R v Petersen
[2001] VSCA 116
•23 July 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 304 of 2000
| THE QUEEN |
| v. |
| PETER MICHAEL PETERSEN |
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JUDGES: | BROOKING, ORMISTON and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 July 2001 | |
DATE OF JUDGMENT: | 23 July 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 116 | |
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CRIMINAL LAW - Sentence - Trafficking in drug of dependence - Manufacture of methylamphetamine - Three and a half years not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D.McArdle,Q.C. | Solicitor for Public Prosecutions |
| For the Appellant | Mr D. O'Doherty |
BROOKING, J.A.:
Phillips, J.A. will deliver the first judgment.
PHILLIPS, J.A.:
This is an appeal by leave granted by a Judge of Appeal on 8 December last against sentence imposed in the County Court on 28 September 2000. The appellant had pleaded guilty to one count of trafficking in a drug of dependence, namely methylamphetamine, on or about 23 July 1999; and he had pleaded guilty also to having thereby been in breach of a suspended sentence imposed on him in the County Court on 30 September 1998. He admitted three even earlier convictions, but they were relatively minor: they were recorded in 1976 and attracted only fines of $40 or $50- and so they are of no present significance. After a plea in mitigation on the appellant's behalf, he was convicted of being in breach of the suspended sentence I have mentioned, for which he was fined and ordered to serve immediately the six months' imprisonment previously suspended. In respect of trafficking in amphetamine, the appellant was convicted and sentenced to imprisonment for three years and six months, such period to be served cumulatively on the term of imprisonment to be served upon breach of the earlier sentence. The total effective sentence was therefore one of imprisonment for four years and a non-parole period was fixed of three years. There were 12 days of pre-sentence detention which were to be reckoned as already served. The appellant now appeals against sentence, but only against the sentence imposed on the count of trafficking.
It is convenient to say something first of the earlier offending which led to the suspended sentence imposed on 30 September 1998. In December 1997, it appears, the appellant purchased three ounces of amphetamine for $2,500 from an unknown male. On seven occasions thereafter he sold varying quantities of this amphetamine to his acquaintances, selling sometimes at home and sometimes at social functions he attended. The rest of the amphetamine he stored in his garage. On 8 April 1998,
police executed a search warrant at his address and found several small quantities of cannabis and cannabis seeds. They found also a plastic Coca Cola bottle in the appellant's bedroom, containing diluted amphetamine. About two ounces of amphetamine had been divided into eight quarter ounce bags which were found hidden behind containers in the appellant's garage. The approximate street value of the amphetamine seized was $2,800.
The appellant was arrested and during the interview that followed he admitted selling various quantities of amphetamine between December 1997 and 8 April 1998 on seven separate occasions. He said that he had drunk diluted amphetamine and Coca Cola at home, on 7 April.
On 23 July 1998, the appellant appeared in the Magistrates' Court at Ringwood charged with trafficking in a drug of dependence (amphetamine), using a drug of dependence (two charges), and being in possession of a drug of dependence (cannabis). The appellant was convicted and on the first charge he was sentenced to be imprisoned for three months. He was fined on the other charges. He then appealed to the County Court and on 30 September 1998 the appeal was allowed. Instead of the sentences imposed below, the appellant was sentenced, in result, to six months' imprisonment but that sentence was then wholly suspended for a period of two years. That was the order of suspension of which he stood in breach by trafficking in amphetamine on this occasion, in July 1999.
The substantive charge with which we are now concerned arose out of a police raid on the appellant's home at The Basin. On 23 July 1999 police searched the premises during the appellant's absence. Inside a large double garage they found an operational laboratory consisting of scientific glassware and equipment, home made equipment and chemicals and other substances. A chemical process was taking place at the time, which was subsequently identified by a scientist as relating to the manufacture of methylamphetamine. Analysis of a liquid in a reaction vessel established that it contained 180 grams of methylamphetamine. Other chemicals found were suited for use in the process of the manufacture of that substance. Inside the appellant's house police found a white paste in a stainless steel dish, white powder in a coffee jar and a quantity of tablets. Once analysed, the items were found to contain 70 grams of pseudoephedrine. That is a chemical commonly used in the manufacture of methylamphetamine and it may be extracted from Sudafed tablets.
When the appellant returned to his home later on the same day, he was arrested and again interviewed by the police. He admitted that the chemical process taking place in the garage had been going on for two days and that he had begun it with Sudafed tablets. He then described to police the method he used to manufacture methylamphetamine. He said that he had not made amphetamine before but once the process was finished he intended to sell the product. He told police that he had a couple of people in mind as purchasers and he intended to sell it quite cheaply. He said that he hoped to make $5,000 out of it. According to the prosecution, 180 grams of methylamphetamine, together with 70 grams of pseudoephedrine, could yield about $645,000 if sold in "street level" deals. On the other hand, if the methylamphetamine were sold wholesale in one ounce lots, it would yield, it was said, approximately $30,000 to $40,000.
On the plea in mitigation, it was accepted by his counsel that for the breach of the suspended sentence imposed on 30 September 1998 the appellant "would automatically receive a sentence of six months' imprisonment". The plea was directed to the length of the custodial sentence that ought to follow for the further offence of trafficking in amphetamine in July 1999. Counsel for the appellant suggested that in all the circumstances, an appropriate sentence would be 12 to 18 months, to be added to the further six months' imprisonment for breach of the suspended sentence. For the Crown, it was submitted that the appropriate sentencing disposition was three years' imprisonment, with a non-parole period of two years. The judge rejected both these submissions, imposing instead a total effective sentence of four years' imprisonment, including three years and six months for the offence of trafficking.
The appellant now appeals on the single ground that this sentence of three years and six months imprisonment was manifestly excessive, complaining by way of particulars, first, that the judge failed to give adequate consideration to the submissions made by counsel for the applicant and the prosecutor as to sentence, and, secondly, that the judge failed to take into account the fact that "the offence occurred in circumstances known to the investigating police from the outset" and that such offence (or it may be those circumstances) was (or were) "under the tacit control of the Victoria Police".
The only evidence in support of the first particular of manifest excess is that the judge did not follow the course proposed by either counsel, choosing to impose a sentence more severe than that suggested even by the Crown. It does not follow that the judge failed to give adequate consideration to the submissions made by counsel and in my opinion there is simply nothing in the first particular.
As to the second particular, that the offending occurred "in circumstances known to the investigating police from the outset", this stems from an assertion made by appellant's counsel in the course of the plea that his criminal conduct was inspired, if not altogether instigated, by one Coppenberg. He, it was suggested, "was involved in providing information to the police". It was submitted that the circumstances were such as to indicate that the police raid had been carefully timed, occurring - as it did - only two days after the commencement of the operation of manufacture and in time to prevent any of the resultant product reaching the streets. Moreover, while the search warrant had been obtained on 6 July, the raid took place on 23 July. According to appellant's counsel, "there was no surveillance according to the evidence given [in] the depositions, no listening device and no telephone intercept". All this, it was claimed, had led the appellant "to conclude that the role of Mr Coppenberg, who was the only other person involved in this matter with him must have been significant in providing information to the police". Again according to appellant's counsel, Coppenberg had never been charged and "there seems to be little interest in pursuing him".
In the course of the plea, it is true that the judge said that "it might have been a very well planned and executed police operation, might it not". But when sentencing, his Honour said:
"Through your counsel you now seek to blame another person for suggesting the development of the laboratory to you, for supplying you with the required chemicals for the manufacturing process and for basically operating the process. Whether that is the true situation or not this court is quite unable to say as there is no evidence before it to give any real support to your counsel's contention in that regard."
In my opinion, that was perfectly correct; there was no evidence to give any direct support to counsel's assertions in this regard. The judge was being invited simply to speculate about the involvement of Coppenberg. In my opinion there is no more in this second particular of manifest excess than in the first.
Strictly speaking, that should be enough to dispose of the appeal, but I add this in deference to the argument that was put this morning. In my opinion there is nothing anyway in the ground of manifest excess, quite independently of the particulars given. Much was said on the plea in mitigation about the personal circumstances of the appellant, how for most of his life he had been a hard working, respectable member of the community and family man; how he "lost the plot" in about 1996 after taking a redundancy package from his employer and how he fell into bad company when he met Coppenberg. I do not describe all that was said on the plea; obviously the sentencing judge took all of that into account, including the plea of guilty and the level of co-operation evinced by the record of interview. None the less the judge was correct when he said, when addressing the appellant in the course of the sentencing remarks:
"For the purpose of your sentencing this court must clearly take the view that you were the person in direct control of this amphetamine manufacturing operation."
Indeed, Mr O'Doherty, who was not counsel below, said to us that there had been no dispute in that regard on the plea. After referring to the plea of guilty and the co-operation evinced by the record of interview, the judge continued:
"Having said all that, the community rightly expects that its courts will do their best in an effort to stamp out this most pernicious trade, the manufacture of proscribed middle order drugs. It seems to this court that the issues of punishment and deterrence both specific and general must be a priority consideration, particularly when you have a prior conviction for an offence of a like nature."
The judge had earlier said in his sentencing remarks:
"Thanks to the skill and dedication of members of the Victoria Police Force, those drugs did not find their way on to our streets. Your sole motivation in manufacturing these drugs was one of greed. You gave no concern for the tragic social consequences that such drugs cause within our community. You represent a most insidious part of the drug chain, the manufacturer. What is of considerable concern to this court is the fact that during the operational period of a suspended sentence for an offence of trafficking amphetamines you committed the present offence. Clearly your prior suspended sentence had no deterrent effect upon you whatsoever."
It seems to me, if I may say so, that this appeal is quite hopeless. We have the power to intervene on the ground that a sentence imposed below is manifestly excessive only if we are of opinion that the sentence imposed is outside the range of those sentences reasonably open to the sentencing judge in the proper exercise of his sentencing discretion. It is of no consequence what sentence we would have imposed had we been sentencing at first instance. We can intervene only for error and then, as I say, where the error alleged is manifest excess, only if the sentence imposed is considered to be outside the range of sentences properly available. In my opinion, the sentence imposed of three years and six months, from which the appellant now appeals, was plainly within range and therefore the only ground taken on this appeal is not made out.
Accordingly, the appeal should be dismissed.
BROOKING, J.A.:
I agree.
ORMISTON, J.A.:
Having now heard argument by counsel on behalf of the appellant, I agree that there is no merit in this appeal.
(Discussion ensued.)
BROOKING, J.A.:
What we propose to do is dismiss the appeal, but we direct that the order be not authenticated until after seven days. That is the order we make.
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