R v Davidson - [2011] SASCFC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVIDSON
[2011] SASCFC 132
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
11 November 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Appellant pleaded guilty to the offence of manufacturing a controlled drug for sale contrary to s 33(3) of the Controlled Substances Act 1984 (SA) - appellant sentenced to term of imprisonment of two years and six months with a non-parole period of 12 months - sentencing Judge declined to exercise his discretion to suspend the term of imprisonment - whether the Judge erred in failing to suspend the term of imprisonment - whether the Judge sentenced the appellant for possession of precursors or whether he had regard to the possession of precursors as an aggravating feature of the offending when it was inappropriate to do so.
Held: Appeal dismissed - sentenced imposed was appropriately proportionate to the maximum penalty for the offence committed - in exercising his discretion not to suspend the appellant's sentence, the Judge had regard to all relevant matters.
Per Gray and Sulan JJ: the sentencing Judge was mindful of the reduction in the maximum penalty for the offence committed by the appellant - the Judge was entitled to have regard to all the surrounding circumstances when considering the culpability of the appellant.
Controlled Substances Act 1984 (SA) s 4, s 32(5)B(b)(ii), s 33(3), s 33LB; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA), referred to.
R v Mangelsdorf (1995) 66 SASR 60; R v Oliver (1982) 7 A Crim R 174; Markarian v The Queen (2005) 228 CLR 357; Lawrence v The Queen (2007) 171 A Crim R 286; The Queen v De Simoni (1981) 147 CLR 383, discussed.
House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v DAVIDSON
[2011] SASCFC 132
Court of Criminal Appeal: Gray, Sulan and David JJ
GRAY AND SULAN J:

This is an appeal against sentence.
The defendant and appellant, Ronald Paul Davidson, pleaded guilty in the District Court to the offence of manufacturing a controlled drug for sale contrary to section 33(3) of the Controlled Substances Act 1984 (SA).[1] The maximum custodial sentence for the offence is imprisonment for ten years.
[1](3) A person who manufactures a controlled drug intending to sell any of it or believing that another person intends to sell any of it is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
The defendant was sentenced to a term of imprisonment of two years and six months. A non-parole period of 12 months was fixed. The sentencing Judge declined to exercise his discretion to suspend the term of imprisonment.
The complaint on appeal was that the Judge erred in failing to suspend the term of imprisonment.
On 31 May 2010 police searched the defendant’s home and discovered a drug laboratory in a shed in the rear of the property used to manufacture methylamphetamine. Precursor drugs, manufacturing equipment including glassware and containers and 17.6 grams of methylamphetamine were located. Methylamphetamine was the result of the manufacturing process.
The detailed circumstances of the defendant’s offending and of the matters relevant to sentence including the defendant’s criminal and personal antecedents are set out in the reasons of David J. We respectfully agree and adopt the observations of David J. We agree with David J that the appeal should be dismissed. We wish however to add the following with respect to the issues argued on the appeal.
Reduction in maximum penalties
Prior to 3 December 2007, the Controlled Substances Act 1984 (SA) provided that a person who manufactured methylamphetamine was liable to a maximum penalty not exceeding $200,000 or imprisonment for 25 years, or both.[2] On 3 December 2007, the statute was amended to provide that a person who manufactured a controlled drug which is less than the commercial quantity as defined, intending to sell any of it, is liable to a maximum term of imprisonment for ten years.[3]
[2] Controlled Substances Act 1984 (SA) s 32(5)B(b)(ii).
[3] “Commercial quantity” is defined in s 4 and the Schedules to the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA).
By the amendment, Parliament reduced the maximum imprisonment by 15 years – a reduction of sixty per cent. Counsel for the defendant submitted that, as a consequence of the change of the maximum penalty, Parliament intended that for offences of manufacturing at the lower end of seriousness, the penalties which had previously been applied by the courts were of limited relevance.
Counsel for the defendant submitted that the Judge failed to have sufficient regard to the reduction in the maximum penalty. It was submitted that the reduction is a clear expression by Parliament that it views the manufacture of drugs which are less than a commercial quantity less seriously. It is contended that, as a consequence, the observations of this Court in Mangelsdorf,[4] as applied in subsequent cases, but before the date of the amendment, have limited relevance to the penalty which should now be imposed.
[4] R v Mangelsdorf (1995) 66 SASR 60.
When imposing sentence, a court will always have regard to the maximum penalty set by Parliament for the offence. In Oliver,[5] Street CJ discussed the importance of statutory maximum penalties:
The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The courts are, of course, absolutely bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory maximum.
[5] R v Oliver (1982) 7 A Crim R 174 at 177.
In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ similarly observed:[6]
[6] Markarian v The Queen (2005) 228 CLR 357 at [30]-[31].
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:
"A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]."
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour's particular deference to it in this passage:
"Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity."
The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence.
[Footnotes omitted.]
McHugh J expressed the matter as follows:[7]
Secondly, a judge is sensitive to legislative trends. A change in the maximum penalty for an offence or in the elements of an offence may indicate a shift in the values to be applied when sentencing for that offence. In New South Wales there is also a statutory system of guideline judgments and standard minimum non-parole periods that give more specific guidance in common offences and operate as a starting point from which departure is intended to be the exception or at least require explanation. In recent times, both methods have been used to increase the prevailing median sentence for particular classes of offences. That does not mean that the judge must start with a specific number but knowledge of the median or the extent of the range guides the judicial "instinct".
[7] Markarian v The Queen (2005) 228 CLR 357 at [80].
In this case, the reduction in the maximum penalty was the result of an agreement of the Council of Australian Governments. Apparently it was desired that there be uniformity in respect of the way in which penalties were set for drug offences. This was made clear in the Second Reading Speech.
In Lawrence,[8] the Supreme Court of the Australian Capital Territory when addressing a sentence appeal with respect to drug trafficking, accepted the general proposition that the maximum penalty set by Parliament provided a yardstick for the exercise of the sentencing discretion. The Court considered amendments to the ACT drug legislation, which were to a similar effect to those in South Australia. The Court having referred to the observations in Markarian and Oliver extracted above, observed:[9]
In acknowledging that the maximum penalty set by the Parliament provides a yardstick for the exercise of the instant sentencing discretion, it would follow that, where Parliament increases or decreases maximum penalty, a sentencing court should be mindful of the increase or decrease in considering the range of appropriate sentence.
…
It is clear from a comparison between the old laws and the present regime that what the Parliament has done is to restructure the law so as to provide three ranges of penalty for three separate offences in place of a two-range regime. Under the Drugs of Dependence Act there was an offence of trafficking in a traffickable quantity of a controlled drug with a maximum penalty of 25 years imprisonment, and an offence of trafficking in a commercial quantity of a controlled drug with a maximum penalty of life imprisonment. Under the Criminal Code, s 603 establishes three offences in place of the previous two – trafficking a large commercial quantity of a controlled drug, with a maximum penalty of life imprisonment, trafficking in a commercial quantity of a controlled drug, with a maximum penalty of 25 years imprisonment, and trafficking in a controlled drug other than cannabis, with a maximum penalty of 10 years imprisonment.
[8] Lawrence v The Queen (2007) 171 A Crim R 286.
[9] Lawrence v The Queen (2007) 171 A Crim R 286 at [10] and [14].
In our view, the sentencing Judge was mindful of the reduction in the maximum penalty for the offence committed by the defendant. No error has been demonstrated on this account. The Judge correctly categorised the defendant’s conduct.
Sentencing for offences not charged
Counsel for the defendant contended that the Judge was in error in having regard to offending with which the defendant was not charged. In the course of his sentencing remarks, the Judge said:
Among the items seized in the shed were 15,750 empty capsule cases, 118 g of pseudoephedrine that could, potentially, with further conversion, have been turned into 88 g of methylamphetamine; 500 ml of hypophosphorous acid and 2.7 kg of iodine. The existence of a quantity of triprolidine in the glassware suggested that an antihistamine not containing pseudoephedrine had been used which could not lead to the successful production of methylamphetamine. This appears to represent a failed attempt to produce methylamphetamine.
Overall, the nature of the production equipment and the quantities of materials present indicate a serious endeavour to produce methylamphetamine on an ongoing basis. The fact that an attempted production was unsuccessful does not diminish the serious nature of the enterprise being undertaken.
…Even though the production appears to have failed, the laboratory was obviously a substantial set-up and there was the capacity for it to be used on an ongoing basis to produce methylamphetamine. The quantity of methylamphetamine of 17 g is itself quite a significant quantity. There was also, in the immediate future, the capacity to produce in excess of another 80 g.
… The quantity of methylamphetamine present was significant and the amount of pseudoephedrine present could have produced in excess of 80 g of methylamphetamine. The quantities of other precursor chemicals point to the intention to produce significant quantities of the drug. Put simply, the prosecution says that despite your personal mitigating circumstances and your good prospects for rehabilitation, the nature of the offence is too serious to permit suspension of the sentence. To do so would substantially undermine the principle of general deterrence to too great an extent.
Counsel for the defendant submitted that the Judge gave weight to present and future offending with which the defendant was not charged. During the course of argument, counsel referred to section 33LB of the Controlled Substances Act 1984 (SA), which came into operation on 10 September 2009. At the date of the offence, section 33LB(1) and (2) section provided:[10]
(1)Subject to subsection (3), a person who has possession of a prescribed quantity of a controlled precursor is guilty of an offence.
Maximum penalty: $10,000 or imprisonment for 3 years, or both.
(2)Subject to subsection (3), a person who has possession of a prescribed quantity of a controlled precursor and –
(a) a prescribed quantity of another kind of controlled precursor; or
(b) any prescribed equipment,
Is guilty of an offence.
Maximum penalty: $15,000 or imprisonment for 5 years, or both.
[10] Controlled Substances Act 1984 (SA) s 33LB(1) and (2).
Counsel further contended that the possession of precursors is a separate offence. It was said that the Judge erred in having regard to the precursors found in the shed and the potential for further manufacture of methylamphetamine in determining the sentence.
This matter arose during argument. The defendant sought, and was granted, permission to amend his notice of appeal to add the following ground:
That the learned sentencing Judge erred in sentencing the Appellant for the possession of precursors by the Appellant, or taking into account possession of precursors by the Appellant as an aggravating feature of the offending, in circumstances where the Appellant was not charged with any offence or offences pursuant to section 33LB of the Controlled Substances Act 1984 (as amended).
As we understand the submission, the defendant contends that the Judge was not entitled to treat the possession of precursors as an aggravating feature of the defendant’s offending of manufacturing methylamphetamine, as that should have been the subject of a separate charge.
The offence of manufacturing a drug, in our view, connotes ongoing activity. The conduct which constitutes manufacturing includes taking a step, or steps, in the process of manufacturing which includes acquiring or storing equipment, substances or material used for manufacturing. In this case, the defendant had in his possession equipment, some of the final product, and other material which was capable of producing further quantities of the drug. It was open to the Judge to have regard to the fact that the defendant could potentially produce significantly greater quantities of the drug.
In De Simoni,[11] the High Court considered in what circumstances factors of aggravation can be taken into account when considering the gravity of the offence and the penalty to be imposed. Section 582 of the Western Australian Criminal Code provided that, if any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment. In that case, the appellant had robbed his victim. In the course of the robbery, he struck her causing her a severe head injury. The Judge, in sentencing, referred to the Criminal Code which provided for a maximum of 14 years’ imprisonment for robbery and life imprisonment if a person is wounded. Gibbs CJ, with whom Mason and Murphy JJ agreed, said:[12]
At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as early as the eighteenth century: Dominus Rex v. Turner; and see Chitty, Criminal Law, 2nd ed. (1826), vol. 1, p. 231b. However, the modern authorities on the point normally commence with R. v. Bright. In that case the prisoner pleaded guilty to a charge of attempting to elicit information with regard to the manufacture of war material contrary to the Defence of the Realm (Consolidation) Regulations 1914 (U.K.). The trial judge took the view that it was the intention of the prisoner in doing the acts charged to assist the enemy. If such an intention had been charged and proved the prisoner was liable to the death penalty. He was sentenced to penal servitude for life. The Court of Criminal Appeal held that it was wrong of the trial judge to take this circumstance of aggravation into account when it had not been charged in the indictment. Darling J., who delivered the judgment of the Court, said that the judge “must not attribute to the prisoner that he is guilty of an offence with which he has not been charged – nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation.”
There have been more recent cases which appear to have been decided on the same principle. One such case, whose facts bear a close resemblance to those of the present case, is Reg. v. Toomey which is noted in [1964] Criminal Law Review 419. In that case the prisoner had snatched a handbag from a woman aged 71 and she in consequence had suffered seven broken ribs. The prisoner’s plea of not guilty to robbery with violence was accepted and he was sentenced to six years’ imprisonment for simple robbery. In passing sentence the trial judge referred to the violence which had caused the complainant’s injuries. The Court of Criminal Appeal said that it appeared that the sentence was based to some extent on the alleged violence and reduced the sentence to four years to conform to the plea of guilty to simple robbery. Similarly in R. v. Foo the accused pleaded guilty to attempting to possess heroin contrary to ss. 5 (2) and 19 of the Misuse of Drugs Act 1971 (U.K.). There was found in his possession a letter which indicated that he was a trafficker and on this basis the judge sentenced him to four years’ imprisonment. It was held that as the offender had not been charged under s. 5 (3) of the Act (which made it an offence to be in possession with intent to supply) it was wrong to sentence him as a trafficker, and the sentenced was reduced. In Reg. v. Huchison, the Court of Criminal Appeal held that it was not right for the judge, in imposing sentence on a charge of incest, to take into account other related acts of incest with which the defendant had not been charged, since to do so would in effect deprive the defendant of his right to trial by jury in respect of those alleged offences.
[References omitted].
[11] The Queen v De Simoni (1981) 147 CLR 383.
[12] The Queen v De Simoni (1981) 147 CLR 383 at 389-390.

Later, Gibbs CJ said:[13]
It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. This will be so also in cases where the jury’s verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury’s verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.
[13] The Queen v De Simoni (1981) 147 CLR 383 at 392.
For reasons which turned on the interpretation of the Judge’s remarks, Gibbs CJ allowed the appeal, as he considered that the Judge had not relied upon an uncharged circumstance of aggravation but, rather, he had relied on an element of the offence.
Wilson J stated the principle as follows:[14]
I turn now to consider certain aspects of the duty which rests on the sentencing judge. Some principles are well established. The primary rule is that the judge must sentence the prisoner for the offence of which he has been convicted. He must not, even though the actual sentence may be within the range allowed for that offence, sentence for some other more serious offence which he is satisfied has been committed: R. v. King; Lovegrove v. The Queen; Reg. v. Boyd; Reg. v. Foo; Reg. v. Harrison; Reg. v. Toomey; R. v. Bright. On the other hand, the judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict: R. v. King; Reg. v. Boyd; Reg. v. Marshall; Reg. v. Harris. But he must not punish the prisoner for additional offences with which he has not been charged: Rev. v. Reiner; Reg. v. Huchison.
[References omitted].
[14] The Queen v De Simoni (1981) 147 CLR 383 at 395-396.
Wilson J was of the view that circumstances of aggravation will assume different significance according to whether they are charged or not. If they are charged, the maximum penalty is life imprisonment whereas, if they are not charged, the maximum penalty is 14 years’ imprisonment.
Brennan J was of the view that neither section 582 of the Criminal Code nor any general rule of sentencing practice precluded the Judge from having regard to relevant and admitted facts merely because those facts could support an indictment for an aggravated offence, and the circumstance of aggravation is not expressly charged.
The question which arises on this appeal is whether the Judge sentenced the defendant for possession of the precursors, or whether he had regard to the possession of precursors as an aggravating feature of the offending when it was inappropriate to do so.
The Judge was entitled to have regard to all the surrounding circumstances when considering the culpability of the defendant. The finding that the offending had the potential to produce greater quantities of methylamphetamine was a logical and compelling finding. The Judge was entitled to conclude that the offending was not isolated in the sense that it was continuing. This was never contested. The Judge was entitled to conclude it was not a one-off offence and, in doing so, have regard to the presence of precursors capable of being manufactured into methylamphetamine. It was a feature of the surrounding circumstances. It cannot be said that the defendant was being sentenced for offences with which he had not been charged. Manufacturing is a process. By its very nature, manufacturing has an ongoing element. In our view, the Judge did not offend the principles in De Simoni.[15]
[15] The Queen v De Simoni (1981) 147 CLR 383.
The Director of Public Prosecutions submitted that manufacturing includes taking part in the process of manufacturing, which connotes an ongoing exercise. This includes acquiring equipment and possession of precursors. In our view, it would be unrealistic and not the intention of Parliament that each item found be the subject of a separate charge. The items taken collectively, which includes glassware, finished product and material which was to be used for future production of the drug, form part of the surrounding circumstances of the offence. No error has been demonstrated.
Suspension of the sentence
Counsel for the defendant submitted that the Judge erred in placing too much weight upon the potentiality of future offending. Further, it was submitted that, because Parliament has reduced the maximum penalty for the offence, the Judge placed too much weight on the objective seriousness of the offence. It is contended that the Judge gave insufficient weight to circumstances of duress, coercion, and the level of actual offending.
Counsel contended other factors, such as the timely plea, genuine contrition and remorse, the extent of rehabilitation and the evidence of the defendant’s strong work history were factors which weighed in favour of a suspended sentence.
The Judge gave comprehensive reasons which disclose an extensive consideration of the defendant’s personal circumstances. The Judge correctly observed that producing methylamphetamine is very serious offending and does significant harm to those who consume it and to others. The fact that someone is pressured to act by others who supply the precursors is to be weighed against the detriment aspect of any sentence.
In considering whether good reason existed to suspend the sentence, the Judge took into account all relevant factors. The Judge concluded that the mitigating circumstances and the good prospects of rehabilitation were outweighed by the need to ensure others are deterred from this activity.
The Judge had regard to all relevant matters. This Court will not interfere with the exercise of a discretion unless it is established that the Judge’s discretion miscarried due to an error of fact or law.[16] In this case, no error has been demonstrated. The Judge imposed a merciful head sentence and non-parole period.
[16] Markarian v The Queen (2005) 228 CLR 357; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321.
We would join with David J in dismissing the appeal.
DAVID J: The appellant pleaded guilty to one count of manufacturing a controlled drug for sale pursuant to s 33(3) of the Controlled Substances Act 1984 (SA) (“the Act”). The maximum penalty for the offence to which he pleaded guilty is imprisonment for 10 years and/or a fine of $50,000. The learned sentencing Judge imposed a term of imprisonment for two years and six months with a non-parole period of 12 months. He declined to suspend that term of imprisonment. The appellant appeals against the sentence imposed and, in particular, argues that the sentencing Judge has erred in declining to suspend the sentence.
The appellant’s offending
On 31 May 2010, police attended at the appellant’s home address at Salisbury Heights. A search of the premises revealed a clandestine drug laboratory in a large shed at the rear of the property. 17.6 grams of methylamphetamine was detected in items of glassware and other containers. Among other items seized in the shed were 15,750 empty capsule cases, 118 grams of pseudoephedrine, 500 ml of hypo phosphorous acid and 2.7 kilos of iodine. There was no dispute, and the Judge found in his sentencing remarks, that the nature of the equipment seized and the quantities of materials indicated a serious endeavour to produce methylamphetamine on an ongoing basis. Furthermore, there was no dispute, and the Judge found, that other than the 17.6 grams of methylamphetamine that was seized there was enough material to produce in the immediate future an amount in excess of 80 grams of methylamphetamine. There was no dispute that methylamphetamine was being produced on an ongoing basis by the appellant for a motorcycle gang to whom he owed money for drugs. It was his intention to manufacture methylamphetamine in order to discharge that debt and also receive some for his own use. It was accepted by the appellant that the offending was not an isolated incident.
The appellant’s personal history
At the time of sentence the appellant was 40 years of age. His parents migrated to Australia from Czechoslovakia in 1957 and his early family life was disrupted due to the violent disposition of his father towards his mother. Although he has a history of contact with the criminal justice system since he was about 13 years of age, most of those involved relatively minor matters in the Children’s Court and he had no criminal history from the age of 22 years. In other words, he had been out of trouble with the law since 1992. Details of the effect of the extreme violence of his father towards the family, and his mother in particular, were presented to the sentencing Judge by way of a psychological report.
The appellant has been together with his partner for the last 23 years and he has two children. After a history of employment at GMH where he worked for five years and then at Clipsal where he worked for another three years, he then started truck driving and worked as an employee for the next seven years in that area before he started his own business which he ran for the next seven years. However, in 1993 he suffered a back injury, the effect of which was that in 2009 the appellant experienced chronic back pain which affected his working capacity and for which, on the advice of a friend, he started to use methylamphetamine. As a result of the pain he was suffering and the increasing use of methylamphetamine over a period of time, the appellant’s business took a downturn and the appellant found himself unable to pay for the methylamphetamine he was using and therefore built up a substantial debt to the drug suppliers who were members of a motorcycle gang.
The appellant was beaten and threatened with further harm on a number of occasions for not paying for his drugs. The appellant’s means of extricating himself from that debt was to agree to allow a drug laboratory to be set up in his shed and he was instructed on how to set it up and manufacture the drug. Since being arrested the appellant has refrained from returning to methylamphetamine use.
The sentence
The sentencing Judge indicated that if the appellant had pleaded not guilty he would have imposed a sentence of imprisonment for three years and six months. However, he took into account the appellant’s early plea of guilty, contrition and remorse and reduced the sentence to two years and seven months. He then took off a further month for a period of 11 days spent in custody and period of time spent on home detention bail. The final head sentence was therefore two years and six months. The Judge fixed a non-parole period of 12 months.
He then considered the question of suspension and said the following:
I must now consider whether or not good reason exists to suspend the sentence of imprisonment that I have imposed. Your counsel has argued that good reason does exist to suspend this sentence and he pointed to a number of factors which support the exercise of my discretion. These reasons included the fact that you have no criminal convictions since 1992 and no convictions for drug offences. You have a strong work history since leaving school demonstrating your industrious nature and commitment to support yourself and your family, even in the face of injuries and debilitating pain. The root cause of your offending was when you succumbed to the temptation to start using methylamphetamine in early 2009 due to your chronic pain and depressed mood. Your growing addiction produced a growing drug debt and, at the same time, your business was in decline. In these circumstances, when you could not pay your debt, you were physically beaten on two occasions, and then succumbed to the pressure to discharge your debt by operating a drug laboratory in your shed. Following your arrest, you have ceased using the drugs but you continue to suffer from anxiety and the fear of repercussions from gang members.
Counsel for the prosecution, however, opposes the suspension of the sentence on the basis that there is a strong need for the sentence to reflect general deterrence in view of the scope of the operation and the obvious intention for the production of methylamphetamine to continue. The quantity of methylamphetamine present was significant and the amount of pseudoephedrine present could have produced in excess of 80 g of methylamphetamine. The quantities of other precursor chemicals point to the intention to produce significant quantities of the drug. Put simply, the prosecution says that despite your personal mitigating circumstances and your good prospects for rehabilitation, the nature of the offence is too serious to permit suspension of the sentence. To do so would substantially undermine the principle of general deterrence to too great an extent.
I must say that I have some sympathies for your position, but having taken all of these matters into account, I have had to conclude that good reason does not exist to suspend this sentence. Regrettably for you, [D, RP], I have concluded that the principles of general deterrence would be diminished to an unacceptably low level if I were to suspend the sentence in this circumstance. I am not persuaded that the mitigating personal circumstances of your matter and your good prospects for rehabilitation are sufficient to justify the suspension of the sentence.
The appeal
There was originally one ground of appeal, namely that the sentencing Judge erred and the sentencing discretion miscarried in that he declined to exercise his discretion to suspend the term of imprisonment. However, during argument on appeal at the invitation of the Court, permission was granted to amend the Notice of Appeal to include a second ground which read:
2. That the learned sentencing Judge erred in sentencing the appellant for the possession of precursors by the appellant, or taking into account possession of precursors by the appellant as an aggravating feature of the offending, in circumstances where the appellant was not charged with any offence or offences pursuant to Section 33LB of the Controlled Substances Act 1984 (as amended).
In a sense, both grounds involve the question as to whether the Judge erred in declining to suspend the sentence.
Ground 1
In relation to the first ground Mr Algie SC, counsel for the appellant on appeal, submits three propositions whereby he argues that the sentencing Judge has erred in the exercise of his discretion. They are:
1.that the reference by the learned sentencing Judge in his remarks that the nature “of the offence is too serious to permit suspension of the sentence” is in error;
2.that the reference to the scope of the laboratory as capable of producing in excess of 80 grams of methylamphetamine is in error; and
3.that the sentencing Judge did not give sufficient or adequate weight to matters personal to the appellant.
I will deal with each of those in turn.
Proposition 1
On 3 December 2007, Parliament reduced the maximum penalty for an offence under s 33(3) of the Act from imprisonment for 25 years and/or a fine of $200,000 to imprisonment for 10 years and/or a fine of $50,000. Mr Algie argues that this was a significant amendment to the Act and indicates that Parliament was of the view that the prior penalties were too severe. Mr Algie argues that from that you cannot conclude that the nature of the offence to which the appellant pleaded guilty is too serious to permit suspension of the sentence, and then referred to the remarks of the Chief Justice in R v Mangeldorf[17] where his Honour said:
The court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.
Mr Algie submits that those comments now do not apply in light of the above amendments to the Act.
[17] R v Mangeldorf (1995) 66 SASR 60 at 63.
It is to be noted that the sentencing Judge does not say that the nature of the offence is too serious to permit suspension of the sentence per se. In the context of his sentencing remarks he is putting the submissions of the prosecutor. The Judge goes about his task of considering whether there is good reason or not to suspend the sentence by carefully weighing up those matters personal to the appellant including the surrounding circumstances of the offending with the seriousness of the offending, namely that it was an admittedly ongoing process. He comes to the conclusion that the principles of general deterrence would “be diminished to an unacceptably low level” if he were to suspend the sentence. That is the basis of the sentencing Judge finding that there was not good reason to suspend the sentence. He never at any stage said that the nature of the offence per se is too serious to permit suspension of the sentence.
I would therefore reject that argument.
Proposition 2
Mr Algie further argues that the sentencing Judge has erred when he refers to the fact that the laboratory as discovered by the police was capable of producing in excess of a further 80 grams of methylamphetamine. He argues that to have regard to that is punishing the appellant for an offence he has not yet committed and may not commit and he has only pleaded guilty to manufacturing 17.6 grams of methylamphetamine.
I reject the argument. The sentencing Judge is entitled to take into account the surrounding circumstances of the offending and part of that process is to decide whether the offence is an isolated offence or is part of an ongoing process. In doing that he had regard to the fact that it was capable of producing a further 80 grams of methylamphetamine and indeed in sentencing submissions there was no dispute that the process was an ongoing one. There is no question that the sentencing Judge in any way penalised the appellant for something he might do in the future as distinct from assessing the seriousness of the offence to which the appellant pleaded guilty.
Proposition 3
Mr Algie’s third argument in relation to Ground 1 is that generally the Judge has erred in allowing matters of general deterrence to outweigh questions personal to the appellant including the circumstances of the offending, his difficult background and his good prospects for rehabilitation.
In my view there is no basis for interfering with the exercise of the sentencing Judge’s discretion indicated by his careful analysis of the submissions put to him.
I would dismiss Ground 1.
Ground 2
The basis of Ground 2 is that in his sentencing remarks the Judge referred to the seizure of a number of chemicals which are prescribed precursors of methylamphetamine. In particular, the Judge mentions pseudoephedrine, hypo phosphorous and iodine. He also indicates in his sentencing remarks that the quantities of these precursor chemicals point to the intention to produce significant quantities of the drug.
Mr Algie argues that although the sentencing Judge is entitled to take into account the surrounding circumstances of the offence in order to determine, for instance, whether it was ongoing or an isolated incident, the appellant could not be punished for an offence for which he has not been convicted or which he may commit in the future. Mr Algie argues that the reference to the precursors as an indication of the seriousness of the offending comes into that category.

Mr Algie supports his argument by pointing out that the offence of possession of a prescribed precursor is an offence in itself. I set out s 33LB of the Act upon which he relies, as it was at the date of the offending:[18]
[18] Section 33LB was subsequently amended on 28 August 2011.
33LB—Possession of a prescribed quantity of a controlled precursor
(1)Subject to subsection (3), a person who has possession of a prescribed quantity of a controlled precursor is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 3 years, or both.
(2)Subject to subsection (3), a person who has possession of a prescribed quantity of a controlled precursor and—
(a)     a prescribed quantity of another kind of controlled precursor; or
(b)     any prescribed equipment,
is guilty of an offence.
Maximum penalty: $15 000 or imprisonment for 5 years, or both.
(3)A person is not guilty of an offence against this section if the person has a reasonable excuse for possession of the substances or equipment the subject of the alleged offence.
(4)In proceedings for an offence against this section, subsection (3) is to be treated as providing an exception and no proof will be required in relation to that exception by the prosecution but the application of the exception will be a matter of proof by the defendant.
(5)In this section—
prescribed quantity of a controlled precursor means—
(a)     in relation to a controlled precursor contained in a mixture—
(i)a quantity of the precursor that equals or exceeds the amount prescribed for the purposes of this section for the precursor in its pure form; or
(ii)a quantity of the mixture that equals or exceeds the amount prescribed for the purposes of this section for a mixture containing the precursor; or
(b)     in relation to a controlled precursor that is not contained in a mixture—a quantity of the precursor that equals or exceeds the amount prescribed for the purposes of this section for the precursor in its pure form.
The gravamen of Mr Algie’s submission is that the appellant could have been charged with possessing a precursor but was not and, as I understand his argument, therefore to take that into account as part of the surrounding circumstances making the present charge more serious is, in effect, punishing the appellant for an offence for which he has not been charged.
I reject that argument. It is to be noted that s 4(1) of the Act defines “manufacture” as follows:
manufacture, in relation to a controlled drug means—
(a)undertake any process by which the drug is extracted, produced or refined; or
(b)take part in the process of manufacture of the substance;
Also, s 4(6) provides:
(6)For the purposes of this Act, a step in the process of manufacture of a controlled drug includes, without limitation, any of the following when done for the purpose of manufacture of the drug:
(a)     acquiring equipment, substances or materials;
(b)     storing equipment, substances or materials;
(c)     carrying, transporting, loading or unloading equipment, substances or materials;
(d)     guarding or concealing equipment, substances or materials;
(e)     providing or arranging finance (including finance for the acquisition of equipment, substances or materials);
(f)    providing or allowing the use of premises or jointly occupying premises.
It can be seen that possession of the precursors by the appellant falls within the above definitions. The mere fact that it is capable of being charged as a separate offence does not mean that it should necessarily be so charged as distinct from being taken into account as part of the surrounding circumstances.
I would dismiss this ground of appeal.
Conclusion
In my view, the sentence imposed was appropriately proportionate to the maximum penalty. In many ways it could be said to be a merciful sentence. The sentencing Judge carefully weighed up all of the relevant material in coming to his conclusion that there was not good reason to suspend the term. In my view, he has not erred in the exercise of his discretion.
I would dismiss the appeal.