Rumenos v The State of Western Australia
[2011] WASCA 59
•17 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RUMENOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 59
CORAM: McLURE P
NEWNES JA
MAZZA J
HEARD: 16 FEBRUARY 2011
DELIVERED : 17 MARCH 2011
FILE NO/S: CACR 92 of 2010
BETWEEN: THOMAS RUMENOS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 10 of 2008
Catchwords:
Criminal law - Appeal against sentence - Totality principle - Whether sentence manifestly excessive - Manufacture of a prohibited drug for personal use - Turns on own facts
Legislation:
Criminal Code (WA), s 378, s 401(2)(b), s 401(2)(c), s 444(1)(b)
Firearms Act 1973 (WA), s 19(1)(c)
Misuse of Drugs Act 1981 (WA), s 6(1)(b), s 6(2), s 34(1)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c), s 97(2)(b)
Road Traffic Code 2000 (WA), s 11(2)
Sentencing Act 1995 (WA), s 32
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P B Cassidy
Respondent: Ms S H Linton
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hayward v The Queen [2000] WASCA 237
R v Pallister [2002] WASCA 68
R v Sebborn (2008) 189 A Crim R 86
R v Vletter [2004] WASCA 96
Roffey v The State of Western Australia [2007] WASCA 246
White v The State of Western Australia [2007] WASCA 119
Wroblewski v The Queen (Unreported, WASCA, Library No 990135, 17 February 1999)
McLURE P: This is an appeal against sentence. The appellant pleaded guilty on the fast‑track system to two counts in an indictment, one of burglary and one of manufacturing a prohibited drug (methylamphetamine), and 24 counts in a notice under s 32 of the Sentencing Act 1995 (WA).
At the time of the commission of the offences in the indictment, the appellant was on suspended imprisonment orders for two offences under s 49 of the Road Traffic Act 1974 (WA) (no authority to drive).
The appellant was sentenced by Fenbury DCJ on 11 June 2010 as follows:
Count
Offence
Offence description
Sentence imposed
Indictment
1
Criminal Code (WA) (CC),
s 401(2)(c)
Burglary (commit offence in place)
12 months' imprisonment
2
Misuse of Drugs Act 1981 (WA) (MDA),
s 6(1)(b)
Manufacture prohibited drug
2 years' imprisonment (cumulative)
Section 32 notice
1
CC, s 401(2)(c)
Burglary (commit offence in place)
12 months' imprisonment (cumulative)
2
CC, s 378
Stealing
No penalty
3
CC, s 401(2)(c)
Burglary (commit offence in place)
12 months' imprisonment (concurrent)
4
CC, s 378
Stealing
No penalty
5
CC, s 401(2)(b)
Burglary (commit offence in dwelling)
12 months' imprisonment (concurrent)
6
CC, s 378
Stealing
No penalty
7
CC, s 401(2)(b)
Burglary (commit offence in dwelling)
12 months' imprisonment (concurrent)
8
CC, s 378
Stealing
No penalty
9
MDA, s 6(2)
Possess prohibited drug
$250 fine
10
MDA, s 6(2)
Possess prohibited drug
$1,000 fine (concurrent)
11
CC, s 401(2)(c)
Burglary (commit offence in place)
12 months' imprisonment (concurrent)
12
CC, s 378
Stealing
No penalty
13
CC, s 401(2)(c)
Burglary (commit offence in place)
12 months' imprisonment (concurrent)
14
CC, s 444(1)(b)
Criminal damage
No penalty
15
CC, s 378
Attempted stealing
No penalty
16
CC, s 444(1)(b)
Criminal damage
No penalty
17
Firearms Act 1973 (WA),
s 19(1)(c)
Unlicensed person possess firearm/ammunition
$250 fine (concurrent)
18
CC, s 401(2)(c)
Burglary (commit offence in place)
12 months' imprisonment (concurrent)
19
CC, s 378
Stealing
No penalty
20
CC, s 401(2)(c)
Burglary (commit offence in place)
12 months' imprisonment (concurrent)
21
CC, s 378
Stealing
No penalty
22
Road Traffic Code 2000 (WA),
s 11(2)
Exceed speed limit in built-up area
$150 fine (concurrent)
23
Road Traffic Act 1974 (WA) (RTA),
s 97(2)(b)
Wilfully mislead police
($1,500 fine (concurrent)
24
RTA, ss 49(1)(a) & (3)(c)
No authority to drive - suspended (other than fines suspension)
6 months' imprisonment (concurrent)
Breach of SIO
1
RTA, s 49
No authority to drive
8 months' imprisonment (concurrent)
2
RTA, s 49
No authority to drive
8 months' imprisonment (concurrent)
By reason of the orders for cumulation and concurrence, the sentencing judge imposed a total effective sentence of 4 years' imprisonment.
The appellant contends that the total effective sentence of 4 years' imprisonment infringes the first limb of the totality principle and that the sentence of 2 years' imprisonment for the offence of manufacturing methylamphetamine is manifestly excessive.
The facts of the offences for which a penalty was imposed are as follows. Starting with the indictment. On 5 April 2009, the appellant gained entry to a Belmont business by smashing a glass door. He smashed the window of a car parked inside the building and searched it. He then proceeded to the front offices and searched them, causing $4,000 damage. The appellant stole a large number of items including laptops, projectors, memory sticks, digital cameras, laser pointers and mobile phones, to the value of $36,000 (count 1).
On 6 August 2009, the police located at the appellant's residence a clandestine drug laboratory and numerous items and substances used in the manufacture of methylamphetamine (count 2).
The following are the facts of the offences the subject of the s 32 notice for which a penalty was imposed. Between 20 and 22 February 2009, the appellant gained entry to business premises by removing roof tiles. He searched the premises and stole property valued at $3,500 (offence 1).
Between 28 February and 1 March 2009, the appellant gained entry to business premises by removing roof tiles. The appellant attempted to break into a safe using an angle grinder. He was unsuccessful and stole property to the value of $220 (offence 3).
On 27 March 2009, the appellant gained entry to a dwelling by smashing a window. He searched the house and stole property to the value of $7,165. The property stolen included a national service medal and an antique pocket watch (offence 5).
On 30 March 2009, the appellant gained entry to a dwelling by smashing a bedroom window. He searched the house and stole property to the value of $1,587 which included a diamond engagement ring, wedding videos and ultrasound photos (offence 7).
Between 5 and 6 May 2009, the appellant gained entry to business premises by forcing open a window. He searched the premises and stole property to the value of $3,050 (offence 11).
On 13 June 2009, the appellant gained entry to business premises by smashing the front door. He damaged an alarm panel in order to disable it, but was unsuccessful. He attempted to cut open a safe using an oxyacetylene torch. Property to the value of $13,500 was stolen (count 13).
On 2 July 2009, the appellant gained entry to a pharmacy by forcing a metal security door and stole cold and flu medications (offence 18).
On 28 July 2009, the appellant gained entry to another pharmacy by smashing a glass panel and stole cold and flu medications (offence 20).
On 14 July 2009, the appellant drove a motor vehicle without authority to do so (offence 24).
On 17 March 2009, the Magistrates Court imposed suspended imprisonment orders of 8 months, suspended for 18 months, for two offences against s 49 of the Road Traffic Act 1974 (WA) (no authority to drive).
The sentencing judge sentenced the appellant on the basis that he had never been imprisoned before and had no prior convictions for serious drug offences. He was wrong. The appellant had two convictions for possession of cannabis with intent to sell or supply, one in 1987 and one in 1991. He was sentenced to 3 years' imprisonment for the 1987 offence. His other prior offences include possession of methylamphetamine (two), possession of unlicensed ammunition and over 50 driving‑related offences as an adult.
The appellant has over an extended period exhibited complete contempt for the road traffic laws of this State. He committed offence 24 whilst subject to suspended imprisonment orders for the same offence. Indeed, the majority of the offences for which the appellant was sentenced were committed whilst he was subject to the suspended imprisonment orders.
The appellant was aged 48 at the time of sentence. The trial judge found that he had family support, employment available and suffered from a serious drug addiction.
In his initial court appearance for the offences the subject of this appeal, the appellant made an application for assessment for the Drug Court programme. The application was in due course refused. In the appeal, the appellant relied on statements made in three reports relating to his suitability for the Drug Court programme.
Totality
A total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246.
The sentencing judge described the total effective sentence he imposed on the appellant as low. Indeed it is. In addition to the serious offence of manufacturing methylamphetamine, the appellant committed nine burglaries, seven on business premises and two on dwellings. Many of the burglaries involved significant damage to property. Seven of the burglaries were committed whilst the appellant was subject to the suspended imprisonment orders. The sentence of 12 months' imprisonment for each burglary is at the low end of the sentencing range. The cases relied on by the appellant (Hayward v The Queen [2000] WASCA 237, Wroblewski v The Queen (Unreported, WASCA, Library No 990135, 17 February 1999), R v Vletter [2004] WASCA 96) provide no support for his challenge. This ground is without merit.
Manifest excess
A claim of manifest excess depends upon establishing an implied error from the actual sentence imposed. In assessing whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily imposed, the seriousness of the circumstances of the offence and the personal circumstances of the offender.
The maximum penalty for the offence is 25 years' imprisonment: Misuse of Drugs Act 1981 (WA), s 34(1). The sentencing judge found that the appellant was manufacturing methylamphetamine for his personal use.
As explained by Anderson J in R v Pallister [2002] WASCA 68, the fact that the prohibited drug was manufactured for the appellant's personal use does not alter the fact that the dominant sentencing consideration is deterrence. He said:
It was submitted that, as this was a case of manufacturing for 'own use', it was appropriate that personal factors should have been given weight and that considerations of rehabilitation should have been given prominence and that general deterrence was of less significance. I would reject each of these submissions. As has already been observed, s 6(1)(b) is directed squarely at the activity of manufacturing, and the penalty which is prescribed is a clear expression of parliament's intention that the crime is deserving of severe punishment whatever may have been the motivation to commit it. Whilst, obviously, the offender's culpability will be increased if it is shown that he is manufacturing for profit and to participate in the drug
trade, the main sentencing consideration remains that of deterrence, whatever the offender's present intentions may be. The point is that methylamphetamine is an addictive and highly destructive drug. The clear policy of the legislation is that people must be deterred from bringing it into existence [31].
There is no merit in the appellant's contention that he should have been sentenced on the basis that the quantity of drug that could have been manufactured was only 0.38 g, no drug actually manufactured having been found.
The sentencing judge did not make any finding concerning the quantity of drug that had, or could have been, manufactured. Moreover, the calculation of 0.38 g was by reference to the amount of methylamphetamine that could be produced with the amount of unused pseudoephedrine located by police on 6 August 2009. Pseudoephedrine is a common precursor in the manufacture of methylamphetamine. The offence to which the appellant pleaded guilty was that he had manufactured methylamphetamine. The amount of unused pseudoephedrine says nothing about the amount of methylamphetamine that had been manufactured.
As to the sentences customarily imposed, the appellant refers to a number of cases including White v The State of Western Australia [2007] WASCA 119, Pallister and the Victorian case of R v Sebborn (2008) 189 A Crim R 86. Particular care must be taken in relying on sentences imposed in other jurisdictions. In Victoria, the maximum sentence for the offence of manufacturing a prohibited drug is 15 years' imprisonment. As it is, the Victorian case and the other cases referred to by the appellant are incapable of sustaining a conclusion that the sentence of 2 years' imprisonment imposed on the appellant for having manufactured methylamphetamine is manifestly excessive. This ground is also without merit.
The appeal should be dismissed.
NEWNES JA: I agree with McLure P.
MAZZA J: I have read the reasons of McLure P. I agree with the orders she proposes for the reasons she gives. I wish to add some comments of my own about ground 2, which alleges that the sentence of 2 years' immediate imprisonment imposed for the offence of manufacturing methylamphetamine was manifestly excessive.
The learned trial judge sentenced the appellant on the basis that he had manufactured methylamphetamine for his own use.
Parliament has provided that the maximum penalty for manufacturing methylamphetamine is 25 years' imprisonment and/or a fine of $100,000. In striking that maximum, Parliament has chosen not to differentiate between manufacturing methylamphetamine for personal use and manufacturing it with an intention to sell or supply it to another. Parliament plainly regards the manufacturing of a prohibited drug, whether for personal use or with an intention to sell or supply it to another, as very serious. It is not difficult to see why this is.
The process of manufacturing methylamphetamine involves a conscious decision to bring into existence an illegal and dangerous substance. The process involves the acquisition of a 'recipe' (often easily obtained from the internet) and then the various chemicals and equipment necessary to produce the drug. The process itself carries with it significant danger. Noxious chemicals are used in the process of manufacturing methylamphetamine and that process can be, quite literally, explosive. Not only is the offender at risk of personal injury, but so are persons who are nearby, not to mention law enforcement officers and any fire and emergency personnel who may be called to the scene. Where, as occasionally happens, the process occurs in bush areas, there is a risk of bushfire.
It cannot be overlooked that what is being manufactured is a highly addictive drug which brings great misery. That misery includes the effect of the drug on the user and the consequential effect upon the user's family, friends and associates. Much crime is committed under the influence, and in further pursuit, of the drug.
The respondent, in its submissions, without objection from the appellant, referred to the Australian Crime Commission's Illicit Drug Data Report 2008/2009. That report noted an increase in the number of clandestine laboratories detected in Western Australia over the previous 10 years. In 1999/2000, 17 such laboratories were detected, while in 2008/2009, 78 laboratories were detected.
At page 91 the report states:
Irrespective of their size or level of sophistication, the corrosive and hazardous nature of many of the chemicals used in clandestine laboratories pose significant risks to the community. Many of the chemicals used are extremely volatile and can contaminate the soil, water and air in close proximity to the laboratory.
Having regard to the intention of Parliament and the matters I have referred to, the dominant sentencing consideration for the offence of manufacturing methylamphetamine must be general deterrence.
In the present case, it is clear that the appellant had already manufactured a quantity of methylamphetamine. It is also clear that he intended to manufacture more of the drug. The process that he used involved a number of dangerous chemicals. The appellant's set‑up was a going concern and its use was not a 'one‑off' event.
The criminality involved in the commission of the present offence was significant, although the appellant's operation did not appear to be a large‑scale one. The appellant was given credit for his fast‑track plea of guilty. His personal antecedents did not afford much mitigation. Totality had a part to play. The appellant was fortunate that his Honour erroneously sentenced him on the basis that he had not been sentenced to a term of imprisonment before and had not committed any serious drug offences in the past.
Having regard to all of the circumstances of the case, the sentence of 2 years' immediate imprisonment imposed by his Honour was not manifestly excessive.
13
5
6