Perry v The State of Western Australia
[2012] WASCA 124
•21 JUNE 2012
PERRY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 124
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 124 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:43/2012 | 15 MAY 2012 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 21/06/12 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MATTHEW SHANE PERRY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Attempting to manufacture methylamphetamine Drug for personal use No relevant prior convictions Plea of guilty 16 months' immediate imprisonment Whether sentencing judge failed to consider suspended sentence Consistency of sentences for attempting to manufacture and manufacture of prohibited drug Appeal dismissed |
Legislation: | Misuse of Drugs Act 1981 (WA) |
Case References: | Dooling v The State of Western Australia [2011] WASCA 95 McKeagg v The Queen [2006] WASCA 26 McLeod v The State of Western Australia [2009] WASCA 233 R v Pallister [2002] WASCA 68 Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 Rumenos v The State of Western Australia [2011] WASCA 59 The State of Western Australia v Andela [2006] WASCA 77 The State of Western Australia v Hyder [2011] WASCA 256 The State of Western Australia v Jenkin [2011] WASCA 171 The State of Western Australia v Saxild [2008] WASCA 156 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 : PERRY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 124 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DAVIS DCJ
File No : IND GER 98 of 2011
Catchwords:
Criminal law - Appeal against sentence - Attempting to manufacture methylamphetamine - Drug for personal use - No relevant prior convictions - Plea of guilty - 16 months' immediate imprisonment - Whether sentencing judge failed to consider suspended sentence - Consistency of sentences for attempting to manufacture and manufacture of prohibited drug - Appeal dismissed
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Legislation:
Misuse of Drugs Act 1981 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J B Prior
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Alana Padmanabham
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dooling v The State of Western Australia [2011] WASCA 95
McKeagg v The Queen [2006] WASCA 26
McLeod v The State of Western Australia [2009] WASCA 233
R v Pallister [2002] WASCA 68
Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587
Rumenos v The State of Western Australia [2011] WASCA 59
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v Jenkin [2011] WASCA 171
The State of Western Australia v Saxild [2008] WASCA 156
White v The State of Western Australia [2007] WASCA 119
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1 BUSS JA: The appellant appeals against a sentence of 16 months' imprisonment imposed by Davis DCJ following his conviction, on his plea of guilty, on one count in an indictment which alleged that between 21 July 2011 and 24 July 2011, at Paraburdoo, he attempted to manufacture a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) read with s 33(1) of the Misuse of Drugs Act 1981 (WA) (the Act).
The ground of appeal
2 The sole ground of appeal alleges that the sentencing judge erred in law by concluding that it was not open to impose a suspended term of imprisonment for the offence of manufacturing (or attempting to manufacture) methylamphetamine as 'the Court of Appeal has stated, a sentence of immediate imprisonment is and will remain the only appropriate sentencing option for this offence and that's because of its seriousness and the need for general deterrence'.
3 During the hearing of the appeal, counsel for the appellant stated that if this court decided that her Honour did not make the express error attributed to her in the ground of appeal, then the appeal should be dismissed (appeal ts 2). Counsel did not rely on implied error (for example, manifest excess).
The background facts and circumstances including the appellant's personal circumstances
4 The background facts and circumstances including the appellant's personal circumstances are set out in the reasons of Newnes JA (with which Mazza JA has expressed his agreement). I will not repeat his Honour's account of those background facts and circumstances, except to the extent necessary to explain my reasons.
The merits of the ground of appeal
5 I agree with Newnes JA, for the reasons he gives, that the ground of appeal fails.
Section 31(4) read with s 31(3) of the Criminal Appeals Act 2004 (WA)
6 In any event, by s 31(4) read with s 31(3) of the Criminal Appeals Act 2004 (WA), this court may only allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.
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7 I am satisfied that, even if the sentencing judge made the express error alleged in the ground of appeal, no different sentence should have been imposed.
8 The maximum penalty for the offence of manufacturing a prohibited drug, contrary to s 6(1)(b) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.
9 Since the enactment of the Misuse of Drugs Amendment Act 2004 (WA), this maximum penalty has also applied to the offence of attempting to manufacture a prohibited drug, contrary to s 6(1)(b) read with s 33(1) of the Act. Previously, the maximum penalty for this offence had been 12 years 6 months' imprisonment or a fine of $50,000 or both.
10 The culpability of an offender (including an offender who has been convicted of an attempt, as distinct from the completed offence, including an attempt to manufacture a prohibited drug, contrary to s 6(1)(b) read with s 33(1) of the Act), and the extent to which he or she should be punished, must be determined by reference to all the facts and circumstances of the particular offending and the offender. See Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 [45] (Buss JA, McLure P agreeing).
11 In The State of Western Australia v Jenkin [2011] WASCA 171, McLure P (Buss JA & Mazza J agreeing) said [12] - [14]:
The offence of manufacturing a prohibited drug is, by any measure, serious. The maximum penalty for the offence is 25 years' imprisonment. It is the same maximum penalty as for the dealing offences in s 6(1)(a) and (c) of the MDA.
There has been a very significant increase in improvised clandestine drug laboratories in Western Australia in the past decade. In 2000 - 2001, 22 clandestine laboratories were found in Western Australia. In 2010, that figure had escalated to 133 clandestine laboratories. In the calendar year to 7 July 2011, 100 clandestine laboratories have been detected. Such laboratories present significant dangers to the people undertaking the manufacturing activity, people within its immediate vicinity and police and emergency services required to deal with them. Ammonia gas is extremely dangerous and can be fatal if inhaled. The WA Police now have to warn the public to be mindful of abandoned items of laboratory equipment in parks and bushland because of the dangers associated with it. The presence of a drug laboratory in bushland carries with it the real risk of a bush fire. Further, the close association between the use of methylamphetamine and the commission of criminal offences is well
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- documented: The State ofWestern Australia v Higgins [2008] WASCA 157 [115].
Against that background it will come as no surprise that a sentence of immediate imprisonment will ordinarily be imposed for manufacturing methylamphetamine: R v Pallister [2002] WASCA 68 [31]; White vThe State ofWestern Australia [2007] WASCA 119 [4]; Rumenos v The State of Western Australia [2011] WASCA 59 [34]; The State ofWestern Australia v Skaines [2006] WASCA 160.
- See also The State of Western Australia v Hyder [2011] WASCA 256.
12 In the present case, the appellant's offending was serious. I note, in particular, the following:
(a) During the week beginning 25 July 2011, the appellant acquired apparatus, chemicals, medication and solvents to use in the manufacture of methylamphetamine. He acquired these items at different times and on different dates to avoid raising suspicion.
(b) The appellant used two sites in his attempt to manufacture the drug. One was located in bush land about 10 km from Paraburdoo. The other was located at the appellant's premises in Paraburdoo. The bush land site was used to disguise the smell created by the production of ammonia gas.
(c) When police searched the appellant's premises on 9 August 2011, the items they located included empty bags of sulphate of ammonia, numerous empty containers for caustic soda, lithium battery remnants, a paper towel with residue, coffee filters, plastic tubing and solvents. They also located a container for caustic soda which had been modified with plastic tubing and two glass bottles containing a solvent-based liquid (being the product of the manufacturing process).
(d) Later, police searched the bush land site and located an active ammonia gas generator set up in an abandoned car. It was necessary for the generator to be destroyed on site because of the levels of LPG and ammonia gas being emitted. The presence of the generator at the bush land site was a significant hazard. It created the risk of a bushfire and, also, a risk to the health of anyone in the vicinity who inhaled the ammonia gas.
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- (e) The appellant obtained instructions from an internet site on the manufacture of methylamphetamine before attempting to manufacture the drug.
(f) The appellant involved two friends to assist him. They obtained the medication to be used in the manufacturing process. Although the appellant intended to produce the drug for his own personal use, the people who assisted him were to receive some of it.
(g) The appellant failed to manufacture the drug because he was unable to extract it from the solvent in the glass bottles.
(h) Although this was the appellant's first attempt to manufacture methylamphetamine, his offending was not spontaneous. It involved preparation and planning. It would be extraordinary if the appellant, after obtaining and setting up the apparatus and acquiring the requisite chemicals, intended to manufacture the drug on one occasion only and then abandon the activity.
(i) The appellant was not merely an assistant or a provider of some of the requisite chemicals or equipment. He was the principal in the operation.
13 It is true that the appellant's personal circumstances, including his prospects of rehabilitation, were favourable. There were a number of substantial mitigating factors in his offending. However, matters personal to an offender will usually be a secondary consideration to questions of general deterrence in the sentencing process for offences of this kind.
14 When all of the relevant facts and circumstances and the relevant sentencing factors are evaluated, it is apparent that this was not an exceptional or extraordinary case. A suspension of the term of imprisonment imposed by the sentencing judge would not have been appropriate. The seriousness of the offending and the need for general deterrence precluded suspension.
Conclusion
15 I would dismiss the appeal.
16 NEWNES JA: This is an appeal against a sentence of 16 months' immediate imprisonment imposed on the appellant in the District Court following his conviction on his own plea to one count of attempting to
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manufacture a prohibited drug (methylamphetamine). The appellant was made eligible for parole.
17 On 4 April 2012, Mazza JA granted the appellant leave to appeal on the ground that the sentencing judge had erred in law in concluding that it was not open to impose a suspended term of imprisonment for the offence.
Background
18 During the week of 25 July 2011, the appellant purchased equipment and a number of chemicals to use in the manufacture of methylamphetamine. He purchased the items at different times and dates in order to avoid suspicion. The appellant obtained cold and flu medication containing pseudoephedrine by means of two friends who were to receive some of the methylamphetamine produced by the appellant.
19 On 29 July 2011, the appellant commenced the process of manufacturing methylamphetamine using the Birch reduction method, commonly known as the Nazi method, details of which he had obtained from an internet site. The appellant used two different sites in the manufacturing process. One was in bushland approximately 10 km from the Paraburdoo town site and the second was at his home in Paraburdoo. The bushland site was used because of the smell created by the production of ammonia gas.
20 On 9 August 2011, police executed a search warrant at the appellant's home. An assessment by chemists determined that there was a sufficient quantity of chemicals and apparatus present to manufacture methylamphetamine. Among other items, empty bags of sulphate of ammonia, numerous empty containers of caustic soda, battery remnants, paper towel with residue, coffee filters, plastic tubing and solvents were found at the house. Police located a caustic soda container modified with plastic tubing which tested positive to hydrochloric acid, an essential component of the manufacturing process of methylamphetamine. Two glass bottles containing a solvent based liquid, which were the end result of the manufacturing process, were also located.
21 At the conclusion of the search of the house, police and chemists attended the bushland location. They found an active ammonia gas generator set up in an abandoned vehicle. Due to the levels of LPG and ammonia gas, the generator was destroyed on site by chemists.
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22 When interviewed by police, the appellant admitted attempting to manufacture methylamphetamine. He said he intended to produce the methylamphetamine for his own use. The appellant told police that it was his first attempt at manufacturing the drug and it had been unsuccessful as he was unable to extract the methylamphetamine from the solvent in the glass bottles.
23 In the District Court, on 13 February 2012, the appellant pleaded guilty on the fast track system to one count of attempting to manufacture methylamphetamine. Davis DCJ sentenced the appellant to 16 months' imprisonment. The appellant was made eligible for parole.
The sentencing remarks
24 The sentencing judge found that the appellant had attempted to manufacture methylamphetamine for his personal use and had not done so for commercial gain. Her Honour also found that the appellant had not previously been involved in the manufacture of methylamphetamine.
25 The sentencing judge noted that the appellant was 24 years old at the time of the offence, and 25 years old at the time of sentencing. He had left school at 15 years of age and completed a mechanical apprenticeship. The appellant had since been in regular employment and at the time of sentencing was working as a mechanical fitter.
26 The appellant had been in a relationship with his partner for five years, and they have two small children, aged 2 1/2 years and 3 1/2 years respectively at the time of sentencing. The appellant and his partner had separated shortly before the appellant committed the offence but had recently reconciled and at the time of sentencing were living together in a house in Geraldton.
27 The sentencing judge observed that the appellant had a history of substance abuse. He had started drinking alcohol at the age of 14. He developed a binge drinking problem, but after turning 18 reduced his intake of alcohol considerably. After the separation from his partner, he began to smoke amphetamines. The appellant had stopped using amphetamine since his arrest.
28 Her Honour noted that prior to committing the offence the appellant had experienced a number of personal losses with the deaths of his paternal grandmother, his mother's partner, his close friend and his football coach. The appellant's maternal grandfather had been diagnosed with terminal cancer and the appellant had been assisting with his care. A
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- pre-sentence report stated that the appellant had difficulties in dealing with grief and this had contributed to the separation from his partner. It recommended counselling to develop coping skills and to assist the appellant to prevent a relapse into using illicit drugs.
29 The appellant had a conviction for driving with blood alcohol level in excess of 0.08% and one for disorderly behaviour, but no prior convictions for offences involving illicit drugs.
30 The sentencing judge took into account the appellant's cooperation with the police, his early plea of guilty and his genuine remorse. Her Honour sentenced the appellant to 16 months' immediate imprisonment. He was made eligible for parole.
Ground of appeal
31 The ground of appeal is as follows:
The learned sentencing judge erred in law by concluding that it was not open to impose a suspended term of imprisonment in relation to the offence of manufacturing methylamphetamine as 'the Court of Appeal has stated, a sentence of immediate imprisonment is and will remain the only appropriate sentencing option for this offence and that's because of its seriousness and the need for general deterrence'.
Disposition of the appeal
32 In support of the appeal the appellant relied, in particular, upon the following passage from her Honour's sentencing remarks:
Even in the particular circumstances of this offence, I do not consider it is open to me to suspend your term of imprisonment. This is because, as the Court of Appeal has stated, a sentence of immediate imprisonment is and will remain the only appropriate sentencing option for this offence and that's because of its seriousness and the need for general deterrence (ts 25 - 26).
33 Her Honour would undoubtedly have been in error if, as submitted on behalf of the appellant, she had concluded that it was not open to impose a suspended term of imprisonment for the offence of attempting to manufacture methylamphetamine and had consequently failed to consider that option. I do not, however, accept that her Honour fell into that error.
34 The appellant's case relies upon a reading of her Honour's sentencing remarks which is much too narrow. The passage on which the appellant relies must be readin the context of the sentencing process and the sentencing remarks must be read as a whole. When that is done it is clear
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- that her Honour was aware that the term of imprisonment could be suspended, if she found that it was an appropriate case to do so.
35 In the course of the submissions of the appellant's counsel the following exchange occurred:
SKERRITT, MR: it is accepted that for an offence of this nature it would be appropriate for a sentence of imprisonment to be imposed, and I think the real issue for your Honour would be whether or not that sentence should be suspended.
DAVIS DCJ: Can I suspend? You are aware of the authorities, Mr Skerritt.
SKERRITT, MR: Yes, your Honour. I don't think there is any authority saying that you can't. The nearest case that I could find - - -
DAVIS DCJ: What is exceptional about your client's case when you compare him to other offenders? (ts 8 - 9)
…
DAVIS DCJ: The Court of Appeal has said because this is such a dangerous process and it's such a dangerous drug and it is so prevalent in the community, it's not appropriate unless there are exceptional circumstances to even consider a suspended imprisonment order.
SKERRITT, MR: Yes, your Honour.
DAVIS DCJ: So I really need to go back and say again to you, why is this exceptional?
SKERRITT, MR: Your Honour - - -
DAVIS DCJ: And don't address me on the low levels, the level of offending in a sense of personal use. Imprisonment is imposed for people who manufacture or attempt to manufacture this drug for personal use. (ts 10 - 11)
…
DAVIS DCJ: You're saying the principal factors upon which I - why I should suspend the sentence is his rehabilitation from drugs. Is that right?
SKERRITT, MR: Yes, your Honour. (ts 12)
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36 The relevant passages from her Honour's sentencing remarks are as follows:
I must consider the options which are given to me under the Sentencing Act. I must not impose a sentence of imprisonment unless I consider the seriousness of the offence is such that no other sentence can be justified or the protection of the community requires it. (ts 23)
…
In all the circumstances, having regard to the very serious nature of this offence I have concluded that a term of imprisonment is the only appropriate disposition. The issue is how long the term of imprisonment should be and whether it should be served immediately. (ts 24)
…
Your counsel has submitted to me that it should be suspended because of the mitigating factors in your case. Mr Perry, for reasons I will give in a moment I am not going to suspend your term of imprisonment. I consider that the imprisonment must be immediately served. I will now fix the sentence of imprisonment which you are to serve. (ts 24)
...
I now give my reasons for not suspending your sentence. The discretion to suspend is unfettered and all matters relevant to whether a term of imprisonment should be imposed are also relevant to whether to suspend the sentence. Immediate imprisonment is a sentence of last resort. It is true that there are a number of mitigating factors which would, if this were not such a serious crime, warrant suspension. These are your youth, your fast-track plea of guilty and remorse, the absence of any relevant criminal history, and what I would describe as a positive pre-sentence report. (ts 24 - 25)
37 Her Honour then went on to refer to other matters raised by the appellant's counsel. She noted that the appellant had ceased to use methylamphetamine since his arrest, but said that that was not uncommon and even together with the other mitigating factors did not make his case exceptional. Similarly, her Honour concluded that the appellant's family circumstances, and in particular his young children and the ill health of his grandfather, did not make the case exceptional. Her Honour also pointed out that the other mitigating factors referred to by the appellant's counsel were not unusual in cases of this type. She continued:
So I have taken into account all the mitigating factors in your case and mentioned by your counsel in reducing the term of imprisonment, and weighing again the aggravating and the mitigating factors I have
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- concluded that if I were to place you on a suspended sentence, even with conditions, that would fail to reflect the seriousness of this offence. (ts 25)
….
Even in the particular circumstances of this offence, I do not consider it is open to me to suspend your term of imprisonment. This is because, as the Court of Appeal has stated, a sentence of immediate imprisonment is and will remain the only appropriate sentencing option for this offence and that's because of its seriousness and the need for general deterrence. (ts 25 - 26)
38 It is evident from her sentencing remarks, read in context, that the sentencing judge was not under any misapprehension that a suspended sentence was not a sentencing option for an offence of attempting to manufacture methylamphetamine. Whilst the particular passage relied upon by the appellant could have been more clearly expressed, when read in context it is apparent that her Honour meant that it was not open to her to impose a suspended sentence for the offence in this case because such a sentence would not reflect the seriousness of the appellant's offending, and that given the serious nature of the offending the only appropriate sentence was a term of immediate imprisonment.
39 I would add that even if I had concluded that her Honour had fallen into the error contended for by the appellant, I would not have considered that a different sentence should have been imposed: see Criminal Appeals Act 2004 (WA), s 31(3), s 31(4).
40 As this court pointed out in Dooling vThe State of Western Australia [2011] WASCA 95 [9], 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, and 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. The sentences imposed for attempts to manufacture a prohibited drug in such cases are therefore broadly consistent with the sentences imposed for completed offences. See also Reid v The State of Western Australia [2012] WASCA 23 [45].
41 This court has made it clear on a number of occasions that the dominant sentencing consideration for the offence of manufacturing methylamphetamine is general deterrence and that ordinarily a term of immediate imprisonment will be imposed: see, for instance, White v The State of Western Australia [2007] WASCA 119 [4]; Rumenos v The State of Western Australia [2011] WASCA 59 [39]; The State of
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Western Australia v Jenkin [2011] WASCA 171 [14]. 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]. It is only in exceptional cases that a sentence other than one of immediate imprisonment will be appropriate: The State of Western Australia v Saxild [2008] WASCA 156 [12]; The State of Western Australia v Andela [2006] WASCA 77 [17].
42 This was not an exceptional case. While there were undoubtedly significant mitigating factors, including the appellant's remorse, his co-operation with police and his early plea of guilty, there were also serious aspects of the offending. It involved a degree of organisation and planning by the appellant, the appellant recruited two others to assist with the purchase of the cold and flu medication with the expectation that they would receive some of the methylamphetamine he produced, and the appellant set up two sites to carry out the manufacture. The establishment of the bushland site posed a significant safety and fire risk, the safety risk being assessed as so high that the bushland equipment had to be destroyed on site. And the appellant failed to produce methylamphetamine only because at the end of the process he was unable to extract it from the solvent.
43 In my view, the sentence of 16 months' immediate imprisonment was within the range of a sound exercise of the sentencing discretion, having regard to the circumstances of the offending and to sentences imposed in other cases: see McKeagg v The Queen [2006] WASCA 26; McLeod v The State of Western Australia [2009] WASCA 233; Rumenos; The State of Western Australia v Hyder [2011] WASCA 256.
Conclusion
44 The appeal should be dismissed.
45 MAZZA JA: I agree with Newnes JA.
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