Tai v The State of Western Australia - [2016] WASCA 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TAI -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 234

CORAM: NEWNES JA
MAZZA JA
BEECH J

HEARD: 15 DECEMBER 2016

DELIVERED : 23 DECEMBER 2016

FILE NO/S: CACR 78 of 2016

BETWEEN: JOEL ERLENE DALE TAI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND 141 of 2016

Catchwords:

Criminal law and sentencing - Manufacturing prohibited drugs - Attempt to manufacture prohibited drugs - Whether total effective sentence of 5 years for two offences infringes totality principle - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(b)

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr T F Percy QC
Respondent: Mr L M Fox

Solicitors:

Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bomford v The State of Western Australia [2013] WASCA 153
Chan v The Queen (1989) 38 A Crim R 337
Dooling v The State of Western Australia [2012] WASCA 95
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Lovett v The State of Western Australia [2013] WASCA 78
Lowe v The State of Western Australia [2015] WASCA 83
Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55
McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Perry v The State of Western Australia [2012] WASCA 124
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Lobban [2001] SASC 392; (2001) 80 SASR 550
R v Pallister [2002] WASCA 68
Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587
Roffey v The State of Western Australia [2007] WASCA 246
Rumenos v The State of Western Australia [2011] WASCA 59
The Queen v Kilic [2016] HCA 48
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v Munda [2012] WASCA 164

REASONS OF THE COURT: The appellant was convicted, on his pleas of guilty, of one count of manufacturing methylamphetamine and one count of attempting to manufacture methylamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA). He was sentenced to a total effective sentence of 5 years. He appeals against his sentence, primarily on the ground that it infringed the totality principle.
For the reasons that follow, we would dismiss the appeal.

The facts

The sentencing judge adopted the facts stated by the prosecutor, which may be summarised as follows.
On 26 February 2015, as a result of an explosion, detectives executed a search warrant at a unit in a complex in Mandurah. No‑one was present at the time of the search. During the search, items were located which were consistent with the manufacture of methylamphetamine, including glassware, a heating mantle, acids, solvents, and empty clipseal bags containing traces of pseudoephedrine. When spoken to during a subsequent search warrant at a different address, the appellant said with respect to these items 'I touched the things but I didn't do anything else'.[1]
[1] ts 5.
As to count 2, on 21 May 2015, detectives executed a search warrant at premises in Erskine. Police found glassware containing visible residue that was consistent with the manufacture of methylamphetamine. Forensic chemists attended and confirmed that the glassware had been used in the final stages of manufacturing methylamphetamine using the recrystallisation process. Chemicals and other glassware were located which were confirmed to have been used in the hypo‑method of methylamphetamine manufacture. When questioned in relation to this equipment, the offender stated 'yeah I might have touched them before'.

Personal circumstances and pre‑sentence report

The appellant was 31 years old at the time of sentencing. He was born and raised in New Zealand, coming to Australia in or around 2014.
The appellant grew up as one of five children in his family, and enjoyed a positive upbringing. He had limited education and has ongoing problems with literacy.
In Australia the appellant had employment as a labourer for a period but had been out of work for some time before committing these offences. He was not eligible for Centrelink payments. The pre‑sentence report raised the question of how, in those circumstances, the appellant funded his drug habit.
The appellant has been a regular user of methylamphetamine since about the age of 22. He reported that his only substantial period of abstinence whilst he was on remand for these offences. Even then, he tested positive to methylamphetamine and cannabis on 1 November 2015, something he did not describe to the author of the pre‑sentence report.
The pre‑sentence report suggested that the appellant tends to minimise his involvement in the offences, and expressed the view that, unless he addresses his drug dependence, and various other issues, he was likely to reoffend.
The appellant has a conviction for assault occasioning bodily harm in Western Australia for which a fine was imposed. He has a significant record of offending in New Zealand, including for a number of violence offences. He has a conviction for possessing cannabis for supply in 2010 and for possessing a syringe for drugs in March 2011.

Sentencing remarks

The primary judge's sentencing remarks included the following:
(1)It was notable that after the first offence led to an explosion in a rented room, the appellant again manufactured methamphetamine in a rented room.[2]
[2] ts 15.
(2)The appellant's conduct showed a serious disregard for other members of the public, particularly by the time of the second offence.
(3)Further, the commission of the second offence after the explosion in the course of the first offences showed an obstinate persistence in the appellant's offending.[3]
[3] ts 16.
(4)The judge outlined the offender's personal circumstances, criminal record and pre‑sentence report.[4]
[4] ts 16 ‑ 17.
(5)The primary matter of mitigation was the plea of guilty. The plea was early but not at the earliest reasonable opportunity. The judge allowed a discount of 15% on the head sentence(s) that would otherwise have been imposed.[5]
(6)The fact that the appellant had taken a course to deal with his drug issues suggested there was some hope for his rehabilitation, but this was difficult to say at that stage.[6]
(7)The appellant's previous record of offending meant that he did not have the mitigation of good antecedents, and that it could not be said that offending, including drug offending, was uncharacteristic.
(8)The judge referred to the fact that the State had not sought to prove that the manufacturing was 'part of a commercial effort as opposed to merely subsidising habit'.[7] However, given the presence of laboratory grade glassware in both offences, his Honour stated that it was not possible for him to conclude that the manufacture was solely for his own use either. In other words, the judge found that he was not satisfied on the balance of probabilities that the manufacture was solely for the use of the appellant.[8]
(9)In any case, even where the manufacture is solely for personal use, the manufacture of drugs is very dangerous to those involved in it, and those who are nearby. That danger was magnified by the fact that the manufacture was carried out in a hotel where there was a high prospect of many people being in close proximity. That increased the objective criminality of the offending.[9]
(10)The seriousness of the offending meant that, as counsel for the appellant conceded before the sentencing judge, only an immediate term of imprisonment was appropriate.
(11)The judge fixed 2 years in relation to count 1 and 3 years in relation to count 2.
(12)The judge observed that while each offence was a separate offence, it was still necessary to consider the broader issues of totality to ensure that the total effective sentence bore a proper relationship with the overall criminality of both offences.
(13)The judge determined that the totality principle did not require any adjustment on the two separate offences being served cumulatively.[10]
(14)The sentence was ordered to be taken to have begun on 21 May 2015 when the appellant went into custody.
[5] ts 17.
[6] ts 17.
[7] ts 18.
[8] ts 18.
[9] ts 18.
[10] ts 19.

Grounds of appeal

The appellant appeals on two grounds. Ground 1 alleges that the total effective sentence infringed the first limb of the totality principle. Ground 2 alleges that the sentencing judge erred in finding that he could not be satisfied that the manufacture was solely for the appellant's own use in relation to each offence.
As ground 2 alleges an express error, it is convenient to begin with that ground.

Ground 2

Before the sentencing judge, the State accepted that it could not prove beyond reasonable doubt, as an aggravating factor, that the appellant's manufacture was a commercial enterprise.[11] Counsel for the appellant submitted to the sentencing judge that the manufacture was not a commercial enterprise and that the appellant was 'primarily … feeding his own terrible addiction'.[12] The sentencing judge properly raised with counsel for the appellant the grounds on which he was not inclined to accept that the manufacture was solely for the appellant's personal use.[13] His Honour recorded that the State had not sought to prove that the manufacture was a 'commercial effort as opposed to merely subsidising habit', but found that he was not satisfied that the manufacture was solely for the appellant's personal use.
[11] ts 13, AB 51.
[12] ts 9, AB 47.
[13] ts 14 ‑ 15, AB 52 ‑ 53.
If a sentencing judge is not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of proof of that fact does not prove the converse fact, adverse to or in favour of the offender, as the case may be. Rather, where the sentencing judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing.[14] In the present case, the State's acceptance that it could not prove beyond reasonable doubt that the manufacture was a commercial enterprise did not require a finding on the balance of probabilities that the appellant's manufacturing was entirely for his personal use.
[14] Bomford v The State of Western Australia [2013] WASCA 153 [22], citing R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32].
Moreover, there is not, as some of the appellant's submissions tended to suggest, a simple dichotomy between commercial manufacture and manufacture for personal use. The sentencing judge distinguished between:
(a)a 'commercial effort' meaning manufacture solely or primarily for profit;
(b)manufacture that subsidised a drug habit; and
(c)manufacture solely for personal use.
While the prosecution did not seek to prove the case was in the first category, the appellant did not satisfy him that the case was in the third category, as distinct from the second. The judge's approach does not reveal any error. On the material before him, it was open to the sentencing judge to determine that he was not satisfied on the balance of probabilities that the manufacture was intended purely for personal use.
In oral submissions, counsel argued that:
(1)the sentencing judge was obliged to make a finding as to the extent to which the manufacture was for commercial purposes as opposed to personal use;
(2)the judge should have found that the appellant's manufacture (and attempted manufacture) was for predominantly, although not entirely, personal use.[15]
[15] Appeal ts 8 - 9.
These errors were not asserted in ground 2, which complains of the judge's failure to find that the manufacture was solely for the appellant's personal use. In any event, we are not persuaded by these submissions that the judge made any appellable error. Having found that he was not satisfied that the manufacture (and attempted manufacture) was for purely personal use, and given that the prosecution did not assert that the manufacture was an entirely commercial enterprise, the judge was not obliged to make, or attempt to make, findings as to the precise extent of the personal and commercial purposes of the manufacture.[16] That is so for at least two reasons. First, the material before the judge did not enable the making of precise findings in these respects. Secondly, and more importantly, once the judge had found that the manufacture was not purely commercial, and that he could not be satisfied it was purely for personal use, the precise extent of the personal and commercial elements of the manufacture was not significant in the sentencing process. What was important, as the judge recognised,[17] was the danger created by the appellant's offences, committed in a hotel or apartment complex.
[16] See, by analogy, Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55 [73] ‑ [77].
[17] ts 18.
For these reasons, there is no merit in ground 2.

Ground 1

Ground 1 alleges that the total effective sentence of 5 years infringed the first limb of the totality principle.
Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
Relevantly, the totality principle requires the effective sentence to be a just and appropriate reflection of the total criminality involved in all the relevant offences, viewed in their entirety and having regard to the circumstances of the case, including the offender's personal circumstances.[18]
[18] Roffey v The State of Western Australia [2007] WASCA 246 [24].
In order to determine whether a sentence for an individual offence is manifestly excessive the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.[19] Similar considerations apply to an assessment of whether multiple sentences for a number of offences infringe the first limb of the totality principle.[20]
[19] Chan v The Queen (1989) 38 A Crim R 337, 342.
[20] See, for example, R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [131] (Buss JA).
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion.[21] Sentences customarily imposed in comparable cases provide a yard stick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence.[22] What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.[23]
[21] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54]; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39].
[22] The State of Western Australia v Munda [2012] WASCA 164 [59].
[23] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [41].
The High Court has recently reiterated the need to ensure that sentences imposed in previous cases are not taken as defining the sentencing range so as to conclude that because the sentence imposed in the instant case exceeds the sentences imposed in other cases, the sentence under consideration is therefore beyond the range of available sentences.[24]
[24] The Queen v Kilic [2016] HCA 48 [24].
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The maximum penalty for the offences of manufacturing methylamphetamine, or attempting to manufacture methylamphetamine, is 25 years. That maximum applies regardless of whether the manufacture is for commercial purposes or for personal use. That reflects the clear policy of the Misuse of Drugs Act of deterring people from bringing into existence methylamphetamine, an addictive and highly destructive drug.[25]
[25] R v Pallister [2002] WASCA 68 [31]; Rumenos v The State of Western Australia [2011] WASCA 59 [26].
The reasons for this were explained by Mazza J in Rumenos:[26]
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.
[26] Rumenos [35] - [36].
The offence of attempting to manufacture carries the same 25 year maximum as the completed offence. While it has been said that the conventional approach is nevertheless to generally treat an attempt as less serious than a completed offence,[27] whether that is so depends on the circumstances of the case. In some cases, the circumstances of an attempt may be no less serious than the circumstances of a completed offence.[28] This will often be so when the offender has all the necessary materials to undertake the manufacturing process.[29] Thus, the sentences imposed for attempts to manufacture are broadly consistent with the sentences for completed offences.[30]
[27] McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51 [21], [55].
[28] Dooling v The State of Western Australia [2012] WASCA 95 [8]; Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 [45].
[29] Dooling [9].
[30] Dooling [9] and cases there cited.
The dominant sentencing consideration in offences of manufacturing or attempting to manufacture drugs is general deterrence.[31] In 2011 McLure P observed that the need for general deterrence was underscored by the significant increase in the incidence of this type of offending in recent times.[32] Regrettably, that observation continues to be as apposite as it was when it was made.
[31] Rumenos [26], [39].
[32] The State of Western Australia v Hyder [2011] WASCA 256 [35].
As Mazza J's observations in Rumenos explain, the danger inherent in the manufacture of drugs is a significant element in its criminality. It is something not generally present in many other drug offences such as possession, supply or importation offences. In this case, as the sentencing judge rightly emphasised,[33] the dangers of the manufacturing process were a particularly significant element in the sentencing process. Both offences occurred in a hotel or apartment complex, where it was to be expected that many other people could be in close proximity.
[33] ts 18.

The dangers involved in manufacturing drugs must to some extent have been reinforced in the appellant's mind when his attempt to manufacture the subject of count 1 resulted in an explosion. That did not deter the appellant from proceeding with the manufacture of methylamphetamine the subject of count 2. As the sentencing judge observed,[34] that displayed a degree of persistence and a serious disregard for the safety of the public. Those features of the appellant's offending underlined the need for weight to be given to personal deterrence in the sentencing process.
[34] ts 16.
One of the yardsticks of whether the totality principle is infringed is the maximum penalty for the offences in question. The appellant's assertion that the total effective sentence of 5 years infringed the totality principle is to be assessed in the context that he committed two offences, the maximum penalty for each of which is 25 years' imprisonment.
In our opinion, when proper account is taken of the seriousness of the appellant's offences, reflected in the maximum penalty and the other matters referred to in [29] to [32], and of the features of the appellant's offending referred to in [33] ‑ [34], it cannot be said that the total effective sentence of 5 years offends the totality principle.
The appellant submits that consideration of sentences imposed in comparable cases supports the conclusion that the sentence imposed on the appellant infringed the totality principle. In this regard, the appellant relies on five cases: Lowe v The State of Western Australia; Bomford v The State of Western Australia; Lovett v The State of Western Australia; Perry v The State of Western Australia; and Dooling v The State of Western Australia.[35]
[35] Lowe v The State of Western Australia [2015] WASCA 83; Bomford v The State of Western Australia [2013] WASCA 153; Lovett v The State of Western Australia [2013] WASCA 78; Perry v The State of Western Australia [2012] WASCA 124; Dooling v The State of Western Australia [2012] WASCA 95.
Five decisions are insufficient to establish a range of sentences for a single offence. Further, and in any event, the appellant's complaint in this appeal is one of totality, in respect of the total effective sentence, not of manifest excess in any individual sentence. Three of the cases on which the appellant relies involved a single offence. Consequently, they shed very little light on the question of whether the totality principle was infringed in this case.
For example, the appellant relies on the decision in Lovett v The State of Western Australia.[36] That case involved conviction on one count of attempting to manufacture methylamphetamine for which a sentence of 2 years and 6 months' immediate imprisonment was imposed. The appellant points to the fact that the plea of guilty in that case was very late, coming on the morning of the trial, and that the offender was on bail for another charge of manufacturing methylamphetamine at the time of the offence. Further, the appellant points to the fact that in Lovett there was information as to the volume and purity of methylamphetamine that would have been derived, whereas such information was absent in the present case. In our opinion, none of this assists the appellant's contention that the totality principle was infringed in this case. Unlike the offender in Lovett the appellant committed a second offence, and did so after his first attempt at manufacture had resulted in an explosion. Moreover, the appellant committed both of his offences in hotel or similar accommodation.[37]
[36] Appellant's submissions [28] ‑ [33], appeal ts 12.
[37] In Lovett the offence was committed in a garage.
None of the cases relied on by the appellant had these features, which significantly aggravated the seriousness of the appellant's offending.
For the reasons we have given, the five cases relied on by the appellant, taken individually and together, do not support his contention that his sentence infringed the totality principle. Consideration of other decided cases, including those referred to in the respondent's submissions, similarly does not provide any such support.
The sentencing judge took into account the appellant's personal circumstances.[38] The cases to which we have referred establish that the need to give appropriate weight to general and personal deterrence mean that the personal circumstances of an offender cannot be given much weight. In any case, apart from the plea of guilty, the appellant's personal circumstances provided quite limited mitigation. His Honour gave appropriate credit for the appellant's plea of guilty.[39] The judge considered the question of totality in determining whether the sentences for those two distinct offences should be served cumulatively or wholly or partly concurrently.[40]
[38] ts 16 - 17.
[39] ts 17.
[40] ts 19.
The question is not whether this court would have ordered an element of concurrency as between the sentences for the appellant's two offences. Rather, the question is whether the judge's decision that the two sentences should be served wholly cumulatively is plainly unjust or unreasonable and thus reveals error. For the reasons we have given, we are not persuaded that that is so.
For these reasons, we would not uphold ground 1.

Conclusion

We would dismiss the appeal.