R v Maggs - [2008] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAGGS
[2008] SASC 105
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
23 April 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Appeal against conviction - permission to appeal against sentence also sought - defendant prosecuted for two counts of taking part in the manufacture of methylamphetamine contrary to section 32(1)(b) of the Controlled Substances Act 1984 (SA) - it was alleged that defendant was found by police with two "batches", one consisting of methylamphetamine and the other of pseudoephedrine - defendant found guilty by jury verdict of both counts - whether each "batch" could be the subject of a separate offence, or whether they together could only be the subject of one offence - sentenced to the one term of imprisonment with respect to both counts of three years and eight months - sentence was cumulative upon a sentence of three months, the suspension of which was revoked because these offences also constituted a breach of a good behaviour bond to which the appellant was subject - non-parole period of one year and 10 months was fixed in respect of the total period of imprisonment of three years and 11 months.
Held: appeal against conviction allowed on the second count - each "batch" could not constitute a separate charge - there was one set of equipment which would allow the process of manufacture to a finished useable and saleable product - there was no basis to suggest that two separate processes were involved - there was no evidence that the liquid methylamphetamine had been produced on a separate occasion from the pseudoephedrine - conviction on the second count set aside - sentence imposed for the two counts be set aside - defendant re-sentenced with respect to the first count - sentence of three years and eight months fixed - sentence cumulative upon a sentence of three months, the suspension of which was revoked - non-parole period of one year and 10 months fixed in respect of the total period of imprisonment of three years and 11 months.
Controlled Substances Act 1984 (SA) s 32; Acts Interpretation Act 1915 (SA) s 50, referred to.
Walsh v Tattersall (1996) 188 CLR 77; Pearce v The Queen (1998) 194 CLR 610 ; Rucioch v Police (2004) 88 SASR 326; R v Chapman (2001) 214 LSJS 319; Island Maritime Limited v Filipowski (2006) 226 CLR 328; Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502; R v Langdon and Langdon [2004] VSCA 205; R v Weeding [1959] VR 298, considered.

R v MAGGS
[2008] SASC 105
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: This appeal against conviction and sentence raises the question of whether Mr Maggs committed the offence of taking part in the manufacture or production of methylamphetamine once only or twice. The appeal raises, in a subsidiary fashion, an aspect of the rule against double jeopardy.
I agree with Gray J that the appeal against conviction should be allowed, and with the orders that he proposes. I agree also that the appeal against sentence should be dismissed for the reasons that Gray J gives.
The point at issue is of some practical significance, and accordingly I will give my own reasons for agreeing with Gray J that the conviction on count 2 should be set aside because the evidence was capable of supporting a conviction on only one count. I will not repeat his outline of the facts, nor his summary of the submissions of counsel.
The legislation
At the relevant time s 32(1) of the Controlled Substances Act 1984 (SA) provided:
32Prohibition of manufacture sale etc of drug of dependence or prohibited substance
(1) A person must not knowingly –
(a)manufacture or produce a drug of dependence or a prohibited substance; or
(b)take part in the manufacture or production of such a drug or substance; or
(c)sell, supply or administer such a drug or substance to another person; or
(d)take part in the sale, supply or administration of such a drug or substance to another person; or
(e)have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
Section 32(4) widened the reach of s 32(1)(b) and (d). At the relevant time it provided:
(4)Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person –
(a)takes or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or
(b)provides or arranges finance for any such step in that process; or
(c)provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
By attaching liability to one who takes, or participates in any step, or causes any step to be taken, in the manufacture or production of a drug of dependence, s 32(4) gives rise to the possibility that a variety of actions by a person could give rise to liability under s 32(1)(b). In the case of a clandestine laboratory, a person could take part in the manufacture or production of methylamphetamine by transporting equipment to a place where it is to be used, or by setting up the equipment, or by supplying chemicals to be used in the process, or by mixing chemicals used in the process, or by getting the process under way, or by assisting with a particular step in the process, and so on. Moreover, in a particular case, a person charged might have done more than one of those things. Each of several things done might be a step in the one process of the production or manufacture of methylamphetamine. An examination of the facts might show that the several things done amount to a step in more than one process of manufacture or production.
Principles of statutory construction must be applied by a court to determine what act or acts can and do amount to the statutory offence of taking part in the production or manufacture of a drug of dependence. The same principles will be applied to determine whether, in a given case, the facts proven against an accused person give rise to one offence or to more than one offence.
In cases of this kind, a court may find it necessary to resort to other relevant principles. The proscription against duplicity (see, for example, Walsh v Tattersall (1996) 188 CLR 77) will be used to determine whether a charge is defective because, on examination, it is found to charge two or more offences. The principle of double jeopardy (in one of its manifestations) may be used to determine whether a charge is open to objection, or should be stayed, because in the circumstances it charges the same offence that has been the subject of an earlier conviction or acquittal of the accused, or because it is the subject (as is said to be the case here) of a concurrent charge (see Pearce v The Queen (1998) 194 CLR 610 and Island Maritime Limited v Filipowski [2006] HCA 30; (2006) 226 CLR 328).
Questions of duplicity and double jeopardy, if they arise, fall to be considered after the true interpretation of the statutory provision has been decided.
Proceedings in the District Court
This case arose from the discovery of a clandestine laboratory, comprising all of the equipment needed to produce methylamphetamine (a drug of dependence) by what was called the hypophosphorous method. The chemicals needed to carry out that process were present.
As the trial progressed, it became apparent that it was not really disputed by the defence that immediately prior to the police entering the shed in question, someone was using the equipment found there to produce methylamphetamine. The real issue at trial was whether Mr Maggs was involved in such a way as to be guilty of the offences charged.
The jury found that Mr Maggs was involved, and convicted him. On appeal the main issue is whether Mr Maggs was properly convicted on both counts or whether, in the circumstances, he could lawfully be convicted on one count only.
Count 1 was based on evidence that in the shed and among the equipment the police found two containers containing a liquid which in turn contained methylamphetamine. The liquid represented what was almost the last stage of the process of producing methylamphetamine by the hypophosphorous method. The last stage would have been to convert the liquid methylamphetamine to its crystalline form. The evidence pointed to the conclusion that the equipment in the shed had been used to produce that liquid methylamphetamine.
The expert evidence was that the liquid in the two containers was “from the same batch”. This I take to mean that this liquid was likely to have been produced from the same source and by a single process, and had simply been divided for one reason or another into two containers.
There was nothing in the evidence to suggest that this liquid had been produced at a different time, or at a different place, or from chemicals other than those found in the shed. The clear inference was that it was the product of a process of manufacture or production that had been interrupted by the police.
Count 2 was based on evidence that a bottle, associated with the laboratory equipment, and connected to another container, contained a mixture of ethanol and dissolved pseudoephedrine. The evidence was that the relevant pieces of equipment were being used, immediately before the police arrived, to separate pseudoephedrine in the solid form from other substances with which it had been mixed. The bottle contained soluble pseudoephedrine, and represented an early stage in the process of producing methylamphetamine by the hypophosphorous method. That stage involved separating the pseudoephedrine from other substances.
Again, there was nothing to suggest that this liquid had been produced at some earlier time, or at some other place, or involving chemicals not found in the shed.
There was no evidence (as the Judge told the jury in response to a question) that the ethanol containing dissolved pseudoephedrine represented the balance of dissolved pseudoephedrine from which the liquid methylamphetamine had been produced. There was no evidence one way or the other on the point. The liquid containing dissolved pseudoephedrine might have been the balance of the source from which the liquid methylamphetamine was derived, or it might not have had any connection with the liquid methylamphetamine.
The prosecution case was that the jury should find that immediately before the police entered the shed, Mr Maggs was taking part in the production of methylamphetamine, using the equipment and the chemicals and the liquids found in the shed. The prosecution did not claim to identify any particular act on the part of Mr Maggs that made him guilty of the offences charged, and did not need to. The prosecution case was that the liquid methylamphetamine (the subject of count 1) and the dissolved pseudoephedrine (the subject of count 2) could be regarded as the fruits of, and as evidence of, two separate processes of manufacture or production of methylamphetamine. In particular the argument appears to be (more so on appeal than before the jury) that the dissolved pseudoephedrine was not needed for the conversion of the liquid methylamphetamine to the crystalline form, and so must have represented an early step in a separate process of production or manufacture of methylamphetamine.
The question of whether, on this evidence, Mr Maggs could properly be convicted of two offences was not raised at trial. That is now the main issue on appeal.
One offence or two?
The concept of taking part in the manufacture or production of a drug of dependence is a wide one. But it remains necessary to decide, in a given case, whether the evidence establishes that the accused took part in a single process of manufacture or production or whether the accused took part in more than one process of production or manufacture.
Proof of a breach by Mr Maggs of s 32(1)(b) came from proof that the equipment in the shed was being used to produce methylamphetamine, an irresistible inference in the circumstances. Proof of his involvement came from his presence in the shed, and other circumstantial evidence.
The evidence before the jury did not support a conclusion (nor was it suggested that it did) about just when the liquid methylamphetamine (the subject of count 1) came into being, about just when the process of dissolving the pseudoephedrine (in the liquid, the subject of count 2) commenced, or about whether the liquid methylamphetamine had been produced from a solution of dissolved pseudoephedrine of which the liquid the subject of count 2 was the residue.
In short, the evidence did not support a conclusion that the liquid the subject of count 1 was the result of a process of manufacture or production that had taken place on another day, (each offence was charged as occurring on 17 August 2005) or using other equipment, or using dissolved pseudoephedrine that was not drawn from the container the subject of count 2. Nor did the evidence support a conclusion that the liquid the subject of count 2 was the product of a process (separating the pseudoephedrine in the solid form from other solids by dissolving it) that began on another day, or that was commenced after the liquid the subject of count 1 was produced. It is quite correct, as Mr Kimber for the Director of Public Prosecutions pointed out on appeal, that it was likely that in due course the dissolved pseudoephedrine would have been subjected to the hypophosphorous method with a view to producing methylamphetamine. But there was no evidence that that further process had begun. It was possible that the liquid the subject of count 2 was the residue of the source of the liquid the subject of count 1.
The prosecution case was put to the jury, and left by the Judge to the jury, on the basis that the two quantities of liquid represented two separate batches and, although this was not really explored, on the basis that the two quantities of liquid were the fruit of two separate processes of production or manufacture.
In my opinion the evidence before the jury, taking into account the manner in which the case was left to the jury, was not capable of supporting a conclusion that two separate processes of production or manufacture had been undertaken in the shed, or that they were in process when the police arrived.
Further evidence might have permitted and led to a conclusion that the liquid the subject of count 1 was the product of a process of production or manufacture separate and distinct from the process of production or manufacture involving the liquid the subject of count 2, but in the circumstances there was no such proof.
The point may be made clearer by a hypothetical example. Assume that there had been a concealed camera inside the shed filming events. If the film showed Mr Maggs separating the pseudoephedrine from other substances by dissolving it, then taking part of that solution and treating it to produce a quantity of liquid methylamphetamine, the balance of the dissolved pseudoephedrine remaining untouched, that would be evidence that he had committed a single offence. The fact that he had not used all of the dissolved pseudoephedrine, and planned to use it later to produce liquid methylamphetamine or crystalline methylamphetamine, would not alter that circumstance. If the film went on to show Mr Maggs returning to the dissolved pseudoephedrine, and then using it to produce a further quantity of methylamphetamine, that might well have been evidence of a second offence. Similarly, if the film showed that while liquid methylamphetamine was being produced, Mr Maggs took a quantity of tablets and used ethanol to dissolve the pseudoephedrine that they contained, that production of ethanol containing dissolved pseudoephedrine would be evidence of a further offence. Examples could be multiplied. The point is that in each case the facts have to be examined to see whether they establish participation in more than one process of production or manufacture.
In my opinion, in the present case the evidence could not support such a conclusion. It is no answer to say, as I have already said, that it is likely that in due course one of the persons in the shed would have used the liquid the subject of count 2 to produce further methylamphetamine. That of itself could not support a conclusion that more than one process of production or manufacture had taken place when the police entered the shed. Nor could the evidence support a conclusion that the liquid the subject of count 2 was produced quite separately from the process that resulted in the production of the liquid the subject of count 1.
It follows that the recording of a conviction on two counts was wrong in law. The evidence was capable of supporting a conviction on one count only. Alternatively, there has been a miscarriage of justice because the jury was not directed to consider and decide whether two offences had been committed. The appropriate order is, as proposed by Gray J, that the conviction on count 2 be set aside.
The fact that the point now taken was not taken at trial is not an obstacle to the appeal being allowed.
Double jeopardy
In light of the conclusion that I have reached, it is not necessary to say much about the application of the principle of double jeopardy.
But it is relevant to note that my conclusion involves an application of the aspect of the principle of double jeopardy that protects an accused person from being prosecuted or convicted twice for what is the one or the same offence. It is not necessary for present purposes to consider the limits of the principle. The present case involves the application of the core of the principle.
The principle of double jeopardy is not a precise one. In Island Maritime Gummow and Hayne JJ said at [41]:
[41]"Double jeopardy" is an expression that is not always used with a single meaning. It is an expression used in relation to several different stages of the process of criminal justice: prosecution, conviction and punishment. It describes values which underpin a number of aspects of the criminal law, rather than a rule that can be stated as the premise for deductive reasoning. The essence of these values is most often seen as captured in three maxims: interest reipublicae ut sit finis litium (it is in society's interest that there be an end to litigation), res judicata pro veritate accipitur (what is adjudicated is taken as the truth), and nemo debet bis vexari pro una et eadem causa (no one should twice be vexed for one and the same cause). It is these values that underpin the rule that evidence is inadmissible where, if accepted, it would overturn or tend to overturn an acquittal. It is these values that inform the rules governing successive prosecutions – rules which find their origins in the pleas in bar of autrefois convict and autrefois acquit but now have wider application than those pleas in bar. (footnote omitted)
They went on to say at [49]:
[49] No doubt a plea in bar is available if the offence charged second is the same offence as was the subject of an earlier conviction or acquittal. …
On my analysis, once a conviction was recorded on count 1, the recording of a conviction on count 2 would have involved a conviction for the same offence as was the subject of count 1.

The principle of double jeopardy was outlined in similar terms by members of the High Court in Pearce: McHugh, Hayne and Callinan JJ at [9], Gummow J at [67]-[68], Kirby J at [92].
It should be borne in mind that one aspect of the principle is reflected by s 50 of the Acts Interpretation Act 1915 (SA) which provides:
50 Offences punishable under more than one law
Where any act or omission constitutes an offence under two or more Acts, or both under an Act or Acts and at common law, the offender will, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but is not liable to be punished twice for the same offence.
That provision has no application to this case.
The need for careful attention to the circumstances of the particular case, when it is claimed that there has been more than one conviction for the same offence, or for substantially the same offence, is illustrated by the reasons of Gleeson CJ in Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502.
In the present case close consideration of the facts has led me to the conclusion that there is no evidence to support a finding that Mr Maggs was involved in more than one process of production or manufacture, and accordingly the principle of double jeopardy prevents a second conviction for that particular offence. My alternative conclusion is that the jury was not directed to consider the matters that had to be decided if two convictions were to be recorded.
What should have been done at trial?
The point now at issue should have been raised at trial.
It was not open to Mr Maggs to enter one of the pleas in bar, a plea of autrefois acquit or a plea of autrefois convict. He could not do so because, when called upon to plead, he had not been acquitted or convicted of any offence arising from the evidence relating to the clandestine laboratory. But these pleas are by no means the only manifestation of the principle of double jeopardy.
The decision in Pearce establishes that in a case like this, if the point had been taken at trial, the Court had power to stay the proceedings on one of the counts on the Information on the basis that the laying of two charges was, in the circumstances, an abuse of process: Pearce at [29]-[31] McHugh, Hayne and Callinan JJ, at [67] Gummow J, at [116]-[117] Kirby J; see also R v Langdonand Langdon [2004] VSCA 205; (2004) 11 VR 18 at [57].
If an application had been made for a stay, invoking the principle of double jeopardy, it would have been necessary for the trial Judge to consider whether there was evidence that could support a conclusion that two separate or distinct processes of manufacture or production had been undertaken. The Judge might have preferred to refrain from making a ruling until the close of the prosecution case, having regard to the fact that the claim of double jeopardy depended upon a close analysis of the facts and the manner in which the case was put. By dealing with the matter at the close of the prosecution case, the Judge would have been able to make a ruling in the light of the whole of the evidence.
Alternatively, the Judge might have followed the process suggested by the Full Court of the Supreme Court of Victoria in R v Weeding [1959] VR 298. In that case the accused was tried on a presentment that contained a number of counts, and it was argued that in the circumstances a conviction on one count, had it been tried separately, would have afforded the accused a plea and bar on further proceedings on certain other counts. Having considered relevant case law, Herring CJ, O’Bryan and Dean JJ said at 305:
The principle underlying these decisions requires, in our opinion, that in all cases in which two counts are charged in a presentment, if conviction on one count would afford the accused a plea in bar of further proceedings on the other, and if the jury returns against the accused a verdict of guilty of the major offence, the trial judge should discharge the jury from returning a verdict on the lesser crime. Otherwise, the accused would be put at a disadvantage by being tried on the one presentment with the two counts instead of on separate presentments. If he were tried separately he could plead the first conviction in bar, and the same result should follow if the two counts are charged in the one presentment.
The proposition put forward by their Honours applies with all the more force in a case like the present in which the accused faces two convictions for what is, on analysis, found to be a single offence.
Conclusion
I agree with Gray J that the appeal against the conviction on count 2 should be allowed, and that the conviction on that count should be set aside. As to the other grounds argued, I agree with the reasons of Gray J.
As to the appeal against sentence, I agree with the orders proposed by Gray J and with his reasons.
BLEBY J. I agree with Gray J that, on the form of the Information in and in the circumstances of this case, the appellant could only be convicted of one offence. I agree generally with the reasons of Gray J for this conclusion, and merely add some supplementary remarks of my own.
In R v Chapman[1] I described the manufacture of methylamphetamine as an activity involving a process. One can take part in that activity continuously for the duration of the process or intermittently or by performing a single act. It will be a question of fact in each case whether only one or more than one offence has been committed. That cannot depend on the number of “batches” produced. Depending on the factual circumstances proved, there may be a number of offences committed in respect of the one batch. If, for example, the manufacture of one batch is spread over two days with a break between the two days, there may well be two or more offences committed in respect of the one batch. If a production line is set up producing several batches over a continuous period, and the defendant is engaged in the process for the whole period, there may only be one offence.
[1] (2001) 214 LSJS 319 at 329; [2001] SASC 200 at [37].
The keys to the error in this case were the form of the Information and the nature of the prosecution case. The Information alleged two identical offences with identical particulars. It cried out for greater particularisation of the two alleged separate acts of taking part in the manufacture or production of methylamphetamine. Had that been done, the prosecution would have been obliged to direct attention to what acts of taking part were being alleged in respect of each charge. Had additional particulars not been supplied, the proceedings could have been stayed as an abuse of process,[2] the accused being open to being prosecuted and convicted twice for the same offence.
[2] See Williams v Spautz (1992) 174 CLR 509 at 521-522; Pearce v The Queen (1998) 194 CLR 610, [67] Gummow J, [116]-[117] Kirby J.
The nature of the prosecution case was entirely circumstantial, based largely on a search of the shed by police after being denied entry to the shed by those inside for over an hour. Those inside included the appellant. It was not possible to particularise what the appellant had done by way of taking part in the manufacture. All that could be properly alleged and all that could be proved, albeit by way of compelling inference, was that on the day and at the place in question the appellant had taken part, by at least one act, in the manufacture of methylamphetamine.
In these circumstances the appellant could only be convicted of one offence.
I agree with Gray J that there is no substance to the appellant’s complaint relating to the trial Judge’s directions on the alleged inconsistent statement.
I also agree, although it is necessary to resentence the appellant, that the same penalty should be imposed as was imposed by the trial Judge. The circumstances found by him were justified and warranted the penalty imposed, even though there was only a single offence proved. I therefore agree with the orders proposed by Gray J.
GRAY J.
This is an appeal against conviction. Permission to appeal against sentence has also been sought.
On 20 July 2007, Robert James Maggs, the defendant and appellant, was found guilty by jury verdict following a trial in the District Court of South Australia of two counts of taking part in the manufacture of methylamphetamine contrary to section 32(1)(b) of the Controlled Substances Act 1984 (SA).
On 5 October 2007, the defendant was sentenced to the one term of imprisonment with respect to both counts of three years and eight months. This was cumulative upon an earlier sentence of three months’ imprisonment, the suspension of which was revoked because the present offending constituted a breach of the defendant’s good behaviour bond. A non-parole period of one year and 10 months was fixed with respect to the total period of imprisonment of three years and 11 months.
In accordance with the practice of this Court, full argument was heard on the grounds on which permission was sought so that in the event of a grant of permission there would be no need for a further hearing.
I have reached the conclusion that the appeal against conviction should be allowed to the extent that the conviction on the second count should be set aside. It necessarily follows that the one sentence imposed for the two offences should be set aside and the defendant re-sentenced with respect to the first count.
Background
At about 8.45pm on 17 August 2005, police attended at a shed at Hackham. Although police identified themselves to the occupants of the shed and although there was surveillance equipment inside the shed depicting the area outside including the area occupied by the police, the shed was not opened until about 9.50pm. Upon entry, the police found two men inside. They were the defendant and a former co-defendant, Robert Douglas Dyer.
Police conducted a search of the shed and located the chemicals and equipment necessary to convert extracted pseudoephedrine into methylamphetamine by a hypophosphorous method, evidence of the ongoing extraction of pseudoephedrine from pharmaceutical preparations, and methylamphetamine that had been manufactured in liquid form but was yet to be purified by the use of acid to produce the form of the drug useable for sale.
Samples were taken from the hands and fingernails of the defendant. A swab from his right hand disclosed the presence of pseudoephedrine. The balance of the samples contained no pseudoephedrine or methylamphetamine.
The Information charged the two counts in identical terms. The Information was relevantly in the following terms:
Information of the Director of Public Prosecutions
ROBERT ~~JAMES~~ DOUGLAS DYER and
ROBERT ~~DOUGLAS~~ JAMES MAGGS
are charged with the following Offences
The “middle” names of both
accused changed by consent
before Chief Judge Worthington
on 31/7/06.
Signed: DJ Rusby
First Count
Statement of Offence
Taking Part in the Manufacture of Methylamphetamine.
(Section 32(1)(b) of the Controlled Substances Act, 1984).
Particulars of Offence
Robert ~~James~~ Douglas Dyer and Robert ~~Douglas~~ James Maggs on the 17^th day of August 2005 at Hackham, knowingly took part in the manufacture or production of methylamphetamine, a drug of dependence.
Second Count
Statement of Offence
Taking Part in the Manufacture of Methylamphetamine.
(Section 32(1)(b) of the Controlled Substances Act, 1984).
Particulars of Offence
Robert ~~James~~ Douglas Dyer and Robert ~~Douglas~~ James Maggs on the 17^th day of August 2005 at Hackham, knowingly took part in the manufacture or production of methylamphetamine, a drug of dependence.
At trial no issue was taken about the form or wording of the Information.
The prosecution case was that the shed contained a clandestine methylamphetamine laboratory. Attention was drawn to items of glassware, other equipment and liquids. Attention was also drawn to the presence of chemicals associated with the production of methylamphetamine. It was the prosecution case that the monitoring including the location of the camera was of significance. It was pointed out that the camera was capable of filming anyone approaching the shed doors. It was suggested that this was a form of security and warning to the operators of the clandestine activity.
It was the prosecution case that the defendant and his former co-defendant were involved in a joint enterprise and that the defendant was guilty of both offences because two separate batches of drugs were being manufactured. One so-called batch was found in two containers, a dish and a beaker. The other so-called batch was found in one container, a methylated spirits bottle. The batch found in the dish and beaker was said to be liquid methylamphetamine. The batch found in the bottle was analysed as dissolved pseudoephedrine.
The first count was said by the prosecution to relate to the two containers of methylamphetamine. The methylamphetamine was in liquid form and, in the ordinary course, would require further treatment before being sold in a dried form. The second count related to the one batch involving the extraction of pseudoephedrine. This extraction was occurring at the time of the police attendance. The evidence disclosed that this was a step along the way to the production of methylamphetamine. This suggested distinction between the two counts was maintained throughout the trial by the prosecution.
The prosecution called evidence from Dr Cox, a qualified expert with respect to drugs including methylamphetamine. In particular, he was well qualified in the manufacturing process of methylamphetamine. Dr Cox gave evidence that he examined the shed and all items seized from the shed. Dr Cox expressed the opinion that all chemicals and items necessary to convert pseudoephedrine into methylamphetamine were present in the shed. He examined the contents of the dish and beaker and formed the opinion that the material was consistent with methylamphetamine purified by way of steam distillation. He considered that the contents of the dish and beaker revealed the same purity of methylamphetamine and also similar amounts of chemical by-products. In Dr Cox’s view the material in the dish and beaker was in preparation to be converted into a useable form of methylamphetamine. He formed the opinion that pseudoephedrine extraction was occurring at the scene at the time of his inspection.
The prosecution relied on circumstantial evidence to establish the guilt of the defendant on both counts. Particular reliance was placed on the existence of the so-called two batches that were said to be the result of steps taken in a manufacturing process; the fact that methylamphetamine was a valuable commodity providing a motive for involvement; the presence of the defendant in the shed while steps in the manufacture were being undertaken; the defendant’s unwillingness to facilitate immediate police entry to the shed; and the presence of pseudoephedrine on his right hand.
The distinction advanced by the prosecution between the two counts was reinforced by the trial Judge during the summing up:
The evidence relied upon by the prosecution and emphasised by [prosecution counsel], in relation to count 1 is the finding of methylamphetamine liquid in the Pyrex tray and dish, ... So, the Crown relies on the finding of that dish and its contents, and the glass jar or beaker, ...
The evidence that you heard indicated that the liquid found in each of those two items contained methylamphetamine, and in the glass jar, in particular, it was 2.51 g of methylamphetamine. Dr Cox told you that that appeared to be the end product of the process of steam distillation, before the final powder form of methylamphetamine is produced. So, that evidence, ladies and gentlemen, relates to a late stage, almost the final stage, of the process of manufacturing methylamphetamine.
The evidence relied on by the prosecution and emphasised by prosecuting counsel in relation to count 2 is the finding of liquid in a methylated spirits bottle, ... In conjunction with that, ... you will see two photographs of a red item, a largely red item, with some tubing coming out of it, ... The evidence was that that contained a mixture of ethanol and dissolved pseudoephedrine. The evidence, further, was that the red item was rigged up to ... the bottle, and that those items were found with a T-shirt over the top of them, ... and the evidence, further, was that the contents of those items indicated part of the separation process or pseudoephedrine extraction.
So, these are, it is said, two batches of liquid and associated material in the manufacturing process; pseudoephedrine extraction, in the case of count 2 – that is the red item and the liquid in the meths bottle – and methylamphetamine having been produced by conversion in count 1.
It was the defendant’s case at trial that he had nothing to do with the manufacturing process taking place in the shed. It was his case that he was working on a motor vehicle in the shed. In convicting the defendant, the jury obviously rejected this suggestion.
As earlier observed at trial, no objection was taken at any time to the suggestion that separate batches were being manufactured and that it was appropriate for there to be two separate counts. However, on appeal it was contended that the proven facts could only give rise to the one offence and that the Court should act to set aside the conviction on the second count to prevent a miscarriage of justice.
The Appeal
One or Two Offences
As earlier observed, the defendant was charged with two counts of taking part in the manufacture of methylamphetamine contrary to section 32(1)(b) of the Controlled Substances Act. Identical particulars were provided in respect of each count. On appeal, it was submitted that the laying of the two counts was inappropriate as only one offence could have been committed.
In Walsh v Tattersall,[3] the High Court reviewed the principles governing duplicity in complaints and informations. The Court was concerned with a charge of obtaining by dishonest means any payment or other benefit under a particular statute. In the course of the review the members of the Court discussed the problems raised by an offence involving continuous or ongoing conduct. They also discussed the legitimacy of bringing a single charge to deal with one activity of a continuing kind although technically, numerous offences may be involved. In this respect, Dawson and Toohey JJ observed:[4]
In the present case, the appellant could be in no doubt as to the case to be presented against him which was that he misrepresented that he was incapacitated for work and maintained that misrepresentation during the period specified in the complaint, obtaining thereby various payments under the Act. As Prior J observed, what was involved was one activity of a continuing kind. In that situation it is legitimate to bring a single charge. While analogies are not always a sure guide, the way in which the case against the appellant was presented bears similarities to the concurrence of separate acts to prove an offence of "supply" or "trafficking" in drug legislation when some though not all of those acts will themselves constitute the offence.
Nevertheless, the practice of laying charges of a compendious kind can place an accused in a position of difficulty. In most cases the uncertainty can be dispelled by further and better particulars. But it may be preferable, where various amounts of money are paid on different occasions, as in the present case, that more specific charges be laid. With a compendious charge, various issues might arise, such as whether the prosecution is statute barred, which are more difficult of resolution. That particular issue does not arise here. The appellant also placed some emphasis on the need for proof of dishonesty at the time each payment was received. Without in any way diminishing the obligation of the prosecution to prove its case beyond reasonable doubt, that is essentially an evidentiary consideration. It does not render the count duplicitous.
[3] Walsh v Tattersall (1996) 188 CLR 77.
[4] Walsh v Tattersall (1996) 188 CLR 77 at 86-87. (Dawson and Toohey JJ were in dissent).

Gaudron and Gummow JJ took the view that each payment involved a separate offence and that in the circumstances there was duplicity of such a nature to lead to the setting aside of the conviction.
Kirby J, who formed the majority with Gaudron and Gummow JJ, undertook an extensive review of the principles and authorities concerning duplicity and in that respect observed:[5]
The apparent artificiality of insisting on applying the rule against duplicity in its full rigour has been highlighted by actual and theoretical instances that have arisen, or been contemplated, where criminal acts occurred in very close proximity to each other. If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible. Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity. The usual explanation given for adopting this approach is that, only by doing so, would the judges be able to avoid reducing the law to technical absurdity.
Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment and trafficking in drugs. Obviously, nice questions arise as to whether individual acts of supply of prohibited drugs create the same, or substantially the same, offence so as to sustain a single count and to resist an allegation of duplicity. Various verbal formulae have been offered as a suggested test for whether the criminal acts are sufficiently close in time and space as to “fairly and properly be identified as part of the same criminal enterprise or the one criminal activity”. These valiant attempts by judges have been criticised as “glib”. Judges themselves have acknowledged that judicial views in particular cases are not always easy to reconcile. Ultimately, what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion. For instance, Latham CJ dissented in Johnson v Miller; Kitto J dissented in Montgomery v Stewart; and Brennan J (as he then was) dissented in S v The Queen.
[emphasis added]
[5] Walsh v Tattersall (1996) 188 CLR 77 at 107, 108 (footnotes omitted).
These observations are of assistance when addressing the issues to be resolved in the present appeal. The emboldened sentences highlight “the nice question” that arises.[6] Does section 32(1)(b) of the Controlled Substances Act create one offence of taking part in the manufacture of a drug? Insofar as a defendant takes part through ongoing acts in the manufacture is each discreet act a separate offence? To put the matter another way, if the facts lead to the conclusion that the one process of manufacture is under way, can a person taking part in that process through several acts be guilty of more than the one offence?
[6] See also R v Hussein (2003) 8 VLR 92 at [16]-[19].
Section 32(1)(b) is in the following terms:
(1)     A person must not knowingly –
…
(b)     take part in the manufacture or production of such a drug or substance
Section 32(4) further expands the concept of “taking part”. In subsection (4)(a), it is provided that:
(4)Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person –
(a)     takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration
The defendant submitted that on the proper construction of section 32(1)(b), an offence occurs when a person takes part in the manufacture of a drug of dependence and that a separate offence does not occur each time a suggested batch of a drug of dependence is manufactured through the same manufacturing process regardless of how long that process may continue.
It was pointed out that section 32(4)(a) emphasises that the conduct or activity of taking part in the process of manufacture leading to a drug of dependence is prohibited. Counsel submitted that further support for this construction could be found by contrasting the wording of subsection (4)(a) with the wording of other subparagraphs of subsection (4), such as (4)(c) which makes it an offence where a person “provides the premises in which any step in that process is taken” – it is the conduct of providing that is prohibited.
Counsel for the defendant further submitted that the manifest public policy behind section 32 is the prohibition of persons knowingly participating in the process of drug manufacture and that this policy should be given effect to by addressing participation in a manufacturing or production process rather than by the artificial breaking up of a process by emphasising so-called batches. It was pointed out that the word “batch” or any similar word does not appear in the legislation. It was contended that it would be wrong if the question of whether one or more offences were committed could depend upon the prosecution’s characterisation of whether different batches were being produced. It was also claimed that it would lead to the unfortunate result that a person who took part in a manufacturing process and produced what were characterised as two batches of methylamphetamine weighing together 10 grams would commit two offences, whereas a person producing what was said to be one batch of 10 grams would commit the one offence. Nothing in the wording of the legislation would justify such an approach. In support of this submission it was pointed out that the penalty section – section 32(5)B(b)(i) and (ii) – draws a distinction for the purposes of penalty between a greater or lesser amount of manufactured drug. The penalties are to be determined having regard to weight, not by the number of alleged batches produced.
The defendant further submitted that it would be contrary to common law principle for a person to be prosecuted twice for what was in effect the same offence, or punished twice for what was in effect the same conduct.[7]
[7] Pearce v The Queen (1998) 194 CLR 610 at [29]-[30] (McHugh, Hayne and Callinan JJ), at [67] (Gummow J), at [117] (Kirby J); Rucioch v Police (2004) 88 SASR 326 at [32] (Doyle CJ).
Counsel for the Crown submitted that properly understood, the process of manufacture of methylamphetamine in count one and the process of manufacture of methylamphetamine in count two related to separate processes of manufacture of methylamphetamine. While it was accepted that some pseudo-ephedrine must have been used to manufacture the methylamphetamine, the subject of count one, it was said that it was not the same pseudoephedrine that was the subject of count two. The extraction of pseudoephedrine in count two was still taking place. That pseudoephedrine was still dissolved in solution. It had to be filtered from the solution and dried before being used to produce the drug methylamphetamine.
The Crown further contended that if the pseudoephedrine in count two was to be used, once extraction was complete, then it was to produce an amount of methylamphetamine separate to that which had already been produced in count one because the pseudoephedrine was not yet ready for use. Further, any pseudoephedrine that was extracted, the subject of count two, was not going to be used to produce the methylamphetamine the subject of count one. The methylamphetamine in count one needed to be purified but the evidence was that that was achieved using acid.
The Crown submitted that there was no evidence to suggest that pseudoephedrine would be added to the methylamphetamine in count one. To the contrary, it was emphasised that pseudoephedrine is used in the manufacture of methylamphetamine at a point before the stage reached in count one. Once purified, methylamphetamine might be “cut” but not pseudoephedrine. The evidence was that methylamphetamine is “cut” with substances before sale but the substances said to be used did not include pseudoephedrine.
The Crown claimed that the approach of the prosecution in charging two counts for the conduct alleged did not result in the defendant being punished twice for the same offence. The elements of each offence were not identical as each offence related to a different process of manufacture. There were two distinct offences. Charging the one offence would not have reflected the entirety of the defendant’s criminal conduct.
Finally, it was pointed out that the sentencing discretion allowed the Court to adjust a proposed sentence to reflect the fact that a number of offences arose out of a common set of circumstances.
The One Offence
Ultimately, it is a question of fact whether separate manufacturing processes were taking place. The evidence established that equipment was being used to extract pseudoephedrine, a stage in the process of the manufacture of methylamphetamine. This process was underway. This was evident from the substance found in the methylated spirits bottle. In due course it might be expected that the pseudoephedrine would be further processed to form liquid methylamphetamine. Further processing would then take place through acid leaching and drying to produce methylamphetamine in a solid form. As earlier observed, the police also found in the shed the dish and beaker containing liquid methylamphetamine. This, it may be inferred, had been produced from earlier extracted pseudoephedrine. This liquid methylamphetamine was still to be acid leached and dried. The process of the manufacture of methylamphetamine was underway but the process had not yielded the intended final product, that is, methylamphetamine in a solid form.
At the time of the police entry to the shed, methylamphetamine was in the process of manufacture. There was the one set of equipment which would allow the process of manufacture to a finished useable and saleable product. There was no basis to suggest that two separate manufacturing processes, in these circumstances, were involved. There was no evidence that the liquid methylamphetamine had been produced on a separate occasion from the pseudoephedrine. There was the one process of manufacture. At the very least, the prosecution did not exclude the reasonable hypothesis that only one process of manufacture was under way in the shed at the time of the police entry.
In the event of the appeal being allowed on this ground, the defendant accepted that, if other grounds of complaint were not made out, it was appropriate that the conviction on the first count be affirmed and that the conviction on the second count be set aside and the count quashed.
In the above circumstances, only the one offence had been committed. Had counsel at trial taken issue with the form of the Information, it might be expected that an application at the outset of the trial would have been advanced. Alternatively, at the close of the prosecution case, a submission could have been advanced of no case to answer on the second count. Further opportunities to raise the issue would have occurred at the conclusion of the evidence or immediately prior to the summing up. An application could have been made that the second count be withdrawn from the jury. None of the above occurred. Notwithstanding the failure to raise the matter at trial, it remains open to the defendant to contend on appeal that a miscarriage of justice has arisen as a result of the circumstance that he has been convicted and punished for two offences when only one had been committed.
In Walsh v Tattersall,[8] the point on duplicity had not been taken at trial. However, both the intermediate Court and the High Court did not consider that the failure to take the point at trial precluded the issue being raised on appeal.
[8] Walsh v Tattersall (1996) 188 CLR 77.
In the present case, the issue is not one of duplicity, it is a more fundamental issue. In substance, the conclusions that I have reached would suggest that the second count is a nullity. It did no more than allege the same offence as in the first count. On the prosecutor’s opening, the particulars said to support the second count were no more than further particulars of the first count.
In my view, the evidence only disclosed that one offence had been committed. The conviction on the second count should be set aside. The second count on the information should be quashed.
Inconsistent Statement
The defendant complained that the trial Judge had made unjustified comments to the jury about the defendant having made a prior inconsistent statement. This concern was raised at trial during the course of the summing up and led to the trial Judge providing clarification. It was complained that the clarification was demonstrably inadequate.
Counsel for the defendant submitted that the suggested inconsistency concerned the defendant’s explanation that he was working on his motor vehicle and was not taking part in the manufacture of methylamphetamine. In his record of interview the defendant said that he was in the shed cleaning the spark plugs of a vehicle. In the course of evidence, he gave an account of undertaking this work as well as considerable further work on the vehicle. It was argued that the sworn evidence was no more than an elaboration of what had been said in the defendant’s record of interview and that there was no contradiction or inconsistency.
The trial Judge initially commented as follows:
An example of what you may conclude was an inconsistent statement emerged during the evidence of the accused, when he was testifying regarding what he was doing in the shed from about 7 or 8 p.m., up until the time the door of the shed was opened at about 10 to 10, (9.50), the door being opened to let the police in. In his record of interview, the accused said that he was ‘Just trying to, um, clean it up a bit, you know, clean the spark plugs up’, whereas, in his evidence given from the witness box in this courtroom, he spoke of ‘working on the spark plugs, cleaning the air filter, giving the car a tune-up and cleaning the motor with a degreaser.’
The Judge’s later comment following the defence complaint was in the following terms:
When I commenced the latter part of my summing up this morning, when we resumed this morning, I commenced by indicating that I wanted to say something to you about inconsistent statements and I went on to give you an example of what you may conclude – I did not say what you should conclude – was an inconsistent statement that emerged during the evidence of the accused when he was testifying regarding what he was doing in the shed up until the time the door of the shed was opened, and I drew your attention to what he had said in his record of interview about ‘Just trying to clean it up a bit, you know, clean the spark plugs up’ and I pointed out to you that in his evidence from the witness box he spoke of working on the spark plugs, cleaning the air filter, giving the car a tune-up and cleaning the motor with a degreaser.
Ladies and gentlemen, I draw your attention to the fact that the accused made a specific reference in his evidence to the reason why this was not an elaboration or inconsistent statement on his part and I direct your attention specifically to the [following transcript].
In answer to a question in cross-examination.
‘Q.You didn’t say anything to the police about cleaning the air filter, did you?
A.I was just telling them basically what I was doing.
Q.You didn’t tell them anything about cleaning the air filter, did you?
A.No.
Q.You didn’t tell them anything about using the degreaser to clean down the engine, did you?
A.No.
Q.Is that because I suggest those are two details that you have made up in order to account for all that time you were in the shed?
A.No.
Q.You knew, didn’t you, at the time you were being interviewed that the police wanted to know what you’d been doing inside the shed?
A.I told them what I was doing inside the shed.
Q.You knew from the questions you were asked that the police wanted to know from you what you were doing inside the shed?
A.Yes; I didn’t know they wanted in-depth answers, they were just basic answers.
Q.You thought cleaning the spark plugs up would cover it?
A.Yes’.
If you accept the accused in that respect, where he gave those answers, there would be no inconsistency and therefore what I said about inconsistent statements would have no application. I invite you to retire and go on deliberating.
Counsel for the Crown accepted that on one view the evidence of the defendant about his conduct in the shed was an elaboration upon what he had earlier told the police. However, it was pointed out that there was another view. It was submitted that the so-called elaboration was designed to explain why the defendant would have needed to be in the shed for a lengthy period. It was contended that the suggestion that the defendant was cleaning spark plugs provided an inadequate explanation for the time he was spending in the shed. The explanation lacked credibility. The defendant, it was said, recognised the need for something further and as a result proceeded to recount that different and more extensive work was undertaken. This, it was claimed, was inconsistent with his earlier account. It was said that in these circumstances, there was a relevant inconsistency and that the Judge’s summing up was both relevant and appropriate. This submission should be accepted.
There is no substance to this complaint. If the jury rejected the defendant’s explanation, then there was a relevant inconsistency. The fact that the sworn evidence could be described as an elaboration did not gainsay that there may have been a material inconsistency.
Re-sentencing
As earlier observed, the Judge imposed the one sentence with respect to both offences. As the conviction on the second count is to be set aside, it follows that the sentence imposed should be set aside and the defendant re-sentenced with respect to the first count.
When sentencing, the Judge observed:
In terms of criminal liability, you and your “partner in crime” are both equally liable, regardless of what part each played in its commission. You are each responsible for the acts of the other in carrying out the enterprise. That said, one of two joint [participants] in a crime may be more or less culpable than the other. One may play a more active role than the other, and, on that account, be more culpable than the other.
I do not treat you, for sentencing purposes, as the more active participant. I give you the benefit of the doubt and treat you as the one playing a lesser role, but a role, nonetheless, and a role considerably more significant than that of a person merely “handling one item yielding pseudoephedrine traces on to his hand”.
I refer to my summing up to indicate the basis upon which the circumstantial evidence must have led the jury to be satisfied beyond reasonable doubt, (as I was), that there had been in existence a clandestine methylamphetamine laboratory in shed No.5 at Cottage Lane when the police arrived at the scene of your crimes and that you, as part of a joint enterprise, knowingly took part in the manufacture of two batches of methylamphetamine in the circumstances of each count, one involving the conversion process and one involving the pseudoephedrine extraction process.
From any reasonable perspective, this was serious drug offending you were involved in. The only reasonable inferences that are to be drawn are that this was a commercial enterprise and that there was a profit motive. Pre-planning must have occurred, and the evidence showed that some attempts were made by the two of you to conceal the illicit activities. I find that it was, indeed, a clandestine laboratory of some sophistication.
In this case, you and your “partner in crime” together stood to benefit, according to the evidence, to amounts of commercial profit, (depending upon how the methylamphetamine was to be sold), of somewhere between a few thousand dollars at one end of the spectrum, and several tens of thousands of dollars at the other end. I refer to the evidence given by Detective Fielke, which I have accepted. I make these findings beyond reasonable doubt. Save and except the extent that has just been indicated, it is not possible to make any firm findings as to the precise quantity, or as to the precise commercial value, of the drugs that had been (or were being) manufactured.
You are not entitled to anything in the nature of a discount off your sentence in the order of 20 to 30% for pleas of guilty entered and for remorse and contrition shown and for cooperation with the prosecuting authorities. None of those things occurred.

The Judge outlined the antecedents of the defendant and in that respect observed:
You are not entitled to the leniency a person of previous good character might expect to receive. As your antecedent report shows, you have a number of relevant previous convictions: for possessing LSD for sale on 11 July 2000 you received a three year suspended sentence of imprisonment; for possessing amphetamines, on 13 May 2002 you were fined; for aggravated serious criminal trespass and for breach of bond, on 14 January 2003 you received a suspended sentence of imprisonment of three years, four months and one week; for unlawful possession, previously referred to, on 4 April 2005 your suspended sentence of three months imprisonment was still in place.
...
Robert James Maggs, you are a 48-year-old probationer. On 4 April 2005, in this court, you were subject to a three months sentence of imprisonment for one count of unlawful possession, which sentence had been suspended upon you entering into a bond in the sum of $100 to be of good behaviour for a term of 12 months.
As you have admitted, you breached that bond, in that you failed to observe a condition of that bond, in that you failed to be of good behaviour, in that on 17 August 2005 (some four and a half months later), you committed two counts of taking part in the manufacture of methylamphetamine, (to be described by me as the “drug offences”) of which crimes you were convicted in this court, by verdicts of a jury on 20 July this year. I am “satisfied” that you have breached, (that is to say, failed to comply with) your bond.
...
The three character references that were tendered on your behalf, while serving to go in your favour, must be assessed (and are assessed by me) as having relatively little weight, on account of your earlier offending history, prior to the date of offending for which I must sentence you. You see, it is a matter of some aggravation that you committed these two drugs offences, as previously indicated, less than five months after you had received the benefit of a suspended sentence bond.
...
I have listened to the submissions of your counsel … and those of [prosecution counsel]. As these remarks indicate, I have not been persuaded by all of [your counsel’s] submissions. In particular, I am not persuaded that you “only briefly assisted your partner”. I am not persuaded that your involvement in this production was “at the very lowest end of the scale of seriousness”. As I have indicated, there is no doubt that this was a commercial production from which you were to benefit. I found [prosecution’s counsel] submissions to be persuasive.
The Judge took the view that he needed to impose an immediate term of imprisonment. He considered that the offending was serious:
Methylamphetamine is a drug described as a middle range drug in terms of seriousness. For sentencing purposes, it is to be treated as less dangerous than heroin but more dangerous than cannabis.
Manufacturing methylamphetamine is a serious offence, taking part therein is likewise a serious offence, and it is punishable by a maximum penalty of 25 years imprisonment and/or a fine of up to $200,000.
The criminal courts of this State have repeatedly recognised that parliament expects the imposition of penalties that are likely to act as a general deterrent to those who are tempted to engage (or take part) in the manufacture of such drugs. There is no tariff. Each case must be determined according to its own circumstances. [R v Plaister and Graham [2001] SASC 383].
The production of drugs of dependence and prohibited substances as part of a commercial operation is at the heart of the drug trade, along with importation. [R v Di Maria and others (1966) 67 SASR 466]. Where the drug is produced for profit a deterrent sentence is generally called for. [The Queen v Haydon (2001) 80 SASR 560 and The Queen v Mangelsdorf and others (1995) 66 SASR 60].
It is very clear that man-made laboratories used for the purpose of production of drugs such as amphetamines are a dangerous and increasing development in the illegal drug trade. [R v Eduardo Dichiera, 18 January 2002, a decision of Judge David (as he then was), in this Court - No.487/2000].
Quite obviously, a sentence emphasising both general and individual deterrence is called for here.
The Judge concluded that he was not satisfied that good reason to suspend existed. As earlier observed, he imposed a sentence of imprisonment of three years and eight months for the subject offending.
On appeal the sentencing Judge’s general summary of the facts and his outline of the antecedents of the defendant were not challenged. However, it was submitted that the sentencing Judge erred in reaching the conclusion beyond reasonable doubt that the defendant sought to benefit financially from his criminal conduct. It was contended that there was no direct evidence that the defendant stood to gain financially.
Counsel for the Crown supported the Judge’s finding in respect to the defendant standing to gain financially. It was said that the evidence of the potential yield from the manufacturing process, coupled with the evidence about the commercial value of methylamphetamine, provided a clear basis of support for that finding. It was pointed out that the laboratory was not unsophisticated, that considerable equipment and chemicals were present in the shed, and that there was no evidence within the shed of the use of methylamphetamine. Attention was drawn to the pre-sentence report disclosing that the defendant denied being the user of methylamphetamine at the time of the offence. This, it was said, negated any suggestion that the methylamphetamine was for his own use.
In my view, there was ample evidence to support the Judge’s finding that the defendant stood to gain commercially from the production of methylamphetamine to be produced from the laboratory. This finding was the appropriate finding.
The defendant’s conduct involved taking part in the manufacture of methylamphetamine and included the production of the pseudo-ephedrine as well as methylamphetamine. Having regard to the evident commercial purposes, the quantities involved and the process of production and the personal and criminal antecedents of the defendant, a sentence of imprisonment of three years and eight months was an appropriate sentence for this offence.
As earlier observed, as the sentence imposed by the sentencing Judge was in respect of both counts, it must be set aside. However, it does not follow that a different sentence should be imposed. A sentence of three years and eight months is the appropriate sentence for the criminal conduct engaged in by the defendant. Good reason to suspend does not exist.
The Judge’s decision to revoke the earlier suspended sentence of three months’ imprisonment was appropriate. Accordingly, the defendant should be sentenced to a term of imprisonment of three years and eight months. That sentence should commence on the expiration of the three months’ suspended sentence. The defendant has been in custody since 20 July 2007 and accordingly the revoked suspended sentence should be treated as having commenced on that date. A non-parole period of one year and 10 months in respect of the total term of imprisonment of three years and 11 months should be fixed.
Conclusion
I would allow the appeal against the conviction on the second count. I would set aside the conviction on the second count. I would quash the second count on the Information. I would affirm the conviction on the first count.
I would set aside the sentence imposed by the sentencing Judge. I would re-sentence the defendant on the first count. I would impose a sentence of three years and eight months’ imprisonment. I would decline to suspend the sentence. I would revoke the suspension of the earlier sentence of three months’ imprisonment. That sentence should be backdated to commence on 20 July 2007. The sentence of three years and eight months’ imprisonment should be backdated to commence on the expiration of the revoked suspended sentence. I would fix a non-parole period of one year and 10 months in respect of the total term of imprisonment to be served by the defendant of three years and 11 months. The non-parole period should be backdated to commence from 20 July 2007.