R v Easton - [2008] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v EASTON
[2008] SASC 66
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Vanstone)
12 March 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - AGGRAVATING CIRCUMSTANCES
Appellant pleaded guilty to taking part in the manufacture of methylamphetamine (1 count) and producing cannabis (1 count) - large amount of laboratory equipment and chemicals found on premises - concealed cellar with sophisticated hydroponic system - disputed facts hearing on whether appellant's participation was for commercial purpose - finding that operations in the premises were for a commercial purpose - whether Judge could have been satisfied beyond reasonable doubt that appellant's participation in manufacturing methylamphetamine was for a commercial purpose - whether appellant sentenced for more than one offence - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s18A; Controlled Substances Act 1984 ss32(1)(a), 32(1)(b), referred to.
R v Mackinder [2004] SASC 252; R v Pomeroy [2004] SASC 310, considered.

R v EASTON
[2008] SASC 66
Court of Criminal Appeal: Duggan, Bleby and Vanstone JJ

DUGGAN J. I would dismiss the appeal for the reasons prepared by Bleby J.
BLEBY J.
Introduction
The appellant appeals against a sentence of imprisonment imposed in the District Court. He was charged with and pleaded guilty to one count of taking part in the manufacture of methylamphetamine contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) and one count of producing cannabis, contrary to s 32(1)(a) of that Act. For both offences the Court imposed a single sentence pursuant to s 18A of Criminal Law (Sentencing) Act 1988 (SA) of 24 months imprisonment with a non-parole period of 18 months, both of which commenced on 27 September 2007, the date of the sentence. But for his plea of guilty, the Judge would have sentenced the appellant to imprisonment for 30 months.
A disputed facts hearing
The prosecution alleged that the appellant should be sentenced on the basis that the commission of the two offences was commercially motivated. The appellant denied any commercial involvement or motivation. He asserted that the methylamphetamine and cannabis in question were for his personal use.
The Judge conducted a disputed facts hearing.
On 11 October 2005 police searched some domestic premises at Plympton. No-one was at home during the initial search, but the appellant returned to the house, where he was living, while the search was in progress. He had been residing at the property, alone, for about one month. He was not paying rent, but he had arranged to undertake some repair work at the premises.
There was no direct evidence that the appellant had any involvement in the sale of drugs. During the search of the premises the police did not locate any items such as cash, measuring scales, plastic packaging bags, methylamphetamine apparently for sale, records of sales or debts or evidence of unexplained wealth.
Evidence was given at the hearing of a substantial quantity of glassware and other equipment used in the manufacture of methylamphetamine being located in various parts of the house. At the time of the search, none of it was set up for actual manufacturing. There was undisputed evidence that two bottles contained ethanol in which pseudoephedrine was dissolved. That was evidence consistent with completion of the first step of extraction of pseudoephedrine from pharmaceutical cold and flu tablets.
There was also undisputed evidence that liquids in four other containers were consistent with residues from the manufacture of methylamphetamine using hypophosphorous acid and iodine. The quantity of methylamphetamine in each container was small, indicating that the drug had been separated from the residual liquids. Mr Camilleri, a forensic scientist, gave evidence that the waste material from those four containers could have been the result of the production of between 200g and 450g of methylamphetamine.
He also said that the composition of the waste material in each container indicated three separate manufactures of methylamphetamine.
Other containers located in the house included one containing 275ml of an alkaline liquid containing 0.001% methylamphetamine, another containing pseudoephedrine residue, another containing a trace of liquid containing methylamphetamine and recognised manufacturing impurities, a container of hydrochloric acid, and a container located in a freezer which contained a small amount of acetone and 0.75g of methylamphetamine. There was found in the same freezer 3.04g of a crystalline substance found to contain 2.16g of methylamphetamine.
There were also found on the premises a number of packs of Sudafed tablets containing pseudoephedrine. A total of 69 tablets were located which were capable of producing approximately 3.8g of methylamphetamine.
Mr Camilleri gave evidence that all of the chemicals and apparatus required to extract pseudoephedrine from pharmaceutical preparations and to convert that into methylamphetamine were present on inspection of the premises. He also concluded that, based on the quantity of hypophosphorous acid, iodine and glassware located at the scene, and given a sufficient quantity of pseudoephedrine, the equipment was capable of producing in excess of 200g of methylamphetamine. The equipment and quantity of chemicals located were at the upper end of the size of laboratories that he had seen.
The Judge accepted the evidence of Mr Camilleri and found that, on its face, the evidence led for the prosecution established facts that were consistent with a commercial operation having been conducted at the premises.
Police also searched a shed in the back yard of the premises in which a trapdoor in the floor led down to a cellar where two cannabis plants about 50cm tall were being grown hydroponically under electric light. In the house they found a metal tin and a plastic bag containing undisclosed quantities of cannabis.
In his evidence before the sentencing Judge, the appellant said that before moving into the premises he had taken steps towards manufacturing methylamphetamine by extracting pseudoephedrine from tablets. He also admitted to having accumulated different types of glass and the ingredients or precursors required to produce methylamphetamine. He said that these had been acquired in the hope of gaining sufficient knowledge to manufacture methylamphetamine so that he could support his own habit. He admitted to having produced pseudoephedrine at the house but did not admit to having produced methylamphetamine. The method of manufacture to be inferred from the equipment and chemicals found was evidence that production of pseudoephedrine was the first step in the process of manufacturing methylamphetamine.
The appellant said that he did not manufacture the methylamphetamine located in the freezer, which he acknowledged was his.
The appellant said that he did not think that the house had been set up for the purpose of producing amphetamine but that, if it was, it was without his knowledge. He admitted to extracting pseudoephedrine five times but denied having participated in at least five amphetamine “cooks”, or manufactures, in the house, claiming that he did not have the knowledge to manufacture methylamphetamine. He was cross-examined as to the acquisition of the glassware and equipment. Many of his answers were vague as to whether and when he had acquired it, including the containers of the liquids.
The appellant also gave evidence that he suffered from sinus problems for which he required Sudafed tablets. They contain pseudoephedrine. He said that he began using methylamphetamine approximately four years ago to help curb his use of alcohol. It was his intention eventually to produce methylamphetamine himself.
As to his use of cannabis the appellant, when asked if he still smoked or used it, said, “No, not really”. When asked when he would use cannabis these days, he said, “Very rarely”. He admitted that the plants were his, that he had planted them and had set up the hydroponic system in the cellar.
The Judge’s findings
I have already referred to the Judge’s observation that, on the prosecution case, the facts were consistent with a commercial operation having been conducted on the premises.
The Judge considered that the appellant was not a satisfactory witness. He gave examples of why that was so. The Judge concluded that his evidence was vague and that:
[H]e could not remember details which one would have expected him to remember, he gave the impression of giving either non-committal answers or whatever answer he believed best suited his cause at the particular point in time.
The Judge said that he did not accept the evidence of the appellant, and that there was no satisfactory explanation for the items found in the house of which he was the sole occupant. The Judge expressed his final conclusions as follows:
In my opinion, the facts established by the evidence give rise to an inference that at least three cooks of methylamphetamine had taken place, that substantial quantities had been produced in the past and there was a potential for significant quantities to be produced in the future. The quantities involved are not consistent with personal use. The value of the likely production was significant. I find that methylamphetamine was being produced for commercial purposes.
So far as the cannabis is concerned, the evidence was not as detailed. However, Mr Easton acknowledged that he was not a big user of cannabis. The underground bunker and the hydroponic system was sophisticated and concealed. On the basis of the facts which are established by the search of the premises, I can infer that the cannabis was also being produced for commercial purposes.
Those findings were later incorporated into the Judge’s sentencing remarks.
The grounds of appeal
In his notice of appeal the appellant complains about the adequacy of the Judge’s findings on the disputed facts hearing and that the sentence imposed is manifestly excessive.
As to the grounds relating to the sentencing Judge’s findings concerning the first count, a number of the grounds overlap. In essence they can be summarised as follows:
1That the Judge failed to make findings as to the particular conduct by which the appellant committed the offence;
2That the Judge sentenced the appellant for multiple offences rather than for the one offence charged; and
3That the Judge could not be satisfied beyond reasonable doubt as to the appellant’s participation in the activities which he found to have occurred at the premises.
As to count two the appellant complains that the evidence was incapable of establishing that the two cannabis plants were being produced for commercial purposes.
As to the sentence being manifestly excessive, at the hearing of the appeal the appellant’s argument was limited to a submission that if the preceding grounds fail, the non-parole period fixed was manifestly excessive.
Grounds of appeal relating to count 1
The appellant pleaded guilty to and was convicted of only one count of taking part in the manufacture of methylamphetamine between 11 September 2005 and 11 October 2005 at the premises. He admitted to the extraction of pseudoephedrine from Sudafed tablets. From the evidence accepted by the sentencing Judge, it could be readily inferred that methylamphetamine had been produced in the premises by a particular method, the first step of which involved the production of pseudoephedrine.
By rejecting the evidence of the appellant, the sentencing Judge was rejecting, among other things, the appellant’s explanation for the presence of the equipment in the house, his purported lack of knowledge of what had taken place in the house and his inability to explain the presence of some of the equipment, chemicals and residues found. The Judge made no finding that the appellant took part personally in any other stage of the manufacture of methylamphetamine. Indeed, the evidence did not permit him to make such a finding beyond reasonable doubt. However, once having rejected the appellant’s evidence, there was a compelling inference from the nature and quantity of the equipment and materials found in the house that the manufacture of substantial quantities of methylamphetamine had taken place in the premises on at least three occasions and that, given an adequate supply of tablets containing pseudoephedrine, the equipment was capable of producing substantial quantities in the future. It comprised one of the larger laboratories that Mr Camilleri had seen.
The Judge drew the inference that the quantities involved in the previous manufacture of methylamphetamine were not consistent with personal use and that the value of the likely production was significant. In other words, he made a finding that, on the evidence which he accepted, the only reasonable inference was that whatever methylamphetamine had been produced on the premises had been produced for a commercial purpose. It followed that whatever the appellant’s role was in the production of methylamphetamine on the premises, it was for a commercial purpose. That was the only issue which had to be resolved on the disputed facts hearing. In the circumstances, it was not necessary for the Judge to make any findings as to the precise role of the appellant beyond that admitted by him.
It was not put by counsel for the prosecution that the Judge should find that the appellant was necessarily involved in the three cooks which had taken place, and the Judge made no such finding. All that the Judge had to find was that the appellant’s admitted participation in the manufacture of methylamphetamine at the premises was for a commercial purpose. For a first offence, which this was, the head sentence was not one that reflected a person being sentenced for multiple offences for a breach of s 32(1)(b) of the Controlled Substances Act 1984.[1] It was an appropriate head sentence for one count of taking part in the manufacture of methylamphetamine for a commercial purpose. The appellant was appropriately sentenced for one count only.
[1] See, for example, R v Mackinder [2004] SASC 252; R v Pomeroy [2004] SASC 310.
For these reasons all the grounds of appeal relating to count 1 must fail.
The ground of appeal relating to count 2
In my opinion, there is no substance in this ground. The appellant admitted to setting up a sophisticated and concealed hydroponic system for growing cannabis. Although there were only two relatively young plants discovered in the cellar, given the appellant’s evidence as to his own consumption of cannabis, the inference could readily be drawn, as it was, that the cultivation was for a commercial purpose. I would reject this ground of appeal.
The non-parole period
The complaint was that the non-parole period of 18 months was a relatively high proportion of the head sentence of 24 months imprisonment. The head sentence was a very moderate one. There was no evidence of contrition on the part of the appellant. He had maintained throughout that his involvement was non-commercial. General and personal deterrence were significant factors in the fixing of a non-parole period. The fixing of an 18 month period was within the sentencing discretion of the Judge. No error has been shown in the determination of that period.
Conclusion
I would dismiss the appeal.
VANSTONE J: I agree that the appeal should be dismissed. I agree with the reasons of Bleby J.