R v POMEROY - [2004] SASC 310

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v POMEROY
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
22 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
Appeal against sentence - appellant pleaded guilty to the manufacture of methylamphetamine contrary to s 32(1)(b) of the Controlled Substances Act and driving while disqualified - Appellant sentenced to imprisonment for three years with a non-parole period of 18 months and disqualified from driving for a period of 12 months beginning day sentence imposed - whether Judge sentenced appellant on an incorrect basis - whether sentence imposed manifestly excessive - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(b), referred to.

R v POMEROY
[2004] SASC 310
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ We propose to give our decision in this matter now, having heard full argument. We are grateful to counsel for their submissions.
The appellant pleaded guilty to a charge of taking part in the manufacture of a drug of dependence, contrary to s 32(1)(b) of the Controlled Substances Act 1984. The drug was methylamphetamine. The maximum penalty for this offence is imprisonment for 25 years or a fine of $200000 or both. He also pleaded guilty to a charge of driving while disqualified. The maximum penalty for that offence is imprisonment for two years, the appellant having a previous conviction for this offence.
The two offences arose out of the same set of circumstances. The appellant had been driving a motor car when he was stopped by the police and found to be in possession of equipment that was suitable for the production of methylamphetamine. The prosecution allege that the appellant was taking part in the manufacture of the methylamphetamine with a view to making a profit as well as with a view to producing the drug for his own use. It was common ground that the appellant was addicted to methylamphetamine and was using it heavily.
The appellant denied the prosecution allegation, claiming that he was intending to produce the drug solely for his own use. The Judge heard evidence on the matter, including evidence from the appellant. The Judge found that the appellant was taking part in the manufacture of methylamphetamine with a view to making a profit, and that a substantial profit would have been made from the methylamphetamine that was to be manufactured. The Judge accepted that the appellant also intended to consume some of the product himself.
The Judge sentenced the appellant on the basis that this was not the first time that he had manufactured methylamphetamine. The appellant admitted that, although he said that he was a beginner.
The Judge sentenced the appellant to imprisonment for three years for the offence of taking part in the manufacture of methylamphetamine. But for his plea of guilty, she would have sentenced him to imprisonment for three and a half years. For the offence of driving whilst disqualified, she imposed a sentence of imprisonment for six months, but ordered that that sentence be served concurrently with the other sentence.
In relation to the combined head sentence of three years, she fixed a non-parole period of 18 months. She disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months, beginning on the day on which she imposed sentence. That meant that the licence disqualification would expire before the appellant was released from prison.
On appeal the appellant challenges the Judge’s finding that he took part in the manufacture of methylamphetamine with a view to profit. He relies, in particular, on the fact that it was common ground that he was addicted to the use of the drug, and was using it. He submits that the Judge gave undue significance to the amount of acid found in his possession. He says that the Judge gave undue weight to a submission that the appellant was involved with others in the manufacture of methylamphetamine and, finally, he relies upon the inability of the prosecution to adduce evidence of actual sales, of customer lists, or of possession of cash, or of a lifestyle which suggested that he was engaged in the manufacture of drugs with a view to profit.
The appellant argues that the Judge sentenced him on an incorrect basis. Alternatively, he argues that the sentence was, in any event, manifestly excessive.
The Judge gave reasons for her findings. She accepted that the appellant was making heavy use of the drug. She relied on certain matters. First, the appellant was found in possession of glassware which was suitable for the manufacture of methylamphetamine. The Judge accepted evidence that this equipment was quite expensive and would have cost several thousand dollars. She rejected evidence from the appellant that it cost him a good deal less than that. In so finding, she acted on evidence from a police officer who was qualified to give evidence as to the cost of the glassware.
The Judge also found that the appellant was involved with others in the manufacture of the drug. She relied on the quantity of glassware, the presence of three respirators, some things said by the appellant in the course of conversations which the police intercepted and recorded, and on the fact that the appellant did not have some of the essential ingredients for the manufacture of the drug, suggesting that others were involved in the process and would supply the missing essentials.
The Judge also relied on the fact that the police found, in the defendant’s car, a quantity of acid which, according to expert evidence, would produce a substantial quantity of the drug, worth about $3000 wholesale, and up to $7500 by way of street sales.
The Judge also found that the appellant was an unreliable witness on crucial matters, and rejected his evidence on those matters.
I consider that the findings of fact that the Judge made about the cost of the equipment, the involvement of other persons, and the amount of the drug able to be produced from the acid, were open to her. Once those findings of fact were made, they supported an inference that a substantial quantity of the drug was to be produced, and that the quantity to be produced suggested that the purpose of manufacture was sale at a profit, as well as personal consumption.
In the light of that, it was open to the Judge to reject the appellant’s evidence and to make those findings beyond reasonable doubt.
The appellant’s case was not without substance, but, in my opinion, it was open to the Judge to reject his evidence and to act on the matters referred to.
This Court, as a Court of Criminal Appeal, cannot simply substitute its own view of the facts. It can set aside the Judge’s version of the facts only if the Court is satisfied that the Judge’s findings are wrong. In my opinion, there is no basis for holding that the Judge’s findings were wrong. That is so, despite the submissions which Mr English put on behalf of the appellant, in the course of which he said everything that could be said in support of the appellant’s appeal.
Accordingly, in my opinion, the challenge to the Judge’s findings cannot succeed, and it follows that the Judge sentenced the appellant on a correct factual basis.
The offence of taking part in the manufacture of methylamphetamine is a serious offence. The Judge accepted evidence before her that methylamphetamine is increasingly popular in South Australia and that the number of addicts is increasing. She also heard evidence that the method of manufacture, which the appellant admitted he had followed, was the most common method currently.
In those circumstances, the sentence for the offence had to be one that was likely to deter other offenders. Cases coming before this Court indicate that the illegal manufacture of methylamphetamine, using so-called portable laboratories, is a prevalent offence, and plays a significant part in the illegal drug trade in this State.
The appellant was not entitled to claim that this was the first time that he had offended, although he had no previous convictions for this offence. He stood to be sentenced as a first offender but could not claim this was an isolated incursion into crime.
The Judge accepted that the appellant’s prospects of rehabilitation were good. He was 31 years of age and was caring for a young child. The indications were that he had good prospects of employment, and had made a genuine decision to change his behaviour. He had the support of his family. These were significant matters, and the Judge had regard to them.
It is also the case that, although the appellant had a number of driving offences, his other offences were relatively few in number and were not particularly serious. But, on the other hand, he did have one prior conviction for an offence involving drugs and, in connection with that offence, he has had the benefit of a suspended sentence of imprisonment. That was in the year 2001.
Despite all those matters, the offence remains a serious one, and the punishment had to reflect the deterrence purposes of punishment. The appellant’s good prospects of breaking his addiction are relevant, but cannot be decisive. The seriousness of the offence is relevant here, and also the need for a deterrent penalty for this type of offence. The personal circumstances of the appellant must be of less weight in connection with offences, such as manufacturing and producing illegal drugs, particularly bearing in mind the prevalence of those offences.
My view is that the sentence of three years imprisonment is moderate. But for the mitigating circumstances, it could well have been four years or more. The order that the sentence of imprisonment for driving while disqualified be served concurrently was a merciful one. Having regard to the appellant’s record of driving offences and, even though this was a suspension incurred through demerit points rather than by order of a court, the Judge could easily have decided to make the sentence for the driving offence cumulative on the other one.
The non-parole period of 18 months is also particularly moderate.
In my view, having regard to the Judge’s finding of fact, it cannot be said that the sentence was manifestly excessive.
The Judge did not refer to the fact that the appellant had been on bail for about 10 months and that one of the conditions of the bail agreement required him to remain at his residential address between 7 pm and 6 am. In my opinion, that is not a serious restriction on his freedom of movement, having regard to the fact that that was the only restriction upon his freedom of movement. It is not a factor which causes me to consider that the sentence is excessive, even if it was overlooked by the Judge. For those reasons, I would dismiss the appeal.
BLEBY J I agree.
GRAY J I agree.
DOYLE CJ The order of the Court is that the appeal against sentence be dismissed.