Lovett v The State of Western Australia

[2013] WASCA 78

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   LOVETT -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 78

CORAM:   NEWNES JA

MAZZA JA

HEARD:   1 MARCH 2013

DELIVERED          :   20 MARCH 2013

FILE NO/S:   CACR 266 of 2012

BETWEEN:   GUY ERIC LOVETT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SLEIGHT DCJ

File No  :IND 1685 of 2011

Catchwords:

Criminal law - Appeal against sentence - Attempt to manufacture methylamphetamine - Capacity to produce 1.52 g of methylamphetamine at 80% to 90% purity - Early plea of guilty - Minor criminal record - On bail on earlier drug charge - 2 years and 6 months' immediate imprisonment

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Justine Fisher

Respondent:     Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337

Dooling v The State of Western Australia [2012] WASCA 95

McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51

R v Pallister [2002] WASCA 68

Rumenos v The State of Western Australia [2011] WASCA 59

1. NEWNES JA:  This is an application for leave to appeal against sentence.  The appellant was sentenced to a term of 2 years and 6 months' immediate imprisonment on one count of attempting to manufacture methylamphetamine.  He seeks to appeal on the ground that the sentence was manifestly excessive.

Background

1. On 11 August 2011, police attended a property on Great Northern Highway, Millendon following a fire in a garage caused by an explosion.  They were accompanied by chemists from the Chemcentre of Western Australia. 

2. A search of the property revealed chemicals and apparatus used in the manufacture of methylamphetamine in sufficient quantities to enable the drug to be manufactured using what is commonly known as the 'Nazi method'.  The chemicals found included 1.36 g of pseudoephedrine, an amount which had the potential to yield 1.52 g of methylamphetamine at a purity of between 80% and 90%.  An analysis of the items found at the property disclosed that methylamphetamine had previously been manufactured using the equipment. 

3. The explosion occurred while the appellant was attempting to produce gas as part of the process of manufacturing methylamphetamine.  The appellant had arranged with the tenant of the garage to have the use of the garage on the day of the explosion.  He did so for the purpose of producing the gas.  Substantial damage was caused to the garage by the explosion and the appellant suffered 15% partial deep burns to the face, back, forearms and hands.  He was taken to Royal Perth Hospital where he was admitted to the intensive care unit before being transferred to the burns unit.

4. On 15 August 2011, the appellant discharged himself from hospital against medical advice.  He was apprehended on 7 September 2011.

5. On 5 July 2012, the appellant was committed to stand trial in the District Court on one count of attempting to manufacture methylamphetamine and another count of manufacturing methylamphetamine in 2010.  He pleaded guilty to the first count on the morning of the trial, following an agreement with the state that the second count would be discontinued. 

The sentencing remarks

1. In his sentencing remarks, the sentencing judge noted that the appellant had tried to minimise his involvement by suggesting that he simply produced the gas.  His Honour observed that that was in any event an important part of the process and that the appellant was clearly very involved in the manufacturing process.  He accepted that a portion of the methylamphetamine to be produced was for the appellant's own use.

2. The sentencing judge noted that the offence was committed while the appellant was on bail on another charge of manufacturing methylamphetamine.

3. Turning to the appellant's personal circumstances, his Honour observed that the appellant was 49 years of age and had two adult children.  He had a good work history and in 1999 had commenced working in the mining industry.  He had subsequently become involved in drug use and eventually had resigned from his employment.  For the three‑year period leading up to the offence the appellant had been involved in a lifestyle of drug use.  The appellant had a minor criminal record, including convictions in 2010 for possession of methylamphetamine and MDMA for which he received a total fine of $600.

4. In mitigation, the sentencing judge took into account the appellant's plea of guilty, which his Honour treated as an early plea, it having been entered as soon as the state discontinued the other count.  His Honour noted the remorse which it demonstrated.  His Honour also took into account the appellant's generally good prior record and, up to the time he started taking drugs, his good character.  He noted too that the appellant had completed rehabilitation courses while on remand.  In relation to the appellant's injuries, the sentencing judge took into account that the appellant had been injured, but observed that the extent of the injuries was indicated by the appellant's ability to discharge himself from hospital within a few days of the incident.

5. His Honour sentenced the appellant to a term of 2 years and 6 months' immediate imprisonment, with eligibility for parole.

The proposed ground of appeal

1. The sole ground of appeal is that in all the circumstances the sentence was manifestly excessive.

Disposition of the application

1. A claim of manifest excess depends upon establishing an implied error from the actual sentence imposed.  In determining whether a sentence is manifestly excessive it must be viewed in the light of the maximum sentence prescribed for the offence, the standards of sentencing customarily imposed for the offence, the seriousness of the circumstances of the offence, and the personal circumstances of the offender:  Chan v The Queen (1989) 38 A Crim R 337, 342.

2. The maximum penalty under the Misuse of Drugs Act 1981 (WA), for an attempt to manufacture a prohibited drug is the same as that for the completed offence, namely 25 years' imprisonment and a fine of $100,000.

3. It has been suggested that in such situations the 'conventional approach' is nevertheless to treat an attempt as being less serious than a completed offence:  McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51 [21], [55]. That general proposition, however, is subject to the particular circumstances of the offending and the offender, by which the culpability of an offender is ultimately to be determined. The circumstances of an attempt may not be less serious than the circumstances of a completed offence: Dooling vThe State of Western Australia [2012] WASCA 95 [8].

4. It is well‑established that the dominant sentencing consideration for the offence of attempting to manufacture methylamphetamine, as for the offence of manufacturing methylamphetamine, is general deterrence, and factors personal to the offender carry less weight than they might in other circumstances.  That is the case whether the drug is intended solely for the offender's own personal use or for some other purpose, such as financial gain:  R v Pallister [2002] WASCA 68 [31].

5. In this case, the appellant's role in the manufacturing process was not incidental but substantial.  The appellant had organised the use of the garage at the premises in order to manufacture the gas.  The manufacture of the gas was an important part of the manufacturing process.  It also put at risk anyone in the vicinity.  It is recognised that the process of manufacture of methylamphetamine is dangerous to the participants, to the police, and to members of the public:  Rumenos v The State of Western Australia [2011] WASCA 59 [35] ‑ [36]. The danger is graphically illustrated by this case. The explosion and resulting fire caused substantial damage to the building and no doubt it is only by good fortune that no‑one else was injured.

1. It is also a significant factor in this case that the appellant committed the offence while he was on bail for another offence.

2. In support of the ground of appeal, the appellant's counsel referred to sentences imposed in several other cases, namely Perry; Pallister; and Dooling.  None of those cases assist the appellant.  Nor do any of the other cases I have reviewed for the purposes of this application.

3. Having regard to the nature and circumstances of the offending, the sentence in this case clearly fell within an appropriate sentencing range.  The ground of appeal has no reasonable prospect of succeeding.

Conclusion

1. Leave to appeal should be refused and the appeal dismissed.

2. MAZZA JA:  I agree with Newnes JA.