R v MODRA - [2006] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MODRA
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Duggan and The Honourable Justice Anderson)
12 April 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
The appellant pleaded guilty in the District Court to production of the drug Ecstasy, possession of Ecstasy for sale, producing MDA and other offences including illegal importation of parts for firearms and breaches of the Firearms Act 1927 – the appellant had established a clandestine laboratory involving the largest successful manufacture of ecstasy discovered in South Australia – he was found in possession of sufficient ecstasy to make in excess of 9,000 tablets worth between $117,000 and $450,000 – on the drug offences the sentencing judge imposed a single sentence, working from a starting point of ten years imprisonment which he reduced to six years and eight months with a non-parole period of four years and eight months after allowing for the plea of guilty, cooperation with the police and a deduction of four months by reference to time spent in custody and on home detention bail – the appellant appealed against the sentence imposed on the drug offences, complaining that the starting point was too high, and the allowance for the plea of guilty, cooperation, a medical condition and other matters personal to him too little – held that the starting point was not too high and the allowance for the plea and other mitigating factors, which amounted to 30%, was appropriate – observations as to the need for general deterrence and the limited scope for consideration of personal factors in cases involving large scale drug offences – appeal dismissed.
Controlled Substances Act 1984 s 32(5)B(b)(ii); Summary Offences Act 1953 s 41(1); Customs Act (1901) (Cth); Firearms Act 1977 ; Firearms Regulations 1993 ; Criminal Law (Sentencing) Act 1988 s 18A; Crimes Act (1914) (Cth) s 21E, referred to.
R v Sladic (2005) 92 SASR 36; R v Manglesdorf (1995) 66 SASR 60; R v Le (2001) 212 LSJS 207; R v Craciun (unreported) Court of Criminal Appeal, [2006] SASC 57, 24 February 2006; R v Adami (1989) 51 SASR 229; R v Worth (1976) 14 SASR 291; R v Wiskich (2000) 207 LSJS 431; R v Place (2002) 81 SASR 395; R v Cox (1996) 66 SASR 152; R v Hodgson (2002) 84 SASR 168, considered.

R v MODRA
[2006] SASC 106
Court of Criminal Appeal: Perry, Duggan and Anderson JJ

PERRY J. The appellant appeals by leave against the sentence imposed upon him in the District Court following his plea of guilty to a number of offences.
The most serious offences were drug offences, namely producing the drug known as ecstasy, possessing ecstasy for sale, and producing MDA. Those three offences involved breaches of the Controlled Substances Act 1984. A related offence, prosecuted under the Summary Offences Act 1953, was that of unlawful possession of $2,480 in cash.
In addition, the appellant pleaded guilty to seven offences against the Customs Act (1901) (Cth), which involved the illegal importation of parts for firearms.
The remaining group of offences related to breaches of the Firearms Act 1977 and Firearms Regulations 1993. They comprised offences of having possession of two handguns while not holding a firearms licence, having possession of the same guns which were unregistered, failure to keep firearms secured, and failure to store ammunition in a locked container.
The offences came to light following a raid by police officers on a country property occupied by the appellant and his family at Victor Harbor Road at Willunga on 25 September 2003.
Apart from finding firearms and firearms parts, the police officers discovered a drug manufacturing laboratory which had been set up in a shed on the property, together with a large quantity of drugs.
Exercising his powers under s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing judge imposed one penalty for the four drug offences, which included the charge of unlawful possession. The sentence imposed for that group of offences was a head sentence of 6 years and 8 months with a non-parole period of 4 years and 8 months.
As for the importation offences, the sentencing judge imposed a sentence of 4 months imprisonment, to take effect at the expiration of the non-parole period for the drug offences.
On the State firearms offences, the appellant was convicted without penalty.
The appellant does not challenge the sentence imposed for the importation offences.
The appeal is confined to the penalty imposed with respect to the drug offences.
The grounds of appeal are as follows:
The Sentence imposed was manifestly excessive in all the circumstances in that:
1.The initial starting point of 10 years imprisonment was too high;
2.The Learned Sentencing Judge failed to adequately take into consideration the appellants:-
a)    early plea of guilty;
b)    co operation with the police;
c)    medical difficulty;
d)    other matters personal to him.
Background
The appellant is 39 years of age and lives with his de facto partner, their three children, and his mother. The appellant suffers from Asberger’s syndrome and a long-standing major depressive disorder.
Asberger’s syndrome describes a condition characterised by much the same social deficits and restricted patterns of interest and activity as are displayed by individuals with autism. Commonly, the sufferer will respond inappropriately to social situations, will be obsessive in his or her preoccupation with a restricted range of interests, display poor coordination and may experience deficits in fine and gross motor skills.
The appellant suffered from a dysfunctional early home life, marked by the separation of his parents, social difficulties at school, and an unsettled employment history. His de facto partner has been a stabilising influence, and eventually he attended university where he obtained an honours degree in biotechnology.
He went on to pass first year medicine, but experienced difficulties in persisting with that course.
His practical skills in chemistry eventually came to the attention of an unknown group of persons from whom he was buying amphetamines. They supplied him with $5,000 for him to set up a plant for the manufacture of ecstasy.
At the time of the police raid, the appellant had in his possession 931.29 grams of ecstasy which he had manufactured. The sentencing judge was informed that, including some already made into tablets, this could make a total of in excess of 9,000 tablets, the value of which, depending on the selling price of the tablets, varied between $117,000 and $450,000.
The sentencing judge accepted that it was the appellant’s intention to stop manufacturing the drug after he had made enough ecstasy for 10,000 tablets. The appellant said that he then planned to pay his debts and commit suicide.
As for the Commonwealth firearms offences, the appellant was obsessed with collecting and possessing firearms, but was not concerned to use them. He placed orders for the various firearm parts with suppliers abroad. It is unnecessary to say anything further about the circumstances surrounding the importation of those items, in view of the fact that the sentence imposed on that account is not under challenge.
The approach of the sentencing judge
The sentencing judge described the drug offences as serious. He referred to expert evidence which he had received, spelling out the dangers of the use of ecstasy. He commented:
It [ecstasy] can be lethal. The market for these tablets is the young and vulnerable. It is sold at discos, nightclubs and other entertainment venues. Although not directly pertinent to this case, a wide range of harmful adulterants are used in the tablets.
General deterrence is a primary sentencing consideration. Producing drugs of the amphetamine family has become prevalent. The community expects that the courts will impose penalties which will deter the production and sale of such illicit substances.
While accepting that the Asberger’s syndrome and depressive disorders were mitigating factors, the sentencing judge stated that the appellant knew and appreciated what he was doing, and the illegality of it.
He noted that the appellant had suffered a penalty in that he and his family had paid the authorities $17,500 in the course of confiscation proceedings.
The sentencing judge noted that there was some delay in bringing the matter on for hearing, and that the appellant had been on home detention bail since 7 November 2003. He was sentenced on 21 December 2005.
It appears that the appellant gave some assistance to the investigating police officers. I will not go into the detail of this, except to say that it included identifying the manner in which the manufacture of ecstasy, which is a quite complex chemical process, was carried out by him. At the same time he identified sources of supply of the chemical ingredients used in the process of manufacture of the drug.
The sentencing judge concluded:
Subject to making allowance for time in custody and for the long period of home detention, the sentence of the court is that you be imprisoned for seven years. If it were not for your pleas of guilty and co-operation with the police together with the delay, the sentence would have been 10 years. I fix a non-parole period of 5 years which again is subject to taking into account the time in custody and the lengthy period of home detention.
The sentencing judge reduced the head sentence and the non-parole period by 4 months to allow for time in custody and the lengthy period in home detention.
In the result, as I have said, he fixed a head sentence of 6 years and 8 months with a non-parole period of 4 years and 8 months.
The arguments on appeal
Mr Ey for the appellant contended that the starting point of 10 years adopted by the sentencing judge, was too high.
Ecstasy is a member of the methylamphetamine family of drugs. Mr Ey contended that as such it should be treated, for sentencing purposes, as a middle-range drug in terms of seriousness. He submitted that it should be treated as less serious than heroin but more dangerous than cannabis.
As a general proposition, that submission accords with a long line of authority established in this State. While a case for reclassification of methylamphetamine could well be made out, it will continue to be considered as a middle-range drug in terms of seriousness, until the court reclassifies it.[1]
[1] See R v Sladic (2005) 92 SASR 36.
Mr Ey referred to Manglesdorf[2], more particularly the judgment of Doyle CJ in that case, in support of the proposition that a starting point for sentencing for trading in heroin should be in the order of six to seven years.
[2] (1995) 66 SASR 60.
In that case, Doyle CJ said, in the context of observations as to sentencing for trading in LSD, which is a middle-range drug:
This sort of offence, in my opinion, would ordinarily attract a sentence of about 4-5 years’ imprisonment. In saying that, I am allowing for the fact that no trading in fact occurred.[3]
[3] Ibid at 72.
The Court was referred to R v Le,[4] where Doyle CJ, with whom Duggan and Williams JJ concurred, observed:[5]
[13]The [sentencing] Judge referred to previous decisions of this Court, in particular R v Manglesdorf[6] and R v C.[7] These cases establish that for a street retailer of heroin the starting point is a sentence in the range between five and seven years. He took as his starting point six years. In general terms, the Judge’s approach was correct. When he came to the non-parole period, he said that he was able to be more lenient than usual because of the appellant’s relative youth and previous good record.
[14]It is important to bear in mind that the approach established by the cases referred to is not a rigid or inflexible standard. It may well be appropriate for most cases, indeed it probably will, but the fact remains that all material matters have to be taken into account in arriving at the appropriate sentence.
[15]I made this point in R v Gjoka.[8] As I said there, the standard is not intended to be precise.
[4] (2001) 212 LSJS 207.
[5] Ibid at 208. See also R v Craciun (unreported) Court of Criminal Appeal, [2006] SASC 57, 24 February 2006.
[6] (1995) 66 SASR 60.
[7] (1998) 72 SASR 391.
[8] (Unreported), 1 July 1997, Judgment No S6211.
As was pointed out in the joint judgment of the court in Sladic (supra):
The decision of Manglesdorf did not set a tariff for drug offences. The Chief Justice was simply indicating a range from which sentencing judges make take some guidance.[9]
[9] Ibid at [32].
There will always be some cases which will justifiably attract more substantial penalties than most other cases.
For example, large scale manufacture of drugs of any class, should ordinarily attract a more severe penalty than a single instance of street trading.
In sentencing for any offence, regard should always be had to the maximum penalty provided by statute.
Maximum penalties for the offences now in question are as follows:
(1)Producing 3,4-methylenedioxy methylamphetamine (ecstasy): $200,000 or imprisonment for 25 years or both (s 32(5)B(b)(ii) of the Controlled Substances Act 1986).
(2)Possessing 3,4-methylenedioxy methylamphetamine (ecstasy) for sale: $200,000 or imprisonment for 25 years or both (s 32(5)B(b)(ii) of the Controlled Substances Act 1986).
(3)Producing 3,4-methylenedioxyamphetamine (MDA): $200,000 or imprisonment for 25 years or both (s 32(5)B(b)(ii) of the Controlled Substances Act 1986).
(4)Unlawful possession of $2,480: $10,000 or imprisonment for 2 years (s 41(1) of the Summary Offences Act 1953).
While classification of ecstasy as a mid-range drug is a matter to be taken into account, the circumstances of the offending indicate that it should be regarded as a serious case of its kind. The scale of the offending in this case was significant. It appears that this was the largest successful manufacture of ecstasy discovered in South Australia. The appellant established a laboratory capable of a sophisticated and complex drug manufacturing operation.
The appellant willingly participated in a large commercial operation. His manufacture of sufficient ecstasy to produce over 9,000 tablets indicate both the successful nature of the operation and its substantial scale.
As Doyle CJ (with whom Besanko and Anderson JJ agreed) pointed out in Craciun (supra):[10]
Over the ten years or so since the decision of this Court in Manglesdorf this Court and sentencing judges have said, time and again, that those who promote the trade in drugs and dealing in drugs can expect heavy penalties. Those who do so on a substantial scale can expect particularly heavy penalties. (emphasis added)
[10] At [29].
Mr Ey submitted that the sentencing judge had failed to give sufficient weight to matters personal to the appellant. In particular, he referred to the fact that the appellant suffered from Asberger’s syndrome, as did his 14 year old son, and that a period of imprisonment would have a greater effect upon his wife and children than would commonly be the case.
As for the last point, I do not think that it has been shown that the impact of the appellant’s incarceration upon his family would be out of the ordinary.[11]
[11] See Adami (1989) 51 SASR 229 per Bollen J at 232-233 and Worth (1976) 14 SASR 291 per Bray CJ at 293.
In any event, the court has consistently emphasised the fact that in sentencing for drug offences, the need for general and personal deterrence is substantial. In such cases, there is necessarily less scope for weight to be given to the offender’s personal circumstances.
Insofar as the sentencing judge accepted that the appellant is suffering from Asberger’s syndrome, and given that there is medical evidence that he was also suffering from depression, those are matters for which allowance may properly be made. Those conditions, however, did not affect his appreciation of what he was doing. Dr Raeside, the psychiatrist, reported that:
By Mr Modra’s own account he clearly knew the nature and quality of his actions, the wrongfulness of them, and was able to control his conduct at the time of his offending.
In the case of Wiskich, Martin J observed:[12]
The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
[12] (2000) 207 LSJS 431 at 457.
In all the circumstances, I am not satisfied that the starting point of 10 years was too high.
Mr Ey next argued that the discount of 30 per cent with respect to the plea of guilty and co-operation with the authorities was too little.
In the first place, where a combination of factors exists, such as a plea of guilty coupled with co-operation, it has not been the practice in this State to attempt to identify a specific reduction for each of the factors involved. To do so would be to run the risk that there will be an overlap: see Place.[13] Where practicable, a single deduction should be made expressed either as a percentage or period.
[13] (2002) 81 SASR 395 per Doyle CJ, Prior, Lander and Martin JJ at [58]-[60].
That is the process which the sentencing judge followed in this case. He was not in error in doing so.
As for the extent of the discount, although the appellant pleaded guilty at the earliest opportunity when the matter was in the Magistrates Court, the case against him was overwhelming, and his conviction was inevitable. In those circumstances, less should be allowed for the plea of guilty than might otherwise be the case.
As for the co-operation with authorities, this was not a case where the defendant has acted as an informer and given information leading to the apprehension of other offenders. Rather, the appellant gave what Mr Hinton, who appeared for the DPP, described as “little more than a full confession”.

The court was invited to read a letter which had been tendered to the sentencing judge from a senior police officer, which indicates that the information given may be of some assistance in investigating other cases involving the manufacture of ecstasy. But that is as far as it goes.
It is not without significance that the appellant was not prepared to divulge the names of those who were responsible for financing his setting up of the clandestine laboratory.
In my view, it has not been shown that the discount of 30 per cent in recognition of the appellant’s plea and co-operation was manifestly inadequate.
In Cox,[14] a decision of the Court of Criminal Appeal, Doyle CJ, with whom Matheson and Debelle JJ concurred, described a discount of 30 per cent, constituted by an allowance of 10 per cent for a plea of guilty and 20 per cent for assistance, as “generous”.
[14] (1996) 66 SASR 152.
That case involved a charge of escaping from custody. Confidential material was said to have given information to the police “of great value”.
Hodgson[15] was a case of corporate fraud. The appellant pleaded guilty to 32 counts of falsely representing the profits of a large group of companies of which he was the chief financial officer.
[15] (2002) 84 SASR 168.
The sentencing judge applied a reduction of 25 per cent by reference to the plea of guilty and the co-operation given to the authorities, which included a willingness to co-operate with them in future proceedings.
The total allowance was increased to 30 per cent on appeal, largely by reference to the fact that the sentencing judge had failed to comply with s 21E of the Crimes Act (1914) (Cth), which requires a specific reduction to be identified for co-operation offered with respect to future proceedings.
Conclusion
Standing back from the matter, I am of the view that the head sentence and non-parole period imposed by the sentencing judge, while a substantial penalty, have not been shown to be manifestly excessive.
I would dismiss the appeal.
DUGGAN J I agree that the appeal against sentence should be dismissed for the reasons given by Perry J.
ANDERSON J I agree with Perry J that the appeal should be dismissed.