McKeagg v The Queen
[2006] WASCA 26
•22 FEBRUARY 2006
McKEAGG -v- THE QUEEN [2006] WASCA 26
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 26 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CACR:12/2005 | 11 NOVEMBER 2005 | |
| Coram: | ROBERTS-SMITH JA PULLIN JA MURRAY AJA | 22/02/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction allowed Conviction quashed Conviction of attempt to manufacture drug substituted Applicant resentenced | ||
| A | |||
| PDF Version |
| Parties: | WAYNE ALLEN McKEAGG THE QUEEN |
Catchwords: | Criminal law and procedure Appeal Conviction of manufacture of prohibited drug Accused embarked on process of manufacture Whether offence of manufacturing drug may be committed before drug obtained by process No drug produced Whether on the facts there was an attempt to manufacture Substitution of conviction of attempt to manufacture prohibited drug Words and phrases "Manufacture" |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(5)(c) Criminal Code (WA), s 4, s 10D, s 599A Misuse of Drugs Act 1981 (WA), s 6(1)(b), s 33(1) |
Case References: | Calabria v The Queen (1983) 151 CLR 670 Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336 Pinkstone v The Queen (2004) 219 CLR 444 R v BD (2001) 122 A Crim R 28 R v Cervelli [1998] 3 VR 776 R v Darwell (1997) 94 A Crim R 35 R v Grasso [1950] VLR 21 R v McCoy (2001) 51 NSWLR 702 R v Thomas (1993) 67 A Crim R 308 Spies v The Queen (2000) 201 CLR 603 Brady v The Queen [2003] WASCA 154 Cabassi v The Queen [2000] WASCA 305 Jarvis v The Queen (1993) 20 WAR 201 Lim v The Queen [1999] WASCA 296 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 R v Abela (2002) 134 A Crim R 392 R v Boyd [2001] QCA 421 R v Everett (1994) 73 A Crim R 550 R v Kaddour [2005] NSWCCA 303 R v Pallister (2002) 131 A Crim R 452 R v Paparone (2000) 112 A Crim R 190 R v Rudzitis (2003) 143 A Crim R 303 R v Yates [1985] VR 41 Shipley v The Queen [2003] WASCA 247 Worth v The Queen [2001] WASCA 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : McKEAGG -v- THE QUEEN [2006] WASCA 26 CORAM : ROBERTS-SMITH JA
- PULLIN JA
MURRAY AJA
- CACR 30 of 2005
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
Citation : McKEAGG -v- THE QUEEN
File No : BUN 21 of 2003
Catchwords:
Criminal law and procedure - Appeal - Conviction of manufacture of prohibited drug - Accused embarked on process of manufacture - Whether offence of
(Page 2)
manufacturing drug may be committed before drug obtained by process - No drug produced - Whether on the facts there was an attempt to manufacture - Substitution of conviction of attempt to manufacture prohibited drug
Words and phrases - "Manufacture"
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5)(c)
Criminal Code (WA), s 4, s 10D, s 599A
Misuse of Drugs Act 1981 (WA), s 6(1)(b), s 33(1)
Result:
Appeal against conviction allowed
Conviction quashed
Conviction of attempt to manufacture drug substituted
Applicant resentenced
Category: A
Representation:
Counsel:
Applicant : Mr J McGrath
Respondent : Mr K P Bates & Mr C J Henderson
Solicitors:
Applicant : Max Owens & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Calabria v The Queen (1983) 151 CLR 670
Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336
Pinkstone v The Queen (2004) 219 CLR 444
R v BD (2001) 122 A Crim R 28
R v Cervelli [1998] 3 VR 776
(Page 3)
R v Darwell (1997) 94 A Crim R 35
R v Grasso [1950] VLR 21
R v McCoy (2001) 51 NSWLR 702
R v Thomas (1993) 67 A Crim R 308
Spies v The Queen (2000) 201 CLR 603
Case(s) also cited:
Brady v The Queen [2003] WASCA 154
Cabassi v The Queen [2000] WASCA 305
Jarvis v The Queen (1993) 20 WAR 201
Lim v The Queen [1999] WASCA 296
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Postiglione v The Queen (1997) 189 CLR 295
R v Abela (2002) 134 A Crim R 392
R v Boyd [2001] QCA 421
R v Everett (1994) 73 A Crim R 550
R v Kaddour [2005] NSWCCA 303
R v Pallister (2002) 131 A Crim R 452
R v Paparone (2000) 112 A Crim R 190
R v Rudzitis (2003) 143 A Crim R 303
R v Yates [1985] VR 41
Shipley v The Queen [2003] WASCA 247
Worth v The Queen [2001] WASCA 303
(Page 4)
1 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons to be given by Murray AJA. I agree generally with his Honour's reasons and conclusions but wish to make some observations of my own. His Honour has set out the facts and it is not necessary for me to repeat them.
2 In relation to count 1, it was always the Crown case that the applicant was engaged in the process of manufacture but that had not progressed at any stage to the point of actually producing methylamphetamine. The Crown prosecutor said in opening (AB 23) that:
"On the prosecution's case the only reasonable and sensible conclusion that can be drawn is that the accused was engaged in the process of manufacturing methylamphetamine. The liquid hadn't got to the stage where it had assumed the character of being the drug methylamphetamine … but it was but one or two steps short of doing that. [The] evidence will be that that liquid in that flask only needed a few additives to it and it could have been transformed into powered, pure methylamphetamine, and it is that liquid that forms the subject of count 1 on the indictment."
3 Again, in closing, the Crown prosecutor said (AB 305):
"The premises were searched and the equipment and chemicals seized before they became the final product, but on the prosecution case the accused was engaged in the process of doing so."
4 The point that the offence charged in count 1 could not be committed unless methylamphetamine was actually produced, was taken in a submission of no case to answer. His Honour rejected the submission. He held that because the word "manufactures" is not defined in the Misuse of Drugs Act 1981 (WA), it must be accorded its ordinary meaning and in the context of the objects of the Act. His Honour referred to various dictionary definitions, and concluded that the essence of manufacturing is the making of something, and that can be a process, so that to engage in the process - even though not completing it - is to "manufacture". That is the notion which his Honour subsequently embodied in his directions to the jury.
5 Counsel for the respondent relied upon a number of authorities, including R v Thomas (1993) 67 A Crim R 308 and R v McCoy (2001) 51 NSWLR 702.
(Page 5)
6 In Thomas, the appellant was found in possession of a quantity of P-2-P, a raw material used in the manufacture of methylamphetamine. He was convicted of knowingly taking part in the manufacture of a prohibited drug, namely methylamphetamine, in not less than a commercial quantity, contrary to s 6 of the Drug Misuse and Trafficking Act 1985 (NSW). That section included a provision that a person takes part in the manufacture or production of a prohibited drug if that person takes or participates in any step in the process of that manufacture.
7 Gleeson CJ (with whom Cripps JA and Allen J agreed) held (at 311) that whilst obviously not everyone who produces P-2-P does so as a step in the manufacture or production of methylamphetamine, it was never suggested that the appellant intended to dispose of it in any other way, nor that it constituted the end product of his manufacturing activities. His Honour held that where, as was the case there, a person manufactures something with a view to going on to use it in the manufacture of a desired end product, then it is normally proper to regard that as a step in the process of manufacturing the end product - and the fact that the process was interrupted at an intermediate stage did not take the case outside the terms of s 6 of the Act.
8 What the cases do illustrate is first that the outcome in each instance turns upon the construction of the applicable statutory provision and secondly, that the statutory provisions in other Australian jurisdictions generally contain an extended definition of "manufacture".
9 Section 6 of the Drug Misuse and Trafficking Act 1985 (NSW) provides:
"For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug if:
(a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply,
(b) the person provides or arranges finance for any such step in that process, or
(c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the
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- person is the owner, lessee or occupier or in the management of which the person participates."
- By virtue of s 3 and s 6 the ordinary meaning of "manufacture" is extended to embrace steps taken in the process of making something.
10 In his outline of submissions the appellant set out a definition of "manufacture" purporting to be that contained in s 3 of the Misuse of Drugs Act 2001 (NT). That appears to have been done in error, because the provision set out has never been the statutory definition. Section 3 of that Act in fact defines both "manufacture" and "produce", in the following terms:
"'manufacture', in relation to a dangerous drug, includes the process of extracting and refining the dangerous drug;
…
'produce' means -
(a) prepare, package or produce;
(b) offering to prepare, package or produce; or
(c) doing or offering to do an act preparatory to, in furtherance of, or for the purpose of producing;"
"'manufacture', in relation to a drug of dependence or a prohibited substance, means -
(a) carry out any process by which the drug or substance is obtained; or
(b) refine the drug or substance; or
(c) transform the drug or substance into another drug of dependence or prohibited substance;
…"
12 In Queensland s 4 of the Drugs Misuse Act 1986 (Qld) extends the definition of "produce" to include preparatory acts:
"Produce means -
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- (a) prepare, manufacture, cultivate, package or produce;
(b) offering to do any act specified in paragraph (a);
(c) doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in paragraph (a)".
13 Section 4 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) extends the definition of "manufacture" in the following way:
"'manufacture' includes the process of refining, manipulating and mixing any poison or controlled substance (including a poison or controlled substance in the raw state); and 'manufacturer' has a corresponding interpretation."
14 In Tasmania, s 3 of the Misuse of Drugs Act 2001 (Tas) provides that:
"'manufacture' means any process by which a substance is produced, other than the cultivation of a plant, and includes -
(a) the process of extracting or refining a substance; and
(b) the process of transforming the substance into a different substance."
15 Finally, in South Australia s 32 of the Controlled Substances Act 1984 (SA) provides:
"(4) Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person -
(a) takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or
(b) provides or arranges finance for any such step in that process; or
(c) provides the premises in which any such step in that process if taken, or suffers or permits any
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- such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates."
16 The above jurisdictions have therefore extended the definition of "manufacture" to embrace the process and other preparatory steps leading to the completion of production of the substance - that is, the manufactured substance.
17 The present case is even further removed from a situation in which a person "manufactures" a prohibited drug. The preparatory acts in R v BD (2001) 122 A Crim R 28 were similar to the collection, transport and possession of the ma huang here. If the preparatory acts in BD could not constitute even steps taken in the process of manufacture, it is difficult to see how they could constitute the act of manufacturing methylamphetamine.
18 Given that there is no extended definition of "manufacture" in the Misuse of Drugs Act 1981, it was necessary for the Crown in this case to lead sufficient evidence that the process had been completed and that methylamphetamine had been produced. The case was never put on the basis that had been done. The conviction on count 1 must accordingly be quashed.
19 As to sentence, it is necessary to resentence the applicant for the attempt to commit the offence.
20 It is important to bear in mind that the culpability of an offender is to be gauged, not by the wording of the statute creating the offence, but by what he or she actually did.
21 Whether viewed as conduct which (just) amounted to the completed offence, or as an attempt which was only one small step short of the completed offence, it seems to me the applicant's culpability is very much the same - and this is not a situation in which there is a lower statutory maximum for the attempt. That said, I acknowledge the point made by Murray AJA that even so, the "conventional approach" is to treat the attempt as being less serious than the completed offence. Upon that basis, and only for that reason, I agree that the sentence imposed for the attempt should here be less than that which was originally imposed for the completed offence, although I think the principle can have limited operation in the circumstances of this case.
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22 I would impose a sentence of 4 years on count 1, structured in the way suggested by Murray AJA to produce an aggregate of 4 years 2 months' imprisonment (giving an overall reduction of 1 year).
23 PULLIN JA: I have had the opportunity of reading a draft of the reasons of Murray AJA. Like his Honour, I would also grant leave to appeal, allow the appeal in relation to count 1, quash the conviction in relation to that count and dismiss the appeal against conviction for count 2. I do so for the reasons given by Murray AJA. I also agree with his Honour that instead of ordering a re-trial in relation to count 1, s 30(5)(c) of the Criminal Appeals Act 2004 (WA) should be employed, and a judgment of conviction for attempting to manufacture methylamphetamine should be entered. I do so for the reasons given by his Honour as supplemented by the following short observations.
24 The condition in s 30(5)(c)(i) requires that the offender could have been found guilty of some other offence instead of the offence which was actually charged. That condition is satisfied because, at the time of the trial, s 599A of the Criminal Code (WA) (now see s 10D of the Criminal Code) provides that "[u]pon an indictment charging a person with committing any offence, he may be convicted of attempting to commit … that offence …". See Calabria v The Queen (1983) 151 CLR 670 at 676.
25 In relation to the condition in s 30(5)(c)(ii), the facts "need not be logically implied by the verdict, because regard may be had to the evidence and common ground at the trial." See R v Cervelli [1998] 3 VR 776 at 787 per Callaway JA; Spies v The Queen (2000) 201 CLR 603 at [27] and the example provided by R v Grasso [1950] VLR 21 at 28 - 29.
26 The erroneous direction given by his Honour was a direction that an attempt to manufacture methylamphetamine was to manufacture methylamphetamine. As a result the jury, by returning a guilty verdict, must have been satisfied of the facts which proved him guilty of the attempt. The jury was aware of the difference between an attempt and preparation because they were given a direction in that regard in relation to the other count.
27 I agree with Murray AJA's reasons and proposed orders in relation to sentencing.
28 MURRAY AJA: The applicant was presented in the District Court at Bunbury upon an indictment charging him that:
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- (1) between 15 June and 8 September at Manjimup he manufactured a prohibited drug, methylamphetamine.
(2) on 8 September 2000 at Manjimup he attempted to manufacture a prohibited drug, methylamphetamine.
29 He was tried by a jury and convicted of both offences, on 2 February 2005.
30 On 25 February 2005 he was sentenced for the first offence to a term of 4 years and 8 months imprisonment. That term was arrived at by reducing by a third the sentence of 7 years imprisonment which the trial Judge would otherwise have imposed were it not for the amendments made to the Sentencing Act 1995 (WA), with effect from 31 August 2003. That reduction was required by Sch 1 cl 2 of the amending Act.
31 For the second offence, the attempt to manufacture methylamphetamine, the applicant was sentenced to 2 years 8 months imprisonment, reflecting a one-third reduction from a sentence of 4 years imprisonment which would otherwise have been imposed. His Honour ordered that this term take effect partly cumulatively upon the first, after the applicant had served 2 ½ years of the first term. The overall term was therefore 5 years and 2 months, which was backdated to take effect from 23 January 2005.
32 The application for leave to appeal against both convictions is pursued on the short point of law that the trial Judge erred in directing the jury that it was sufficient to establish that the applicant had manufactured the drug if they were satisfied beyond reasonable doubt that he did an act which was part of the process of manufacture, with the intent of manufacturing a prohibited drug, although no drug was in fact brought into existence.
33 The applicant did not give evidence at the trial, and there is no dispute as to the relevant facts established by the evidence led by the prosecution.
34 As to count 1 on the indictment, in June 2000 the applicant used a false name, Dwayne Allen, to import a 25 kg container of a substance called ma huang from the USA. Ma huang is not itself a prohibited import, but it can be used to create the precursors, ephedrine and pseudoephedrine, used in the manufacture of methylamphetamine. The property where he was living in Manjimup was raided under search warrant by police on 8 September 2000. In a bedroom in the house they
(Page 11)
- found a 25 kg container which had some ma huang in it, an invoice made out to Dwayne Allen, and a page downloaded from a computer, headed "Crystal Meth", which is apparently a pseudonym for methylamphetamine. The content of the document related to obtaining chemicals for the manufacture of that prohibited drug.
35 In addition, in the bedroom there was a box containing various items of laboratory equipment, a pH tester, rubber stoppers, thermometers, test tubes, etcetera. In a shed at the rear of the property was located more laboratory equipment, and a flask containing ma huang and a liquid. When analysed, the liquid contained ephedrine and pseudoephedrine. Various items in the shed contained traces of these substances. I have referred to them as precursors to the creation of methylamphetamine.
36 An expert witness, a chemist, gave evidence that either one of two common methods for conversion of the precursor into methylamphetamine could have been used. The witness's report, dated 22 September 2000, concluded:
"There was sufficient precursor (ephedrine/pseudoephedrine) located at the scene to conservatively produce 790 grams of high purity methylamphetamine. The glassware and equipment located at the scene were suitable for large-scale manufacture of methylamphetamine.
The laboratory appeared to have been recently set up with no previous preparations of methylamphetamine detected on the glassware. Although no methylamphetamine had been produced there was an ongoing extraction of ephedrine/pseudoephedrine from the ephedra extract to yield the precursor required for drug manufacture. Once the ephedrine/pseudoephedrine was isolated from the ephedra extract it would be in a form suitable for conversion into methylamphetamine."
37 In evidence, the witness described the process in some detail, making it clear that a relatively small part of the total procedure was required to convert the material found into crystalline methylamphetamine. The only methylamphetamine located at the property was a mere trace on a set of electronic scales.
38 As to count 2, there was evidence that the applicant, on 29 August 2000, caused the importation into Australia of four 25 kg containers of ma huang from the same source as the original 25 kg container. He also
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- arranged for this material to be transported to his home in Manjimup. This shipment was intercepted by Customs, and the delivery was actually controlled by Australian Federal Police agents. Upon delivery of the containers, they were accepted by the applicant.
39 When the search warrant was executed on 8 September 2000 the four containers were found intact on the rear tray of the applicant's utility on the property. The acts of the applicant relied upon to constitute the attempt to manufacture methylamphetamine were his act of arranging for the importation of the ma huang into this country and for its transport to his premises in Manjimup, and his acceptance of the containers.
40 At the conclusion of the prosecution case, there was a submission that the applicant had no case to answer with respect to count 1, on the ground that one could not be said, within the meaning of the Act, to manufacture methylamphetamine until the process of manufacture actually produced the drug. The trial Judge disagreed. His Honour considered that the word "manufacture" in s 6 of the Act was used in its ordinary meaning and so was apt to describe acts of engaging in the process of manufacture before the process concluded with the production of the prohibited drug. Once that point was arrived at, his Honour considered that the offence committed would be the possession of the drug which was the end product of the process of manufacture. His Honour held that there was a mental element in the process of manufacture, the intention to produce the thing which was being manufactured. His Honour's carefully drawn reasons included the citation of authority.
41 His Honour declined to leave an attempt to manufacture in lieu of the charge of manufacturing methylamphetamine because, he said, "The State's case clearly is not that he was attempting but rather that he was engaged in the process of manufacture of methylamphetamine … ." His Honour took the view that if the jury were not so persuaded beyond reasonable doubt then there was nothing which might constitute an attempt.
42 As to count 2, the submission of no case was that it was not open to the jury to be persuaded of guilt beyond reasonable doubt because there was no evidence that the conduct of the applicant went any further than mere preparation. His Honour rejected that submission, holding that the evidence was sufficient to require the case to be put to the jury for their decision as to whether, with the necessary intent, the conduct of the
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- accused was more than merely preparatory to the commission of the offence.
43 As I have said, the applicant did not give evidence and no evidence was called in his defence. As to count 1, it was submitted on his behalf, in counsel's final address, that the jury could not be satisfied beyond reasonable doubt that methylamphetamine had been produced. It was accepted that the evidence was capable of establishing that ephedrine and pseudoephedrine had been made, but it was submitted that the jury could not conclude that the intention had been to manufacture methylamphetamine. The intention might have been to proceed no further than the making of the ephedrine and pseudoephedrine. As to count 2, if that intention could not be excluded, there could be no attempt constituted by the conduct of the applicant which, it was submitted, in any event was no more than mere preparation to make ephedrine and pseudoephedrine.
44 In directing the jury as to the elements of the offence of manufacturing methylamphetamine, the trial Judge said first that it had to be proved that the applicant "manufactured" methylamphetamine, which his Honour told the jury was a prohibited drug. Then when, immediately afterwards, his Honour commenced to speak at more length about the concept of manufacturing something, he said the first element was that the applicant "attempted to manufacture" methylamphetamine. As his Honour continued his direction, he used the analogy of a table to express the view that one could speak of making a table if no more was produced than two legs. Count 1, his Honour said, involved the allegation that the applicant "manufactured something, meaning that he was making something". His Honour concluded:
"In this case it is alleged that [the applicant] manufactured a prohibited drug, namely methylamphetamine. It follows that to prove the element of manufacture itself the State must prove that he not only engaged in the process of manufacture, but that he did so with the intention of making methylamphetamine."
45 His Honour then turned to the charge of attempting to manufacture methylamphetamine, basing his directions squarely upon the relevant portions of s 4 of the Criminal Code (WA) to give content to the offence of attempting to commit an offence under the Misuse of Drugs Act 1981 (WA), s 33(1). No complaint is made of that direction, which his Honour concluded by putting to the jury the question:
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- "Was the collecting of the four drums of what the State says Mr McKeagg thought to be ma huang and the taking of them to his home where the laboratory was situated out the back in the shed, the first step in the manufacture of methylamphetamine in circumstances where he intended to manufacture methylamphetamine?"
46 I should add that in commencing his directions about the elements of the two offences, his Honour directed the jury in appropriate terms that they were separate charges with different elements to be dealt with separately by the jury, having regard to the evidence relative to each, and that it was not the case that the verdicts need be the same in respect of both counts on the indictment.
47 I have mentioned that the application for leave to appeal is brought against both convictions. Although the ground of the application complains of error in the direction of the trial Judge in respect of count 1, it is also said that that error ought to be regarded as having caused a miscarriage of justice in respect of count 2, because the misdirection as to what may constitute manufacturing the drug might have led the jury astray in their conclusion that, in relation to the second count, the acts of the applicant were not only committed with the intention of manufacturing methylamphetamine, but were so proximate to the process of manufacture that they were to be regarded as more than merely preparatory acts.
48 Section 6(1)(b) of the Misuse of Drugs Act provides for an offence committed by, "a person who --- manufactures or prepares --- a prohibited drug ---". Neither the word "manufactures" nor the word "prepares" is a word defined in the Act, although the term "to possess" is given an extended meaning in s 3(1), as is the term "to supply": as to which see Pinkstone v The Queen (2004) 219 CLR 444, where it was pointed out that under the extended definition a prohibited drug is supplied to another when the drug is forwarded or sent to the other person, regardless of whether or not it gets to the intended recipient.
49 It is therefore appropriate, I think, to give the word "manufacture" its ordinary English meaning of making something out of something different: cfFederal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336, 343. Further, while you can be said to be manufacturing something while that process goes on and before the thing is finally created out of other material, you cannot, in my opinion, within the meaning of s 6(1)(b) of the Misuse of Drugs Act, be said to
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- manufacture a prohibited drug until you make the prohibited drug. That is the completed offence, the production of the drug.
50 In my respectful opinion, the view arrived at by his Honour in this case is wrong, and it follows that he erred in law in the direction he gave the jury with respect to that element of the offence charged in count 1 of the indictment. I have set the direction out above. In fact, his Honour was asked by the jury during their deliberations to repeat what they described as the legal definition of the word "manufactured". His Honour then gave the same direction as he had given previously. The nature of the error means that the conviction of this offence must be quashed, and as there is no evidence that the applicant had ever completed the process of manufacturing methylamphetamine, it is not appropriate to direct a retrial on this count.
51 As to count 2, I do not accept the submission that the nature of his Honour's error in relation to count 1 may have caused the jury to misapply the directions they were given as to count 2, the offence of attempting to manufacture methylamphetamine. The applicant accepts, as I have said, that the directions given by the trial Judge in respect of count 2 were entirely correct. I have discussed them above. When one adds to those directions the fact that his Honour told the jury that they were to pay separate attention to count 2 and make their decision about it having regard to his Honour's directions about that count and the facts as they found them to be in respect of that count, there is, in my opinion, no possibility that there has been a miscarriage of justice in the guilty verdict returned on count 2. I would uphold that conviction.
52 Therefore, as to the appeal against conviction, I would grant leave to appeal, I would allow the appeal, and I would quash the conviction for manufacturing methylamphetamine. I would not order a retrial, but in due course I shall return to count 1 and the alternative verdict which was open in respect of that count, of attempting to manufacture methylamphetamine.
53 It is appropriate before doing so, however, that I should deal briefly with the second matter before the Court, an application for leave to appeal against the sentences imposed for the two offences of which the applicant was convicted. That is an application pursued upon the sole ground that the sentencing Judge's order that the sentences be served partly cumulatively was one which involved error and resulted in an overall term of imprisonment that breached the totality principle. The conviction of the offence of manufacturing methylamphetamine having been quashed,
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- the application for leave to appeal against sentence falls away and should be dismissed. But in passing, it is necessary to note the way in which the application was supported in argument.
54 In the first place, it can be seen that there is no complaint about the length of the individual terms; 4 years and 8 months for the manufacture of methylamphetamine and 2 years and 8 months for the attempt, by arranging for the importation of the four drums of ma huang, their delivery to the applicant's home in Manjimup, and taking possession of them there.
55 It is clear from his Honour's sentencing remarks that the trial Judge, who again considered relevant authorities to which his Honour referred in his sentencing remarks, took the view that the process of manufacture which lay behind count 1 was serious. By s 34(1)(a) of the Act, a crime defined in s 6(1) is punishable by a fine of $100,000 or imprisonment for 25 years, or both. By s 33(1), the attempt to commit such a crime is similarly punishable, although the courts very often take the conventional approach of treating the attempt as being less serious than the commission of the completed offence. That was the course taken by his Honour in this case, and having regard to the facts of the case, he was clearly right.
56 But his Honour was also right to regard the facts which lay behind count 1 as being of particular seriousness. Amphetamines are taken by the courts to be drugs at the top end of the scale of seriousness in the hierarchy of prohibited drugs: R v Darwell (1997) 94 A Crim R 35, 40. As the evidence here established, there was a capacity in the precursor material located in the shed, to produce a substantial quantity of high purity methylamphetamine. The materials seized under search warrant demonstrated a serious attempt to set up a drug producing laboratory which his Honour rightly considered would have a capacity for "large-scale manufacture of methylamphetamine". This was, his Honour accepted, no small business venture.
57 Of course, in such a case it is well accepted that the primary task of the Court is to punish and deter the offender and to pass a sentence which, it is hoped, may generally deter the commission of such serious offences so that the community may be protected from the wide-scale distribution of amphetamines. In any event, the material available to the applicant by way of mitigation was somewhat patchy. When he came to be sentenced he was aged 36. He had a long criminal history, mainly of drug offences and firearms offences, culminating in a conviction for drug importation in 2003, a separate and later matter than the incident of 8 September 2000.
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- The applicant had served the sentence for the importation offence and had been released on parole or, more strictly, a recognizance, on 24 December 2004. It can be seen therefore that he only had a month on parole until he was returned to custody on 23 January 2005, but he had been complying with the conditions of his parole and he had the support of his de facto partner and her family.
58 As to the question whether the sentences his Honour imposed ought to be served cumulatively, and the application to the case of the totality principle, to which his Honour rightly referred as the consideration whether the application of the ordinary rules of sentence, "would result in an inappropriate measure of the total criminality involved in the conduct." His Honour regarded the two incidents reflected in the matters before him as separate and distinct; not one transaction or a continuing episode, but rather two discrete episodes. Nonetheless, his Honour, on totality grounds, made the second sentence he imposed for the attempt to manufacture methylamphetamine partly cumulative upon, but partly concurrent with, the service of the sentence imposed for the offence of manufacturing methylamphetamine, the conviction for which, in my view, should be quashed.
59 That brings me to the present relevance of these matters. The Criminal Appeals Act 2004, s 30, applies to appeals against conviction. If the appeal is allowed, subs (5) applies. So far as is presently material it provides:
"If the Court of Appeal allows the appeal, it must set aside the conviction of the offence ("offence A") and must –
(a) …
(b) …
(c) if –
(i) the offender could have been found guilty of some other offence ("offence B") instead of offence A; and
(ii) the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
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- enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A."
60 Section 30(5)(d) and (e) deal with cases where it is seen that a verdict of not guilty on account of unsoundness of mind would have been appropriate and par (e) is expressed in similar terms to par (c).
61 So far as this case is concerned, I have said that the error of law made by the trial Judge in respect of count 1 and the charge of manufacturing methylamphetamine should lead to the appeal against conviction being allowed, that conviction being quashed, and rather than order a new trial, a judgment of acquittal of that offence should be entered. On count 1, the applicant could have been found guilty of the offence of attempting to manufacture methylamphetamine contrary to the Misuse of Drugs Act, s 6(1)(b) and s 33(1): Criminal Code, s 10D. The question then, upon which the capacity of this Court to enter a judgment of conviction for an attempt to manufacture methylamphetamine depends, is whether this Court is satisfied that the jury must have been satisfied "of facts that proved the offender was guilty" of the offence of attempting to manufacture methylamphetamine.
62 In my opinion, this Court should be so satisfied. We should bear in mind that there was no dispute as to the facts. The trial Judge directed the jury that they must find beyond reasonable doubt that the applicant intended to manufacture methylamphetamine. That, of course, is the mental element involved in an attempt, by virtue of the Criminal Code, s 4. The jury must have so found.
63 Then the question is whether the jury must have been satisfied of facts which would constitute an attempt to manufacture rather than be merely preparatory to the manufacture. I have referred to the way in which his Honour described the process of manufacture as an attempt to manufacture methylamphetamine. The undisputed facts were, and the jury must have been satisfied, that the accused set up the laboratory in his shed, took some portion of the drum of ma huang, and dealt with it so as to produce the ephedra containing ephedrine and pseudoephedrine, the precursors from which, with further treatment, the drug methylamphetamine could be produced. The jury had to be satisfied that that had gone beyond mere preparation. They were so satisfied about conduct much more remote in proximity from the production of methylamphetamine which was the subject of count 2.
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64 Section 30(5)(c) is, in substance, in the same terms as the former s 693(2) of the Criminal Code. In NSW, the equivalent section is s 7(2) of the Criminal Appeal Act 1912 (NSW). That section was the subject of the High Court's decision in Spies v The Queen (2000) 201 CLR 603. The facts of that case are quite different from this, but the majority made some useful observations about the proper application of s 7(2) of the Criminal Appeal Act, at 611-2 [23] – [24]:
"23. The power conferred by s 7(2) of the Criminal Appeal Act is most likely to be exercisable in situations where the "other offence" is one which is wholly within the ultimate facts of the offence on which the accused has been convicted and which the court sets aside in the appeal. The classic case is a conviction for assault occasioning grievous bodily harm where the court is of the opinion that the prosecution has failed to prove, or there has been a misdirection on, the issue of grievous bodily harm. In those circumstances, the entry of a conviction for common assault would be a clear case for the exercise of the power under s 7(2) …
24. Other pairs of offences which readily come to mind as likely candidates for the application of the sub-section include murder and manslaughter, rape and carnal knowledge, assault with intent to commit rape and indecent assault, incest and carnal knowledge, robbery under arms and robbery, larceny and receiving, housebreaking and receiving, obtaining a chattel by false pretences and obtaining credit by false pretences, many substantive offences and attempts to commit them, burglary and housebreaking, embezzlement and larceny. However, s 7(2) can be applied in any case where it appears to the court "that the jury must have been satisfied of facts which prove the appellant guilty of that other offence". Thus, in R v Grasso [1950] VLR 21, the Full Court of the Supreme Court of Victoria thought that, having regard to the indictment and the evidence, it could substitute a conviction of assault occasioning actual bodily harm after setting aside a conviction of assault with intent to commit rape. "
65 If, as I consider appropriate, a judgment of conviction in respect of count 1 on the indictment, of the offence of attempt to manufacture
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- methylamphetamine is entered, it would be necessary for this Court to impose an appropriate sentence. As I have said, the penalty range for the attempt is the same as for the completed offence. But because this was an attempt and not a completed offence, I would be inclined to follow the course adopted by the sentencing Judge and treat the matter less seriously than the completed offence was treated by his Honour. Nonetheless, his Honour's observations about the seriousness with which he regarded the circumstances of the commission of this offence, the lack of the capacity for personal considerations to have any appreciable impact upon the sentencing process, and the main purpose of the sentencing process in relation to that attempt to manufacture methylamphetamine, are all views that I would endorse in relation to that attempt offence.
66 Further, I consider that his Honour was right to regard the two incidents as separate and discrete matters, linked only in place and time. Ordinarily, in my opinion, the two sentences would be imposed to be served cumulatively, and I would see no reason to alter, in the resentencing exercise, the approach taken by the sentencing Judge to the question of eligibility for parole.
67 I would therefore impose, for this offence of attempted manufacture of methylamphetamine, a sentence of 4 years, after allowing the appropriate one-third reduction from a sentence, under the old system, of 6 years imprisonment. Because there are links between the two attempts, although I regard them as being separate matters for sentencing purposes, this would seem to me (as it seemed to the trial Judge) to be a case where one should allow some overlap in service of the terms imposed, pursuant to the Sentencing Act 1995 (WA), s 88(3)(d) and (4). I would therefore take the same course as did his Honour the trial Judge, but upon a different ground, and I would order the sentence of 2 years and 8 months imprisonment imposed by his Honour for the second attempt to commence to be served after service of 18 months of the first term of 4 years, backdated to 23 January 2005. The aggregate term would therefore be one of 4 years and 2 months imprisonment from that date, a reduction of 1 year in the aggregate term, with eligibility for parole, which would produce a capacity for the applicant to be released on parole after serving 2 years and 2 months imprisonment from 23 January 2005.
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