R v MACKINDER
[2004] SASC 252
•20 August 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MACKINDER
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
20 August 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS
Appeal against sentence – appellant found guilty of knowingly taking part in the manufacture of methylamphetamine after a trial before a judge and jury in the District Court – where the appellant was sentenced to 50 months imprisonment with a non-parole period of 28 months – where the appellant had previously been convicted of a number of drug offences – where another person was charged with knowingly taking part in the manufacture of methylamphetamine in relation to the same offending and pleaded guilty and was sentenced at the same time as the appellant – where the other person charged did not have as extensive a criminal record as the appellant – where the other person charged was sentenced to 30 months imprisonment after a reduction of 10 months for her plea of guilty with a non-parole period of 15 months – where the sentencing judge found that there was good reason to suspend the sentence imposed on the other person charged – whether the sentence of 50 months imprisonment was manifestly excessive – whether the sentencing judge had adequate regard to considerations of parity between the sentence imposed on the appellant and the sentence imposed upon the other person charged – appeal dismissed.
Controlled Substances Act 1984 s 32, referred to.
R v Plaister and Graham [2001] SASC 383; Wakely v Police [2003] SASC 295, considered.
R v MACKINDER
[2004] SASC 252Criminal Court of Appeal: Doyle CJ, Besanko and White JJ
DOYLE CJ: I would dismiss the appeal and I agree with the reasons of Besanko J.
BESANKO J: This is an appeal against a sentence of imprisonment imposed by a District Court Judge. Leave to appeal was granted by a Judge of this Court on 5th July 2004.
The appellant is a 38 year old man. On 4 January 2003 police officers went to a house at 18 Helen Terrace, Valley View, in the State of South Australia. The police observed chemicals and equipment suggestive of an operation whereby pseudoephedrine is extracted from Zyrtec tablets, or similar medication. A quantity of pseudoephedrine was found. Methylamphetamine is a prohibited substance under the Controlled Substances Act 1984 (“CSA”) and it can be manufactured from pseudoephedrine.
The appellant and a Ms Hettich, who were both present in the house at the time, were charged with knowingly taking part in the manufacture of methylamphetamine contrary to s32 of the CSA. The penalty for an offence under that section is $200,000 or imprisonment for 25 years, or both. The appellant pleaded not guilty to the charge, but he was found guilty after a trial before a Judge and jury in the District Court. Ms Hettich, who was the owner or tenant of the house, pleaded guilty to the charge. She was sentenced at the same time as the appellant.
The appellant was sentenced to 50 months imprisonment with a non-parole period of 28 months. The sentence and non-parole period commenced on 25th March 2004. Ms Hettich was sentenced to imprisonment for 30 months after a reduction of 10 months for her plea of guilty. The Judge fixed a non-parole period of 15 months. The Judge found that there was good reason to suspend the sentence imposed on Ms Hettich and made an order suspending the sentence.
The appellant appeals to this Court. He submits that the sentence imposed is manifestly excessive, and that the Judge did not have regard, or adequate regard, to considerations of parity. He also submits that the Judge erred in failing to suspend the sentence.
The circumstances surrounding the offence
Methylamphetamine can be manufactured from pseudoephedrine, and in turn, pseudoephedrine can be extracted from Zyrtec tablets, or similar medication. As I have said, the house at 18 Helen Terrace, Valley View, was owned or occupied on a permanent basis by Ms Hettich. The implements found by the police on 4th January 2003, were implements used in connection with the extraction of pseudoephedrine from Zyrtec tablets, or similar medication. The police did not find any implements which could be used to process the pseudoephedrine into methylamphetamine. The sentencing Judge referred to the evidence of a scientist, to the effect that the process of manufacture of methylamphetamine is made up of a number of stages or steps, any one of which, after the first, could be accomplished by removing to other premises the product of the first stage and there embarking on the next stage. The Judge found that based on the material found by the police, it would have been possible to prepare 2.7 grams of methylamphetamine.
It is important to note that the Judge sentenced the appellant and Ms Hettich on the footing that each of them was as complicit as the other in what occurred in the room where the pure pseudophedrine was found, and he sentenced both the appellant and Ms Hettich on the basis that their offences were not part of a commercial venture.
The appellant’s personal circumstances
Evidence was put before the Judge that the appellant had had a difficult childhood. He left school at the age of 13. He committed a number of offences as a minor and was dealt with by the Youth Court. The offences ranged from consuming liquor as a minor, to building break and felony, and offences involving Indian hemp.
Between 1987 and 1996 the appellant was not convicted of any offences. However, in 1996 he was released on a bond to be of good behaviour for two years, for using cannabis. That was followed by another drug offence, namely possessing cannabis, in the same year for which a fine was imposed. In March 1999 the appellant was convicted of possessing amphetamines for sale, and he was sentenced to four years imprisonment, with a non-parole period of two years. A detailed pre-sentence report from Mr A Fugler, a clinical forensic psychologist, were put before the Judge. Mr Fugler refers to the appellant’s difficult childhood and his addiction to illegal substances. He said that the appellant was in need of long-term therapy directed towards the development of independent thinking behaviour, and the acceptance of personal responsibility.
The Judge’s approach
The Judge took into account the matters to which I have already referred. He also noted that for the past 15 months, the appellant has been in a relationship with a young woman who lives in a country town. The woman has a three year old child whom the appellant has come to regard as his stepson. The Judge noted that there was a prospect of work for the appellant in the town, and that the appellant planned to make his life with the young woman.
The Judge said that the appellant had previously committed a serious drug offence. The Judge said that the only appropriate sentence was a term of imprisonment. The Judge did not think that there was good reason to suspend the sentence. He said that he fixed a shorter non-parole period than the circumstances of the offence and the appellant’s criminal record, would otherwise suggest was appropriate. He did this because of the fact that the appellant seemed to have formed a relationship, and had prospects of life and work in a country town away from his former associates.
It seems to me that the sentencing Judge considered that there were two points of distinction between the appellant and Ms Hettich. First, Ms Hettich did not have as extensive a criminal record as the appellant. The Judge described Ms Hettich’s criminal record as mainly for driving offences, and a possess cannabis, for which she was dealt without conviction. Secondly, Ms Hettich pleaded guilty at the first reasonable opportunity, whereas the appellant pleaded not guilty, and was found guilty after a trial before a Judge and jury.
The Judge imposed a head sentence of 50 months on the appellant. By contrast, his starting point in relation to Ms Hettich was 40 months, and he reduced that period by ten months by reason of her plea of guilty.
Issues on appeal
The appellant submits that, even ignoring considerations of parity, the sentence of 50 months imprisonment is manifestly excessive. I reject that argument.
The offence of which the appellant was convicted is a serious one. The penalty under the relevant section is $200,000.00 or imprisonment for 25 years or both. That is a clear indication of how serious Parliament views the offence (R v Plaister and Graham [2001] SASC 383 per Martin J at [25]). Leaving aside considerations of parity and having regard to the appellant’s record, and in particular his conviction for possessing amphetamines for sale in March 1999 for which a substantial sentence of imprisonment was imposed, I do not think a head sentence of 50 months is manifestly excessive. At the same time, it can be said that it is at the higher end of the range in view of the Judge’s finding that the appellant was to be sentenced on the basis that he was not knowingly engaged in a commercial venture.
I turn now to the appellant’s submission that the Judge did not have adequate regard to considerations of parity between the sentence imposed on the appellant and the sentence imposed on Ms Hettich. The relevance of considerations of parity has been discussed in a number of cases. For present purposes, it is sufficient to refer to the discussion of the relevant issues by the Chief Justice in Wakely v Police [2003] SASC 295; (2003) 229 LSJS 327 at 330 - 332.
The Judge sentenced the appellant and Ms Hettich on the footing that each of them was as complicit as the other in what occurred in the room where the pure pseudoephedrine was found. It seems to me, however, that the difficulty with the appellant’s submission is that there was an important difference between the appellant and Ms Hettich, and that relates to their respective prior records. An offender’s prior record is relevant to the fixing of the head sentence, and indeed, Ms Hettich would have had grounds for complaint if the starting point for her head sentence had been the same as the starting point for the appellant’s head sentence. A difference of ten months was high, but I do not think it can be said that it is manifestly excessive.
I reject the appellant’s submission that the Judge failed to have regard or adequate regard to considerations of parity.
The Judge did not err in declining to suspend the sentence. His decision was correct when regard is had to the appellant’s age, the seriousness of the offence, and his prior record.
Conclusion
I would dismiss the appeal.
WHITE J: I agree with the order proposed by Besanko J and with his reasons for that order.