R v McConville

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 79 of 1998 No. 67 of 1998

THE QUEEN

GARY WILLIAM CHARLES AND MARK ANDREW MCCONVILLE

---

JUDGES:	TADGELL, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 1998
DATE OF JUDGMENT:	23 July 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 12

---

Criminal law - Sentencing - Trafficking in amphetamines by manufacture -
Rehabilitation of prisoner and wife - Sentences of 6 years manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant Charles	Mr. G.J. Lyon	Melasecca Zayler
For the Applicant McConville	Mr. P.G. Priest	Simon Parsons & Co.

TADGELL, J.A.:

I shall invite Charles, J.A. to deliver the first judgment.

CHARLES, J.A.:

The first applicant, Gary William Charles, who was born on 17 March 1951, pleaded guilty on 17 September 1997 to a presentment (ZB242) which alleged that he trafficked in methylamphetamines (count 1), that he had in his possession a drug of dependence, pseudoephedrine (count 2), that he had possession of a drug of dependence, cannabis L (count 3) and that he had intentionally obstructed a police officer in the execution of his duty (count 4), each offence being alleged to have taken place on 2 September 1994. The applicant admitted 52 previous convictions from 18 court appearances between 1 August 1968 and 18 December 1992. The applicant had previously been convicted of conspiracy to traffick in methyl- amphetamines on 4 May 1988, and at his last court appearance on 8 December 1992 had been convicted of trafficking methylamphetamines and was sentenced to be imprisoned for one year and six months, of which sentence one year was suspended for two years. The offences alleged in presentment ZB242 were therefore committed during the period of suspension just mentioned.
On 31 October 1997 the learned judge sentenced the applicant on presentment ZB242 as follows: on count 1 to be imprisoned for three-and-a-half years, on count 2 to be imprisoned for 18 months, on count 3 to a fine of $300 and on count 4 to be imprisoned for four months. The total effective sentence was three-and-a-half years' imprisonment and his Honour fixed a non-parole period of two years.
The first applicant's co-defendant in respect of presentment ZB242 was Graeme John Webber, who was born on 3 July 1965, and who pleaded guilty on 19 January 1996 in the County Court at Melbourne to a presentment containing one count of trafficking methylamphetamines and one count of possession of cannabis L. On 24 January 1996 Webber was sentenced to be imprisoned for two years and six months and the learned judge fixed a non-parole period of 15 months. Webber made application for leave to appeal against sentence and his application was heard by this Court on 15 May 1996. His appeal was allowed and he was re- sentenced by the substitution of a new non-parole period of eight months (see (1996) 86 A.Crim.R. 361).
On 10 March 1998 Charles and the second applicant, Mark Andrew McConville, who was born on 6 January 1963, pleaded guilty, before the same County Court judge who had sentenced Charles on 31 October 1997, to presentment C9700237, which alleged that Charles and McConville had both trafficked in methylamphetamines (count 1) and had possession of cannabis L (count 2), both offences being alleged to have occurred on 21 June 1996. McConville also pleaded guilty to presentment K00020843, which contained one count alleging that he had trafficked in methylamphetamines on 3 January 1997. McConville admitted 147 previous convictions from 28 court appearances between 21 November 1981 and 19 January 1995.
On 30 March 1998 the learned judge sentenced both Charles and McConville on presentment C9700237 as follows: on count 1 both were sentenced to six years' imprisonment and on count 2 both were fined $100. The learned judge also sentenced McConville to be imprisoned for six years on presentment K00020843 and ordered that this sentence be served concurrently with the sentence imposed on presentment C9700237. In respect of Charles, his Honour ordered that Charles's sentence be served concurrently with the sentence he was currently serving on presentment ZB242. The total effective sentence in relation both to Charles and McConville was therefore six years' imprisonment. The learned judge fixed a non- parole period of four years in respect of McConville, and ordered that the non- parole period of two years imposed upon Charles in relation to presentment ZB242 be superseded by a single non-parole period of four years for both presentments.
The facts giving rise to the offences alleged against Charles and Webber were summarised by the learned sentencing judge, his statement of them being based in part upon the summary of the facts related by Winneke, P. in Webber's appeal. The summary that follows is largely based upon their Honours' statement of those facts.
On 4 August 1994 Webber rented a caravan and arranged for its delivery to the rear of a property at 291 Canterbury Road, Bayswater. He moved in and occupied the caravan from that date. On 28 August Webber made an arrangement with a friend, Paul Raymond Smith, for Webber to occupy a bungalow at the rear of Smith's property at 22 Glenview Road, Lilydale. On 31 August Smith found that his keys no longer gave him access to that bungalow. Between Tuesday 30 August and the morning of Friday 2 September 1994, police officers maintained surveillance of Charles and other persons with whom he came into contact, including Webber. On Tuesday 30 August, Charles and Webber were observed removing glassware, tubing and bedding from the caravan and placing this material in the rear of a Ford utility. Between 3 a.m. and 4.30 a.m. on 2 September 1994, police officers maintained surveillance of the bungalow. They heard from the bungalow a noise like an electric motor, the moving of glassware and a conversation which suggested that a chemical process was being undertaken. At 6.50 a.m. that Friday morning police made a forced entry under warrant into the bungalow, where they found Webber and Charles, both of whom were then arrested. Powder and liquid substances were seized, together with a small amount of plant material. The powder and liquid were later analysed and found to contain a realisable pure methylamphetamine content of 60 grams. The plant material was analysed and found to be cannabis mixed with unidentified plant material to a total weight of 1.4 grams. The glassware and general equipment were described as suitable for conducting the chemical process required to convert chemical products found in the bungalow into methylamphetamine. Sixty grams of methyl- amphetamine had a wholesale value of some $7,000 and a street value of approximately $70,000. Powder found on newspaper in the bungalow was analysed and found to be pseudoephedrine, which is a Schedule 11 drug of dependence. The total quantity of pseudoephedrine located was 169 grams. The prima facie traffickable quantity for pseudoephedrine is 100 grams. The total street value of the drug seized was approximately $103,000.
The facts giving rise to the offences alleged in presentment C9700237 were as follows. On 20 June 1996, members of the State Crime Police Surveillance Unit were maintaining surveillance on Charles. At 3.45 p.m. this day Charles left the Croydon police station after reporting on bail, in a Ford Fairmont sedan owned and driven by McConville. At 5.23 p.m. they arrived at a property at 1963 Eltham-Yarra Glen Road, Christmas Hills. The property was remote, and was obscured from the road by extensive gardens. It was in a lightly populated, semi-rural area. During the evening Charles and McConville were observed moving about the house, holding up glassware containing chemicals and viewing the chemicals. At 6.45 a.m. on Friday 21 June, police executed a search warrant at the premises and Charles was found in a room which contained chemicals, chemical glassware and apparatus. McConville was found in the kitchen. He ran from it into the room where Charles was and unsuccessfully attempted to jump through a closed window. The kitchen contained the "laboratory", which consisted of a hotpot and gas ring burners on the sink for heating the reaction of chemicals. Further processing was taking place in the bathroom. The police seized a large number of exhibits including various chemicals and laboratory equipment used in the manufacture of amphetamine. Initial analysis of these chemicals and equipment showed that methyl-amphetamine had been manufactured. The police also seized a quantity of cannabis L which was found in the loungeroom. Two bongs (smoking devices) in a used state were also found in the loungeroom. The cannabis was examined at the Victoria Forensic Science Centre and the weight of the cannabis present was found to be 29.7 grams. The total quantity of methylamphetamine found on the premises was 728.3 grams. Both Charles and McConville were interviewed on 21 June 1996 by police, and both declined to comment or to offer any explanation of the matters put to them during the interview.
The facts relating to the charges against McConville contained in presentment K00020843 were as follows. On Friday 3 June 1997 at 9.40 a.m. Drug Squad detectives searched premises at 6 Crown Road, Bonbeach, a dwelling house in a residential area. A search of the premises revealed an amphetamine laboratory set up in the laundry and further processing was taking place in the second front bedroom. The laboratory in the laundry consisted of two reaction vessels. One reaction vessel was sitting in a bath of oil in an electric deep fryer and the second was sitting on a gas-ring burner. Both reaction vessels contained liquid. McConville and a co-offender (Hogg) were interviewed by police and during this interview McConville made full admissions to manufacturing methyl- amphetamine. He said that at the time of his arrest he hoped he had manufactured enough liquid amphetamine to produce one pound of pure methylamphetamine powder. He said he was manufacturing methylamphetamine for another person and believed the wholesale value of one pound of pure powder was approximately $45,000 to $50,000. He did not know how much money, if any, he would receive but expected to receive at least a motor car for his efforts. McConville declined to name the person for whom he claimed to be manufacturing methylamphetamine.
Charles now seeks leave to appeal against the sentences imposed by the learned judge in relation to presentment ZB242 on the grounds that -

1.

The learned judge based his sentence on an incorrect finding of fact in respect of the weight and value of the drugs, which was not available on the material before him, this being a material factor in the determination of the balance between a custodial and non-custodial sentence;

2.

The learned judge erred in the application of the principles of parity as between the applicant and Webber;

3.

The learned judge was influenced by a matter pending before the court which was incorrectly reflected in the sentence given to the applicant;

4.

The learned judge based his sentence on an incorrect view of the role of the applicant;
5. The sentence imposed on the applicant is a crushing one;

6.

The learned sentencing judge did not give sufficient weight to the exceptional rehabilitation that had taken place and to the fact that the applicant is a truly reclaimable drug-addicted person with a real prospect of rehabilitation;
7. The sentence is manifestly excessive.

Charles appeals against the sentence imposed by the learned judge in relation to presentment C9700237 on the grounds that -

1. The sentence was manifestly excessive;
2. The sentence did not have sufficient regard to the principles of totality and its cumulation ignored the significant rehabilitation that had taken place;
3. The sentence imposed is a crushing one having regard to the status of the applicant's rehabilitation and his family's rehabilitation.

McConville seeks leave to appeal in relation to the sentences imposed on both presentments C9700237 and K00020843 on the ground that the learned judge erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in the circumstances.
In these applications, Mr Lyon appeared for Charles, Mr Priest for McConville and Mr Ryan for the Crown. The applications were argued concisely and very well by all counsel.
I turn now to Charles's applications, and it is convenient to take first the claim made in relation to both sentences that the learned judge failed to give sufficient weight to the applicant's rehabilitation.
Charles had a childhood and upbringing of exceptional disadvantage. He was removed from the care of his 15-year-old mother at a very early age to be brought up by an aboriginal woman, Evelyn Burns, who he was led to believe was his mother. She gave him love and security until she died when he was seven. He was then taken back to his natural mother and her then husband, Leo Charles. Leo Charles was abusive and violent and a heavy drinker who never accepted him and regarded him as an intrusion to the family. The boy was repeatedly beaten and physically abused by his stepfather and rejected also by his mother. Charles lived with them and their nine children for ten or so years in a situation of continuing serious hardship. He was intelligent and could have proceeded by scholarship in Year 10 to Mentone Grammar School, but his father, however, insisted that he remain at home to earn money by heavy manual work.
Not surprisingly he became anti-social in his teenage years and, at or about the age of 16, received two sentences of detention in a youth training centre. On release from the second period of detention he went to live with another family and enjoyed a stable and caring relationship with them for some nine years, during which he completed an apprenticeship in carpentry.
At this time Charles developed back pain which progressively restricted him until at 24 his condition was diagnosed as spondylo-epiphyseal dysplasia, a rare disease genetically inherited which causes slow degeneration of the spine and generalised arthritis, eventually leading to paraplegia. The chronic pain associated with his condition caused him to drink heavily and led eventually to his use of cannabis and amphetamines which he believed were good for pain relief. Inevitably he fell foul of the law, and convictions for driving offences and dishonesty followed. He married, but his first marriage failed in 1983.
He commenced using amphetamines at the age of 30, and cannabis at 33 and at 35 began smoking heroin. His first drug-related convictions were recorded in 1988 when he was aged 37. He learnt the formula for making amphetamines when in gaol in 1988. On 4 May 1988 he was convicted in the Melbourne Magistrates' Court of conspiracy to traffick amphetamines by way of manufacture and sentenced to be imprisoned for nine months.
In 1989 Charles met his present wife, Jane Ditchburn, who was also a heavy user of amphetamines. She became pregnant with the first of their three children. Charles again engaged in the manufacture of amphetamines in a clandestine laboratory at Rye, as a result of which he was convicted on 18 December 1992 of trafficking amphetamines and was sentenced to be imprisoned for 18 months, 12 months of which were suspended for two years. On discharge from prison Charles and his wife continued, as the learned sentencing judge here put it, to abuse a smorgasbord of substances including amphetamines and liquor. At this time Charles met Graeme Webber, like him a drug addict with a criminal history, and together they embarked on the venture of manufacturing amphetamines which led to their both being arrested on 2 September 1994.
Charles was granted bail on 11 January 1995. He attended a residential treatment centre for aborigines. He took weekend leaves and he and his wife continued to abuse drugs. Charles renewed acquaintance with Mark McConville, whom he had met in gaol, and again engaged in the manufacture of amphetamines, setting up another clandestine laboratory with him for the purpose. On 21 June 1996 they were both arrested at Christmas Hills and Charles was held on remand until 4 September 1996. On that day he entered the Odyssey House programme, and he remained there until 31 October 1997 when he was first sentenced.
In Odyssey House he was assessed in October 1996 by Gabrielle Seager, a consultant psychologist, and Ms Seager thereafter monitored his progress until September 1997. Ms Seager in a report accepted by the learned judge noted a considerable change in his demeanour, degree of personal insight and general attitude. Her opinion was that Charles -
"appears to have engaged in addressing the psychological issues that have resulted in his current difficulties. His social discomfort has improved, as have his levels of anxiety and depression. He has received and is receiving appropriate treatment for his mental condition and is not abusing his prescribed medication. He demonstrated good motivation for further treatment and has achieved considerable insight. He recognises that he has had very poor judgment in the past and that previously he felt that he had very few other options other than becoming involved in illicit activities. He further recognises the impact that his past behaviour has had on his children and wishes to minimise this impact and rectify the example he has set for his children. Given the insights that Mr Charles has achieved in the last year, his consistent presentation of a high level of motivation and commitment and his recognition that this motivation and commitment will need to be maintained, together with the steps Mr Charles has already taken to implement further treatment if given the opportunity by the court, his prognosis at this time may be seen as excellent."
Charles persuaded his wife Jane to bring their three children to enter residence as a family unit at Odyssey, and they entered in March 1997. He and his wife received therapy together, and Ms Seager's report comments on the obvious beneficial effect both on his relationship with his wife and upon the children.
During the first plea evidence was given by Meridie Calnin, client co- ordinator at Odyssey, whose function was to oversee the medical office there. Ms Calnin said Charles's performance in Odyssey had been remarkable, that he was "very much a hands on with motivating other people", seeming to have the ability "to draw other residents in and turning them around towards the positive side of things rather than the negative". She said that his wife, Jane, was believed to be suicidal before entering Odyssey, but that with the support of her husband and the staff the position had been corrected fairly quickly, and that the parents and children had reached the stage of functioning very well as a family unit.
Eric Allan, adult programme manager at Odyssey, gave evidence that Charles had reached the position of house co-ordinator, the most senior position a resident could hold at Odyssey House. He said that Charles had devoted himself to the needs of the family and his children since their admission to Odyssey, and that there was no question as to Charles's motivation for change. He said that in his role as a house co-ordinator -
"Charles has certainly proven himself to be a motivator to many other people that are in the programme. He carries out his duties and his interactions with other people ... with honesty and integrity and I think that is what gives him the credibility that he holds amongst the community."

26	Allan said that the moving of the whole family into Odyssey had been a major change for them and that it had been exceptionally successful. Allan held out the possibility of employing Charles in Odyssey House after his treatment finished.

Joseph Lamberti, the founding director of Odyssey House in Victoria, gave evidence that he was prepared to assist Charles by supervision and coaching, were he to leave Odyssey on a structured programme of re-entering the community.
The learned judge said of this evidence in his sentencing reasons delivered on 31 October 1997 that Charles had then been an inmate of Odyssey and progressed very well on the programme for in excess of 12 months, and that his wife and children had all benefited from joining him in residence there. His Honour noted that Charles had not returned positive urine samples.
This body of evidence, none of which was really contested by counsel for the Crown, made, I think, a very powerful case for the potential rehabilitation of Charles. The learned judge, however, heard evidence from Charles himself and stated that he did not find him to be an impressive witness, nor was he impressed by his demeanour. His Honour held that Charles played down his role in the offences to which he had pleaded guilty, and was less than frank with the court in a number of respects. He held that the plea of guilty was in no way founded on remorse, and that the committing of a subsequent offence while on bail was further evidence of a total lack of remorse. Finally his Honour said he was quite satisfied that once Charles left the regulated environment at Odyssey, the chances of him again manufacturing amphetamines would escalate. Accordingly his Honour proceeded to impose the sentences to which I have already referred, on 31 October 1997.
When the second plea hearing took place on 10 March 1998, evidence was again given by Meridie Calnin and Eric Allan, in particular that Odyssey would continue to support the Charles family, and Charles himself when he was released. Evidence was also given by Charles's wife Jane, and by Lance James, Family Programs Manager of the Victorian Aboriginal Health Service. Mr James said that Charles, while at Odyssey, had lectured on two occasions at the Aboriginal Health Service and he believed that Charles had the qualities and had expressed the wish to help the service in establishing new and better treatments and programmes for aboriginal communities.
The learned judge in his sentencing reasons delivered on 30 March 1998 made it clear that he had not departed from the views that he had formed on the previous occasion, and repeated that he was not able to accept that Charles was genuinely remorseful.
The learned judge had the advantage of seeing Charles in the witness box, and this Court therefore should, in accordance with well-established principle (see, for example, Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472) accept his Honour's assessment of the evidence given by Charles. It follows that we must proceed on the basis that Charles played down his role in the trafficking operation for which he was sentenced on 31 March 1997, that he was less than frank with the court and that he had no remorse for his actions, certainly up to the time he entered Odyssey in September 1996. I accept his Honour's conclusions that Charles played an active and vital role (which he denied) in the planning for and setting up of the clandestine laboratory at which he was arrested on 2 September 1994. I differ from his Honour, with respect and some diffidence, only in that there seems to be no basis in the evidence recounted by his Honour for his conclusion that Webber played a role subordinate to that of Charles in relation to the manufacturing operation at Mount Evelyn.
All of the foregoing, however, seems to me not to diminish the powerful evidence of Charles's rehabilitation which, as I have said, was largely uncontested and which his Honour also appears to have accepted. Insofar as the learned judge did not act on the basis of the evidence of rehabilitation, his Honour appears to have done so on two grounds, first that Charles had been less than frank with the court in his evidence, particularly as to his role in the offence he committed in September 1994, three years earlier, and secondly because he had shown a total lack of remorse up to the time of his entry into Odyssey in September 1996. As his Honour put it, Charles, as an intelligent although in his view unrepentant man, "realised that a programme of rehabilitation was the last resort in an attempt to avoid imprisonment, hence Odyssey".
That Charles may have entered Odyssey unrepentant and in the hope of avoiding imprisonment may well be so, but to act on this basis in sentencing without giving proper weight to the rehabilitative process occurring in the 14 months in Odyssey which followed would in my view be wrong. With great respect to the learned sentencing judge, I think his Honour proceeded to sentence Charles on the basis that his state of mind on entry to Odyssey had remained largely unchanged and accordingly that "the sentence must be designed to deter you and others and denounce the extreme seriousness of this crime".
In R. v. Stephen Eastway, unreported, Court of Criminal Appeal of New South Wales, 19 May 1992, the Crown appealed against a sentence imposed on a heroin addict who had pleaded guilty to supplying not less than a commercial quantity of heroin. Hunt, C.J. at C.L. said, at 3, in rejecting the Crown's appeal, that:-
"It is sufficient to say that, from being a depressed, inarticulate (but nevertheless cynical) and isolated person with a severe dependency upon heroin, he became a leader in the programme and ultimately he graduated with an outlook which was completely changed, as a worthy person who has been doing much to benefit others from his own experiences, and who is described by Mr Luger as suitable for appointment to a supervisory level in the Odyssey House organization. He had remained drug-free, as confirmed by constant urinalysis.
I have read many reports of successful cures, but I confess to having read none of the calibre of those presented in this case. A long sentence of imprisonment, at this important stage of the respondent's spectacular rehabilitation, would in my respectful view have been not only destructive of that rehabilitation, but inhumane. I recognize the need for public deterrence, but rehabilitation of this quality in a drug addict is such as to require the application of mercy, not a blind adherence to inflexible standards of punishment. The decisions of this Court justifying shorter custodial sentences where rehabilitation has been successful are legion. ..."
Hunt, C.J. also quoted with approval the well-known passage from the judgment of King, C.J. in R. v. Ozenkowski (1982) 30 S.A.S.R. 212 at 212-3.
Eastway is clearly distinguishable from the present case. Not only was it a Crown appeal, to which different considerations obviously apply, but Eastway was himself further down the path of rehabilitation than Charles, and I certainly do not suggest that the learned judge's sentence in this case was inhumane. But there are nevertheless considerable similarities between Eastway's position and that of Charles, not least that at the time of sentence in October 1997 his Honour was able to say of him that he had not returned positive urine samples (presumably since his residence at Odyssey began). I refer also to R. v. Hogon (1987) 30 A.Crim.R. 399 per Nader, J. at 401.
It follows therefore that I take the view that the learned judge, with great respect, did not give sufficient weight to the rehabilitation of Charles that had taken place and also the rehabilitation of his wife, and that the sentences imposed on 31 October 1997 on count 1 and on 30 March 1998 on count 1 were manifestly excessive. I would therefore uphold grounds 6 and 7 of the application in relation to presentment ZB242 and grounds 1 and 3 of the application in respect of presentment C9700237. It is accordingly unnecessary to consider any of the other grounds of either application.
I accept and repeat all that the learned judge said as to the seriousness of the offences to which Charles pleaded guilty and as to the destructive nature of amphetamines and the potential of the drug to ruin lives, particularly young lives. No sentence other than one requiring immediate incarceration would have been appropriate.
I would accordingly substitute in relation to count 1 of ZB242 a sentence of two-and-a-half years, leaving a total effective sentence of that period in relation to that presentment. I would substitute in relation to count 1 of C9700237 a new sentence of four years' imprisonment to be served concurrently with the sentence imposed on presentment ZB242. I would fix a non-parole period in relation to both presentments of two years' imprisonment. If 208 days was the total for pre- sentence detention as at 30 March 1998, a further 115 days has passed since that date.
I turn to McConville's applications. In each case one ground only, that of manifest excess, is contained in the application. The argument made by Mr Priest was that a sentence of six years' imprisonment is exceptional for trafficking in the relatively modest amounts of amphetamine found at Christmas Hills (728.3 grams) and at Bonbeach (62.7 grams). He argued that for laboratories with a capacity to manufacture up to 300 grams, the cases suggest that the norm would be a sentence of two-and-a-half to three years. Mr Ryan's understandable response to this argument was to ask the question what is the difference between a kitchen producing two kilograms or three-quarters of a kilogram of amphetamine. In either case one is dealing, as he put it, with a substantial operation demanding a lengthy period of incarceration, and the community needs to be protected from McConville. I interpolate that McConville's situation is quite different from Charles's, in that no attempt was made to make a case of rehabilitation comparable to the latter's.
Notwithstanding Mr Ryan's response, in my view Mr Priest made good his argument that for operations of the size here under consideration a sentence of six years' imprisonment was exceptional. The Crown relied on R. v. Yorston, unreported, Court of Criminal Appeal, 29 November 1993, where the accused had manufactured two kilograms of amphetamine and had been sentenced by the primary judge to eight years' imprisonment with a non-parole period of six years. This was reduced on appeal to six years, with a non-parole period of four-and-a- half years. The value of the drug in question was $1.92 million. The second case relied on by the Crown was R. v. McNamara, unreported, Court of Appeal, 8 October 1996. McNamara was one of Yorston's co-offenders and in his case a sentence of seven-and-a-half years with a non-parole period of three-and-a-half years was upheld. The third case relied on by the Crown was R. v. Moran and Byrnes (1987) 31 A.Crim.R. 248, where 323 grams of amphetamine and 8.23 kilograms of phenyl-2-propanone, commonly known as P2P, and from which the applicants intended to produce more amphetamine, were the quantities involved. Byrnes was sentenced to a total effective sentence of seven years' imprisonment with a non-parole period of five years and Moran to six years with a non-parole period of four years. But it is necessary to remember that s.10 of the Sentencing Act 1991 had not then been enacted, so that the sentences in both of these cases must for proper comparison be reduced to account for the usual one-third remissions which were then applicable. In further support of his principal submission, Mr Priest referred us to R. v. Webber, Charles's co-offender on presentment ZB242, where the sentence, as I have already noted, was two-and-a-half years' imprisonment, with a non-parole period of eight months, and R. v. Glaister (1997) 92 A.Crim.R. 161, where the accused had admitted cooking 10 to 15 batches of amphetamine, which yielded 20 to 30 grams each cook. On appeal, a total effective sentence of two years with a non-parole period of 15 months was imposed.
McConville has, of course, numerous (147) prior convictions including five prior convictions for trafficking in amphetamines, although none of these were for trafficking by manufacture. The first such conviction, on 19 February 1993, resulted in a suspended sentence of 12 months' imprisonment and the remaining four, on 19 January 1995, which we were told resulted from trafficking deemed to have occurred because of the quantities of the drug then in his possession, resulted in a total effective sentence of 12 months' imprisonment, to be served by way of an intensive correction order.
McConville's very bad record of prior convictions was plainly important to the construction of the sentences imposed by the learned judge. But, properly relevant though prior convictions indeed are, they cannot justify a disproportionately high sentence; see the cases cited in R. v. O'Brien and Gloster [1997] 2 V.R. 714, at 718-720. In particular, in R. v. McInerney (1986) 42 S.A.S.R. 111, King, C.J. said, at 113, that -
"The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence: the prisoner's record may indicate that greater punishment is needed to protect the public by deterring him from further crime."
In my view the sentences of six years' imprisonment imposed by the learned judge on McConville on count 1 of C9700237 and on K00020843 were manifestly excessive, for the reasons already given. I would therefore grant both applications. In lieu of the sentences imposed I would in each case substitute a sentence of four years' imprisonment. I would direct that 12 months of the sentence imposed on K00020843 be served cumulatively upon the sentence imposed on count 1 of C9700237, making a total effective sentence of five years' imprisonment. I would fix a non-parole period in relation to both sentences of three-and-a-half years. If pre-sentence detention as at 30 March 1998 was 556 days, a further 115 days should be added to that period.

TADGELL, J.A.:

I agree.

BUCHANAN, J.A.:

I agree.

TADGELL, J.A.:

Subject to submissions as to the matter of form, the judgments of the Court will be in accordance with the following minutes:
In the case of the applicant Charles -

1. Applications for leave to appeal against sentence granted.
2. Appeals treated as instituted and heard instanter and allowed.

3.

Sentences of imprisonment on count 1 of each of presentments ZB242 and C9700237 set aside.
4. In lieu order that the applicant be sentenced to be imprisoned as follows:
(a) on count 1 of presentment ZB242 for two-and-a-half years;
(b) on count 1 of presentment C9700237 for four years.

The total effective sentence is therefore four years' imprisonment.
5. Declare that of that sentence 323 days have been served and direct that the declaration be noted in the records of the Court.
6. Direct that the applicant serve two years’ imprisonment before becoming eligible for release on parole.

In the case of the applicant McConville -
1.          Applications for leave to appeal against sentence granted.
2.          Appeals treated as instituted and heard instanter and allowed.
3.           Sentences of imprisonment on count 1 of presentment C9700237 and on presentment K00020843 set aside.
4.          In lieu order that the applicant be sentenced to be imprisoned as follows:

(a) on count 1 of presentment C9700237 for four years;

(b)

on presentment K00020843 for four years, of which 12 months is to be served cumulatively upon the sentence imposed on count 1 of presentment C9700237.
The total effective sentence is therefore five years' imprisonment.
5.          Declare that of that sentence 671 days have been served and direct that the declaration be noted in the records of the Court.
6.          Direct that the applicant serve three-and-a-half years' imprisonment before becoming eligible for release on parole.

[1998] VSCA 12

23 July 1998