Shipley v The Queen - [2003] WASCA 247

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SHIPLEY -v- THE QUEEN [2003] WASCA 247

CORAM: MALCOLM CJ
STEYTLER J
MILLER J

HEARD: 1 OCTOBER 2003

DELIVERED : 14 OCTOBER 2003

FILE NO/S: CCA 233 of 2002

BETWEEN: RONALD KEITH SHIPLEY
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against sentence - Two counts of manufacturing methylamphetamine - One count of assaulting a public officer performing a function of his office - Whether sentence manifestly excessive - Whether sentencing Judge erred in not giving sufficient consideration to guilty pleas - Turns on own facts

Legislation:

Criminal Code, s 690(3)

Sentencing Act 1995, s 8(4)

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr D Dempster

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cabassi v The Queen [2000] WASCA 305.
R v Bellissimo (1996) 84 A Crim R 465.
R v Darwell (1997) 94 A Crim R 35.
R v Pallister (2002) 131 A Crim R 452.
Worth v The Queen [2001] WASCA 303.

Case(s) also cited:

Aconi v The Queen [2001] WASCA 211
Cameron v The Queen (2002) 209 CLR 339
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Jarvis v The Queen (1993) 20 WAR 201
Miles v The Queen (1997) 17 WAR 518
Morton v The Queen [1986] VR 863
R v Atholwood (1999) 109 A Crim R 465
R v Dodge (1988) 34 A Crim 325
R v Holder & Johnston [1983] 3 NSWLR 245
R v Kalache (2000) 111 A Crim R 152
R v Pop (2000) 116 A Crim R 398
R v Shannon (1979) 21 SASR 442
R v Winchester (1992) 58 A Crim R 345
Radebe v The Queen (2001) 162 FLR 313
Siganto v The Queen (1998) 194 CLR 656
Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
Verschuren v The Queen (1996) 17 WAR 467
Wong v The Queen (2001) 207 CLR 584

MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be dismissed. I have reached that conclusion for the reasons to be published by Steytler J with which I am in complete agreement. There is nothing that I could usefully add.
STEYTLER J: The applicant seeks leave to appeal against three sentences of imprisonment imposed upon him in the District Court on 20 November 2002. He pleaded guilty to two counts of manufacturing a prohibited drug, being methylamphetamine, and to one count of assaulting a public officer then performing a function of his office. He was sentenced to 4 years' imprisonment on the first count of manufacturing methylamphetamine, to 5½ years' imprisonment on the second count of manufacturing methylamphetamine and to 6 months' imprisonment on the count of assaulting a public officer. The sentences imposed on counts 1 and 2 were ordered to be serve cumulatively, but that imposed in respect of the offence of assault was ordered to be served concurrently with the other two terms.
The first offence of manufacturing methylamphetamine occurred on 17 May 2001. On that day police executed a search warrant at a house in Ballajura, being the home of a co‑offender of the applicant, Steven James Brain. During the course of the search of the house the police located a clandestine laboratory in a bathroom in the house. Various chemicals and associated equipment used in the manufacture of methylamphetamine were found. At the time of the search there was a strong smell of ammonia in the house, which indicated that the chemical process was in fact taking place when the police arrived.
A report in respect of the various items found at the house was prepared by a chemist and research officer, Mr Keith Norman, employed in the forensic science laboratory at the Chemistry Centre (WA). It seems, from that report, that methylamphetamine was being produced from pseudoephedrine or ephedrine through chemical reduction using sodium metal dissolved in anhydrous ammonia. Mr Norman said that that method of production of methylamphetamine was fast (it takes less than 30 minutes) and efficient, producing yields of up to 90 per cent. Ephedrine and pseudoephedrine are readily available in cold and flu tablets such as Sudafed and Codril and a number of boxes of Sudafed tablets were found at the house. There were also two containers of sodium metal holding a total of 299 grams of that product. In his report, Mr Norman said that 299 grams of sodium metal could indicate a possible maximum yield of 648 grams of

methylamphetamine. However, there was only a total of 2.7 grams of pseudoephedrine hydrochloride on the premises and this was able to produce a maximum yield of 2.4 grams of methylamphetamine.

When questioned by the police, the applicant denied any involvement in the manufacture of the amphetamine. However, he was arrested, charged and ultimately released on bail.
In the early hours of 13 November 2001, two police officers, in the course of a routine patrol, observed activity at a factory unit in Kelmscott. Upon investigating, they saw four men, one of whom was the applicant, in the unit with glassware and chemicals. They also noticed a strong smell of ammonia. One of the police officers asked that the door to the unit be opened. The request was refused and the occupants were seen to be hiding items inside the unit. Eventually the door was opened and the applicant came out of the unit armed with a metal crowbar which he brandished at the police. He appeared to be agitated and the two police officers withdrew to their vehicle where they called for assistance. The applicant again approached them and held the crowbar in a threatening manner before running away. The other three men also left the premises. None of them has since been charged.
Police found the applicant nearby. He was having breathing difficulties and was conveyed to hospital where he was treated for ammonia gas inhalation. When interviewed by the police, he said that he had not been overcome by gas, but had merely been out of breath after having been out running. He ascribed this to his age (he was then 60 years old).
Following the applicant's discharge from hospital he was taken back to the factory unit, which was searched. In the unit police found a clandestine laboratory which was being used, at the time at which the police had first approached the unit, for the purpose of manufacturing methylamphetamine. On this occasion 3.6 grams of pseudoephedrine hydrochloride and 51 grams of sodium metal were found. According to Mr Norman, 3.6 grams of pseudoephedrine hydrochloride is capable of producing a maximum of 3.2 grams of methylamphetamine and 51 grams of sodium metal is capable of producing a maximum of 110 grams of methylamphetamine.
Once again, the applicant denied any involvement in the manufacture of methylamphetamine. He also denied that he had brandished the crowbar at the police. However, he was charged with each of these offences, which became counts 2 and 3 on the indictment.
Some time later, the applicant elected to plead guilty. His counsel, in the course of submissions in mitigation, acknowledged that the applicant had misled the police and had not pleaded guilty "straight away", but said that the applicant was "turning 61 next week" and that he had "had enough" and wanted to get things over with. He submitted that the applicant was a heavy user of amphetamine, had had serious drug problems since he was about 40 years old and had manufactured the amphetamine for his personal use. He said that the main reason why the applicant had continued to use amphetamine related to the fact that he suffered a good deal of pain as a consequence of his then need for a hip replacement. The amphetamine was said to have alleviated the pain or, at least, to have taken the applicant's mind off it.
The sentencing Judge, in the course of his sentencing remarks, referred to the fact of the applicant's pleas of guilty and to the circumstances of each of the three offences. His Honour said, in that respect, that there was an element of uncertainty about the nature, scope and extent of each operation, but concluded that the applicant had been "running, at the very least, a medium‑scale operation" for the production of amphetamines. He went on to say:
"What of this offender? He is a man of 61 years who has had a long history of involvement with the law, going back as far as 1963. His offending has covered a wide range of offences over the last 40 years. He has been convicted of cultivation of cannabis, which attracted a term of 4 years and 2 months' imprisonment, in this District Court in 1988. There were offences in 1992 involving possession of amphetamines and obviously throughout his adult life he has been a person who has possessed and dealt with illicit drugs on a constant scale.
On a personal level, he has been in a long‑term relationship for some 26 years. All of these personal factors, however, fade when considered against the backdrop of his manufacture of these amphetamines. Whilst it is still a matter of some conjecture as to the nature and extent of his enterprise, he is clearly skilled in what he is doing and he is keen and determined enough to run the second operation whilst on bail, having been apprehended for the first."
Having then referred to authority for the proposition that the potential of the manufacturing operation was relevant to the sentence to be imposed, his Honour imposed the sentences to which I have earlier referred.
There are two grounds of appeal, as follows:
"1.The learned sentencing judge erred in the exercise of his discretion in that the a [sic] 9½ years term of imprisonment with respect to all counts on the indictment was manifestly excessive in all the circumstances of the offences and the offender.
PARTICULARS
The learned sentencing judge failed to give sufficient weight to:
(a)the appellant's plea of guilty;
(b)the genuine remorse of the appellant;
(c)the fact that at the times of the two manufactures, the appellant was a chronic user of methylamphetamine and the drugs in his possession were for personal use;
(d)the fact that the appellant had made sincere and substantially successful efforts to rehabilitate himself since the commission of the offences;
(e)the appellant's age and life expectancy;
(f)the fact that the appellant is suffering from chronic hip deformity and has been waiting for a hip replacement operation for an extensive period of time before the commission of the offences and is still waitlisted in the public health system for that operation;
(g)the fact that because of the appellant's inability to walk without acute pain, he became dependent on methylamphetamine for mobility;
(h)the fact that the appellant can barely walk unassisted, where his prolonged term of imprisonment must be spent confined to bed in his prison cell;
(i)The sentence was inappropriately high and outside the range of sound discretionary judgment in view of the failure to give sufficient weight to the total amount of drugs found in the appellant's possession (approximately 2.8 grams) which was exclusively for his own personal use;
(j)The sentences imposed with respect to each count on the indictment were disproportionate to the degree of criminality involved and resulted in a crushing sentence that was manifestly excessive having regard to the actual facts of the offences;
(k)The Court failed to have proper regard to all the circumstances of the commission of the offence and circumstances personal to the accused.
2.The sentencing judge erred in law, or alternatively in the exercise of his discretion by failing to afforded [sic] the appellant an appropriate reduction in sentence for the three guilty pleas.
PARTICULARS
There appears no quantified reduction on the face of the records for the guilty pleas on all three Counts and the learned sentencing judge failed to give sufficient weight to:
(a)the genuine remorse of the applicant;
(b)the appellant's genuine desire for rehabilitation;
(c)the substantial savings to the State to maintain a prosecution and prepare for two complex jury trials.
A bare plea of guilty, even at a late stage, is an indication of remorse and is worthy of a significant reduction: Signanto v The Queen (1998) 194 CLR 656 the High Court (at [22])."
As to the first ground of appeal, I am not persuaded that a total sentence of 9½ years' imprisonment in respect of all three counts was manifestly excessive.
The two drug offences were serious. It has often been said that amphetamines are now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs, albeit lower on that scale than heroin or cocaine: R v Bellissimo (1996) 84 A Crim R 465 at 467, 469 and 471, R v Darwell (1997) 94 A Crim R 35 at 40, Cabassi v The Queen [2000] WASCA 305 and R v Pallister (2002) 131 A Crim R 452 at 455. The sentence imposed in respect of each of counts 1 and 2 was well within the range of sentences commonly imposed for offences of that kind. So, for example, in Cabassi a sentence of 7 years' imprisonment imposed on a 58‑year‑old man with no prior convictions who had manufactured 1.4 grams of methylamphetamine for profit in a laboratory with material capable of yielding a total of 60 grams of methylamphetamine was not set aside as excessive. See also Pallister, above, and Worth v The Queen [2001] WASCA 303. It is also noteworthy that the applicant's co‑offender (as regards the first offence), Brain, having pleaded guilty, on the "fast track", to the charge of manufacturing methylamphetamine, was sentenced, on 30 April 2002, to a period of 4 years' imprisonment in respect of that offence. He was aged 44 and he, too, had a poor criminal record, encompassing drug offences and an armed robbery. However, he was sentenced upon the basis that he had not himself been a manufacturer of the methylamphetamine, but had allowed others (the applicant and another man) to use his house for that purpose in return for the supply of some amphetamine to himself. He was, on that account, regarded as being less culpable than his co‑offenders.
In the applicant's case there was little by way of mitigation other than the pleas of guilty which, as I have said, did not come early. The applicant has, as I have already foreshadowed, an extremely poor criminal record. It runs to some six pages. While many of the offences are minor, some of these, and in particular those referred to by the sentencing Judge, are serious. While the applicant claimed to be remorseful, that claim must be seen in the light of the fact that the second of the two offences was committed whilst he was on bail for the first of them and also in the light of his late pleas of guilty (which he ascribed, before us, to a need to wait and see what was to happen in respect of his co‑offenders). In any event, as has often been said, the principal sentencing considerations for offences involving the manufacture of methylamphetamine are general deterrence and the protection of the community: see, for example, R v Bellissimo, above, at 471.
As to the applicant's health, there was no suggestion that it could not adequately be catered for in prison. Indeed, his counsel informed the Court that the fact that the applicant was in custody had speeded up his prospects of getting a replacement hip. That operation has since been successfully performed, although the applicant says that he now needs to have his other hip replaced. While I have no doubt that the need for a hip replacement made life more difficult for the applicant (he was confined to a wheelchair for much of the time prior to his operation), I am not persuaded that this factor, even if taken together with all of the other factors relied upon by the applicant in support of ground 1 of his grounds of appeal, should have the result that the sentences imposed upon him, either separately or in total, should be regarded as manifestly excessive. I have included, in these factors, the fact, raised at the hearing of the application but not in the grounds of appeal, that the applicant has two young children, a boy aged 5 and a daughter aged 16, who find their separation from their father difficult, as, indeed, he finds his separation from them difficult.
I should add that the applicant handed up, during the course of argument on the appeal, a certificate from his doctor which records that he is suffering from diabetes and takes oral medication three times per day to manage his illness. However, there is no suggestion that that condition, too, cannot adequately be managed in prison.
As to ground 2, the sentencing Judge expressly referred to the fact of the applicant's pleas of guilty, but did not say (notwithstanding the provisions of s 8(4) of the Sentencing Act 1995) that he had reduced the sentences imposed on account of them. While this was unfortunate, it seems to me quite plainly to have been an oversight. Were it not for the pleas of guilty the sentences imposed would, no doubt, have been greater. In any event, even if his Honour might be said to have erred in this respect, I do not consider that any different sentence should have been passed, given the seriousness of the offences, the fact that the second drug offence was committed whilst the applicant was on bail for the first and the fact that the applicant's prior criminal record displays

little in his antecedents which could amount to mitigation. There would consequently be no utility in the grant of leave to appeal on this account: see s 690(3) of the Criminal Code (WA).

In all of these circumstances I would dismiss the application for leave to appeal.
MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Steytler J in this matter. I agree with those reasons and I, too, would dismiss the application for leave to appeal.