R v Spicer
[2003] NSWCCA 108
•23 April 2003
Reported Decision:
139 A Crim R 206
New South Wales
Court of Criminal Appeal
CITATION: Regina v Spicer [2003] NSWCCA 108 HEARING DATE(S): 7 February 2003 JUDGMENT DATE:
23 April 2003JUDGMENT OF: Santow JA at 1; Simpson J at 2; Smart AJ at 3 DECISION: (1) Appeal against conviction on the first count allowed; conviction quashed; verdict of acquittal entered (2) (a) Leave to appeal against sentence on the second count granted; sentence quashed (b) In lieu thereof the appellant is sentenced to imprisonment for three years commencing on 25 July 2001 with a non-parole period expiring on 24 April 2003 on which day the appellant is to be released on parole. CATCHWORDS: Knowingly take part in manufacture of prohibited drug - more than transportation must be proved - conviction quashed - deemed supply of prohibited drug in liquid form and not able to be readily supplied - extent of penalty. LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 CASES CITED: R v BD (2001) 128 A Crim R 28
R v Marchione [2002] NSWCCA 131
R v Thomas (1993) 67 A Crim R 308
R v Lee NSWCCA, unrep 6 December 1994
R v Bright [1916] 2 KB 441
R v Kingswell 158 CLR 281PARTIES :
Regina v David Ernest Spicer FILE NUMBER(S): CCA 60810/01 COUNSEL: (A) R Sutherland SC
(C) R Hulme SCSOLICITORS: (A) Glenn K Walsh
(C) S E O'Connor
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 01/21/1021 LOWER COURT
JUDICIAL OFFICER :Luland DCJ
60810/01
SANTOW JA
SIMPSON J
SMART AJ
Wednesday, 23 April 2003
1. SANTOW JA: I agree with Smart AJ.
2. SIMPSON J: I agree with Smart AJ.
3. SMART AJ: David Ernest Spicer appeals against his conviction of on about 30 June 2000 knowingly taking part in the manufacture of not less than the commercial quantity of a prohibited drug (methylamphetamine). He does not seek to disturb his conviction of on about 30 June 2000 supplying not less than the commercial quantity of a prohibited drug (methylamphetamine), an instance of “deemed supply”. He also seeks leave to appeal against the sentences imposed, namely concurrent sentences for each offence of 4 years with a non-parole period of 2 years 6 months.
The Crown Case
4. Around 9 am on 30 June 2000 the appellant went to the home of DS and asked to borrow her Nissan Bluebird sedan so he could move some furniture. Early on 1 July 2000 she attended the Penrith Police Station and saw various items on the front and back seats in her car. Those items were not there when she lent the car to the appellant. She had had no discussion with the appellant about fixing the clutch of her car.
5. About 11 pm on 30 June 2000 the appellant was stopped by police for a random breath test while driving DS' vehicle along Devlin Road, Londonderry. The appellant got out of the vehicle. He produced his driving licence. The breath test was negative. In response to police questions the appellant said that he was not the owner of the vehicle, that it was owned by Debbie, that he did not know her surname and that he did not know where she lived. When asked what he was doing with the vehicle he replied that she had rung him up earlier that day and asked him to pick the vehicle up and fix the clutch. He said "I just picked it up up the road a bit." There was a further series of questions and answers, the latter being untrue.
6. Snr Cons Hawthorne next inspected the vehicle. On the floor of the front seat there was a glass ball with some liquid in it. On the front passenger seat there was a cardboard box with a towel over the top of it. The appellant stated that he did not know what was in the box. On looking inside the box the officer saw another glass ball-shaped container with liquid in it from which a vapour, which he smelt, was coming. On the back seat of the car there were numerous large plastic tubs and a microwave oven. On opening one of the tubs he found that it contained numerous pots and portable heating equipment. The appellant said that he did not know who owned all these items.
7. The boot contained a portable gas stove, a gas bottle, another large plastic container and a green garbage bag which contained two pyrex jugs with a white powder-like residue. The appellant, at the request of the police, with them following, drove DS' vehicle to Penrith Police Station.
8. Mr V P Murtagh, a very experienced forensic chemist with extensive analytical experience in investigating the manufacture of drugs was summoned to Penrith Police Station in the early hours of 1 July 2000. He removed the items from the vehicle. A number of items were sent to the Australian Government Analytical Laboratories. Methylamphetamine was found in three containers. The glass container from the front seat giving off fumes was found to hold hydriodic acid in liquid form.
9. Mr Murtagh said that the usual method of manufacturing methylamphetamine was to start by extracting pseudoephedrine from therapeutic tablets by adding methylated spirits, with the residue being ethanol. The pyrex jugs found in the boot contained traces of pseudoephedrine and ethanol.
10. Next, the methylated spirits are boiled off and hydriodic acid is added to the dry pseudoephedrine to produce methylamphetamine. Hydriodic acid is made by combining hypophosphorous and iodine. As well as the finished acid those two components were also found in containers from the back seat of the vehicle. Mr Murtagh noted that reaction flasks, condensers, gas cylinders and a gas ring attachment were also found. The next step is distillation, where caustic soda is added to neutralise the acid and produce an oil. Glassware suitable for this process was found.
11. The final step is crystallisation. Methylamphetamine oil was located in the back seat of the car along with a number of digital hand-held pH meters used to control the amount of hydrochloric acid needed to be added to the oil to make a crystalline solution. A coil hotplate and a microwave oven were located, either of which could be used to heat the solution to get rid of the water and leave methylamphetamine hydrochloride, the finished crystal product.
12. Mr Murtagh explained that methylamphetamine in oil (or liquid form) is not generally saleable. This oily liquid is difficult to control and is in an inconvenient form to handle. It is normally converted from methylamphetamine in liquid form to methylamphetamine chloride. That is a salt. Usually, before sale the methylamphetamine in salt form is diluted or, cut heavily with sugar or some other innocuous substance. One of the purposes of converting the oily liquid into a salt is to end up with a dry material suitable for cutting.
13. The appellant declined to be interviewed by the police.
14. The appellant accepted that the police found a virtually complete methylamphetamine laboratory in the car, that is all the apparatus and almost all of the chemicals required to produce a finished prohibited drug. The only component missing was hydrochloric acid which is used to turn the liquid methylamphetamine into a salt.
15. It was the substantial quantity of methylamphetamine oil in the car which led to the appellant being convicted of supply (deemed supply) in the second count in the indictment.
The Appellant's Case
16. His income was based on a carer's pension supplemented by scavenging items and reselling them. He started doing this with his father when he was a boy. He also does a little car detailing work from time to time for the boyfriend of DS. He painted a picture of much poverty and using items discarded by others to survive.
17. He said that initially he borrowed DS's car to transfer his TV set (which was large but not working and which he could not afford to have fixed), to his brother’s house and to collect his brother's smaller TV set. He did not do this. He said that he went scavenging on the outskirts of the Penrith district. He returned home about 11.30 am after scavenging. He spent the day around his house doing odd jobs. The appellant said that he went out about 9.30 pm and drove to an area where he had been scavenging that morning and loaded up his car with discarded items. Apparently many of the items were in boxes. He did not see much of the glassware. He thought that the items may have some use. As he was travelling home along Devlin Road, a police vehicle passed him. He was subsequently stopped by the police.
18. The appellant said that when he told the police that he had picked the car up from up the road to fix the clutch that was a lie. He said that he was trying not to let the police see the items in DS' vehicle because he had just stolen them from up the road.
19. The appellant said that he did not know that there were drugs in the car. He was not aware of what was needed to manufacture methylamphetamine and that the items in the car were capable of manufacturing (or being used in the manufacture of) methylamphetamine or any other drug. The appellant said that he was not transporting a laboratory for someone.
20. In cross-examination the appellant said that he had made no prior arrangement to borrow the car. He had walked a considerable distance to DS' home on the off chance that the car would be available.
21. The appellant, with his scavenging, was hoping to come across an abandoned 6-cylinder Holden sedan from which he could obtain some parts with which to repair his own vehicle, in particular, an engine head.
22. The appellant insisted that it never crossed his mind that he was picking up virtually all the items used to manufacture drugs.
23. It was conceded by the appellant that the quantity of methylamphetamine oil found in the vehicle fell within the definition of a prohibited drug. The appellant pointed out that the more substantial quantities of by-product oil contained minute percentages of methylamphetamine. To convert the methylamphetamine in liquid form into a crystalline form, hydrochloric acid had to be added. There was no hydrochloric acid in the vehicle which could be used for that purpose.
24. In his arguments before this Court counsel for the appellant did not attempt to support the version of events deposed to by the appellant at trial. It was unsupportable. Counsel submitted that the evidence led by the Crown at the trial was not sufficient to sustain the conviction under challenge.
Manufacture
25. The appellant submitted that he could not be said to have taken part in the manufacture of methylamphetamine because at the time he was stopped the process of manufacture had been completed; the manufacture of a prohibited drug had occurred. The methylamphetamine existed in liquid form. It was optional whether it was converted to a crystallised form. It was further submitted that whatever else was done to the methylamphetamine in liquid form it was not a step in the manufacture of methylamphetamine.
26. Section 3 of the Drug Misuse and Trafficking Act 1985 (DM and T Act) provides that in the Act, except in so far as the context or subject matter otherwise indicates or requires, “manufacture” in relation to a prohibited drug includes the process of extracting or refining the prohibited drug.
27. The addition of hydrochloric acid to convert methylamphetamine in liquid form into a crystalline form is a process of refining the prohibited drug. I reject the appellant’s argument that the process of manufacture had been completed.
Knowingly Taking Part
28. The appellant relied on two submissions. First, the judge did not adequately explain what was involved in knowingly taking part in the manufacture of a prohibited drug and secondly, that the evidence was not sufficient to support the Crown case that the appellant had knowingly taken part in such manufacture. It was contended that the appellant was simply transporting the items in the car and that this did not amount to taking part in the manufacture of methylamphetamine.
29. Reliance was placed upon these comments of Bell J (with whom Stein JA and Greg James J agreed) in R v BD (2001) 128 A Crim R 28:
"26 … the acquisition and/or the transport of chemicals or equipment do not, without more, constitute steps in the process of manufacture. They are steps preparatory to the process of manufacture."
30. After explaining to the jury that they had to be satisfied beyond reasonable doubt that the appellant knowingly took part in the manufacture of the prohibited drug and stressing the importance of knowledge (that he knew what he had was a prohibited drug), the judge continued at SU.9 -10:
"To take part in a manufacture in law it is taken to mean that if a person takes or participates in any step or causes any step to be taken in the manufacture, production or supply of the prohibited drug and provided he does so knowingly, then in law he is said to have taken part in the manufacture. Manufacture of a drug means the process of extracting or refining the prohibited drug. We have heard from Mr Murtagh about extracting the drug and what is done to ultimately refine it up to what in the end result amounts to the prohibited drug, the methylamphetamine. So any steps taken in the course of the manufacture in law is sufficient to prove the person knowingly taking part in it. The acquisition or transportation of chemicals or equipment necessary for the manufacture is a step in that process of manufacture.
So if you find that the accused knowingly took part in the transportation knowing that it was the prohibited drug and that he had the quantity in excess of the commercial quantity then it will be open to you to find him guilty."
31. At SU.17 the judge said:
"So the case it seems to me comes down to this issue and this issue alone – did the accused play any part in the manufacture of the methylamphetamine, that is to say was he transporting it. That is the role the Crown argues he was playing here. It does not matter where it comes from, where it was going to and so forth. The Crown says that as long as he is transporting it with the knowledge of what he is transporting then he is said to have taken part in the manufacture of the prohibited drug."
32. The appellant submitted that the judge’s directions were too bald and wrong in law and contrary to BD in that it was wrong for the judge to say:
(a) “The acquisition or transportation of chemicals or equipment necessary for the manufacture is a step in that process of manufacture”.
(c) “So the case…comes down to…this issue alone – did the accused play any part in the manufacture of methylamphetamine, that is to say was he transporting it”.(b) “So if you find that the accused knowingly took part in the transportation knowing that it was the prohibited drug…then it will be open to you to find him guilty”.
33. It was submitted that BD established that acquisition and/or transport of chemicals did not of themselves constitute taking part in the manufacture of methylamphetamine, they were not steps in the process of manufacture.
34. As the Crown pointed out in BD the evidence was of acquisition and transportation of materials prior to the commencement of any processes to make the prohibited drug. Does it make any difference that the transportation was of methylamphetamine in liquid form and all the equipment and virtually all the products necessary to make it? While the methylamphetamine could have been supplied in its liquid form, the evidence of Mr Murtagh pointed to the high probability if not the practical certainty that hydrochloric acid would have been added to convert the liquid form into a crystalline form. There was no hydrochloric acid in the car. Does the transport of methylamphetamine when about ninety percent of the process has been carried out amount to taking part in its manufacture? Was it part of an ongoing process?
35. Counsel for the appellant having disavowed any reliance on the appellant’s evidence, asked the Court to assume the case of a 44 year old man with no prior convictions and no involvement in drugs living in run down circumstances and on the pension being offered a couple of hundred dollars to pick up some equipment and move it from point A to point B in circumstances where he knew or ought to have known that the load he was asked to carry was likely to include a prohibited substance or a prohibited drug. The assumptions follow the appellant’s position. It was submitted that if all the evidence established was that the appellant was acting as a courier with sufficient knowledge that it was likely that the load (or items) included a prohibited drug and moving the load from point A to point B he would be guilty of deemed supply but not guilty of taking part in the manufacture of the prohibited drug as he had not taken a step in the process of manufacture. More would be required.
36. There is considerable force in the example and argument of counsel for the appellant. The directions of the judge amounted in effect to telling the jury that if the appellant took part in the transportation of the items he was taking part in the manufacture of the prohibited drug. On the evidence it was not in dispute that the appellant was transporting the items (including the prohibited drug). On the issue of “knowingly taking part in the manufacture” the judge did not suggest that the jury should consider any other matter. Indeed the appellant complained that the jury were never invited to consider whether the appellant had any role at all in the process of manufacture other than transporting the equipment including the prohibited drug from one point to another.
37. The Crown relied on R v Marchione [2002] NSWCCA 131 where the applicant sought a permanent stay of proceedings of the charge of knowingly taking part in the manufacture of methylamphetamine on the ground that the Crown evidence at its highest did not support the charge. In dismissing the appeal against a refusal of the stay Bell J, with whom Heydon JA and Dowd J agreed, said:
"I consider that his Honour was right to distinguish this case from BD upon the basis that the evidence was capable of establishing that the appellant was supplying Sudafed (or its generic equivalent) in the knowledge that Tesic and/or his associates were engaged in a process of manufacture intended to produce methylamphetamine. This is consistent with Thomas . I reject the challenge that his Honour wrongly interpreted sections 6 and 24(1) of the DMT Act.
Judge Norrish found that the evidence allowed of the inference that there was an ongoing process of manufacture of methylamphetamine as at 3 and 4 May 2000. His Honour considered that the evidence was capable of establishing both the supply of Sudafed tablets together with the requisite knowledge on the part of the appellant."
38. In Marchione there was a tape recording of him speaking about his knowledge and intention, that is, revealing what he knew and what he intended.
39. The Crown drew attention to the following:
(a) The appellant was transporting material which was part way through the chemical processing required to make methylamphetamine.
(b) Hydriodic acid is needed for the conversion of pseudoephedrine to methylamphetamine. This acid is made by combining hypophosphorus with iodine. Fumes were emanating from a 10 litre reaction flask containing hydriodic acid found on the front seat of the car. This indicated that the hypophosphorus acid and iodine had been mixed in the flask within the past two days.
(d) These items, as well as the nature of the other items found, established that there was an ongoing process of manufacturing of methylamphetamine taking place when the police stopped the appellant. He was transporting almost an entire laboratory of equipment and chemicals. His actions were not steps preparatory to the process of manufacture.(c) A significant quantity of methylamphetamine in a liquid form was found in containers in the rear of the car. The only remaining step to produce the drug in a saleable form was to convert it to methylamphetamine hydrochloride, a crystalline substance, by the addition of hydrochloric acid.
40. The Crown submitted that transportation of the chemicals and equipment in the circumstances of this case was capable of establishing that the appellant took part in a step in the process of manufacture. Under s.6 of the DM and T Act a person takes part in the manufacture of a prohibited drug if the person takes or participates in any step, or causes any step to be taken in the process of that manufacture.
41. In R v Thomas (1993) 67 A Crim. R 308 at 310 Gleeson CJ stated:
"…the concept of taking a step in the process of manufacture appears, in s.6 of the Act, (DMT Act) in a context which manifests a legislative intention that is inconsistent with any narrow or pedantic approach to the description of activities connected with bringing prohibited drugs into existence, (b) and (c) of s 6 demonstrate that."
And at 311:
- "Where … a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the process of manufacturing the end product."
42. There was evidence from the appellant that he had loaded all the items into the car prior to setting out on the journey on which he was stopped. He must have known he was transporting drug manufacturing equipment and enough for a complete laboratory and liquid amphetamine. The evidence of Mr. V. P. Murtagh established what is almost always, if not always, done to liquid amphetamine. However, there was no evidence that the appellant was aware of what was to be done or is almost always done to the liquid amphetamine. There was no evidence, apart from the rejected evidence of the appellant, about the purpose of the transportation. His rejected evidence did not assist the prosecution.
43. The Crown had to establish that the appellant was aware that he was taking part in the process of manufacture. That is not established by proving that the appellant knew that a prohibited drug was being transported. It is one matter to know that a prohibited drug is being transported and quite another to knowingly take part in the process of manufacture. Unfortunately, the summing up did not adequately distinguish these concepts. For example he said at SU10, “so if you find that the accused knowingly took part in the transportation knowing that it was the prohibited drug…then it will be open to you to find him guilty”.
44. The summing up was also defective in that it, in effect, told the jury that it was sufficient if the accused took part in the transportation of the prohibited drug, knowing that it was a prohibited drug. Transportation alone was not enough.
45. I am persuaded that the judge’s directions were defective for the reasons which I have endeavoured to give. No point was taken at the trial but the complaints made are of a fundamental nature. The jury’s attention was not directed to the correct issues. On the issues formulated and the directions given by the judge conviction was inevitable. Leave to raise the point should be granted. This is a new trial point.
46. On the related issue of whether it was open to the jury on the evidence to convict the appellant I do not think that it was. The evidence fell short of establishing that the appellant knowingly took part in the process of manufacture. It certainly established that the appellant transported the equipment and liquid amphetamine. That was not in issue. Nor was it in issue that the appellant knew that he was transporting a prohibited drug. However, it was not proven that he knowingly took part in a process of manufacture. The Crown had to show that the appellant was more than a mere courier.
47. Consequently I would set aside the verdict of guilty on the first count and substitute a verdict of not guilty. This does not mean that the appellant goes unpunished. The conviction of the offence of supplying not less than the commercial quantity of methylamphetamine remains.
Sentence
48. The trial judge became ill and was unable to complete the sentencing of the appellant. He had taken evidence, heard submissions and reserved his decision as to sentence. Another judge had to complete that task. He had available the transcript of the sentence hearing before the trial judge but some of the exhibits admitted before the trial judge, particularly some medical reports, were not available and could not be located. This was unsatisfactory. The sentencing judge relied on the summaries of the medical conditions of the appellant’s wife and daughter contained in the wife’s evidence and the Pre-Sentence Report.
49. The Indictment alleged the supply of not less than a commercial quantity of methylamphetamine. The Crown alleged that the methylamphetamine oil if converted to a crystalline form and assuming a purity rate of 5% would have yielded 2.77 kilos of that drug and had a street value of about $277,000. The appellant’s counsel said that he was not in a position to dispute these figures “or do anything with” those figures. The Crown alleged that the total weight of the material taken was 5096.7 grams. While some doubt exists as to the figures just mentioned it was not in issue that a large commercial quantity of a prohibited drug was involved.
50. The Crown asked the sentencing judge to deal with the sentencing on the basis that a large commercial quantity of a prohibited drug was involved. This approach did not appear to be disputed at the sentencing hearing before the trial judge. The sentencing judge dealt with the matter on the basis that the quantities exceeded large commercial quantities. They did but he may have over-estimated the actual quantities involved.
51. In his submission before the sentencing judge the Crown representative stated that as to criminality reliance was placed upon taking part in the manufacture as being the gravamen of the criminal conduct. The deemed supply charge was “the end product” of the manufacturing so that there was one act of criminality. The Crown accepted the sentencing judge’s comment that he had to sentence in a vacuum.
52. The sentencing judge said that the trial was fought on the basis of lack of knowledge on the part of the appellant of what he had in the vehicle and that it was a prohibited drug. The true issue at law was somewhat different, namely whether the appellant took part in the process of manufacture. A little later the judge added, “I can only deal with him on the basis that he did knowingly take part in a transportation step. He was moving the product and the laboratory and he knew what he was doing”.
53. The appellant was born on 24 August 1957. He has had no previous convictions except for a driving offence in 1979. He was correctly treated as a man of good character with no previous convictions. He and his wife have been married for over 26 years. They have three children. Their two adult sons live independently. A brief summary of the evidence as to the medical condition of the appellant’s daughter and wife before the sentencing judge supplemented where necessary by reference to material before the trial judge but not before the sentencing judge follows.
54. His daughter, now aged about 20, had a brain tumour removed when she was 17 and lost a portion of her brain on the left side. She underwent a left temporal lobectomy. Infection developed and the wound was re-opened and cleaned out. The bone flap was removed so that there was no adequate covering over a portion of the brain. She needs a further operation to close the skull flap. When she has a fit it is important because of her lack of protection to stop the daughter hitting the ground. The daughter has chronic recurrent epileptic fits. Her condition has been described as temporal lobe epilepsy. She suffers from a wide variety of fits. She cannot be left alone. Normally, the appellant watches over the daughter, makes sure she does not fall and hit her head and guides her to where she will be safe. The fits are frequent and medication does not prevent them.
55. The appellant’s wife was ill with chronic bronchitis and asthma, bronchiectasis and migraine. She can only walk short distances. She has neck pains from arthritis. The radiological report which was before the trial judge but not the sentencing judge states:
“Bronchitic changes are present in the posterior basal segment of both lower lobes. Inflammatory changes and changes of bronchiectasis are present in the left lingular segment. Bronchitic changes with bronchial wall thickening are present in the posterior basal segment of both lower lobes”.
56. The appellant’s wife explained that the appellant has been her full time carer for many years. He was in receipt of a full time carers’ pension. The wife was involved in a car accident about seven years ago and suffered spinal injuries. She now has scoliosis of the spine, weak wrists and wears a neck brace. She is 4 feet 10 inches in height and weighs 6½ stone. Her daughter is 15 stone. This makes it very difficult for the wife to care for the daughter. She broke her wrist trying to save her daughter from hitting the ground when her daughter had a recent seizure.
57. The wife said that since the appellant has been her full time carer she has been saved from numerous trips to hospital due to his care. She said that she had DVT and pulmonary embolism history, that is, she had had blood clots in her lungs and in her legs. She can suffer these clots at any time due to certain types of pneumonia which she suffers due to the disease in her lungs.
58. The wife explained that her husband did all the tasks at home and took her and their daughter to medical appointments. He talked their daughter through her seizures and ensured that she did not injure herself. The wife said that although she tried she was not able physically to look after their daughter.
59. The wife said that since the appellant had been in custody her daughter-in-law had driven her to medical appointments. She and her son had helped them but as they had two young children they were unable to help on a full time basis and that was the degree of care she and their daughter needed. The sentencing judge did not have the benefit of the report of the family’s general practitioner which had been before the trial judge. The family’s general medical practitioner stated that he had known the appellant for 8 years, and that the appellant was a good family man who helped his sick wife and daughter. The appellant’s mother lived with him and his family. The family’s general practitioner wrote:
“His mother, Mrs. Barbara Spicer has chronic illness as well and needs a personal carer”.
Because the exhibits, principally the medical reports, which had been before the trial judge were not before the sentencing judge, having been misplaced, he was hampered and did not appreciate the full subjective facts. No one at the sentencing hearing realised how much of importance was being missed. This helps to make this an exceptional case.
60. The appellant’s wife explained that the family could only receive incoming telephone calls – as they could not afford the telephone chargesto make outgoing calls.
61. The bleak picture which emerges is of a family living in poverty with pressing and acute problems of ill health affecting the appellant’s wife, daughter and mother. It is a case of special and exceptional hardship. There is a strong and pressing need for the appellant to resume his role as a full time carer. It was plain that the wife who weighed 6½ stone could not be expected to care for a 15 stone daughter who has seizures and the appellant’s elderly and chronically ill mother.
62. The appellant has endeavoured to supplement his meagre income by scavenging. With the health condition of his wife and his daughter he is not able to take up regular employment. While it is no excuse the desperate family circumstances explain why the appellant became involved in prohibited drugs.
63. The appellant complained that the judge had erred in sentencing him on the basis that a large commercial quantity of the prohibited drug was involved and not just a commercial quantity as alleged in the Indictment. At no stage prior to conviction was the issue of a large commercial quantity raised. That fact was not alleged in the Indictment as an aggravating factor nor was the verdict of the jury taken as to that matter. Both these steps should have been taken. The maximum sentence for a large commercial quantity in respect of both offences alleged is life imprisonment whereas the maximum custodial penalty for a commercial quantity is imprisonment for 20 years. The appellant contended that the judge had regard to the longer maximum penalty when sentencing him.
64. In R v Lee, NSWCCA, unrep, 6 December 1994 Gleeson CJ, at p.27, after referring to the rule of practice stated in R v. Bright [1916] 2 KB 441 that the relevant circumstance of aggravation which affects the maximum penalty for which an accused person is liable should be included in the Indictment, quoted this passage from the joint judgment of Gibbs CJ, Wilson and Dawson JJ in R v. Kingswell 158 CLR at 281:
“The practice which ought to be observed was not followed in the present case. However, no objection was taken to the course followed at the trial or to the charge….to the jury. There was no dispute as to the quantity of the heroin involved and the evidence on that point was uncontradicted and unchallenged…It is quite impossible to suggest that any miscarriage of justice occurred”.
65. That passage from Kingswell has application in the present case. The facts, adduced in evidence established that the quantity of prohibited drug was a large commercial quantity. There was no dispute at the trial as to what was in the car and the quantities nor at the sentencing hearing. I do not think it matters that the supply alleged was a deemed supply.
66. The departure from the correct practice did not cause a miscarriage of justice in the present case.
67. Supplying a commercial quantity of amphetamines is a serious offence, and when the quantity exceeds a large commercial quantity, the matter becomes even more serious. It is important not to lose sight of the objective gravity of the offence when confronted with exceptionally powerful subjective features. The Crown did not regard the supply offence as being as serious as that of knowingly taking part in the manufacture of methylamphetamine. I agree.
68. A head sentence of 4 years does not adequately reflect the exceptional subjective features which existed. They should be reflected in both the head sentence and the non-parole period. The supply which was proven was a “deemed supply” and the liquid amphetamine was not in a form which could readily be sold. The head sentence of 4 years for the supply offence was manifestly excessive.
69. In the event of the Court deciding to re-sentence, the appellant relied on the affidavit of his wife, Cheryl Spicer of 5 February 2003. That affidavit annexes reports from Dr. K. C. Huynh, the medical practitioner treating the appellant’s wife, mother and daughter. Dr. Huynh reports that the appellant’s wife currently suffers from a peptic ulcer, bronchiectasis, asthma, recurrent pneumonia and depression. She is on extensive daily medication. Dr. Huynh has written:
“Cheryl’s main problem is chronic asthma and bronchiectasis which causes chronic chest pain and requires regular medication and pain killers for it. This also causes significant stress on her, secondly she has to take care of her mother (in–law) Mrs. Barbara Spicer who is much sicker than her. This is beyond her physical ability to cope”.
70. Dr. Huynh has reported that Mrs. Barbara Spicer suffers from hypertension, moderate to severe osteoporosis, moderate degenerative spondylosis of cervical and lumbosacral spines, major large bowel resection, bilateral superficial femoral artery stenosis grade C, moderate to severe osteoarthritis of both knees L>R, severe osteoarthritis of L foot, chronic back, neck, and L ankle/foot pain, COAD - recurrent bronchitis and pneumonia. She also has the problem of recurrent falls. She has to take 12 different medications daily – Dr Huynh has reported:
“The current health status of Mrs. Spicer is that she experiences chronic pain all the time and she cannot eat solid food due to the nature of her bowel surgery, secondly she is on numerous medications which frequently upset her bowel affecting drug absorption, so therefore frequently causes drug toxicity or drug interaction or electrolyte disturbance. This also often causes her blood pressure to fluctuate leading to dizziness resulting in frequent falls and with severe osteoarthritis further affects her mobility. Mrs. Barbara Spicer is a 73 year old widow currently lives with her daughter and granddaughter who are having medical problems of their own. With numerous medical problems above it is very hard for them to look after Mrs. Spicer. Mrs. Spicer should require a full time carer”.
71. Dr. Huynh has summarised the medical problems of the daughter, Kristal, as grand mal and petit mal seizures and asthma. She has to take 2 sets of tablets 3 times per day to help control her seizures and use 2 specified inhalers as required. Dr. Huynh has reported:
“Kristal seizure stable at the moment, her last seizure is not long ago, this means we will still need to keep an eye on her condition which can recur any time. She is a full time student therefore not fully available to take care of her grand mother who has lots of medical problems”.
72. The appellant’s wife, Mrs. Cheryl Spicer, has stated that she is having great difficulty in providing care to Kristal and to the appellant’s mother. Mrs. Cheryl Spicer has said that Kristal is basically house bound and is not allowed to drive due to her medical condition. Mrs. Cheryl Spicer is not allowed to drive due to her medical condition. They are dependent upon public transport. They live in a Housing Commission property at Cambridge Park, which is an outer western suburb near Penrith. If Kristal has a seizure her mother is not able to transport her but must wait for an ambulance. The mother is not physically strong enough to assist Kristal in her seizures. The appellant always assisted Kristal in her seizures. He had a drivers’ licence and drove the members of the family to doctors for treatment.
73. Mrs. Cheryl Spicer has explained that in November 2001 (and thus since sentencing) Kristal had a plastic “part” inserted in her cranium to replace bone lost during surgery. Kristal has difficulties with balance and she quite often falls. Kristal also falls as a result of seizures. Kristal requires treatment from neurologists at Nepean and Westmead hospitals. The appellant drove her to these hospitals. Now she must travel by public transport.
74. The appellant’s wife has stated that prior to going to gaol he largely did the cleaning, cooking, house maintenance and ironing. Mrs. Spicer said that she was having difficulty coping with Kristal and the appellant’s mother due to the deteriorating health condition of the appellant’s mother, Kristal’s medical condition and her medical condition. The appellant was the principal care giver in the family.
75. The affidavit of Mrs. Cheryl Spicer demonstrates that the family is not coping. There are three people with pressing major health problems who need sustained care. What helps to make this case exceptional is the combination of the depth of the health problems and the number of people in the same family needing prolonged support and assistance with living.
76. The appellant does not fit into any of the various types of drug offenders encountered by the Court. His circumstances must have overwhelmed him and caused him to behave in the way revealed in the evidence. When regard is had to the seriousness of the offence and the subjective features the correct head sentence is one of 3 years. There are special circumstances. These include the health and care needs of the appellant’s wife, daughter and mother and that this is his first custodial sentence. The correct non-parole period is one of 21 months.
77. Even if I had been of the view that the appeal against conviction on the first count should have been dismissed I would nevertheless have intervened on the question of sentence. While I would not have disturbed the head sentence of four years I would, in view of the special circumstances have reduced the non-parole period to 21 months.
78. I propose the following orders:
2 (a) Leave to appeal against sentence on the second count granted; sentence quashed.1. Appeal against conviction on the first count allowed; conviction quashed; verdict of acquittal entered
(b) In lieu thereof the appellant is sentenced to imprisonment for three years commencing on 25 July 2001 with a non-parole period of 21 months expiring on 24 April 2003 on which day the appellant is to be released on parole.
Last Modified: 05/01/2003
4