R v Scarpantoni - [2013] SASCFC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SCARPANTONI
[2013] SASCFC 120
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Vanstone)
6 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS - OTHER MATTERS
Appeal against conviction and sentence. The defendant was convicted of manufacturing a large commercial quantity of methylamphetamine for sale contrary to s 33(1) of the Controlled Substances Act 1984 (SA). He was sentenced to 25 years’ imprisonment, cumulative on an unexpired parole period of two years four months and three days’ imprisonment. The Judge fixed a non-parole period of 20 years’ imprisonment. Police raided a warehouse in which they located a clandestine laboratory inside a shipping container. Chemical reactions consistent with the extraction of pseudoephedrine were occurring. Two men were found at the premises and both pleaded guilty to manufacturing a large commercial quantity of a controlled drug for sale and were sentenced prior to the defendant’s trial. The prosecution case relied on a number of items of circumstantial evidence including evidence of the purchase of items used in the laboratory, bank statements, DNA located on a respirator, and intercepted telephone calls. The defendant gave innocent explanations for each piece of circumstantial evidence. He was sentenced on the basis that he was a “principal” of the operation and that his involvement was greater than that of the two men found by police at the laboratory.
Whether an element of the offence Created by s 33(1) of the Controlled Substances Act 1984 (SA) is that an accused intended to manufacture a large commercial quantity of a controlled drug. Whether the jury was adequately directed as to the burden of proof. Whether a telephone intercept evidence was inadmissible on the basis that the statutory requirements for its admission had not been met. Whether the head sentence and non-parole period were manifestly excessive. Whether the Judge erred in characterising the defendant as a “principal” of the drug operation. Whether there was a marked disparity between the sentences imposed on the co-offenders such as to give rise to a justifiable grievance.
Held (dismissing the appeals):
1 In order to establish an offence pursuant to s 33(1) of the Controlled Substances Act 1984 (SA), it is not necessary for the prosecution to establish that an offender knew or was reckless with respect to the quantity of a controlled drug (per Kourakis CJ and Sulan J, Vanstone J agreeing).
2 There was no error in the Judge’s directions as to the burden of proof. There was no error in approach of the Judge in reading out excerpts of the defendant’s evidence. There was some advantage to the defendant in the Judge dealing with the matter in the way in which he did (per Kourakis CJ and Sulan J, Vanstone J agreeing).
3 The requirement in s 47(a) of the Telecommunications (Interception and Access) Act 1979 (Cth) to notify the Managing Director of a carrier of the issue of a warrant is satisfied by complying with s 60(1)(c). The s 60(1)(d) requirement to send a certified copy of the warrant is a separate requirement and is not part of the “notification” referred to in s 47(a) (Per Kourakis CJ and Sulan J, Vanstone J agreeing).
4 Although the defendant’s conduct was extremely serious, there was no evidence that he was the sole financier of the operation, the amount of money he invested into the operation or the profit he stood to receive, the extent, if any, to which the operation was part of a wider criminal enterprise, whether the directly imported the pseudoephedrine from overseas or as to the intended destination of the methylamphetamine that was to be produced. The sentence imposed on the defendant was outside the appropriate range for offending of this type.
5 The sentence imposed of 15 years’ imprisonment with a non-parole period of 11 years’ imprisonment is at the lowest end of the range for offending of this type (per Vanstone J).
Controlled Substances Act 1984 (SA) s 32, s 33(1), s 33P; Acts Interpretation Act 1915 (SA) s 22(1); Controlled Substances (Serious Drug Offences) Act Amended 2005 s 33O; Telecommunications (Interception and Access) Act 1979 s 7(1), s 7(2), s 46, s 47(a), s 47(1)(6), s 60(1)(c), s 60(1)(d), s 75, referred to.
He Kaw Teh v The Queen (1985) 157 CLR 523; Minister for Empoloyment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Fothergill v Monarch Airlines Ltd [1981] AC 251; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; R (Daly) v Home Secretary [2001] 2 AC 532; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Gerhardy v Brown (1985) 159 CLR 70; Owen v South Australia (1996) 66 SASR 251; R v Nguyen (2005) 12 VR 299; The Queen v Bui [2005] VSCA 300; R v Callaghan (2007) 172 A Crim R 278; R v McKittrick [2008] VSCA 69; Mustica v The Queen (2011) A Crim R 50; R v Lau (1998) A Crim R 167; r v Micalizzi [2004] NSWCCA 406; Geldert v Western Australia (2012) 271 FLR 83; R v Bunting & Wagner (No 5) [2003] SASC 253; Western Australia v Tanevski [2012] WADC 87; R v Lagana [2012] SASCFC 135; R v Kong [2013] SASCFC 15; R v Kalache (2000) 111 A Crim R 152; Walsh v R; Little v R [2006] NSWCCA 406; R v Cetojevic (2005) 92 SASR 451; R v Ki Maria (1996) 67 SASR 466; Postiglione v The Queen (1997) 189 CLR 295, considered.

R v SCARPANTONI
[2013] SASCFC 120
Court of Criminal Appeal: Kourakis CJ, Sulan and Vanstone JJ

KOURAKIS CJ and SULAN J: The defendant and appellant, Dino Scarpontoni, was charged with manufacturing a large commercial quantity of methylamphetamine for sale pursuant to s 33(1) of the Controlled Substances Act 1984. He was convicted by jury verdict following a trial in the District Court. He was sentenced to 25 years imprisonment, cumulative on an unexpired parole period of two years four months and three days’ imprisonment. The Judge fixed a non-parole period of 20 years. The defendant appeals against conviction and sentence.
Background
On 25 March 2010, police raided a warehouse at Salisbury Plains. They found a clandestine laboratory inside a shipping container in which chemical reactions consistent with the extraction of pseudoephedrine were occurring. From the amount of waste product and from other evidence, it appeared that there had been a recent prior production of methylamphetamine on a kilogram level scale. That methylamphetamine was not located at the premises. The pseudoephedrine that was being extracted at the laboratory could have been converted to either 5.4kg or over 8kg of methylamphetamine, depending on which of two methods were used. When cut, 5.4kg of methylamphetamine was worth $3.8 million if sold in whole ounces, and more than $10.8 million if sold at street level.
Two men were found at the premises, Mr Lagana and Mr Keegan. Both pleaded guilty to manufacturing a large commercial quantity of a controlled drug for sale. They were sentenced prior to the defendant’s trial.
The case against the defendant relied heavily on circumstantial evidence. This included:
·A face mask found at the labatory which had on it DNA matching the defendant’s DNA profile. Pseudoephedrine and methylamphetamine were found on the mask. The mask was of a type which might be worn for safety when carrying out some of the processes involved in manufacturing methylamphetamine.
·Inside the shipping container, four glass reaction vessels, known as “demi-johns” were found, two of which had a capacity of 20 litres. Two of the demi-johns, including one of the 20 litre vessels, had residue consistent with having been used during pseudoephedrine extraction. Filter pads were found in various areas of the warehouse, including inside the shipping container, and a filter pad was being used to aid in the extraction of pseudoephedrine. The defendant was identified by an employee of Winequip, a retailer selling wine manufacturing products, as having purchased significant quantities of filter pads and two 20L glass demi-johns. The filter pads purchased were consistent with those found at the warehouse, and the demi-johns purchased were consistent with the 20L vessels found. Tax invoices issued by Winequip for the filter pads and demi-johns were found inside the warehouse. The male who purchased the products from Winequip used as a contact address a PO Box leased to a Dino Scarpantoni. When the PO Box was leased, Dino Scarpantoni presented the defendant’s driver’s licence.
·Two vats were found inside the warehouse, one of which was the same brand as that sold by Globe Importers. The appellant was identified as being the purchaser of at least one 100L stainless steel vat from Globe Importers. According to the expert evidence, stainless steel vats were suitable vessels for some of the pseudoephedrine extraction processes that had been or were occurring in the shed. Notes found in the warehouse referred to the possibility of using 100L stainless steel vats during the extraction of pseudoephedrine.
·In a four month period in early 2010, around $40,000 was deposited and withdrawn from the defendant’s bank account.
·The defendant gave evidence that he had been involved with Mr Lagana in the purchase of $5,000 worth of solvents in 20L containers around Christmas 2009 and early 2010. Expert evidence was that these chemicals could be used in the manufacture of methylamphetamine.
·Following their arrest, Mr Lagana and Mr Keegan were released on home detention bail. There was significant media coverage of the discovery of the laboratory. About six weeks later, on 19 May 2010, the defendant made a telephone call which was intercepted by police. During the course of the call, the defendant said that he is “fucked… [his] offsider is history.. he’s looking at twenty.” The appellant also made reference to having to relocate assets, having no phones and everything being taken.
The defendant gave evidence denying knowingly taking any step in the manufacture of methylamphetamine. He gave various explanations. In relation to the amounts of cash passing through his bank account, he said that at the relevant time he was doing contract work that involved landscaping and installing residential fencing. He was also involved in selling second hand vehicles. He received payments in cash, by cheque or electronically.
The defendant admitted having known Mr Lagana for approximately 10 years. The defendant said that Mr Lagana approached him with an idea of establishing an auto or industrial cleaning business. He said that Mr Lagana gave him a list of materials he required the defendant to purchase in order to start the business. The list included three or four solvents which the defendant purchased from a business at Wingfield with cash provided to him by Mr Lagana. He transported the solvents to Mr Lagana’s house at Lockleys and put them in the back shed where other materials for the business were being stored. He said that one of the items in the shed was a face mask. He said that out of curiosity he tried on the face mask and that he was talking while wearing it. He identified the face mask he tried on as the one in evidence found at the laboratory.
The defendant gave evidence that while he was discussing the cleaning business, Mr Lagana said that he needed some wine filter pads for a friend of his that owns a winery in the country. Mr Lagana handed him a piece of paper with the words “Mascolo Wines” and a mobile phone number written on it. The defendant said that he purchased wine filters and demijohns from two business, Globe Importers and Winequip, after opening an account in the name of “Mascalo”. He delivered the materials along with their invoices to Mr Lagana’s house and placed them in the rear shed.
In relation to the intercepted telephone call made on 19 May 2010, the defendant said that he had heard that Mr Lagana had been one of the people found by police at the laboratory. He admitted that he was concerned that he may be implicated in the activities of Mr Lagana. He said that he and Mr Lagana would always refer to each other as “offsiders”, no matter what they were talking about at the time. He gave an innocent explanation, unrelated to the events or the manufacture of methylamphetamine, for each statement relied on by the prosecution. For example, he explained the comment ‘I don’t usually have phones next to me any more mate’ by saying that he was not stable enough to look after himself, let alone his mother and the discussion about his mother not being able to believe what happened related to him being assaulted by a man over a car deal and that when he referred in the phone call to knowing who the cock sucker in the system was, in fact that was a reference to the man who beat him up over the car issue.
Appeal against conviction
The elements of an offence against s 33(1)
The first ground of appeal is that the Judge erred in failing to direct the jury that the prosecution must prove that the intention of the defendant was to manufacture a large commercial quantity of methylamphetamine and that necessarily required proof of knowledge that the minimum amount of the drug prescribed for the purpose of constituting an offence against s 33(1) of the Controlled Substances Act 1984 (SA) (the Act) would be produced. It is not in dispute that s 33(1) requires proof that the defendant had knowledge that a controlled drug was being manufactured. It is contended, however, that this knowledge alone is not sufficient to found guilt under s 33(1). The additional element that must be proven, according to the submission of the defendant, is that the defendant knew he was intending to manufacture a large commercial quantity of the drug.
It is submitted that the Judge’s directions to the jury and the aide-memoire provided to them, did not make it plain that the prosecution needed to prove that the defendant intended to manufacture a large commercial quantity of methylamphetamine. The Judge directed the jury as to the elements which the prosecution needed to establish in the following terms:
So, members of the jury, the first element is that the accused manufactured methylamphetamine. As you can see, that will be proven if it is established that the accused directs, takes or participates in any step in the process of manufacture of a controlled drug. Any step, members of the jury, includes any actual participation in any one of the stages of production described by the forensic scientist and chemist in this case, and also includes acquiring equipment, substances or material for the purposes of manufacture.
The second element is that the accused must be manufacturing the controlled drug knowingly. This, members of the jury, is the element of the offence that is really in dispute in this case. In other words, the accused must have known that the step he was taking was for the purpose of manufacturing a controlled drug.
The third element is that methylamphetamine is a controlled drug. Members of the jury, I can simply direct you that it is a controlled drug pursuant to the law. You can simply accept that from me.
The fourth element is that the accused was manufacturing what is termed a large commercial quantity of methylamphetamine. The law deems 750 g or more to be a large commercial quantity of methylamphetamine.
The final element is that the accused intended to sell any of the drug that was to be produced or believed that another person intended to sell any of it. You might recall back at the start of the trial, members of the jury, that the prosecutor said that the prosecution was required to prove an intention to sell 750 g. That is not exactly right. That was an error. So this is one of those very rare cases where I do disagree with counsel’s words on the law and I direct you that, as it says in the statute, that if there is an intention to sell any of the drug or a belief that any other person intended to sell any of it, then that fifth element is satisfied.
Immediately prior to summarising the elements of the offence, the Judge handed to the jury a written memorandum. It was in the following terms:
1The accused must have manufactured methylamphetamine. This will be proven if it is established that the accused directs, takes or participates in any step in the process of manufacture of the drug.
Any step would include any actual participation in any one of the stages of production described by the forensic chemist in this case, and would also include acquiring equipment, substances or materials for the purpose of manufacture.
2The second element is that the accused must be manufacturing the controlled drug knowingly. In other words, the accused must have known that the step he was taking was for the purpose of manufacturing a controlled drug.
3The third element is that methylamphetamine is a controlled drug. The law however provides that methylamphetamine is a controlled drug.
4The fourth element is that the accused was manufacturing what is termed a large commercial quantity of methylamphetamine. The law deems 750 grams or more to be a large commercial quantity of methylamphetamine.
5The final element is that the accused intended to sell any of the drug that was to be produced, or believed that another person intended to sell any of it.
There was one reference in the Judge’s summing up to the need for the prosecution to establish that the defendant took part in the process of manufacture knowing that at least the prescribed amount of the drug would be produced. The Judge directed the jury:
So members of the jury, the prosecution must prove that the accused took at least one step in the process of manufacture of methylamphetamine whether by acquiring materials or equipment for it, or taking part in the manufacture itself knowing that at least 750g of a controlled drug was to be made, intending that at least some of it would ultimately be sold by someone. Each element must be proved beyond reasonable doubt.
[Emphasis is mine.]
Counsel for the defendant contends that this reference was overtaken by the Judge’s repeated emphasis that the second element of the offence was the real issue in dispute and the lack of reference to the defendant’s knowledge regarding the quantity of the drug being manufactured in the written memorandum. If the primary submission that it must be proven that the defendant intended to manufacture a large commercial quantity of the drug is accepted, then in our view the Judge’s directions to the jury were erroneous and the above direction was not sufficient to adequately define the elements of the offence. If, on the other hand, intention as to the quantity of the controlled drug involved is not required, then it follows that there was no error in the Judge’s directions.

On the hearing of the appeal the submissions on the mental element of the offences created by s 33(1) of the Act proceeded on the premise that the question was one of ascertaining the extent of the mental element implicit in that section in accordance with the common law presumption that the enactment of serious offences generally includes, as the mental element, voluntariness and a general intent. Submissions were directed to the principles enunciated by the High Court in He Kaw Teh v The Queen,[1] and the application of those principles. Following the hearing, the Court invited counsel to make further submissions on the way in which s 33P of the Act affects the construction of s 33, which had not been addressed on the hearing.
[1] (1985) 157 CLR 523.
The offences of manufacturing a controlled drug are found in s 33 of the Act. The section provides as follows:
33—Manufacture of controlled drugs for sale
(1)     A person who manufactures a large commercial quantity of a controlled drug intending to sell any of it or believing that another person intends to sell any of it is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2)     A person who manufactures a commercial quantity of a controlled drug intending to sell any of it or believing that another person intends to sell any of it is guilty of an offence.
Maximum penalty:
(a)for a basic offence—$200 000 or imprisonment for 25 years, or both;
(b)for an aggravated offence—$500 000 or imprisonment for life, or both.
(3)     A person who manufactures a controlled drug intending to sell any of it or believing that another person intends to sell any of it is guilty of an offence.
Maximum penalty:
(a)for a basic offence—$50 000 or imprisonment for 10 years, or both;
(b)for an aggravated offence—$75 000 or imprisonment for 15 years, or both.
(4)     If—
(a)in any proceedings for an offence against subsection (1), (2) or (3) it is proved that the defendant manufactured a trafficable quantity of a controlled drug; or
(b)in any proceedings for an offence of attempting or conspiring to commit an offence against subsection (1), (2) or (3) it is proved that the defendant attempted or conspired (as the case may require) to manufacture a trafficable quantity of a controlled drug,
it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention or belief concerning the sale of the drug necessary to constitute the offence.
Section 33 does not provide specific words of intent except in relation to the presumption of the intent to sell any of the manufactured substance. However, with respect to the offences created by Part 5 of the Act, which includes s 33(1), the legislature has not remained silent but has instead made express provision for it in s 33P which provides:
33P—Knowledge or recklessness with respect to identity or quantity
(1)In any proceedings against a person for an offence against this Part relating to a controlled substance, the prosecution must establish that the person knew, or was reckless with respect to, the fact that the substance was or was to be a controlled substance.
(2)The prosecution need not establish that the person knew, or was reckless with respect to, the particular identity of the controlled substance.
Principles of statutory construction
Before considering the correct construction of s 33(1) of the Act, it is appropriate to identify a number of relevant principles of statutory construction.
The adoption of a purposive construction is the usual or general approach to be taken to issues of statutory construction.[2] A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[2] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J).
In Palgo Holdings Pty Ltd v Gowans,[3] Kirby J made the following observations in relation to purposive construction:
... a purposive and not a literal approach[4] is the method of statutory construction that now prevails:[5]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
[3]    Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[4]    Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[5]    Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 (McHugh JA) approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[6] As Lord Diplock explained, in an extra-judicial comment,[7] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[8]
[6]    Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[7]    Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[8]    Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice (1978) 263, 274; cited in Kingston (1987) 11 NSWLR 404 at 424.
The importance of context as an aid to statutory construction was noted by Kirby J in Palgo Holdings v Gowans:[9]
... the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.[10] In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.[11]
[9] Palgo Holdings v Gowans (2005) 221 CLR 249 at [37].
[10] R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28] (Lord Steyn).
[11] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561.
The use of extrinsic materials was discussed by French CJ in K-Generation v Liquor Licensing Court:[12]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes.[13] In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.[14]
[12] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501at [51]-[53].
[13] Gerhardy v Brown (1985) 159 CLR 70 at 104 (Mason J), 111 (Wilson J); Hoare v R (1989) 167 CLR 348 at 360-1.
[14] Owen v South Australia (1996) 66 SASR 251 at 256–7 (Cox J), 257 (Prior J); see also Nemer v Holloway (2003) 87 SASR 147 at 166–7 (Vanstone J); and generally, in relation to South Australia, Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (6th ed, 2006) at 70–1.
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes “the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”.[15]
[15] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
In accordance with the above observations, it is instructive to consider the history of the manufacturing provisions in the Controlled Substances Act 1984, and the intent which informed their enactment.
The Controlled Substances regime
Prior to its amendment on 3 December 2007, the offence of manufacturing a controlled drug was contained in s 32 of the Controlled Substances Act 1984. That section relevantly provided:
32 Prohibition 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.
…
(3)For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.
(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.
(5)A person who contravenes this section is guilty of an offence and is, subject to subsection (6), liable to a penalty as follows:
…
B. For any other offence under this section:
…
(b)where the substance the subject of the offence is a drug of dependence or a prohibited substance (not being cannabis or cannabis resin)—
(i)if the quantity of the substance involved in the commission of the offence equals or exceeds the amount prescribed in respect of that substance for the purposes of this subsection—a penalty of both a fine not exceeding $500 000 and imprisonment for life or such lesser term as the court thinks fit; or
(ii)if the quantity of the substance involved in the commission of the offence is less than the amount prescribed for the purposes of this subsection—a penalty not exceeding $200 000 or imprisonment for 25 years, or both.
…
Section 32 created the offence of manufacturing a controlled drug and the quantity of the drug prescribed in section 32B, although none was ever prescribed for methylamphetamine, was dealt with as being relevant only to penalty. As a result of the Controlled Substances (Serious Drug Offences) Act Amendment 2005 which commenced on 3 December 2007, the offences of trafficking, manufacturing and cultivating a controlled drug were separated into the different subdivisions in which they presently appear. Each of sections 32, 33 and 33B are drafted in similar terms and evince the creation of at least three separate offences. The three offences are tiered in that there are decreasing maximum penalties for the offences for corresponding lesser prescribed quantities of a controlled drug.
In the Second Reading speech when introducing the Bill the Attorney-General explained the purpose of the amendments.[16] He said:
The core of the proposed drug offences is a familiar and simple set of structured offences. They are trafficking in a controlled drug, trafficking in a commercial quantity of a controlled drug and trafficking in a large commercial quantity of a controlled drug. The general trafficking offences are supplemented by a similarly tiered structure of offences on manufacture (manufacturing, manufacturing a commercial quantity, manufacturing a large commercial quantity) and on cultivation of controlled plants (cultivation, cultivation of a commercial quantity, cultivation of a large commercial quantity). In each case, the concept of trafficking, cultivating and manufacturing includes taking a step in the relevant process, which is in turn defined widely to include all kinds of participation in the prohibited behaviour. All have similar reverse onus provisions about intention and belief.
This kind of simple, rational and transparent structure is the principal purpose of the overhaul of serious drug offences proposed in the Bill. It sets out to replace a chaotic and ad hoc set of sentencing provisions now in s 32 of the Act.
[16] Hansard, House of Assembly, Wednesday 21 September 2005, p 3504.
The Attorney-General further explained that the impetus for the amendments came following a meeting of the Council of Australian Governments dealing with terrorism and multi-jurisdictional crime during which it was agreed to modernise the criminal law by legislating in certain priority areas including model serious drug offences. He stated that the model drug offences are those referred to in a report on serious drug offences produced in October 1998 by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (“the MCCOC”). Chapter six of that report contains the Model Criminal Code.
Section 6.3.2 of the Model Criminal Code deals with the manufacture of a large commercial quantity of a controlled drug. It is in essentially the same terms as s 33(1) of the Controlled Substances Act 1984, with sections 6.3.3 and 6.3.4 of the Code mirroring the tiered offences in sections 33(2) and 33(3) respectively of the Act. It is to be observed that the Model Criminal Code explicitly provides that the prosecution must establish that the person knew, or was reckless with respect to, the quantity of prohibited substance. Section 6.5.6 of the Code provides as follows:
Knowledge or recklessness with respect to identity and quantity of drugs, plants and precursors
(1)This section applies to any offence against this Chapter consisting of conduct relating to a controlled drug, plant or precursor or to a particular quantity of it.
(2)In any proceedings against a person for such an offence, the prosecution must establish that the person knew, or was reckless with respect to, the following circumstances of the offence:
(a)that the substance or plant was a controlled drug, plant or precursor;
(b)if relevant, the quantity of the substance or plant concerned.
(3)The prosecution need not establish that the person knew, or was reckless with respect to, the particular identity of the controlled drug, plant or precursor.
(4)For example, in proceedings against a person for trafficking in a controlled drug (in the form of tablets) the prosecutor must establish that the person knew, or was reckless, that the tablets trafficked were a controlled drug of some kind (but need not establish that the person knew, or was reckless with respect to, the particular constituent controlled drugs contained in the tablets).
Discussion
The starting point is the presumption that in every statutory offence, it is implied as an element of the offence that an accused who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing the defined act.[17] The issue that falls to be determined is whether the manufacture of a large commercial quantity is a circumstance attendant on the doing of the physical act of the offence. In other words, what is that act of manufacture to which knowledge of the circumstances surrounding that act must attach? A related question which informs the determination of this issue is whether Parliament intended to impose a new obligation on the prosecution to prove an intention, not only to manufacture or take part in the manufacture of a controlled drug, but also to take part in the manufacture of a particular quantity.
[17] He Kaw Teh v The Queen (1985) 157 CLR 523, 582.
In our view, the requirement that the prosecution must establish knowledge or recklessness as to the identity of the substance expressly enacted by s 33P of the Act obviates any need to consider the mental element which might otherwise have been implicit in s 33 of the Act. Both s 33 and s 33P of the Act must be read together to ascertain the mental element relating to the quantitative element of the s 33 offences. It may be productive of error to enquire into the mental element which might have been implied but for the enactment of s 33P of the Act, and to then ask whether s 33P of the Act evinces a clear intention to deny that implication.
Even though the heading to s 33P is not part of the Act,[18] it is, nevertheless, an extrinsic indication that the legislative will, as to the extent of knowledge of the identity and quantity of the controlled drug which the prosecution must prove, is to be found in that provision. The terms of a heading cannot override the text of the statutory provision where there is a direct inconsistency but they can guide its construction.[19] It is manifest from the heading of s 33P of the Act that its purpose is to prescribe the mental element of Part 5 offences. In that context, the absence of a requirement of knowledge or recklessness with respect to the quantity of the controlled substance evinces a legislative choice not to include proof of those mental states as elements of the offences created by Part 5. It will be observed that s 33P(1) requires proof of knowledge or recklessness that the substance “was or was to be” a controlled drug. The mental element so expressed is applicable to offences of manufacture, and taking a step in the manufacture of a controlled substance.
[18] Acts Interpretation Act 1915 (SA) s 19.
[19] For example, the words of a particular provision may be read more narrowly than they would otherwise have been read but for the heading; Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1; Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; (1978) 18 ALR 639, 645; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; Ragless v Prospect District Council [1922] SASR 299, 311.
In our view, by expressly providing for the mental element in respect of the identity of a controlled drug and remaining silent in respect of quantity, it is clear that Parliament did not intend that knowledge or recklessness in respect of the latter be an element of the offence.
This is, in itself, sufficient to deal with this ground of appeal. However, it is instructive to consider some further aspects which support this construction.
When it enacted s 33P of the Act, Parliament chose to omit subsection (2)(a) of section 6.5.6 of the Model Criminal Code, which deals with the intent to manufacture a particular quantity of a controlled drug. So much is clear when considering the legislative history of the 2007 amendments. The current s 33P first appeared as s 33O in the Controlled Substances (Serious Drug Offences) Amendment Bill 2005. That section appeared in terms similar to section 6.5.6 of the Model Criminal Code, requiring the prosecution to establish that the person knew, or was reckless with respect to, the quantity or intended quantity of the controlled substance concerned. Section 14 of the Bill relevantly substituted the following provision under Part 5 of the Act:
33O—Knowledge or recklessness with respect to identity or quantity
(1)In any proceedings against a person for an offence against this Part relating to a controlled substance, the prosecution must establish that the person knew, or was reckless with respect to, the following circumstances of the offence:
(a)that the substance was or was to be a controlled substance;
(b)if relevant, that the quantity or intended quantity of the controlled substance concerned was a large commercial quantity or a commercial quantity (as the case may require).
(2)The prosecution need not establish that the person knew, or was reckless with respect to, the particular identity of the controlled substance.

Reference to the requirement for the prosecution to prove knowledge or recklessness with respect to quantity was deleted in the Legislative Council and s 33P enacted in its current form. In moving the amendment in the Legislative Council, the Hon Paul Holloway said:[20]
This amendment was requested by the DPP, and its effect is to delete the requirement that the defendant be proven to have known or to be reckless as to the fact of the amount of the substance. The DPP did not want to have to prove this element.
[20] South Australia, Parliamentary Debates, Legislative Council 1 December 2005, 3434.
The legislative history in South Australia of the treatment of the quantity of the prescribed drug produced is also important. The former s 32 of the Act did not include the quantity of the controlled substance produced as an element of the offence. The quantity of the drug was merely a circumstance attending the commission of the offence which affected the applicable maximum penalty. The enactment by s 33 of the Act of separate offences for different quantities has incorporated the quantity of the drug as an element of the offence. However, the enactment of s 33P, on the construction we would adopt, has not affected the further, and more radical change, or incorporating knowledge of the amount into the mental element of Part 5 offending.
We acknowledge that in the absence of s 33P of the Act there would be a case to construe s 33 of the Act as implicitly requiring proof of intention or knowledge as the case may be of the quantity produced, but, as said at the outset, that is not the question of statutory construction which the Act presents.[21]
[21] He Kaw The v The Queen (1985) 157 CLR 523. See also R v Nguyen (2005) 12 VR 299; The Queen v Bui [2005] VSCA 300; R v Callaghan (2007)172 A Crim R 278; R v McKittrick [2008] VSCA 69; Mustica v The Queen (2011) A Crim R 50; R v Lau (1998) A Crim R 167; R v Micalizzi [2004] NSWCCA 406.
In our view, s 33P rebuts the contention of the defendant that s 33(1) requires proof that a defendant intended to manufacture the prescribed quantity of the controlled drug concerned. Accordingly, we reject this ground of appeal.
Application of the burden of proof
The defendant gave evidence at trial. We have summarised the explanations he gave for each piece of circumstantial evidence relied on by the Crown earlier in these reasons. The defendant’s second ground of appeal is that the trial Judge failed to adequately direct the jury as to the application of the burden of proof to the defence case. It is submitted that the jury received no direction or instruction that an accused person does not have to prove any fact or explanation he puts forward, and that it is for the prosecution to disprove that version of events. It is also contended that the jury was not adequately instructed that should they reject the defendant’s evidence, they were still required to be satisfied beyond reasonable doubt that there was no other rational explanation for the evidence before convicting him. Counsel for the defendant further submits that the Judge failed to properly instruct and crystallise the defence case in respect of the defendant’s explanation for each of the matters of circumstantial evidence for which the defendant gave an innocent explanation.
The Judge gave general directions as to the criminal burden of proof, and emphasised that there is no onus upon the accused to prove anything. He did not direct that it is for the prosecution to disprove the defendant’s version of events. Later in his summing up, the Judge said:
Remember, that the inference of guilt drawn against an accused must be the only rational inference which the established facts enable you to draw. You cannot return a verdict of guilty unless the facts exclude any reasonable explanation consistent with innocence.
The Judge read to the jury the evidence given by the defendant in relation to his explanations for the circumstantial evidence relied on by the Crown. In his summary of the defence case, the Judge said:
[Defence counsel] commenced her address by reminding and emphasising to you that it was not a matter of choosing between two options but rather of the prosecution proving the case beyond reasonable doubt. She emphasised a suspicion of guilt or anything short of reasonable doubt was not sufficient.
In her address to the jury, the prosecutor identified the correct approach to be taken in dealing with the defendant’s evidence. She said:
Members of the jury, for the reasons I have outlined in my submission, the accused's evidence doesn't hold up and you should reject it. In doing so you will return your focus to the Prosecution case and the accumulation of the circumstantial evidence that irresistibly points to the accused's involvement in this criminal enterprise to manufacture methylamphetamine.
In our view, there was no error in the Judge’s directions. Although he did not expressly direct the jury that the defendant did not have to prove any fact or explanation he put forward, and that should they reject the defendant’s evidence, they were still required to be satisfied beyond reasonable doubt that there was no other rational explanation for the evidence before convicting him, the directions were nonetheless sufficient. The jury were instructed that the onus of proof at all times lay on the prosecution and that the defendant need prove nothing. The jury were further instructed that the inference of guilt can be drawn only if it is the only rational inference the established facts permit. The Judge emphasised that such an inference could not be drawn unless those facts exclude any reasonable explanation consistent with innocence. The unopposed address of the prosecutor made clear that upon a rejection of the defendant’s evidence the jury must still return to consider the evidence called on the prosecution case. Nothing was said which undermined the directions outlined above or could have left the jury in any confusion about their task.
We are of the view that the approach of the Judge in reading out exerts of the defendant’s evidence did not lead him into error. There was some advantage to the defendant in the Judge dealing with the matter in the way in which he did. If the defendant’s evidence was summarised in the way now suggested by his counsel, with every explanation lined up against each incriminating circumstance, there was a risk of exposing the improbability of his account when looking at each explanation cumulatively. It is not insignificant that the defendant’s counsel did not seek a redirection or request a summary of the defence case. The advantage of dealing with the defendant’s evidence in the manner in which the Judge did was clear.
Telephone intercepts
The Crown sought to lead evidence of intercepted telephone calls involving the defendant. The defendant objected to the tender of the evidence on the basis that the statutory requirements for its admission had not been met. The third ground of appeal is that the trial Judge erred in holding that the telephone intercepts were lawfully made and admitting them in evidence. The admissibility of the evidence depends on the proper construction of the Telecommunications (Interception and Access) Act 1979 (Cth) (the Telecommunications Act).
The statutory framework
The compilation of the Telecommunications Act dated 20 April 2010, reflecting amendments which came into force on 15 April 2010, was the applicable version of the Act that was in place at the relevant time.
In Geldert v Western Australia, McLure P discussed the competing interests which the Act seeks to balance. She said:[22]
The Act involves a balancing of conflicting interests. Broadly, those interests are the need to ensure that the privacy of individuals is protected from unwarranted intrusions and the need to provide Federal and State security and law enforcement agencies with an important additional tool of interception and access powers for use in the investigation and prosecution of (inter alia) serious offences.
[22] Geldert v Western Australia (2012) 271 FLR 83, [9].
Section 7(1) of the Telecommunications Act creates a general prohibition on the interception of telecommunications. Contravention of that section constitutes an offence (s 105(1)). Section 7(2) creates certain exceptions to the general prohibition. The exception that is relevant for present purposes is where an interception of a communication is made under a warrant (s 7(2)(b)). It is not in dispute that a warrant to intercept the defendant’s calls was validly issued on 11 May 2010. The warrant was a ‘named person warrant’ which authorised the interception of calls made to and from the defendant, for the period 11 May 2010 to 8 August 2010.
The warrant was issued pursuant to s 46A of the Telecommunications Act, which relevantly provides:
46A Issue of named person warrant
(1) Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a person and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a)    Division 3 has been complied with in relation to the application; and
(b)    in the case of a telephone application—because of urgent circumstances, it     was necessary to make the application by telephone; and
(c)    there are reasonable grounds for suspecting that a particular person is using,     or is likely to use, more than one telecommunications service; and
(d)    information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which the person is involved; and
(e)    having regard to the matters referred to in subsection (2), and to no other        matters, the Judge or nominated AAT member should issue a warrant         authorising such communications to be intercepted;
the Judge or nominated AAT member may, in his or her discretion, issue such a warrant.
The combined effect of sections 47 and 60 of the Telecommunications Act is that the warrant will not authorise the interception of telecommunications until the Managing Director of the telecommunication carrier has been notified of the issue of the warrant.[23] Section 47 provided:
[23] In R v Bunting & Wagner [No 5] [2003] SASC 253 Martin J held that having regard to these provisions, the scheme of the Act, the purposes of notification and practical necessities the functions articulated for the Managing Director in section 60 may be performed by persons acting on behalf of the Managing Director.
47 Limit on authority conferred by warrant
A warrant issued under section 46 or 46A does not authorise the interception of communications passing over a telecommunications system that a carrier operates unless:
(a) notification of the issue of the warrant has been received by or on behalf of the Managing Director of the carrier under subsection 60(1); and
(b) the interception takes place as a result of action taken by an employee of the carrier.
Notification was defined by s 60(1) of the Act which provided:
60 Notification to Managing Director of carrier of issue or revocation of certain warrants
(1) Where:
(a)a warrant (other than a warrant issued under section 48) is issued to an agency; and
(b)it is proposed, under the warrant, to intercept communications to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier;
a certifying officer of the agency shall cause;
(c)the Managing Director of that carrier to be informed forthwith of the issue of the warrant; and
(d)a copy of the warrant, certified in writing by a certifying officer of the agency to be a true copy of the warrant, to be given as soon as practicable to the Managing Director of that carrier.
Section 74 of the Telecommunications Act allows a person to give evidence of intercepted material so long as it is lawfully intercepted:
74 Giving information in evidence in exempt proceeding
(1) A person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding.
(2) For the purposes of applying subsection (1) in relation to information, the question whether or not a communication was intercepted in contravention of subsection 7(1) may be determined on the balance of probabilities.
(3) A person may give interception warrant information in evidence in an exempt proceeding.
Section 75 of the Act is the saving provision. It allows intercepted material to be given in evidence where there is a non-substantial defect or irregularity in connection with the warrant:
75 Giving information in evidence where defect in connection with warrant
(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a warrant under section 11A, 11B or 11C), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that:
(a) but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and
(b) in all the circumstances, the irregularity should be disregarded.
(2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity):
(a) in, or in connection with the issue of, a document purporting to be a warrant; or
(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.
The irregularity
Evidence was given on the voir dire by Detective Senior Sergeant Lange, Officer in Charge of the SA Police Telecommunications Section, who had overall responsibility for the telephone intercept activities. It was stated that the warrant to intercept and record the defendant’s phone calls was issued on 11 May 2010. On the same day SA Police sent a “service enabling notification” to the Managing Director of the carrier, attaching the warrant in question and notifying the carrier of its issue. The trial Judge found that this satisfied the notice requirement under s 60(1)(c) of the Act.
On 13 May 2010, two certified copies of the warrant were obtained from the Deputy Commissioner. The certified copy was sent to the carrier by registered post on 21 May 2010. Detective Lange gave evidence that the certified copy of the warrant was sent to the carrier by registered mail and a record and postal receipt were kept. However, police did not seek a confirmation from the carrier that the warrant had in fact been received.
On 28 October 2010, SA Police contacted the carrier to seek the provision of an evidentiary certificate in relation to the telephone intercept. They were informed that the carrier had not received the certified copy of the warrant. SA Police were advised that the carrier had changed its address and that the address previously given by the carrier was no longer used. Detective Lange said that notwithstanding the envelope in which the certified copy of the warrant was sent had the sender’s address, nothing was returned as undeliverable. A further certified copy of the warrant was sent to the carrier on 4 November 2010. The carrier then provided the requested evidentiary certificate.
Discussion
The issue raised on the voir dire, and that the defendant seeks again to agitate, is whether in these circumstances, s 60(1)(d) had been breached. If that question is answered in the affirmative, two further issues fall to be determined. First, whether the interception was therefore not authorised by s 47 and, if not, whether evidence of the calls is inadmissible or could be admitted pursuant to s 75.
The trial Judge found that s 60(1)(d) had not been breached. He adopted the findings of the Court of Appeal of Western Australia in Geldert v The State of Western Australia[24] in which the Court held that the s 47(a) requirement to notify the carrier was satisfied by complying with s 60(1)(c), and that the s 60(1)(d) requirement to send a certified copy of the warrant was separate and was not part of the “notification” referred to in section 47(a). McLure P, with whom Martin CJ and Mazza JA agreed, discussed the reasons for that conclusion. She said:[25]
Having regard to the text of s 47 and s 60(1) and the context, structure and purpose of the Act as a whole, the notification referred to in s 47(a) is confined to that required under par (c) of s 60(1) of the Act. My reasons for that conclusion are as follows.
Section 60(1) requires the certifying officer of the agency to whom the warrant has issued to take two separate and distinct steps within different statutory timeframes. Under par (c), a certifying officer of the agency shall cause the Managing Director of the relevant carrier to be informed forthwith of the issue of the warrant. The second step, in par (d), is that the certifying officer of the agency shall cause a certified copy of the warrant to be given as soon as practicable to the Managing Director of the carrier. Thus the two separate steps require different acts within different timeframes. The timeframe for step one is more stringent than that for step two. ‘Forthwith’ means immediately. The word ‘practicable’ is not defined in the Act. It has its natural and ordinary meaning of ‘capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible’: Wright v Western Australia [2010] WASCA 199; (2010) 203 A Crim R 339 [26], [148].
The natural and ordinary meaning of the text of s 47(a) dovetails with that in s 60(1)(c). In particular, the requirement in s 47(a) of receipt by the Managing Director of the carrier of notification of the issue of the warrant has its direct correlative in s 60(1)(c), which requires that the agency cause the Managing Director to be informed of the issue of the warrant. A person who has been informed of the issue of the warrant has received notification thereof. The requirement in s 60(1)(d) for service of a certified copy of the warrant is separate and distinct and goes beyond notification of its issue. Further, the requirement in s 60(1)(c) would be redundant if the requirement in s 60(1)(d) was a necessary precondition of the agency’s authority under s 47 to intercept communications under a validly issued warrant.
The natural and ordinary meaning of s 47(a) is also consistent with the context, structure and purpose of the Act as a whole. First, the scheme of s 60(1) is repeated in s 60(3) dealing with revocation. Interception can only begin and must end on notification of the issue of the warrant and its revocation respectively to the carrier ‘forthwith’, with service of a certified copy of the relevant instrument to follow as soon as practicable.
Secondly, the authority conferred by a Part 2-5 warrant can only be exercised by an approved officer or member, or class of officer or member, of an agency. The authority under the warrant is not in terms extended to the carrier operating the telecommunications system. The function of the carrier is limited; it is confined to doing what is technically necessary to facilitate the interception of the communications by authorised officers of an agency. Notification of the issue of the warrant to the carrier under s 47(a) links with the mandatory role of the carrier under s 47(b).
Thirdly, there is no compelling justification for requiring that service of a certified copy of the warrant on the carrier be a precondition to the existence of the agency’s authority to commence interception in circumstances where there is a valid warrant which is in force from the time of its issue (s 54) and only for a limited period. That is particularly so when the statutory timeframe in s 60(1)(d) involves matters of judgment which will vary according to the circumstances of the case at hand. Such a requirement is also incompatible with the legislative scheme for urgent telephone applications which permits the issue of a warrant even in advance of receipt of sworn evidence.
Based on the scheme of the Act as a whole, the purpose of the requirement to serve a certified copy of the warrant on the carrier is to establish an audit trail connecting notifications under s 60(1)(c) to the certified copy of the relevant warrant in order to underpin the transparency and accountability secured by the extensive reporting obligations in the Act, including those of Managing Director of carriers in s 97 of the Act.
Accordingly, the intercepted information obtained under warrants H10014-00 and H09260-00 was ‘lawfully intercepted information’ admissible under s 74.
[24] (2012) 271 FLR 83.
[25] Geldert v The State of Western Australia (2012) 271 FLR 83, [49]-[56].

The Court in Geldert considered that the requirement to provide the certified copy of the warrant under s 60(1)(d) was to provide an audit trail and underpin accountability and the reporting obligations in the Act. Non-compliance with section 60(1)(d) did not amount to a breach of s 47(a).
The contention put forward by counsel for the defendant is that the approach taken in an earlier ruling of the Western Australian District Court in the matter of Western Australia v Tanevski[26] should be preferred to Geldert. In Tanevski, the Court held that there needed to be compliance with the equivalents of both sections 60(1)(c) and 60(1)(d) before s 47 could be satisfied. Alternatively, it is submitted that Geldert should be distinguished on its facts.
[26] [2012] WADC 87.
Counsel submits that the reasoning in Geldert is flawed because it fails to recognise, as the Court did in Tanevski,[27] that “notification”, given its ordinary and natural meaning, can occur in a variety of ways. The contention is that sections 60(1)(c) and 60(1)(d) are two parts of the same process of notification required by s 47. It is submitted that the notification under s 60(1)(c) serves to put the carrier on notice that a warrant has been issued so that the carrier can take steps to facilitate the interception and that the provision of the certified copy of the warrant under s 60(1)(d) renders the interception lawful. It is submitted that this interpretation better promotes the purpose of the legislation by providing a further balance or check on what is an intrusive power.
[27] Western Australia v Tanevski [2012] WADC 87, [96].
Construction of the provisions of the Telecommunications Act as at 20 April 2010 is problematic. It is difficult to construe subparagraphs (c) and (d) of s 60(1) of the Telecommunications Act in a way which gives both a meaningful purpose. It is also hard to see the purpose of the requirement in s 60(1)(c) that the managing director of the telecommunications service provider be “informed forthwith” of the issue of the warrant. Ordinarily one would expect the police to attend to that matter quickly even without a statutory prompt in order to collect the intelligence they desire. It is also not clear why the authorisation to intercept should lapse if the notification is not given forthwith because there is, in any event, only a fixed period in which the warrant can operate. The consequence of the police not giving the notification forthwith is simply that the communications will not be intercepted for the whole of the period for which the warrant operates. Ordinarily one would not expect a statutory provision requiring the police to eavesdrop on the conversations of members of the public for a longer period than the police themselves think necessary.
We accept that the provision of the certified copy of the warrant itself is a mechanism to ensure compliance with the terms of the warrant and would act as a check against mistaken, misleading or false oral notifications. However, if both the immediate notification, and the provision of the certified copy of the warrant, were required to be provided before a interception could be made then it is difficult to see any utility, as McClure P observed in Geldert,[28] in the requirement of immediate notification in subparagraph (c).
[28] [2012] 271 FLR 83.
One possible rationale for the dual requirement is that subparagraphs (c) and (d) were enacted for the purpose of ensuring that the issue of the warrant was brought to the attention of the managing director within a time frame, and in a way, which would allow him or her to establish a regime which ensured that the interception took place, and only took place, within the terms of the warrant. The purpose of the notification in subparagraph (c) would then be to give the managing director early notice that the warrant had been issued so that he or she could put arrangements in place which would ensure that the provider’s employees intercepted the communication strictly in accordance with the terms of the certified copy of the warrant when it eventually arrived. If that is the purpose of the dual requirement, then a purposive construction of s 47(a) of the Telecommunications Act would have the phrase “notification of the issue of the warrant” in s 47(a) encompass both the early information in subparagraph (c) and the provision of the warrant in subparagraph (d). However, we are not so sure that that is the purpose to give that consideration much weight. We are more struck by the way in which s 47(a) “dovetails”, as McClure P put it,[29] with s 60(1)(c). The “notification of the issue of the warrant” in s 47(a) fits neatly with the phrase “informed forthwith of the issue of the warrant” in s 60(1)(c) of the Telecommunications Act.
[29] Ibid, [51].
It is desirable that the intermediate courts of appeal of the States and Territories adopt a consistent construction of Commonwealth legislation leaving that construction to be corrected by the High Court if the occasion arises.[30] Even though the question is not free of doubt, we would construe the provisions of the Telecommunications Act as they were construed in Geldert. We are certainly not persuaded that the decision in Geldert is plainly wrong.
[30] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.
We therefore reject the defendant’s submission that the decision in Tanesvski should be preferred and adopted by this Court.
We further reject the submission that Geldert should be distinguished on its facts. In Geldert, the certified copy of the warrant was provided to the carrier during the life of the warrant. In the present case, the certified copy of the warrant was not provided to the carrier until around three months after the warrant had expired. In my view, the holding in Geldert that the purpose of s 60(1)(d) was to provide an audit trail and underpin accountability and the reporting obligations in the Act, is in no way affected by whether or not s 60(1)(d) is complied with during or after the life of the warrant.
Given the above findings, it is not necessary to consider whether the provision of the certified copy of the warrant as required by s 60(1)(d) was made “as soon as practicable” or whether the irregularity could be cured by s 75.
The appeal against conviction is dismissed.
Appeal against sentence
The defendant advances three grounds of appeal against sentence. First, it is contended that the head sentence and the non-parole period are manifestly excessive. It is further contended that the Judge erred in characterising the defendant as a “principal” of the drug operation and that such a finding was not available on the evidence. The final complaint is that there was a marked disparity between the sentences imposed on the co-offenders such as to give rise to a justifiable grievance on the part of the defendant.
It is appropriate to set out the basis upon which the defendant and the co‑offenders were sentenced. The defendant was sentenced on the basis that he was a principal in the manufacturing operation and was to receive a significant proportion of the proceeds from the operation. The Judge summarised the evidence established at trial and his findings in respect of it:
Overall the circumstantial evidence established that you were involved in the set-up through negotiation and purchase of items for the lab over a number of months, the financing of at least around $40000 of equipment and chemicals that likely needed to be paid for by account or transfer rather than cash, hands-on production of the drug, provision of mobile phones for use at the lab, and spoke of the enterprise in terms highly indicative of you being a principal in it. You took a range of measures to reduce the risk of personal detection.
In short it is proven beyond reasonable doubt that you were a principal in this operation and voluntarily involved from an early stage. As such you were likely to receive a significant proportion of the proceeds, unlike the basis upon which either Mr Lagana or Mr Keegan was sentenced.
Particularly in light of your comment on the phone about relocating your assets, against the background of all the other evidence, it is likely you have done that and accordingly it is unsurprising that any profits or proceeds received from the ‘kilogram scale’ production already completed were not located associated with you.
The evidence, however, does not establish whether you had personally yet realised any of the vast actual and potential profits likely to be generated from the venture, or how much you personally were to realise. That would depend on whether there were other principals apart from yourself to split the profit with, which I accept is a possibility, and other factors such as the overall cost of production and the actual prices received or obtainable, about which there is no evidence.
The Judge noted the defendant’s long record of previous offending, the most serious of which involved convictions for taking part in the sale of methylamphetamine and possessing a firearm without a licence. The amount of methylamphetamine in that case was 117.3 grams of powder which contained 88.8 grams of pure methylamphetamine. The defendant was sentenced in February 2008 to four years and six months’ imprisonment with a non-parole period of two years. He was discharged from custody pursuant to a pre-release home detention scheme in February 2009, having served one year of imprisonment. In February 2010, his status was converted from pre-release to parole. The current offending occurred during this period while the defendant was on pre-release home detention, then parole.
The Judge considered the personal circumstances of the defendant. He was 41 years of age. He was adopted as a child. His adoptive father died and his adoptive mother re-married. His childhood was characterised by strict discipline from his parents. He completed year 12 at high school and a number of courses in electric maintenance and retail sales. He had a steady work history, holding a number of jobs across several industries. Personal references showed that he was well-regarded by a number of people, particularly by his family members. He was the primary carer for his mother who had significant mental health problems.
The defendant was single with no children. He had no drug, alcohol or financial problems. The Judge noted that the defendant had not shown any remorse for his actions.
The co-offenders, Mr Keegan and Mr Lagana, each pleaded guilty to one count of manufacturing a large commercial quantity of a controlled drug for sale and one count of manufacturing a controlled drug for sale. The latter charge relating to the methylamphetamine located at the premises said to be the remnant of a previous manufacture. Their pleas were entered shortly before their trial was to commence. They were sentenced before the defendant was convicted and by a different Judge to the defendant.
Mr Lagana was sentenced on the basis that he was in financial difficulty. He planned to purchase a truck in order to start his own business but was unable to do so as a result of the financial crisis. He accepted an offer to crush powder in the warehouse for $1000 per week for a total of 10 weeks. He had been doing so for one week prior to the police raid. It was accepted that he stood to gain $10,000 for his part in the operation. The sentencing Judge was satisfied that Mr Lagana knew that it was an illegal drug of some kind being made. It was accepted that he was not the organiser or principal behind the offending, was naive, was preyed upon by opportunistic people and when he expressed concern about his involvement, received a veiled threat. He was given one sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 of seven years’ imprisonment – after receiving a one year reduction for his guilty plea – and a non-parole period of five years was fixed. His appeal against sentence to this Court was dismissed.[31]
[31] R v Lagana [2012] SASCFC 135.
In sentencing the defendant, the Judge noted that there was an inconsistency between the factual basis upon which Mr Lagana was dealt with and the evidence presented at the defendant’s trial. The trial evidence suggested that Mr Lagana sourced materials for the laboratory many months before the day of his arrest. Further, the defendant gave evidence that Mr Lagana took a significant role in sourcing the wine filters, glass demijohns and large quantities of chemicals used for the methylamphetamine production.
Mr Keegan was sentenced on the basis that he too was in financial difficulty. He had been defrauded by a third party and was facing financial ruin. In addition, he was suffering from a major recurrent and chronic depressive psychological disorder. In these circumstances, he agreed to rent and permit the premises in which the clandestine lab was located to be used for the process of extracting pseudoephedrine and assisted in that process for a period prior to the police raid. In respect of the charge relating to the remnants of a previous manufacture, he was sentenced on the basis he permitted the premises to be used for the manufacture of methylamphetamine, but was not involved or present during the actual process of manufacture. He also expected to receive $1000 per week for his involvement.
Mr Keegan had a prior conviction for selling cannabis for which he received a head sentence of eight years and 11 months’ imprisonment with a non-parole period of four years and six months. He was on parole for that offence at the time of the present offending. He was sentenced on the basis that his involvement was more serious than that of Mr Lagana, as he had control of the premises. The court imposed once sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 in respect of both offences. From a starting point of 10 years, reduced for his guilty plea and time in custody, he was sentenced to seven years’ imprisonment cumulative on unexpired parole of three years, three months and 10 days. This resulted in a head sentence of 10 years, three months and three days’ imprisonment with a non-parole period of six years.
Manifestly excessive
When determining if a sentence is manifestly excessive, the court considers a number of factors including the maximum penalty for the offence, the range of sentencing customarily observed for the type of offending, the seriousness of the offending and the personal circumstances of the offender.
The maximum penalty for manufacturing a large commercial quantity of methylamphetamine for sale is life imprisonment and or a fine of $500,000. Prior to the 2007 amendments, the Act provided two maximum penalties for manufacturing controlled drugs other than cannabis depending on whether the quantity was more or less than the prescribed amount. As no amount of methylamphetamine was ever prescribed for this purpose, in practice, the lower maximum penalty of 25 years’ imprisonment and or a fine of $200,000 applied in all cases. The introduction in 2007 of the scale of penalties by reference to the greater quantities of the drugs, has had the effect of increasing the broad penalty ranges across all of the categories considered in R v Mangelsdorf.[32] In R v Kong, [33] this Court observed that there is little utility in comparing sentences and maximum penalties under the earlier legislation with the current legislation.
[32] (1995) 60 SASR 60. See, R v Kong [2013 SASCFC 15, [19].
[33] R v Kong [2013] SASCFC 15, [74].
Since the 2007 amendments, there have been few cases in this State that have dealt with very large scale commercial offences against s 33(1) of the Act. Counsel for the Director submits that two decisions of the New South Wales Court of Appeal demonstrate that the defendant’s sentence was not outside the appropriate range for this type of offending.
In R v Kalache,[34] the respondent was sentenced for seven offences committed in connection to an organised network responsible for the manufacture and distribution of prohibited drugs. Relevantly, they included two counts of knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine. That offence attracted a maximum penalty of life imprisonment. As to the first count, there was no evidence before the Court as to the quantity of methylamphetamine involved and the respondent was sentenced on the basis that the amount constituted a large commercial quantity, which at that time in NSW was at least one kilogram. The second manufacturing offence involved a total of seven kilograms of methylamphetamine. At first instance, he was sentenced to five years’ imprisonment for the first manufacturing offence and six years’ imprisonment for the second. Following a successful Crown appeal, the respondent was re-sentenced to 19 years’ imprisonment for the first offence and 24 years’ imprisonment for the second. The sentences were reduced to 14 years’ imprisonment and 18 years’ imprisonment, respectively, after taking into account that resentencing followed a successful Crown appeal.
[34] (2000) 111 A Crim R 152.
The Court of Appeal noted that the evidence before the sentencing Judge established that the respondent was the lynch-pin of a well organised, high volume and high profit drug trafficking network. Investigators estimated that during the five month period of the investigation during which a listening device was operative at his premises, the respondent supplied in excess of 20 kilograms of methylamphetamine. He was not at any relevant time a user of illicit drugs and the offences were committed by him against “a truly appalling background of antecedent drug related crime.”
In Walsh v R; Little v R,[35] the Court of Appeal unanimously upheld the sentences imposed at first instance by Howie J on two appellants convicted, inter alia, of drug offences. The appellant, Little, pleaded guilty to five counts in a joint indictment presented against him and the appellant, Walsh. The relevant counts were manufacture of a large commercial quantity of methylamphetamine for which the maximum penalty prescribed was imprisonment for life and supplying a large commercial quantity of methylamphetamine for which the same maximum penalty was prescribed. In respect of these counts, Little received one sentence of 22 years’ imprisonment with a non-parole period of 16 years and six months. Little pleaded guilty to the offences and was sentenced on the basis that over a two year period he manufactured 19 kilograms of methylamphetamine of an average purity of 75%. The methylamphetamine was supplied to Walsh who was a member of a motorcycle gang. Little received between $2 million and $2.5 million from this activity. He had no applicable antecedent history, was a methylamphetamine user, a heavy gambler and had business related financial pressures.
[35] [2006] NSWCCA 406.
It is to be observed that the objective seriousness of the offending in these cases can be distinguished from that in the present case. Although there is no doubt that the defendant’s conduct was extremely serious, as conceded by counsel for the Director, there was no evidence that the defendant was the sole financier of the operation, the amount of money he invested into the operation or the profit he stood to receive, the extent, if any, to which the operation was part of a wider criminal enterprise, whether he directly imported the pseudoephedrine from overseas or as to the intended destination of the methylamphetamine that was to be produced.
The approach for sentencing persons convicted of serious drug offences is to have regard to the extent of the enterprise and the quantity and nature of the drugs the subject of the charge. In Cetojevic, Sulan J relevantly observed:[36]
As has been said by this Court previously, in sentencing for dealing in drugs, general deterrence is a primary consideration. A sentencing judge will have regard to whether there was an ongoing commercial enterprise, the extent of that enterprise and the quantity and the nature of the drugs the subject of the charge. …
[36] R v Cetojevic (2005) 92 SASR 451, [25].

Similarly, in Di Maria, Doyle CJ observed:[37]
… 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. When mature men or women combine in such an enterprise, they must expect that the courts will impose heavy sentences in which deterrence is a significant factor. Personal circumstances must be given less weight in such cases than they might in other cases. This was a project involving grave criminality, and the sentences imposed were not excessive.
[37] R v Di Maria (1996) 67 SASR 466, 477.
Section 44(1) of the Controlled Substances Act 1984 (SA) provides that, in determining the penalty to be imposed on a person convicted of an offence against the Act, the court must take into consideration the quantity of the subject controlled substance, the commercial motives and the likely financial gain involved in the commission of the offending.
In our view, the offending in this case was extremely serious. The manufacture of controlled drugs is a cause of grave social harm. General and personal deterrence are significant in circumstances such as this case. That being said, the sentence imposed on the defendant was, in our view, manifestly excessive in the circumstances. Although the defendant’s involvement in this offence was important, we cannot conclude that there may not have been others with an equal or greater involvement and responsibility in the enterprise. The sentence imposed by the Judge leaves little room for an appropriate sentence for the worst kind of offending of this nature. It cannot be said that this defendant’s involvement was such that he should be regarded as near the worst offender for the worst offence of this type.
In our view, the sentence is manifestly excessive.
The sentence should be set aside.
Appropriate sentence
It is not strictly necessary to consider the defendant’s further submissions on whether the Judge erred in characterising the defendant as a principal of the operation and whether there was a marked disparity between the sentences imposed on him as compared to the two co-offenders. However, we have had regard to those submissions in determining the sentence now to be imposed.
Although the characterisation of the defendant as a principal of the operation is a cause of grievance on his part, it is clear that his involvement in the enterprise was beyond that of either co-offender. The evidence established that he had been involved in the operation for a longer period of time and that he exercised some control over the enterprise. He was involved in sourcing significant amounts of equipment and material for the laboratory over a period of months when it was being set up and he was involved in the manufacture process as indicated by phone conversations and DNA evidence. It was accepted that the co-offenders became involved as a result of financial pressure and were only to receive a small portion of the ultimate profits of the activity.
In our view, there is a clear basis upon which to distinguish the defendant’s culpability in the offending from that of the co-offenders. As was observed in Postiglione:[38]
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. …
[38] Postiglione v The Queen (1997) 189 CLR 295, 301-302.
Having regard to these matters, the sentence in this case for the offence of manufacturing a large commercial quantity of methylamphetamine for sale is 15 years’ imprisonment. The sentence is to be served cumulatively on the unexpired parole period of two years four months and three days’ imprisonment. We would impose a non-parole period of 13 years’ imprisonment. The total sentence being 17 years four months and three days’ imprisonment with a non-parole period of 13 years. The head sentence and non-parole period to commence from 30 November 2012.
VANSTONE J: I agree that the appeal against conviction should be dismissed.
I consider that the terms of s 33P of the Controlled Substances Act 1984 (CSA) dispose of the argument that the 2007 amendments to the CSA effected a fundamental change to the law of this state in requiring proof of an intention not only to commit an offence involving a controlled substance, but to commit an offence involving a particular quantity of the substance. For that reason the common law presumption discussed in He Kaw Teh (1985) 157 CLR 523 has no role here.
Section 33P was enacted as part of the 2007 amendments, being the Controlled Substances (Serious Drug Offences) Amendment Act 2005, No 80 of 2005. The sections relevant to this appeal came into operation on 3 December 2007. I note that s 33P was not mentioned by counsel who argued this appeal. Written submissions in relation to s 33P were sought by the Court after the argument on the appeal concluded.
On my understanding, enactment of the 2007 amendments to the CSA did not, in the six years that followed, result in trial judges directing juries that proof of intention to commit an offence involving a large commercial or a commercial quantity was required. The terms of s 33P explain why there was no change. The Victorian and New South Wales cases referred to and relied on by the appellant’s counsel concern materially different legislation. There is no need to go to those cases.
In relation to the other grounds I agree, substantially for the reasons given by the Chief Justice and Sulan J, that they are not made out.
Turning to the appeal against sentence, I too would allow the appeal. However, I would add that, bearing in mind the maximum penalty of a fine of $500,000, or life imprisonment or both, the leading role played by the appellant in an offence of this scale and having regard to the antecedents of the appellant and the fact that he was on parole for a similar serious offence at the time of committing the current offence, I would think that 15 years imprisonment is at the lowest end of the range of sentences which could be imposed. In my opinion, the available range was something like 15 to 20 years imprisonment.
I agree with the orders proposed by Kourakis CJ and Sulan J.