Rudzitis v The Queen
[2003] WASCA 243
•10 OCTOBER 2003
RUDZITIS -v- THE QUEEN [2003] WASCA 243
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 243 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:47/2003 | 22 SEPTEMBER 2003 | |
| Coram: | MURRAY J STEYTLER J PARKER J | 10/10/03 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence of 5 years imprisonment quashed New sentence of 2 years and 8 months imprisonment substituted | ||
| B | |||
| PDF Version |
| Parties: | PETER RUDZITIS THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence Attempted manufacture of MDMA Sentence imposed of imprisonment for 5 years Intermittent completion of progressive stages of manufacturing process Relevance of potential capacity to manufacture Irrelevant consideration given to a chemical not connected with offence Manifestly excessive Turns on own facts |
Legislation: | Sentence Administration Act 2003 Sentencing Legislation Amendment and Repeal Act 2003 |
Case References: | Abela v The Queen [2002] WASCA 279. , Cabassi v The Queen [2000] WASCA 305. , Lim v The Queen [1999] WASCA 296 R v Pallister (2002) 131 A Crim R 452 R v Paparone (2000) 112 A Crim R 190 Worth v The Queen [2001] WASCA 303. , Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : RUDZITIS -v- THE QUEEN [2003] WASCA 243 CORAM : MURRAY J
- STEYTLER J
PARKER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Attempted manufacture of MDMA - Sentence imposed of imprisonment for 5 years - Intermittent completion of progressive stages of manufacturing process - Relevance of potential capacity to manufacture - Irrelevant consideration given to a chemical not connected with offence - Manifestly excessive - Turns on own facts
Legislation:
Sentence Administration Act 2003
Sentencing Legislation Amendment and Repeal Act 2003
(Page 2)
Result:
Appeal allowed
Sentence of 5 years imprisonment quashed
New sentence of 2 years and 8 months imprisonment substituted
Category: B
Representation:
Counsel:
Applicant : Mr R D Young
Respondent : Mr D Dempster
Solicitors:
Applicant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Abela v The Queen [2002] WASCA 279
Cabassi v The Queen [2000] WASCA 305
Lim v The Queen [1999] WASCA 296
R v Pallister (2002) 131 A Crim R 452
R v Paparone (2000) 112 A Crim R 190
Worth v The Queen [2001] WASCA 303
Case(s) also cited:
Nil
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1 JUDGMENT OF THE COURT: The applicant was convicted, after trial before a District Court Judge and a jury, of attempting to manufacture a prohibited drug, namely MDMA; as it is commonly known, "ecstasy". The offence occurred at his place of residence at Myaree on 19 April 2001.
2 On 1 April 2003 the applicant was sentenced by Williams DCJ in respect of this offence to serve a term of five years imprisonment. Service of that sentence was ordered to commence on 26 March 2003, and the applicant was directed to be eligible for parole.
3 The applicant seeks leave to appeal from this sentence.
Grounds of application
4 It is submitted that the sentence imposed was affected by error in that the sentencing Judge wrongly
(a) concluded that the applicant had progressed a considerable way towards the manufacture of MDMA;
(b) concluded that the applicant would have continued with the attempt and rejected a submission that he had voluntarily desisted;
(c) found the applicant was not remorseful;
(d) did not give greater weight to the limited amount of drugs that could have been produced; and
(e) took into account an irrelevant consideration, namely that pseudoephedrine was found at the applicant's residence.
- It is further submitted that the sentence imposed was manifestly excessive and, although not expressly a ground of appeal, that the sentence was out of keeping with sentences for comparable offences.
The facts
5 On 19 April 2001 police executed a search warrant at the residence of the applicant in the suburb of Myaree. In a shed in the backyard they found a clandestine laboratory. It contained sophisticated equipment and a variety of chemicals. Some of the equipment and some of the chemicals found in the laboratory were appropriate for, and consistent with, the manufacture of MDMA. At the time of the search manufacture was not in progress.
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6 In the premises there was found a nine page printout obtained from the internet of the process necessary for the manufacture of MDMA for the "first time chemist". This was open at a page of the process which the document described. Among the chemicals or ingredients found by the police were sassafras oil, benzoquinone, palladium chloride, formic acid, hexamine and an ammonia solution. These are required for the manufacturing process. Some of these had been recently purchased, as had equipment such as a libig condenser and a hotplate. The evidence indicates that the applicant had completed the first step of the process which involved the distillation of the sassafras oil to produce safrole, and the second stage which involved the mixing of chemicals to produce hexamine. Following that, the process involved the use of hexamine to produce methylamine. Thereafter, safrole, together with methylamine, palladium chloride and benzoquinone are used to produce what is commonly referred to MDP2P. What follows thereafter is essentially a process of purification or refinement of MDP2P to MDMA.
7 The search revealed a quantity of safrole that had been produced and the evidence indicated that the applicant had made methylamine or had at the least attempted several times to do so, however, none was found at the time of search. The evidence does not establish that the applicant had actually reached the stage of producing MDP2P, although he had the ingredients necessary to do so. It is accepted that it would have been necessary for him to obtain a vacuum and mercury salt to complete the process of refinement from MDP2P to MDMA. The final refinement or purification stage would take something in the order of a day to complete. The whole manufacturing process was one which would take about two days to complete if the process was followed continuously.
8 At the time the applicant told the police that this equipment and these materials were for innocent purposes. He explained that the sassafras oil was used by his daughter for dried flowers and that he had no part in the purchase of the sassafras oil. However, after a difficult and lengthy interview, the applicant eventually admitted that he had been trying to make what he called amphetamines, and accepted that he had himself purchased the sassafras oil. There was evidence that the applicant had ordered the palladium chloride and benzoquinone about a month earlier, but had only obtained delivery of those chemicals a few days before the police searched his premises. Neither of these had been opened.
9 There was expert evidence led before the jury that on the basis of the quantity of materials found the applicant could have produced between 32 and 65 grams of MDMA, depending it seems on the efficiency of the
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- process and the purity of the product. At least some 32 grams of MDMA with a purity of between 80 and 90 per cent could have been produced.
10 At the trial it was the defence case that while the applicant had contemplated the manufacture of MDMA, he had at most taken some steps in preparation for that but had not reached the point of attempting to manufacture MDMA when he had voluntarily desisted. This was rejected by the jury as the verdict reveals.
Merits of Grounds
11 It is first submitted that the sentencing Judge had erred in concluding as he did that the applicant had "gone a considerable way along the track" of the attempt to manufacture MDMA. Given that the applicant had obtained a copy of the necessary chemical process, had assembled the appropriate equipment and chemicals, apart from one piece of equipment and one chemical required in the very final refinement stage, and had made the progress that has been outlined in the course of the manufacturing process, we are not persuaded that it was erroneous for the learned sentencing Judge to take the view that the applicant had gone a considerable way toward the manufacture. This is not to suggest that the applicant had, by any means, mastered all the difficulties or completed the process, but the description used by the Judge is not in our view inaccurate.
12 Secondly, it is contended it should have been accepted that the applicant had voluntarily desisted. It was the evidence of the applicant that he had obtained the details of the chemical process from the internet in January and that while he had assembled equipment and chemicals in preparation for manufacture, he had in fact not done so. He had decided not to proceed. In his evidence he said it had been a silly idea in the first place. He sought to explain what he had done with the sassafras oil to distil it to safrole on the basis that he had or could mix the safrole with ethanol for use as an air freshener. Although he seemed to have accepted that he tried a number of times to make methylamine, it was his evidence that he had not been successful. When it was put to him that he had in fact picked up the palladium chloride and the benzoquinone shortly before the police searched his premises, he sought to explain this by saying that it had not been possible to cancel the order he had made a month or so earlier, and he had decided he could use them as organic reagents in organic analysis. For what purpose he would do so was not made clear. On this basis it was his evidence that he would have a use for all the chemicals that he had. An apparent exception was the palladium chloride.
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- He said he was going to use this "as a sample". While he did say to the police that he had made a number of attempts to make amphetamines it was his evidence in cross-examination that he did not understand that questioning properly and that he was probably mentally exhausted at the time.
13 In our view, especially having regard to the jury's verdict the learned sentencing Judge was well entitled to reject the applicant's assertion that he had done no more than take some preparatory steps and that he had desisted from his plan to manufacture MDMA. Especially having regard to the open print out of the chemical process taken from the internet, the steps taken as disclosed by expert evidence and the applicant's admissions, and the fact that the applicant had taken delivery of two of the chemicals necessary to enable a further step of the manufacturing process to be carried out only a few days before the search, it was well open to the jury, and to the trial Judge, to conclude that, rather than having desisted, the attempt at manufacturing was continuing.
14 Thirdly, it was rather hesitatingly argued that his Honour should have accepted that the applicant was remorseful. The applicant had repeatedly lied to the police, and had maintained in his defence that he had not attempted to manufacture and had offered somewhat unconvincing explanations for what he had done with the chemicals and for his admissions to the police. In our view, there is not shown to be error in this respect.
15 It is next submitted that greater weight should have been given to the limited amount of drugs that were capable of being produced had the offence been completed. His Honour expressly and correctly, noted the evidence that between 32 and 65 grams of MDMA could have been produced from the quantity of relevant chemicals found in the laboratory. His Honour did not misunderstand this. Indeed it was in apparent reflection of this evidence that his Honour observed that the offence was "not the biggest of operations in terms of a commercial operation". It is not apparent that this factor should have been accorded greater weight in the exercise of the sentencing discretion. It was a relevant factor, and was treated as such, but in the circumstances of this case it is not one that carries any dominant force.
16 An issue of principle underlying this submission concerns the relevance, if any, of the potential capacity of a manufacturing laboratory to the exercise of the sentencing discretion. This has been considered in a number of decisions of this court in the context of charges of
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- manufacturing an illicit substance. In that situation the issue that often arises is the relevance of the manufacturing potential that exists at the time of police intervention, when the charge or the evidence is that, to that time, the accused had manufactured a finite quantity of the drug in question.
17 In my respectful view, at least for the purposes of this present appeal, the relevant principle is comprehended in what was said by Wheeler J, Pidgeon and Wallwork JJ concurring, in Cabassi v The Queen [2000] WASCA 305 at [15] – [18] viz –
"15 It is obvious that the quantity of drug actually manufactured must be a relevant factor in the sentencing for the offence. However, I do not accept that the potential of the manufacturing operation is irrelevant. It is relevant, particularly to the overall culpability of the offender. It is an accepted principle of sentencing that an offender who commits an offence with premeditation, after meticulous planning, and taking all possible precautions to ensure that the enterprise will be successful, may well, if all other things are equal, be regarded as more culpable than the offender whose participation is unplanned and impulsive.
16 The degree of danger to the community posed by an offender and the offender's need for personal deterrence may also fall to be evaluated against the context of the offender's overall plan or aim in carrying out the offence. It would not appear to me to be unreasonable for a sentencing judge to reach a view that an offender, who manufactured methylamphetamine as part of a deliberate plan to produce a significant quantity of the drug for distribution into the community for his profit, required a sentence more severe than would an offender who produced an identical quantity of the drug either for his own consumption or as a matter of idle curiosity intending to produce no more than that amount.
17 To take account of these matters is not to sentence the offender for an offence which he has not committed, or for the manufacture of methylamphetamine which has not in fact been manufactured; rather, it is, as the Sentencing Act requires, an evaluation of the offence against the
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- whole of the surrounding circumstances, and the circumstances personal to the offender (which circumstances include his understanding and his intentions in relation to the offence).
- 18 In this case, the learned sentencing Judge recognised that his offender had in fact produced only what he described as a 'small quantity' of the drug but also had regard as in my view he should have, to the premeditation and planning, to the scale of the enterprise and to its potential."
18 These views were expressly relied on and applied in Worth v The Queen [2001] WASCA 303 where Roberts-Smith J, Wallwork J and Einfeld AJ concurring, went on to add at [50] –
"50 In my view there is no conflict between what was said by this Court in Lim and what was said in Cabassi: in both of those cases it was recognised that an offender may not be punished for an offence of which he has not been convicted and that accordingly it would be wrong to impose a sentence on the basis that a greater quantity of the drug had been produced than had in fact. In both cases it was nevertheless recognised that the practical potential of the operation (either admitted or demonstrated by the evidence) is a relevant consideration in the assessment of the seriousness of the offence actually committed."
19 The observation of Steytler J in Abela v The Queen [2002] WASCA 279 at [78] is also to be borne in mind –
"78 Next, in considering what sentence might be appropriate on each count, and as a matter of totality, it seems to me that the sentencing Court is entitled to take into account the fact that what was done was part of an overall process, known to the applicant, of manufacturing amphetamine for sale at a profit. While it would, in my opinion, be wrong to sentence the applicant upon the assumption that, ultimately, one kilogram of amphetamine was to be manufactured, merely because that was the 'practical potential of the operation' given the materials and chemicals available to the applicant, it is
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- relevant to take into account the fact that the applicant was engaged in what, on the face of it, was an ongoing manufacturing operation of some sophistication and complexity."
20 It remains fundamental, nevertheless, that an offender is "not to be sentenced in respect of [illicit substances] not yet manufactured"; R v Pallister (2002) 131 A Crim R 452 per Anderson J, Wallwork and Wheeler JJ concurring. In the present case the applicant had not succeeded in completing the manufacture of MDMA, though that was his objective and he had done much to equip himself to be able to do so, and was proceeding, albeit intermittently, to achieve his objective. He was not acting out of curiosity or to satisfy any need of his own for the drug. On the contrary his objective was to sell into the community the MDMA produced for his personal financial gain. The scope of his immediate objective is best measured by the amount of necessary chemicals he had secured for these purposes. These would enable the production of between 32 and 65 grams of MDMA. What he may have done about ongoing manufacture, if he succeeded in manufacturing MDMA, when his existing supplies of necessary chemicals were exhausted is not the subject of findings by the trial Judge and the evidence does not appear to provide any direct answer. His Honour did not enter into conjecture about that aspect.
21 Consistently with the principles discussed above, while the applicant's offence for which he was sentenced consisted of incomplete steps toward completing the process for the manufacture of MDMA, the matters just canvassed are relevant to the evaluation of the true nature and seriousness of his criminal conduct in committing this offence of attempting to manufacture MDMA. It remains critical, nevertheless, that these matters should not be allowed to obscure the fundamental fact that the sentence imposed is in respect of an incomplete attempt to manufacture MDMA and is not in respect of the manufacture of 32 – 65 grams of that illicit substance.
22 Nothing in the sentencing comments of his Honour indicates error in these respects.
23 Finally, his Honour did observe at one point in his sentencing comments that the applicant was also found in possession of pseudoephedrine, a substance that could be converted to methylamphetamine. With respect to this, the applicant explained to the police that he had found this in his daughter's bedroom and had merely put
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- it in the shed. There was no evidence to the contrary. Why he had moved it to the shed was not explained. Significantly, the chemicals necessary to manufacture methylamphetamine from the pseudoephedrine were not then in the applicant's possession. Thus, while the applicant did have pseudoephedrine in his possession, it was not established by the evidence that he had this chemical for the purpose of the manufacture of methylamphetamine, nor was he charged with that. In the circumstances, it is our view, that it was not properly a matter to be taken into account with respect to sentence. Just what effect this had on the sentence imposed cannot be determined.
Comparative sentences
24 The applicant also relied on a number of sentences in cases in some ways comparable to the present.
25 In the case of Lim v The Queen [1999] WASCA 296 the applicant pleaded guilty to five counts of manufacturing methylamphetamine, in all some 60 times the trafficable amount. While there was a potential to manufacture a greater quantity given the chemicals found, Lim was sentenced only in respect of the amount actually produced. He was aged 33 and had no relevant record. He had pleaded guilty at the first reasonable opportunity. He was sentenced to 5½ years imprisonment on each of the five counts of manufacture. These sentences were to be served concurrently, however cumulative sentences were also imposed in respect of other offences of possession.
26 In R v Paparone (2000) 112 A Crim R 190 an appeal was dismissed against a sentence of 3 years imprisonment. The applicant had pleaded guilty to manufacturing 15 grams of amphetamine. He had pleaded guilty at an early stage, he had had no previous relevant record, and he was 29 years of age, in stable employment and supporting a wife and a child. The sentence must be viewed in the context that there were also other offences and sentences totalling 5½ years imprisonment were imposed.
27 In Cabassi v The Queen (supra) the applicant was not successful in an appeal against a sentence of 7 years imprisonment having been convicted after trial of manufacturing methylamphetamine. He had produced 1.4 grams although he had the existing capacity to manufacture some 60 grams. He was 58 years of age with no record of any kind. The manufacturing was a joint enterprise with two others. The manufacture was for sale, the applicant's motivation being that he had fallen on hard times.
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28 In Worth v The Queen (supra) the applicant had a sentence of 6 years and 6 months imprisonment reduced to 5 years and 6 months on appeal. He had pleaded guilty to one count of manufacturing amphetamine. The original sentence had not adequately reflected the plea of guilty. Manufacture was in progress at the time police arrived. 16.1 grams of high purity amphetamine had been produced and there was a capacity to produce a further 210 - 265 grams [22].
29 In Abela v The Queen (supra) the applicant was sentenced to an effective 7 years imprisonment in respect of four counts of manufacturing 1-phenyl-2-nitropropene (P2P), and two counts of manufacturing amphetamine. He pleaded guilty but only on the morning of his trial. There was a capacity to produce 1 kilogram of high purity amphetamine but the evidence did not disclose the quantity that had been produced. Abela had a prior record for manufacturing prohibited drugs. A cumulative sentence of 1 year's imprisonment was also imposed for an unrelated offence. The individual sentences imposed in this case appear to be framed with a consciousness of the totality principle.
30 In respect of these cases it is to be noted that they were all concerned with convictions for the actual manufacture of drugs rather than an attempt to manufacture as in the present case; although in the case of Abela his participation was limited to the first stage of the process. The maximum penalty for manufacture is a fine not exceeding $100,000, or imprisonment not exceeding 25 years, or both. In the present case the maximum penalty is half that, relevantly imprisonment not exceeding 12½ years. It is to be noted that the applicant had not actually produced MDMA in the present case and his present capacity to manufacture was less than existed in some of those cases. A number of those sentences, however, were affected by other considerations such as pleas of guilty.
The Sentencing Discretion
31 In the present case it is material that the applicant was attempting to manufacture MDMA for financial gain. He was not a user of the drug. He had assembled chemical apparatus of some sophistication which had the potential to manufacture MDMA on a not insignificant scale. He was some 53 years of age. He was in receipt of unemployment benefits at the time of sentencing. He had been separated from his wife for some years. He has a number of convictions, none of which were for significant offences and only one of which has any direct relevance. That was a conviction for being in possession of a prohibited plant in May 1999 for which he was fined $700.
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32 The applicant has an ongoing interest in chemistry and for this purpose had some equipment and some chemicals for purposes quite unrelated to the manufacture of illicit substances. In respect of the charge, the subject of this appeal, he had, however, taken the significant steps of acquiring additional equipment and additional chemicals to enable him to pursue what was apparently an entirely new objective, ie the manufacture of MDMA or ecstasy. He had no motivation other than financial gain. Nevertheless, he pursued the objective intermittently and had not succeeded in completing the process of manufacture at the time of detection. Indeed, to do so it would have been necessary for him to acquire another piece of equipment and a further chemical. Nevertheless, it appears that he had invested something in the order of $1,200 in the pursuit of this new objective. If he had been successful in his attempts to manufacture MDMA the supplies of chemicals that he had on hand would have allowed the manufacture of only some 32 – 65 grams of high grade MDMA.
33 He has reached middle age without any significant relevant breach of the law. It must be said that he was quite deceitful with the police when his laboratory was discovered. He did not cooperate with the police and he did not plead guilty at an early opportunity, or at any stage, so that his conduct in respect of this offence did not warrant any special mitigatory approach. While he also had in his laboratory another chemical which could have been used to manufacture another illicit substance, the evidence in no way establishes that he had the chemical for that purpose and it seems clear that he did not have the other chemicals necessary to undertake that manufacturing process. Indeed, there is nothing to displace his explanation that this chemical had in fact been brought to his property by his daughter, although it remains unclear why he had taken it to his laboratory.
34 When the objective facts of this case and the circumstances personal to the applicant are weighed in light of all that has been discussed, it appears that a sentence of 5 years imprisonment is outside the range, on the high side, of what would be an appropriate exercise of the sentencing discretion in this case. It also appears to be out of keeping with the sentences imposed in respect of the manufacture of amphetamine considered earlier.
35 Given the circumstances of the offence and of the applicant, in our view, an appropriate exercise of the sentencing discretion by his Honour would have been in the order of 4 years imprisonment. A term of 4 years is not intended to downplay the seriousness of attempts to manufacture
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- illicit substances, especially one of such harmful potential as MDMA. It is, however, a sentence which may more appropriately reflect the very particular circumstances of this case.
36 For these reasons we are persuaded that the exercise of the sentencing discretion by his Honour did miscarry and that the sentence of 5 years imprisonment imposed was manifestly excessive. As indicated, were we to exercise the sentencing discretion afresh in the context of the legislative sentencing regime which operated at the time the applicant was sentenced, it would have been appropriate to substitute a sentence of 4 years imprisonment. It is the case, however, that the legislative regime affecting sentencing has materially changed between the time that this sentence was imposed in the District Court and the determination of this application for leave. The Sentencing Legislation Amendment and Repeal Act 2003, together with the Sentence Administration Act 2003, have been enacted and for relevant purposes only in recent weeks have they come into operation. In Schedule 1 to the Sentencing Legislation Amendment and Repeal Act 2003 there are transitional provisions which are applicable to any sentence which this Court now imposes in substitution for the sentence imposed on the applicant in the District Court. It is provided by cl 2(1) of Schedule 1 that:
"If a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing."
- The effect of this transitional provision is that rather than imposing a term of 4 years imprisonment, which we would have thought to be the appropriate sentence in this case, this Court is now required by the legislature to impose a term that is only two-thirds of that sentence. Accordingly, we are required now to impose a sentence on the applicant of 2 years and 8 months imprisonment.
37 There was no occasion to disturb the order made by the District Court Judge that there should be parole eligibility or to change the operative date of the sentence, which was determined by the District Court Judge to commence on 26 March 2003, that being the day on which the applicant was taken into custody in respect of this offence.
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Conclusion
38 For these reasons when this application was heard on 22 September 2003 the Court ordered that the -
• application for leave to appeal be granted,
• appeal be allowed,
• sentence of 5 years imprisonment be quashed and in lieu thereof a sentence of 2 years and 8 months imprisonment be substituted. Service of that term to commence on 26 March 2003. The applicant to be eligible for parole.
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