug to be produced
4 As I understand the submissions on behalf of counsel for Dodd and Harris it was submitted that the fact that, from the available quantity of ingredients (principally Sudafed, which seems to have been the limiting factor) only a very small quantity of methylamphetamine could have been produced. So much may be accepted. However, it seems to have been then suggested that it was necessary for his Honour to find as a matter of fact that the applicants only ever intended to produce a small quantity of methylamphetamine and even – perhaps – to find that they must necessarily therefore have been producing it only for the personal use of some or all of the applicants.
5 There are a number of difficulties with this submission. In assessing the criminality of the offender in many cases of crimes involving production or distribution of drugs the offender's intention, or understanding, or knowledge, of the amount likely to be produced or distributed, and of the enterprise in which the offender was involved, will generally be of greater importance than the actual amount involved: Wong v The Queen (2001) 76 ALJR 79 at [31] per Gleeson CJ and [67 – 69] per Gaudron, Gummow and Hayne JJ. It follows that it is necessary, to the extent possible, to assess the knowledge and intention of each of the offenders.
6 In this case, there was a trial in which each of the offenders denied any involvement in a conspiracy to manufacture the drug. That being so, there was necessarily no evidence from any of them as to their own understanding of the nature of the enterprise in which they were involved,
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or as to how far advanced that enterprise might have been at the time at which they were arrested.
7 In those circumstances, to suggest that the Court should form a view that the offenders only intended ever to manufacture a small quantity of methylamphetamine, and/or only intended to manufacture it for their own personal use is to draw an inference which is simply not open on the evidence. It may be accepted that circumstances in aggravation of sentence must, where disputed, be proved beyond reasonable doubt, while the same standard does not apply to factors in mitigation of sentence. However, it does not follow that a court sentencing an offender must draw an inference that mitigating factors exist when there is not sufficient evidence to support the drawing of that inference.
8 It is often the case that the court is called upon to sentence on the basis of information which is not as complete as one would wish. Particularly where responsibility for an offence has been denied, there will be many factors relating to the way in which it was planned and carried out which may never come to light. This result is not unusual in cases involving drugs. In those circumstances, the court is called upon to form a view of the offence based upon the "objective context" (see Poyner v R (1986) 17 A Crim R 162 at 164 per Street CJ). That context will include the quantity of drug involved.
9 The objective circumstances in this case included possession of a quantity of Sudafed which would have produced only a relatively small quantity of methylamphetamine. They also, however, included the persistence of the conspiracy, on the evidence of the telephone records, over a significant period of time and the active involvement of each of the offenders in collecting materials which were seen to be necessary or in taking steps which were seen to be necessary to advance that conspiracy.
Incompetence
10 The submission that the sentences were excessive, having regard to the amateurish nature of the venture, rests upon the proposition that an amateur and incompetent attempt, or an amateur and incompetent manner of carrying out an offence, will always be considered to be of less seriousness than the same attempt or offence competently executed.
11 In the context of attempts to commit an offence, this concept is discussed by Badgery-Parker J in Taouk v R (1992) 65 A Crim R 387 at 390 – 391. His Honour there postulates that a sophisticated attempt which
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- comes close to success is likely to attract a heavier sentence than a naive and ill-prepared attempt which is predestined to fail. That is a concept with which one might usually agree, but it is necessary to consider why that is so. Factors the court is required to take into account include the danger to the community represented by the commission of an offence, and the "criminality" of an offender and need for personal deterrence of that offender, and it is in relation to these issues that competence, or lack thereof, is most likely to be relevant.
12 Incompetence in commission of an offence may stem from many sources. Where an offender commits an offence only reluctantly, under pressure from others who may be co-offenders, it is not unusual for him or her to carry out whatever role is assigned with a lack of competence. Where an offender has not planned an offence but commits it impulsively and on the spur of the moment, it may not be well executed. In both those cases, the court may form the view that the offender's character and disposition are such that rehabilitation rather than personal deterrence should be emphasised and may reduce or vary the sentence to be imposed accordingly. Sometimes, where an offence is not competently committed, it may be that a number of factors are operating. For example, the would-be car thief who fails in that enterprise because of lack of knowledge of how to "hot wire" a vehicle may be objectively less of a threat to the community's property than an accomplished car thief; at the same time, the incompetence may also demonstrate a lack of experience in crime of that kind and perhaps a lesser need for personal deterrence. However, each case must be determined on its own facts, and mere incompetence will not always be mitigating.
13 In this case, it is in my view overstating the position to suggest that these offenders could never have produced methylamphetamine. Rather, production may have been of a somewhat "hit and miss" nature and may have required a determined effort over time. However, what is known about the circumstances of this offence suggests that the offenders were prepared to make an effort over time. The type of enterprise in which they were engaged may be described as relatively less serious than one involving a large well-equipped laboratory, obviously set up for the manufacture of substantial quantities of methylamphetamine. In my view his Honour took that circumstance into account in imposing a sentence significantly less than that which is imposed in such a case. No further discount for the amateurish nature of the enterprise was required.
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14 MILLER J: The appellant, Peter Geoffrey Dodd ("Dodd") and the applicants, Gregory James King ("King") and Peta Narelle Harris ("Harris") were each convicted in the District Court at Perth on 26 June 2001 of the offence of conspiracy to manufacture methylamphetamine. They were each sentenced on 20 August 2001 to imprisonment for 6 years with an order for eligibility for parole. The sentences were backdated to 26 June 2001.
15 Dodd initially appealed against his conviction on two grounds. They were as follows:
"1. The learned trial judge erred in law in finding there was reasonable evidence on which to ground the co-conspirators rule in respect to the Appellant. There was no such evidence, or in the alternative, the learned trial judge should have exercised his discretion and to exclude the co-conspirator rule in respect to the Appellant.
2. The learned trial judge erred in law in permitting the Crown to lead evidence that methylamphetamine was found in the Appellant's vehicle. This was not relevant to the matter before the jury and was highly prejudicial. The prejudice to the Appellant could not be remedied by the direction to the jury."
16 Counsel for Dodd argued only faintly the initial two grounds of appeal. At the hearing an additional ground of appeal (being an alternative to ground 1) was allowed in the following terms:
"In its totality the evidence against the appellant was such that no reasonable jury properly directed could have reached a verdict of guilty".
17 In my view the learned trial Judge correctly admitted evidence under the so-called co-conspirator's rule. That is, evidence of acts and statements of the appellant's co-accused, which were performed or uttered in furtherance of the alleged common purpose, was properly admitted against the appellant as additional proof of his guilt of the offence alleged, notwithstanding the fact that those acts were done and the statements were made in his absence. The learned trial Judge correctly held that there was reasonable independent evidence upon which a tribunal of fact could lawfully and properly reach the conclusion that the appellant was a participant in a preconcert. His Honour considered telephone calls to
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- which the appellant was a party, surveillance of the appellant's movements and the fact that a receipt for some of the items in the appellant's car was found at an address occupied by co-accused, evidenced a combination or preconcert of the type alleged by the Crown with a prima facie case that the appellant was a participant in that preconcert. The basis upon which such evidence will become admissible is set out in Ahern v R (1988) 165 CLR 87 at 100. See also Punevski v The Queen [2000] WASCA 71 per Anderson J at [37] - [42]. As no real argument was advanced on behalf of the appellant to support this first ground of appeal, it is unnecessary to deal with it further.
18 The essence of the appellant's argument in relation to the second ground of appeal was that evidence of the existence of methylamphetamine in the appellant's vehicle was so highly prejudicial to him that it could not be rectified by direction to the jury. I am of the view that evidence of the appellant's possession of methylamphetamine was properly led at trial, because that possession was probative of the fact that the appellant was dealing in or in possession of the very drug which he was alleged to have conspired to manufacture. The learned trial Judge made it very clear to the jury that the mere presence of methylamphetamine in the appellant's vehicle could not be used to convict him of the offence charged. Relevant passages from his Honour's summing up to the jury are as follows:
"This is not a case about manufacturing methylamphetamine. It's not a case about possession of amphetamine by Mr Dodd on his person and paraphernalia at the house at 56 Tibradden Court, it is a case about whether or not they entered into an agreement to manufacture methylamphetamine.
…
Just because a person is found in possession of amphetamine or has used amphetamine doesn't mean that that person is going to be involved in a conspriacy to manufacture and what I say about Mr Dodd in that regard I also say in relation to Mr King, if you accept that Mr King was also someone who had used amphetamine as Mr Dodd said that he did."
- The learned trial Judge's directions to the jury were clearly such as to cure any prejudice that may otherwise have been caused to the appellant by the admission of that evidence.
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19 The real gravamen of the appellant's appeal is contained in the ground added at the hearing. What is said is that at its highest, the totality of the evidence against the appellant could only give rise to a very strong suspicion of guilt and no more. That is, on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.
20 In M v The Queen (1994) 181 CLR 487 at 493, the relevant test was stated in the following terms.
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
21 The primary submissions in support of the this ground of appeal are:
(a) when Dodd was apprehended by investigating police only some of the items found in his motor vehicle could have been used in the manufacture of methylamphetamines and others clearly could not have been so used.
(b) Dodd's possession of the various items found in his car was capable of an innocent explanation given by both him and witnesses called on his behalf.
(c) Dodd was not involved in any of the early stages of the conspiracy, particularly when his co-accused King acquired Sudafed tablets in or about May 1999.
(d) Dodd was not involved in the acquisition of acid by his co-accused King and Harris in July 1999.
(e) There was no evidence that Dodd knew the brother of his co-accused Harris and yet that person had been residing with Harris and King until late July 1999.
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22 The Crown case against the three appellants was a circumstantial one. The conspiracy was alleged to have occurred between 11 July and 4 August 1999 at Perth. It appears that as early as late May 1999, King made enquiries of Australian Pharmaceutical Industries in relation to the acquisition of a large quantity of Sudafed tablets. These came in cartons of 144 boxes and King expressed interest in purchasing two such cartons. This appears to have been the initial overt act in the conspiracy alleged. There was evidence that thereafter there were numerous phone calls between King and Dodd, some occurring within very quick succession of each other and for varying times, including short calls, but also longer calls of four minutes or more. These began on 28 June 1999 and continued until 2 August 1999, being the date of the arrest of the three alleged conspirators. Meanwhile, on 14 July 1999, King and Harris attended at East Victoria Park post office to open a post office box in the name of Wade Anthony Harris, brother of Harris. A box was duly opened in the name of "Wade Anthony Harris of 42 Bougainvillea Street, Forrestfield 6058". It was later used as an address for the family company of Harris, in which name orders were placed with a chemical company.
23 On 2 August 1999 the three accused persons were together at 56 Tibradden Circle, Ascot for most of the day. They were under surveillance. Dodd eventually left in the early hours of the morning of 3 August 1999 and was intercepted. His vehicle was searched and a number of items were found in it. The house was also searched and a number of other relevant items found. The latter included 330 Sudafed tablets hidden in the back of a toy bear in Harris' bedroom, hyperphosphorous acid found in the main bedroom of the house and Betadine (iodine) located in a plastic bag in a box with pyrex glassware. There were also ephedrine nasal drops, pyrex-type saucepans, safety glasses, blue plastic buckets, a home-made funnel and scales with traces of amphetamine on them. In Dodd's vehicle there were four bottles of methylated spirits located in the boot; two bottles of acetone; a warming plate (under a blanket in the rear seat of the vehicle); an exhaust fan; an air purifier; safety glasses; a siphon; a green bucket; and various jars.
24 It was the Crown case that the items found at the Ascot address and in Dodd's vehicle were intended to be used in the manufacture of methylamphetamine and evidence was led in relation to that issue. So far as Dodd was concerned, there was evidence from a chemist named Priddis that acetone is used in the process of manufacture of methylamphetamine, as could be the warming plate and air purifier. The plate, however, had no heat control and the air purifier would have needed proper filters. Mr Priddis also testified that the exhaust fan found in the boot of Dodd's
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- vehicle may have been useful to vent gasses outside. He added that safety goggles are often used in the manufacture of methylamphetamine and so are jars such as those found in Dodd's vehicle. There were other items which did not necessarily point to the manufacture of methylamphetamine, including the siphon and the bucket, although in relation to the latter it was pointed out by Priddis that it may be necessary to cool items down in the manufacture process by putting them in cold water in a bucket. The Crown also relied upon amphetamine found in possession of Dodd in the way in which I have previously indicated.
25 Dodd had explanations for possession of the various items alleged by the Crown to implicate him in the conspiracy. He said that the warmer was something he carted around because it was handy to use as a hotplate. The air purifier was something he thought might come in handy, although he had no actual idea what he was going to use it for. The methylated spirits were said to have been bought for no particular reason and the acetone was bought because he was an optical technician and there were a number of uses to which it could be put. He also had explanations in relation to other items. The goggles were said to be used for grinding a limestone wall; the siphon pump was to provide kerosene to a heater and the fan was for use in producing colloidal silver.
26 At trial the learned trial Judge carefully spelled out the evidence relied upon them by the Crown in support of the allegation that Dodd was a conspirator. His Honour also set out the explanations given by Dodd in relation to the various items said to implicate him. His Honour pointed out that there were no prints of Dodd found in the house at Ascot, nor anything else linking him with the acid or other items which were there. A full direction was given to the jury on the use to which alleged lies told by Dodd could be put by them in their deliberations. No complaint is made in relation to the direction given, nor can it be.
27 Although counsel for Dodd complained that a witness named Casserly called on his behalf was cross-examined by the Crown to reveal that he had convictions for dishonesty, there was nothing untoward in the conduct of the Crown in that regard. In any event, the learned trial Judge impressed upon the jury that merely because the witness may have had a bad character, it did not mean that he could not be relied upon as telling the truth if the jury assessed him as being an honest person.
28 His Honour summarised the submissions of counsel for Dodd in his address to the jury. He pointed out that on Dodd's behalf it was argued (1) that although Harris and King may have had an agreement between them
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- to manufacture methylamphetamine, Dodd was not involved in any agreement to that effect or conspiracy in relation to it; (2) he had not known the two co-accused at the time initial enquiries were being made by them in relation to the ingredients for methylamphetamine and he did not meet them until a much later date; (3) he was not present at the opening of the post office box, nor involved in any way in picking up or delivering acid; (4) he was simply "at the wrong place at the wrong time" and that is why he had become a target to police conducting surveillance on the house at Ascot.
29 The evidence in relation to telephone calls was dealt with carefully by his Honour. He pointed out that Dodd had testified that the calls were to King in relation to their joint use of amphetamine and no more. His Honour also pointed out that an innocent explanation had been given by Dodd in relation to all of the items found in the boot of his vehicle or at the house. Importantly, his Honour carefully directed the jury in relation to the way in which they were to approach the circumstantial case against Dodd. He said:
"When you're looking at inferences, which the crown says you can draw from the circumstantial evidence, you can only draw an inference that those circumstances point towards guilt if that is the only inference that can be drawn. If there's some other innocent explanation from the circumstances, they have to be given the benefit of the doubt: in relation to Ms Harris's case, the lies, the circumstances related to the manufacturing of - or the doing of electrolysis plating; in relation to Mr Dodd, the items that he had had an innocent explanation which was not related to the manufacture of methylamphetamine; and in relation to Mr King, that the circumstances there are simply such it wouldn't point to the only explanation, him being involved in a conspiracy.
When you're looking at inferences to be drawn, you can't draw inferences on inferences. You can just say, 'If we look at all those circumstances, the inference I can draw from that is that the person is part of a conspiracy', or 'There's an innocent explanation.' If there's an innocent explanation, then that's the end of the matter. The person, because of the benefit - because of the presumption of innocence, has to be given the benefit of the doubt."
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- This direction was in accordance with well established authority: Shepherd v The Queen (No 5) (1990) 170 CLR 573 per Dawson J at 579.
30 In my view it was open to the jury to be satisfied beyond reasonable doubt of the guilt of Dodd. That is, on the whole of the evidence it was, in my view, open to the jury to be satisfied beyond reasonable doubt that he was guilty. It is not to the point that Dodd may himself have had an innocent explanation for the possession of various allegedly incriminating items and for the telephone calls recorded with King, but the jury clearly rejected that evidence. There was evidence in the form of the items in the vehicle, the telephone calls and Dodd's presence at the house at Ascot during most of the day of 2 August, from which the jury, properly instructed as it was, was entitled to find beyond reasonable doubt that the only inference which could be drawn was one consistent with Dodd's guilt.
31 Most of the submissions made to this Court by counsel for Dodd were submissions properly to be made (and no doubt were made) to the jury. For myself, in examining carefully the evidence which is before the jury, I am unable to conclude that there is any, let alone a significant possibility, that Dodd was wrongfully convicted. There is no indication in the evidence that there were any discrepancies, inadequacies or otherwise any lack of probative force in the evidence such as to lead the Court to conclude that there is a significant possibility that an innocent person has been convicted: M v The Queen (supra) at 494. For these reasons I would dismiss the appeal of Dodd against his conviction.
32 Each of Dodd, King and Harris seek leave to appeal against the sentence of 6 years imposed by the learned trial Judge. Dodd and Harris contend that the sentence of 6 years' imprisonment was manifestly excessive in that the offence was not so serious as to justify that term of imprisonment. King contends that although the sentence of 6 years' imprisonment was within the range of sentences that may have been imposed, the learned trial Judge ought, in the exercise of his discretion, to have suspended the sentence.
33 Particulars common to each of the applications for leave to appeal against sentence stress the following factors:
(a) the amateurish nature of the venture with its lack of prospects of success;
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- (b) the inability to actually manufacture methylamphetamine with the chemicals and equipment which were in possession of the offenders;
(c) the very small potential yield of the methylamphetamine, had it been manufactured;
(d) the personal circumstances of each of the offenders, they each being of prior good character and of relative youth.
34 In the case of Dodd, emphasis was also placed upon the fact that he was not involved in the initial steps in the conspiracy and came late to it, the contention being that he ought not to have received the same sentence as that imposed upon King and Harris. Counsel for Harris also argued that the sentence was erroneous when compared with sentences imposed on like offenders.
35 Counsel for Dodd developed his submissions by first contending that the learned trial Judge erred in considering that each of the offenders was equally culpable. Reference was made to the following passage in his Honour's sentencing comments:
"In relation to your involvement in the conspiracy as far as I can see each of you should receive the same sentence and this is particularly in relation to you, Mr Dodd, because people who enter a conspiracy all play their parts and should generally be held to be equally culpable, and it is the case that albeit that some people may play a lesser role or enter the conspiracy at a later stage the conspiracy has been formed and each of you must bear the same responsibility. The courts have said time and time again that where this type of operation is envisaged then all the parties who are to engage in and play their part in carryng out the plan and all should be held to be equally culpable.
I have considered all the available options. You can all stand up. General deterrence is an important factor in sentencing for these types of conspiracy offences. If people are prepared to enter conspiracies to manufacture methylamphetamine which is know to be a drug which causes great harm in the community at large then the community expects that significant punishment will be imposed upon offenders who are detected and found guilty. No community based option would be appropriate in all the circumstances. There were no sufficient reasons why any of your sentences should be suspended."
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36 Reliance was placed upon what was said in Savvas v The Queen (1995) 183 CLR 1 where it was stressed that in sentencing for conspiracy, consideration must be given to the criminality of the offender by reference to the content, duration and reality of the conspiracy and the actions of the offender himself. (See also Townsend v The Queen [2001] WASCA 249).
37 This submission is undoubtedly correct. There will be many conspiracy cases in which it will become important for the trial Judge to separate out the roles played by each of the co-conspirators. An example is Christianos v The Queen [2000] WASCA 184. There, considerations of the culpability of various conspirators required proof of their place in what was termed the "senior hierarchy of the organisation".
38 This case was not, however, one in which the learned trial Judge had any difficulty in concluding that the three offenders were equally culpable. If his Honour was saying in the passage to which I have referred that in all conspiracy cases, all co-conspirators will be held equally culpable, that was incorrect. I do not, however, take his Honour's comments to mean that. Instead, I understand his Honour to be saying that looking carefully at the evidence in this case, it was apparent that each of the co-conspirators had played a generally equal role. Some may have played a lesser role than others and entered the conspiracy at a later stage than others, but in essence, each was as equally culpable as the other.
39 Given the evidence to which I have referred, I can find no error in his Honour's conclusions in this regard. The conspiracy was a limited one, encompassing the period 11 July to 4 August 1999 and each of the co-conspirators clearly carried out certain acts in relation to the conspiracy. Those performed by Dodd, I have previously set out. On the evidence, it seems to me, that those performed by the other two offenders were more or less of equal import.
40 Although counsel argued that his client should be treated differently from at least one other co-offender because he gave evidence, there can be nothing in this point. Likewise, the argument that Dodd had not fought the issue of identification in the same way as the other two offenders could make no difference to the sentence he received.
41 It was further argued on behalf of Dodd that the practical potential of the operation was an important consideration in assessing the seriousness of the offence. At the time of apprehension no drugs could have been
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- produced and that being so, the sentence should have been considerably less than sentences commonly imposed for the offence of manufacture of amphetamines or methylamphetamines. A number of different cases of manufacture were referred to.
42 It is true that in this case the potential for manufacture of methylamphetamine was not great. Priddis gave evidence that from the quantity of tablets involved, just under 20 grams of methylamphetamine may have been produced but conservatively that might be as low as 10 grams. However, in Townsend v The Queen (supra) I pointed out (at [16]) that it would be impossible in many cases for the Court to examine and conclude what prospects there were of success in the venture of manufacture of an illegal drug. I there said "the appellant intended to effect the purpose of the conspiracy and that, in my view, was his criminality".
43 This, in my view, is relevant to the present case. Dodd was a co-conspirator who intended to effect the purpose of the conspiracy, namely the manufacture of methylamphetine. He played a distinct role in the conspiracy. Just what exactly would have been realised in terms of manufactured drug it is difficult to know, although Priddis made some suggestions in that regard. The actual weight of the drug likely to be produced is relevant, but of lesser importance than counsel for Dodd sought to ascribe to it. In Wong v The Queen (2001) 76 ALJR 79, it was pointed out that in cases involving importation of narcotics, the particular amount of narcotic involved can have significance in the fixing of the sentence to be imposed upon an offender, but (at [69]) Gaudron, Gummow and Hayne JJ pointed out:
"It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved."
- These observations are equally applicable to a case of conspiracy to manufacture a drug.
44 The maximum sentence applicable for the offence of conspiracy to manufacture methylamphetamine is 20 years' imprisonment. This Court has said in Nobes v The Queen, unreported; CCA SCt of WA; Library No 980097; 5 March 1998 and Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997 that a starting point of something like 15 years' imprisonment is appropriate for persons
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- principally involved in a major commercial enterprise of manufacture of methylamphetamines. The sentence imposed upon Dodd was much less than that and in the course of his sentencing comments the learned trial Judge made it clear that he regarded this conspiracy to be much less serious than that involving Nobes and Schuster. His Honour said:
"In fixing sentences I take account of the fact that the conspiracy was not sophisticated as that involved in cases involving Schuster and Nobes and the other matters who were involved in that Gingin conspriacy with whom I dealt. There the starting point for the principals was a term of 15 years' imprisonment. The starting point for your sentences must be considerably less than that. However, no discount can be allowed for any remorse which may have been reflected in a plea of guilty."
46 It is, of course, essential to bear in mind the principles applicable to the role of an appellate court when asked to interfere with the discretionary judgment of a sentencing Judge. In Lowndes v The Queen (1999) 195 CLR 665 at [15] it was put this way:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
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- The argument on behalf of Dodd (and the other applicants) seemed to proceed on the basis that this Court could justify a relatively minor reduction in the sentence imposed by the learned sentencing Judge, but that approach I reject.
47 The applicant King put forward his appeal on a rather different basis than Dodd and Harris. It was conceded that the sentence of 6 years' imprisonment imposed by the learned sentencing Judge was within the range of penalties available, but it was contended that "a lesser period of imprisonment may also be within the range" and in any event King should have received a suspended sentence of imprisonment.
48 The contention that a lesser period might have been within the range I have already dealt with. Even if it be accepted that something less than 6 years may have been appropriate, that is no basis upon which this Court can interfere with the sentence imposed.
49 The submission in relation to the suspended sentence is novel. Counsel for King accepts that for a sentence of 6 years' imprisonment it will be impossible to suspend the sentence: Pursuant to s 76(1) of the Sentencing Act 1995 only a sentence of 60 months or less may be the subject of a suspended sentence. However, counsel argued that the learned sentencing Judge should have taken the view that a suspended sentence would, in all the circumstances, have been appropriate for King and should therefore have imposed a sentence of 60 months or less to enable that sentence to be suspended.
50 I cannot accept this submission. It is clear that suspension of imprisonment is only available to the Court where it has first concluded that a sentence of imprisonment is warranted and imposed that sentence. It must be a sentence of 60 months or less before consideration can be given to the question of suspension. Kirby J said as much in Dinsdale v The Queen (2000) 202 CLR 321 at [76] - [78], a passage considered by Malcolm CJ in Etrelezis v The Queen [2001] WASCA 327 at [20] to represent the binding view of the High Court on the subject. What Kirby J said at [78] was as follows:
"From s 76, it may be inferred that suspension of imprisonment is only to be available where, first, the court has concluded that sentence to a term of imprisonment is warranted and where the court imposes that sentence. Moreoever, by s 76(1), it is not to be available where the term of imprisonment imposed, in aggregate terms, is more than five years. Within such limitations, the discretion apparently conferred on the court is
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- expressed in very wide language. By s 76(1), a court 'may order' suspended imprisonment. By s 76(2), it may not do so unless imprisonment for the term or terms equal to that suspended would, if it were not possible to suspend the sentence, be appropriate 'in all the circumstances'. Plainly, s 76(2) is designed to restrain the imposition of an artificial term of imprisonment, inflated with the object of giving an appearance of sever punishment although it is expected that this will not actually be carried into effect."
- That, in my view, effectively disposes of the appeal of King. A sentence of 6 years imprisonment was clearly within the range of sentences open to the learned Judge. Once his Honour fixed on that sentence, it was impossible for him to consider the question of suspension.
51 Harris put forward a number of amended grounds of appeal at the hearing. They were, however, considered by counsel for Harris to effectively come down to one point: the sentence of 6 years' imprisonment was manifestly excessive because there was no finding and could be no finding that any significant quantity of drug was to be produced and, in particular, there was no conclusion reached (nor could it be reached) that the proposed manufacture was for a commercial purpose.
52 It is true that the learned trial Judge made no attempt to conclude whether or not the proposed manufacture was for commercial purposes or for some other purpose. In my view, his Honour was unable to reach any conclusion in that regard. Each of the applicants pleaded not guilty and it was not therefore a case in which anybody was contending that they had entered into the conspiracy for the purpose of manufacturing methylamphetamine for personal use. It was not, in my view, necessary that the learned trial Judge seek to reach a conclusion as to the reason for the conspiracy. It was enough that his Honour concluded that the conspiracy was to manufacture methylamphetamine and to identify the role played by each of the applicants in the conspiracy.
53 It is true that there was evidence from Priddis that something between 10 and 20 grams of methylamphetamine was the most that could have been manufactured from the 330 Sudafed tablets found at the address in Ascot. What the applicants intended to do with that quantity of drug, if and when manufactured, there was absolutely no evidence. It would therefore have been wrong for the learned trial Judge to have concluded that the applicants were in the conspiracy for the purpose of manufacturing methylamphetamine for commercial gain or commercial
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- purposes. The evidence being silent on the issue, it was not for his Honour to make any findings in that regard.
54 I have already pointed out in relation to Dodd that the learned trial Judge took full account of the fact that the conspiracy was a much less serious one than the major commercial enterprise in the cases of Nobes and Schuster. However, counsel for Harris sought to compare the sentence imposed on his client with a number of sentences imposed in this Court in recent times for offences of conspricay to manufacture/possess methylamphetmine; manufacture of amphetamine; manufacture of methylamphetamine; possession of methylamphetamine with intent to sell or supply and others. A table of comparative tables was produced.
55 For my part, I do not find such a table to be helpful. As I have already pointed out, the High Court recently stressed in Wong v The Queen (supra) that the actual weight of the drug in possession of, imported by or manufactured by an offender is not critical to the sentence to be imposed. It can, of course, be relevant. The greater the quantity the greater the evidence of commercial enterprise. However, here the offence of which each applicant was convicted was conspiracy to manufacture methylamphetamine. It was that conspiracy which constituted the criminality of the applicants and it is not to the point to compare other cases in which the conspiracy to manufacture a drug may have yielded a greater quantity or a lesser quantity.
56 The conspiracy here was to enter into the illegal enterprise of manufacturing an illegal drug. It is a drug which this Court has said on many occasions is becoming pervasive in the community. Those who offend in relation to it have been warned on numerous occasions that sentences of a deterrent nature will be appropriate. In Cabassi v The Queen [2000] WASCA 305, Wheeler J (at [9] - [10] put it this way:
"9 Amphetamines are now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibitive drugs. They may not be equated with heroin or cocaine but are to be regarded as "in the same category": Bellissimo v The Queen (1996) 84 A Crim R 465 at 467, 469 per Rowland J, at 471 per Anderson J, Darwell v The Queen (1997) 94 A Crim R 35 at 40 per Malcolm CJ (Kennedy and Franklyn JJ agreeing).
10 The manufacturer of a prohibited drug is at the highest end of the chain of supply. Accordingly, the conduct of a
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- person who manufactures a prohibited drug with intent that it be distributed, should be viewed more seriously than the conduct of a person who merely obtains possession of the same quantity of that drug with intent to sell or supply it to another. Indeed, the legislative view of the seriousness of the offence is reflected in the maximum penalty to which I have already referred. The distribution of amphetamines in the community results in very serious consequences for both its consumers and the community generally. The courts have therefore recognised that in sentencing for offences involving the manufacture and distribution of amphetamines, deterrence and the protection of the community are the principal considerations, while matters personal to the offender will be of limited significance: Bellissimo, Darwell."
57 I am of the view that the sentence of 6 years' imprisonment imposed upon Harris was clearly within the range of sentences applicable for the offence in question and no grounds have been shown for this Court to interfere with it.
58 I would therefore refuse leave to appeal in each case.
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