Dooling v The State of Western Australia

[2012] WASCA 95

DOOLING -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 95

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 95
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:215/2011	Heard:	4 APRIL 2012
Coram:	McLURE P MAZZA JA	Delivered:	3/05/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Leave to extend time refused Appeal dismissed
Category:	B
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Parties:	MICHAEL ROBERT DOOLING THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Application for leave to appeal against sentence Attempt to manufacture a prohibited drug Totality Seriousness of attempt in contrast with completed offence -Turns on own facts
Legislation:	Misuse of Drugs Act 1981 (WA), s 6(1)(b), s 33(1)
Case References:	Gandini v The State of Western Australia [2011] WASCA 208 Giglia v The State of Western Australia [2010] WASCA 9 Johnston v The State of Western Australia [2008] WASCA 221 McKeagg v The Queen [2006] WASCA 26 McLeod v The State of Western Australia [2009] WASCA 233 Paparone v The Queen [2000] WASCA 127 Reid v The State of Western Australia [2012] WASCA 23 Roffey v The State of Western Australia [2007] WASCA 246 Rumenos v The State of Western Australia [2011] WASCA 59 The State of Western Australia v Hyder [2011] WASCA 256 White v The State of Western Australia [2007] WASCA 119

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOOLING -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 95 CORAM : McLURE P

MAZZA JA

HEARD : 4 APRIL 2012 DELIVERED : 3 MAY 2012 FILE NO/S : CACR 215 of 2011 BETWEEN : MICHAEL ROBERT DOOLING

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STAVRIANOU DCJ

File No : IND 1229 of 2011

Catchwords:

Criminal law - Application for leave to appeal against sentence - Attempt to manufacture a prohibited drug - Totality - Seriousness of attempt in contrast with completed offence -Turns on own facts

(Page 2)

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(b), s 33(1)

Result:

Leave to extend time refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr B Hanbury
Respondent : No appearance

Solicitors:

Appellant : Beau Hanbury
Respondent : Director of Public Prosecutions (WA)

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

Gandini v The State of Western Australia [2011] WASCA 208
Giglia v The State of Western Australia [2010] WASCA 9
Johnston v The State of Western Australia [2008] WASCA 221
McKeagg v The Queen [2006] WASCA 26
McLeod v The State of Western Australia [2009] WASCA 233
Paparone v The Queen [2000] WASCA 127
Reid v The State of Western Australia [2012] WASCA 23
Roffey v The State of Western Australia [2007] WASCA 246
Rumenos v The State of Western Australia [2011] WASCA 59
The State of Western Australia v Hyder [2011] WASCA 256
White v The State of Western Australia [2007] WASCA 119


(Page 3)

1 McLURE P: This is an application for an extension of time and leave to appeal against sentence. The appellant was convicted on his fast-track pleas of guilty of two counts of attempting to manufacture methylamphetamine contrary to s 6(1)(b) and s 33(1) of the Misuse of Drugs Act 1981 (WA) (the MDA). Section 33(1) provides that a person who attempts to commit an offence is liable on conviction to the same penalty to which a person who commits the principal offence is liable. The maximum penalty for the offence of attempting to manufacture methylamphetamine is 25 years' imprisonment.

2 On 25 November 2011, Stavrianou DCJ sentenced the appellant to a term of 2 years' imprisonment on each count and ordered the sentences to be served concurrently. Thus the total effective sentence is 2 years. The appellant was made eligible for parole.

3 The proposed ground of appeal is internally inconsistent, at one point suggesting that cumulation had been ordered. The substance of the challenge is that the total sentence of 2 years' imprisonment infringes the first limb of the totality principle. The claim is that the total sentence is too long.

4 The facts of the offending are as follows. On 8 June 2011 detectives executed a search warrant under the MDA at the premises at which the appellant resided. Police located a number of articles used in the manufacture of methylamphetamine, including acids, solvents, hydrogen chloride gas generators, lithium batteries and numerous items improvised for use in the manufacturing process. Hydrogen chloride gas generators are used to cause methylamphetamine to become crystallised. When interviewed by police, the appellant admitted that on two occasions he had aided other persons in an attempt to manufacture methylamphetamine, allowing them to use his shed. The appellant told police that he aided in the attempted manufacture in order to obtain a share of the drug.

5 The appellant was aged 40 at the time of sentencing. He was married with children, one of whom died in 2002. The appellant suffered a serious accident in 2010, severing his foot which was reattached. He has longstanding drug and alcohol problems. He commenced his drug and alcohol use at age 12. Two of his children were taken into care in the first half of 2011 due to substance abuse, domestic violence and family dysfunction issues.

6 The appellant's prior record includes one offence of burglary and a number of drug related offences. He had not served a term of

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imprisonment for any of his prior offences. The sentencing judge found that the appellant was remorseful and had taken steps with a view to rehabilitation.

7 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24]. A breach of the totality principle involves a claim of implied, not express, error.

8 As this court has noted in another context, the circumstances of an attempt may not be less serious than the circumstances of a completed offence: Gandini v The State of Western Australia [2011] WASCA 208 [9]. That is particularly the case for attempts under the MDA where the penalty is the same as for a completed offence: Reid v The State of Western Australia [2012] WASCA 23 [45].

9 Research has revealed only two cases in which this court has been called upon to have regard to sentences imposed for an attempt to manufacture a prohibited drug: McKeagg v The Queen [2006] WASCA 26 and McLeod v The State of Western Australia [2009] WASCA 233. The total sentence imposed on the appellant is consistent with the sentencing in those cases. Moreover, when the offender has all the necessary materials to undertake the manufacturing process, there is little difference in culpability between an attempt and a completed offence. Thus the sentences imposed for attempts to manufacture are broadly consistent with the sentences imposed for completed offences: Rumenos v The State of Western Australia [2011] WASCA 59; Johnston v The State of Western Australia [2008] WASCA 221; The State of Western Australia v Hyder [2011] WASCA 256; White v The State of Western Australia [2007] WASCA 119; Paparone v The Queen [2000] WASCA 127.

10 This court has consistently underscored the seriousness of offences relating to the manufacture of prohibited drugs. It may be accepted that, having regard to the appellant's cooperation and genuine remorse, the individual sentences of 2 years are towards the high end of the scale, but that is counterbalanced by the order for total concurrency. As to which, see Giglia v The State of Western Australia [2010] WASCA 9 [40]. I am not persuaded that the ground of appeal has any reasonable prospects of

(Page 5)

succeeding. Accordingly, leave to extend time should be refused and the appeal dismissed.

11 MAZZA JA: I agree with McLure P.