The State of Western Australia v Sudholz - [2014] WADC 144

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- SUDHOLZ [2014] WADC 144

CORAM: STAUDE DCJ

HEARD: 8 - 9 SEPTEMBER 2014

DELIVERED : 20 OCTOBER 2014

FILE NO/S: IND 389 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ANDREW DERECK SUDHOLZ

Catchwords:

Criminal law - Sentencing - Trial of issue - Attempt to manufacture prohibited drug - Whether offender placed under pressure to aid another to manufacture methylamphetamine - Whether offender directly involved in manufacture

Legislation:

Nil

Result:

Offender directly involved in manufacture
Mitigating circumstance not proved

Representation:

Counsel:

The State of Western Australia : Mr L J Avey
Accused: Mr A D Sullivan

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Legal Aid of Western Australia

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

Marker v The Queen (2002) 135 A Crim R 55
R v Olbrich (1999) 199 CLR 270
Tiknius v The Queen [2011] NSWCCA 215

STAUDE DCJ:

Introduction

Mr Sudholz was charged on indictment with attempting to manufacture methylamphetamine on or about 2 August 2013 at Wyalkatchem.
He pleaded guilty on the basis that his role was limited to giving assistance to another to do so under pressure not amounting to duress. This explanation was rejected by the prosecution. Accordingly, the matter comes before the court for a trial of the issue of the extent of Mr Sudholz's complicity in the offence.
If a mitigating circumstance on which an offender relies is disputed by the prosecution, the onus falls on the offender to prove it on the balance of probabilities: Marker v The Queen (2002) 135 A Crim R 55 [9] (Malcolm CJ), [22] - [23] (Murray J); R v Olbrich (1999) 199 CLR 270, 280. Duress not amounting to a defence is capable of being a mitigating factor: Tiknius v The Queen [2011] NSWCCA 215, [32] ‑ [54]. A careful and close assessment of evidence adduced to support such a claim should be made, with the onus of proof upon the offender kept firmly in mind: Tiknius v The Queen [49].

Prosecution case

The prosecution case is that on 2 August 2013 police located items believed to have been used in the manufacture of methylamphetamine at a place described as a disused gravel pit near the intersection of the Amery‑Benjaberring Road and Hindmarsh Road, Wyalkatchem. The items discovered included a bucket on which a palm print of Mr Sudholz was found. Also at that place police located an empty 'Orange C' fruit drink carton on which DNA matching his was found.
Subsequently, on 13 August 2013, a search warrant was executed at Mr Sudholz's residence at 63 Wilson Street, Wyalkatchem. Further items were found that are commonly associated with the manufacture of methylamphetamine, some of which had traces of the drug on them. The offender had previously been convicted of manufacturing methylamphetamine in 2012.

Defence position

The offender's position is that he is experienced in the manufacture of methylamphetamine and has, in fact, acquired the nickname 'Gasman'. Following his conviction in 2012 he moved from Coodanup (near Mandurah) to Wyalkatchem and ceased to be involved in manufacturing methylamphetamine.
On or about the material date he was visited at his home at night by a person whom he did not know. The person insisted that he help him to manufacture the drug. In fear of what might happen if he refused, Mr Sudholz provided certain items to that person in the knowledge that they would be used to attempt to manufacture methylamphetamine. These were taken away by the other person in a motor vehicle. The offender denies that he actually manufactured or attempted to manufacture methylamphetamine at the gravel pit or at all.
The fruit drink was consumed by Mr Sudholz at his home and container came from his home and was thrown in the boot of the visitor's car with the drug manufacturing items he gave him. The methylamphetamine and other relevant chemical traces found on items at Mr Sudholz's home were associated with the previous manufacturing for which Mr Sudholz was convicted in 2012.

Admissions (propensity evidence)

A minute of formal admissions was received at the commencement of the hearing and marked MFI 1. The admissions are as follows:
1.On 17 May 2012 at 11.20 am, police from the Organised Crime Squad executed a search warrant pursuant to the Misuse of Drugs Act 1981 at the offender's address at 4 Josbury Close, Coodanup. His 18‑year‑old Down syndrome child was present.
2.Police inspected the dwelling and surrounding yard and suspicious items connected to the manufacture of methylamphetamine using the cold cook method were observed. Chemists from the Chemistry Centre attended and confirmed the items as being consistent with the manufacture of methylamphetamine.
3.An assessment of the premises was conducted. Items located included four large ammonia gas generators, 11 hydrochloride gas generators, 36 empty caustic soda containers, sulphate of ammonia, solvents, lithium batteries, 13 empty blister packs of pseudoephedrine based medication, sulphuric acid, filters, reaction waste and unknown liquids.
4.Ammonia gas, a noxious and potentially gas was still venting from an ammonia generator in the rear yard.
5.The offender acknowledged possession of methylamphetamine and was subsequently searched. Approximately 0.5 g of methylamphetamine was located in his underwear.
6.The offender participated in a video record of interview making admissions relating to the items seized and that the methylamphetamine in his possession had been manufactured by him earlier that morning. The manufacture was for personal use.
The formal admissions obviated the need for the state to call evidence to prove, by way of propensity evidence, the facts of the offender's convictions of the offences of:
(a)manufacturing a prohibited drug;
(b)possessing a prohibited drug (cannabis);
(c)possessing a smoking utensil; and
(d)possession of a prohibited drug (methylamphetamine).
The admitted facts of these offences tend to prove a propensity to manufacture methylamphetamine and a practical knowledge of the Birch reduction method, also known as the Nazi method. I will come in due course to the offender's evidence in relation to his prior offending.

Evidence

The first witness was Senior Constable Tashwhile Dwayne Eksteen who was at the material time attached to the Dowerin Police Station. Whilst on patrol he attended what he described as a dumping area near the intersection of the Amery-Benjaberring Road and Hindmarsh Road. He saw a green jerry can with duct tape around it, as well as funnels, clear plastic tubing and caustic soda, items which he suspected had been used in the manufacture of illicit drugs.
The next witness, Senior Constable Brett John Heffernan, was a member of the Illicit Drug Manufacture Investigation Squad at the time. He attended the site with other officers, including two officers from the Crime and Forensic Investigation Office and two chemists from the Chemistry Centre of Western Australia. The items he described were a jerry can with tape around it, a large amount of clear tubing close to the jerry can, a white bucket, a container of caustic soda, a bag of sulphate of ammonia and some plastic bottles and jugs.
Photographs were received in evidence of the items in situ.
The chemists did an assessment of the scene which was video‑recorded (exhibit 2). The video and a photograph depicted a Maxipail bucket from which a palm print matching Mr Sudholz's was lifted. Other items were examined for fingerprints but none was obtained. No fingerprints were obtained which were identified with any person. An 'Orange C' fruit drink container was also depicted. It had an expiry date of 5 August. The carton was tested.
Senior Constable Heffernan later obtained Project Stop records. These came from a database that records the sale of pseudoephedrine‑based medication. The records relating to Mr Sudholz (exhibit 4) reveal that from 21 November 2012 to 3 July 2013 he purchased 13 pseudoephedrine medications mainly in the form of Sudafed. The records pertaining to Mrs Sudholz (exhibit 5) reveal that she purchased pseudoephedrine-based medication on 17 occasions from 5 September 2012 to 3 July 2013.
Senior Constable Heffernan then obtained and executed a search warrant at the offender's home at 62 Wilson Street, Wyalkatchem, on 13 August 2013. Two chemists attended again on this occasion. A scene video (exhibit 9) and photographs (exhibit 6) were taken. A number of items were seized for the purpose of forensic testing. Fingerprints matching Mr Sudholz were found on a can of Xylene and two glass jars, one located in a shed (item 10) and the other in laundry (item 11). Mr Sudholz was then charged.
Senior Constable Heffernan then obtained bank records for Mr Sudholz and his wife. Mrs Sudholz's bank statement indicated a purchase of goods at Bunnings Mandurah on 2 August 2013, one for $16.90 and the other for $41.24. Transaction records were obtained which revealed that the purchase for $16.90 was for a four‑pack of AA lithium batteries and the purchase for $41.24 was for 4 litres of demineralised water, 2 kg of caustic soda, duct tape, a paint scraper, a 10‑pack of safety blades and 1 litre of enamel thinners (exhibit 7). It was accepted on behalf of Mr Sudholz that the Bunnings transactions were made on Mrs Sudholz's accounts. On that basis, the bank statements were not tendered.
In cross‑examination Senior Constable Heffernan accepted that no protective gear was seized, such as gloves or masks. There were no cooling items located, such as LPG containers. No fresh packs of cold and flu medication were found. Two tablets of Codral found in a blister pack were very old. Senior Constable Heffernan said that the preliminary testing of DNA taken from the fruit drink container indicated a match with Mr Sudholz, but the analysis had not been completed to the point where a numerical probability was given.
In relation to the packet of lithium batteries, Senior Constable Heffernan agreed that there was one battery left in a pack of four. He agreed that Mr Sudholz said at the time of the search that the batteries were used in a torch but no torch was found in the search. He conceded, however, that there were many boxes in the house and that the house was messy.
With respect to the items found at the gravel pit, Senior Constable Heffernan said that the bag of sulphate ammonia, 5 kg, was almost full.
Ms Melissa Davies, a forensic scientist employed by the Chemistry Centre, gave evidence that she attended at the gravel pit location on 2 August 2013. She is depicted in the scene video which records her narrating her examination of the scene and commenting on the significance of items that were located there. She concluded that the items found were consistent with the Birch reduction method of manufacture. This is the only method which involves the use of ammonia and lithium. Both of these substances were located at the scene. No issue was taken with her evidence in this respect.
She agreed that the items discovered did not include those that would have been required in order to extract pseudoephedrine. Ms Davies also said that she could not determine for how long the ammonia generator, in which caustic soda and sulphate ammonia were combined to produce ammonia gas, had been in a reaction process.
As to the ammonia solution that was found in a bottle, she agreed that it could have been formed by the entry of rain water into liquid ammonia. She agreed that ammonia solution was not used in methylamphetamine manufacture. In relation to lithium she agreed that when lithium was exposed to moisture in the air, it degraded quickly. Accordingly, if one exposed the lithium metal in batteries ahead of the cooking process, it may be consumed by the exposure rather than in the required reaction.
In re-examination Ms Davies said that it was possible for different stages in the manufacturing process to take place at different places. So, for example, the pseudoephedrine could be extracted at one time and place and the reaction of pseudoephedrine and liquid ammonia and lithium to produce methylamphetamine at another. The ammonia, however, would need to be kept cold to remain liquid.
Ms Lecinda Collins-Brown attended on the execution of the search warrant at Wilson Street on 13 August 2013. She is a forensic scientist with particular expertise in clandestine drug manufacture. Ms Collins‑Brown was depicted in the DVD containing the scene video (exhibit 9).
The items she saw were consistent with the use of the Birch reduction method. Chemicals associated with other methods of manufacture were not located.
Salt was found in the laundry. Ms Collins-Brown said it was frequently encountered and could be used in the final stage of manufacturing where the methylamphetamine oil can be converted to hydrochloric salt. Ordinary salt could be used in combination with an acid to produce hydrochloric gas which is necessary in order to extract solid methylamphetamine from methylamphetamine oil.
She also observed a container of sulphuric acid and another of hydrochloric acid which were capable of being used to produce hydrogen chloride gas for the purpose of converting methylamphetamine oil to a hydrochloric salt.
In the laundry there was also a quantity of solvent found which Ms Collins‑Brown said could be used for the extraction of pseudoephedrine from tablets or capsules and also to extract methylamphetamine.
In the laundry there was also a jar with a residue. Glass jars could be used as reaction vessels or for isolating pseudoephedrine or methylamphetamine.
Outside the house she identified a wood stove which she described as a furnace. In the stove she discovered objects which appeared to be burnt blister packs. They were damaged and could not be further identified. In the outside shed she found a Coldral cold and flu blister packet which had just two tablets. She said the medication contained pseudoephedrine hydrochloride, the main precursor for the manufacture of methylamphetamine. In a shed she also saw Xylene, a solvent, which could be used to extract pseudoephedrine and methylamphetamine.
Two jars were found in the shed, one with liquid in it. A second jar had a white crystalline residue in it. Next to the jars there was an open packet of lithium batteries with one battery remaining. Finally there was a plastic container with duct-tape on the bottom which was removed for testing.
Ms Collins-Brown's opinion was that the items to which she referred could be associated with the manufacturing process, but not all of the necessary items were present. Missing from the items found at the house was liquid ammonia, or either of the chemicals associated with the manufacture of liquid ammonia, being sulphate of ammonia and caustic soda. If the chemicals for the production of ammonia were present and the blister packets in the stove had contained pseudoephedrine-based medication, then the process of manufacture could have been carried out. The whole process, however, did not need to be done at one place.
In cross-examination Ms Collins-Brown agreed that sulphuric acid could be used in various household applications, including clearing household drains. Similarly, hydrochloric acid had a number of legitimate uses. She considered that the presence of a lithium battery packet suggested that a certain method of manufacture had been followed. Without the present of lithium batteries she could not determine what method was used, if any.
She did not observe at the house tubing or any sealed containers.
Paint thinners and table salt were items which had legitimate purposes.
She agreed that there was no actual apparatus set up for the purposes of any manufacturing process.
She agreed that no LPG cylinders were seized.
The next witness was Ms Jessica Murdock, another chemist. She carried out the testing of items that were seized by the chemists who attended at each scene. She also has expertise in the investigation of clandestine drug laboratories.
One item was found to be a bottle containing sulphuric acid; another hydrochloric acid. Item 8 was a glass jar with a brown liquid residue on the inside which was tested and found to contain the compounds CMP, pseudoephedrine, triprolidine and codeine and methylamphetamine. The presence of these substances indicated methylamphetamine has been produced using the Nazi method. CMP is an abbreviation for an impurity which is the result of an over-reduction of methylamphetamine.
Item 9 was a plastic jug with grey tape and white powder residue on the inside. The residue was not identified.
Item 10A was a colourless liquid taken from a glass bottle. The liquid was a hydrocarbon solvent in which traces of methylamphetamine were detected. It was likely to have been used in the final stage of production.
Item 11 was another glass jar bearing traces of a brown residue on the inside which was tested and found to be methylamphetamine, CMP, pseudoephedrine and codeine. The presence of these chemicals also indicated that the jar had been used in the final stages of production.
Missing from the items of ingredients necessary to make methylamphetamine at the house were the items required for producing ammonia liquid. Her conclusion, however, was that the presence of methylamphetamine and pseudoephedrine on a number of items indicated that pseudoephedrine had been prepared for use in the manufacture of methylamphetamine. The presence of CMP indicated that the Nazi method was used using liquid ammonia and lithium or sodium metal.
In cross-examination she accepted that the chemicals found on the glass jars were traces that were not quantified and could not be aged. She said that she could not say for how long the chemicals had been on the inside surface of the jar (items 8 and 11). She accepted that the items could have been used for manufacturing a year or two years before but had not been cleaned. In relation to the traces of methylamphetamine found in a solvent, she was asked whether the traces could be due to a small quantity of methylamphetamine being left in a bottle to which thinners had later been added. She agreed that that could happen. She could not tell how long the solvent had been in the jar but she would expect that the thinners would evaporate relatively quickly in an open jar. She could not tell how long the methylamphetamine had been in the jar, but considered that the thinners would have had to have been added recently. The presence of methylamphetamine traces in a solvent was also consistent with it being used in a process to extract methylamphetamine.
Ms Murdock confirmed that ammonia is toxic and liquid ammonia requires to be kept very cold to prevent it returning to a gaseous state. To assist in producing ammonia gas there would need to be a means of reducing pressure caused by the build-up of gas. A sealed container could be used to capture gas. Escaping ammonia gas can be trapped by water or wet items.
Ms Murdoch said that although liquid ammonia had to be kept cold, it was not unheard of for it to be transported.
Ms Murdoch was taken through the process of manufacture of methylamphetamine using the Nazi method in the way that Mr Sullivan suggested that Mr Sudholz used. There was no issue taken with Mr Sullivan's propositions. Ms Murdoch agreed that water would stop the reaction between lithium, metal and ammonia. She agreed that parts of the process were dangerous and that protective equipment was indicated, but she observed from her experience that not everyone used such equipment.
The evidence of Mr Sudholz was that in 2012 he regularly manufactured methylamphetamine for his own use using the Birch reduction method. He acquired experience and was, he said, known as the Gasman because he could produce good quality ammonia gas easily. He was shown photographs in relation to the search of his residence on 17 May 2012 and an edited DVD made by the police at that time. He identified a respirator which he used to avoid inhaling ammonia gas and chemical resistant gloves which he also used in the manufacturing process. The video depicted LPG cylinders with tubing attached and a Pyrex dish used for rehydrating methylamphetamine crystals.

He said that about one month after the search warrant was executed he and his family moved to Wyalkatchem. He did so to get away from the drug scene. A lot of household items were packed in boxes, some of which were stored in a sea container in the yard of his father's property at 5 Lindley Street, Wyalkatchem. Mr Sudholz and his family were there for about five months before moving to 1 Scott Street, where they lived for six months. He said they only took their basic clothes and furniture. They then moved to 62 Wilson Street, which is where the search warrant in relation to this matter was executed. At that time, they began to unpack the sea container.
Mr Sudholz said that when he was living in Mandurah, he was manufacturing methylamphetamine and consuming up to $600 worth daily.
When he went to live in Wyalkatchem he continued to use methylamphetamine and would obtain it by driving back to Mandurah about once a month. He would 'take the edge off' his craving by taking Sudafed. He said that when he moved to Wyalkatchem he smashed his mobile phone.
He also said that he was a hoarder, that he would keep things such as tins and jars, and would collect various items such as watches, coins and books. When he left Mandurah he had two or three milk crates full of different jars. All of them had been used in manufacturing drugs. They had not been seized in the search in 2012. When he moved from Mandurah, all of the family's personal effects were packed in boxes and cupboards and transported on his father's truck.
Asked about some of the items that were found during the search on 2 August 2013, Mr Sudholz said that the enamel thinners were for thinning paint in order to paint an old van. The empty salt container was intended to be used by him and his daughter to clean brushes for painting, but was never used for that purpose. The bottle of sulphuric acid found in the laundry was used for drain cleaner, and the hydrochloric acid for adjusting the pH in the water of a spa bath he had in his Mandurah home.
The two tablets of Codral medication that were found in a packet in the shed he said were not related to the manufacture of methylamphetamine. He said they came from a vanity unit which he found at the rubbish tip and which contained two tablets. He could not explain why he kept them.
He was asked about the tin of Xylene found in the shed. He was not sure where it came from, but it was used as a thinner. The packet of lithium batteries of which one battery remained was purchased for a torch that took three batteries. He did not produce the torch. The plastic jug with white residue inside and masking tape over it was a cracked jug which had been repaired and was used in the laundry. The glass jar containing clear liquid found in the shed was a solvent he intended to clean a brush, but the brush did not fit in the jar.
The glass jar found in the laundry containing residue, he said, was one of a number of glass jars. The others were in a plastic bag. The glass jar had been taken out to be used for something. The burnt blister packs found in the outdoor stove, he said, were probably Sudafed he had purchased. He had burned them to get rid of them because he did not want them laying about the place. He had no real reason for doing so.
He acknowledged that he purchased Sudafed as the Project Stop report indicates, but denied that he used it used for manufacturing methylamphetamine.
Mr Sudholz then went on to describe in detail the method by which he would manufacture methylamphetamine.
In relation to the Bunnings receipts he said that the demineralised water was purchased for charging batteries, the caustic soda for cleaning drains, the duct tape as a standard toolbox item, the paint scraper for scraping the windows on the van and the enamel thinners for mixing paint for the van. The batteries had been purchased for use in 'different cameras and such'. He agreed that his wife had purchased pseudoephedrine for him to help to ease his craving.
The main purpose of him describing in detailing the process by which he would make methylamphetamine was to demonstrate that there were items such as tubes and bottles that he would use that were not found either at his home or the gravel pit, suggesting that there was no part of the manufacturing process that occurred at his home and that the items of apparatus found at the gravel pit were insufficient to produce drugs.
He said he had not cooked methylamphetamine in Wyalkatchem. He gave a number of reasons. He said he had his own set-up in Mandurah and other people were involved. He thought he would be more conspicuous in a small country town. The whole town would smell it. He also said that in July-August it was very dewy and that there were farmers everywhere.
He said he was visited one night, two and a half weeks before the search, by a person he did not know. It was just after midnight. He was watching TV. The person said he was told by 'a common mate in Mandurah' that he would be able to help him out with the gas. Mr Sudholz said he was not interested in being involved. The other person started to cause a scene and said 'if you go back inside you better start sleeping light' and 'kiss your kids goodnight'. This went on for about 5 minutes before Mr Sudholz told him to wait for a minute.
Mr Sudholz said he went inside and grabbed a drink, 'Orange C' in a container the same as found at the gravel pit. He then went outside and said to the person 'Look, I don't want to fucking get involved in anything; I don't want to do anything here'. He told the person he was under a suspended sentence. He then said he would help with the line but that he could not do it there.
He went inside and when he came out again he saw the person unloading his car boot. He told the person to drive around the back. He said he helped him make the ammonia gas generator. The person asked him for advice about making ammonia. He wanted to know how much caustic to mix with the sulphate of ammonia and how to set it off. He went along with him, basically agreeing with what the person was saying he would do. He told him to leave and put the 'Orange C' container with other items in a rubbish bag which he threw into the boot.
As to how his handprint got on the Maxipail, he said that it would have been when he put it in the boot. He said he did not otherwise participate. He admitted that the gas generator found at the remote site was the one he had made up. He said it was possible to travel with the extracted pseudoephedrine but that he did not know how one could travel with liquid ammonia cooled by LPG.
The items he saw on DVD found at the gravel pit were consistent with the generation of ammonia gas. It seemed to him to have been unsuccessful due the quantities of sulphate of ammonia and caustic remaining.
The prosecutor challenged Mr Sudholz's evidence. He admitted having manufactured methylamphetamine for a period of two years prior to being arrested for his previous offence. He acknowledged that the police seized 75 items associated with manufacture on that occasion. He confirmed that he had broken the SIM of his phone after moving to Wyalkatchem and he would travel 300 km to Mandurah to source the drug. As to his reasons for not making drugs in Wyalkatchem he said it was too small a town, but that that was not the only reason. He denied that he had continued to manufacture.
He was unaware of the gravel pity until after the search.
He was unable to say how much pseudoephedrine he would take in addition to the drugs he sourced in Mandurah, but maintained that the medication would help him to deal with his cravings.
He said that he burned the blister packets in the outside fire with other things such as some pension cards and old driver's licence cards. He said it was all rubbish. ID cards he burned using a Bunsen burner. He conceded that in 2012 he had burned blister packets in a fire pit, but denied that he did so on either occasion to conceal his activities and said that he had acquired the pseudoephedrine legally and did not need to do so. It was put to him that he contradicted himself in this respect by saying elsewhere that he was concerned about having the two old tablets of Codral that were found in the shed, saying 'Imagine if were caught with that!' He rejected the suggestion. He was questioned about his purchases from Bunnings on the basis that the items bought were capable of being used in the manufacture of drugs. He agreed that a painter scraper could be used for breaking up methylamphetamine, but said he bought it to scrape paint and stickers in connection with painting the van. He said he needed more thinners than he already had. He agreed that the duct tape was the same as used for the gas generator he made. He said the items were bought in Mandurah because there was no Bunnings store in Wyalkatchem.
He maintained in cross-examination that the items found at his house that were said by the expert witnesses to be consistent with drug manufacture were all for innocuous purposes. He maintained that the jars that had chemical traces indicating use in manufacture were from Mandurah. He denied the acids were for gas production, the thinners for pseudoephedrine extraction, and the Xylene and lithium for final stage production.
Asked about the incident in which the then unknown person visited him after midnight, Mr Sudholz said that the person made veiled threats. He did not think to call the police. He went inside to think about what to do. It was then that he drank the Orange C. He said he made up the gas generator from items the person brought with him in his car 'and that was the end of it'. This produced an amount of rubbish such as plastic hose and tape which he put in a plastic bag with the drink container.
He denied that this was all a lie and that he in fact was the person who produced ammonia at the gravel pit.

Findings

It is admitted by the plea of guilty that there was an attempt to make methylamphetamine committed at Wyalkatchem on or about the material date to which the offender was a party.
On the evidence it is probable that methylamphetamine was actually produced on that or another occasion in Wyalkatchem by the offender because I am satisfied by the evidence of Ms Murdock that the chemical residues on items 8 and 11 contain the compounds which are formed in the manufacturing process, including the drug, consistent with manufacture using the Nazi method.
The inference that Mr Sudholz actively engaged in manufacture at all stages of the Nazi method is compelling. It on all the evidence that facts can be found that together disprove his evidence to the contrary. None of those facts taken alone would be conclusive, but together they roundly contradict an unlikely and implausible story of an unintended encounter with a person whom he merely helped to the extent of providing apparatus for ammonia gas production.
The following findings necessarily involve a rejection of the evidence of the offender. That is done without difficulty. The evidence of Mr Sudholz was generally untruthful. His account lacked coherence and consistency.

Propensity

By his own admission (and his prior conviction) he has a proven capacity to produce methylamphetamine from pseudoephedrine. He did so for two years prior to his arrest in 2012.

Pseudoephedrine purchases

By his own admission he continued to crave and use methylamphetamine when he went to Wyalkatchem. He and his wife regularly purchased quantities of pseudoephedrine based medication amounting to two to three packets a month. These medications were not obtained for legitimate therapeutic use, or to curb cravings. Mr Sudholz's evidence that as a $600 per day addict in May 2012 he was able from September 2012 to July 2013 to sate cravings for methylamphetamine by taking Sudafed is absurd, as is his evidence in relation to the burning of the blister packs and the retention of the two Codral tablets.

Purchase of items used in manufacture

At Bunnings in Mandurah on 31 July 2013, days prior to the date of offending, Mr Sudholz purchased items capable of being used in the manufacture methylamphetamine, being demineralised water for controlling chemical reactions and rehydrating crystals, caustic soda for making ammonia, duct tape for making the apparatus, thinners for extracting pseudoephedrine, lithium for the reaction with ammonia and pseudoephedrine and safety blades for cutting methylamphetamine.
Of course, each of these items has an innocent domestic application, but in the context of the evidence as a whole, I am satisfied that the purpose of their purchase was sinister. I am fortified in my view by the lack of any items on the invoices that might be seen to have no application at all to drug manufacture (exhibit 7).

Incriminating forensic evidence

The Maxipail yielded an undisputed partial palm print of Mr Sudholz and the 'Orange C' container a matching DNA profile. These connect Mr Sudholz to the gravel pit site where, on the evidence, I am satisfied the production of ammonia took place: a dangerous process in terms of toxic inhalation and possible explosion and one which can be detected by the strong smell of ammonia, and for those reasons a process better carried out in a remote location than at home. In an open place the need for a respirator is reduced.
I do not accept the evidence of Mr Sudholz that he drank the fruit drink at his home whilst wondering how to deal with the importunity of his unknown visitor, and somehow put the empty container in a bag of rubbish that was taken to the site by that person. Nor do I accept that his print got on a pail belonging to another by reason of him handling it at his house. His evidence in this regard, too, is contrived.

Items found at Wilson Street

As observed of the Bunnings purchases, the items of forensic interest found at the house are all capable of domestic applications. But in this case they represent further links in the concatenation of facts implicating the offender as the actual cook. Enamel thinners, solvent, salt containers, acids, lithium battery packaging and burnt blister packs of pseudoephedrine-based medications all point in the direction of illicit drug manufacture.
It is telling in this regard that the exhibit log in respect of the search of the offender's Coodanup property in 2012 lists very similar items.
The explanations are not believable. I do not accept the batteries were for use in an undiscovered, unproduced torch, or that the hydrochloric acid was for adjusting pH in spa water, or that the sulphuric acid was for drain-cleaning. Nor do I believe that Mr Sudholz was planning to paint an old van, or that the salt container was to be used to put brushes in. No evidence was given of the van itself, or of the presence of any painting equipment.
There were, of course, no items connected with ammonia production, for those had been left at the gravel pit.
The discovery of a solvent bearing traces of methylamphetamine (item 10A) signifies recent production. I find that the methylamphetamine was not left in the container from a 2012 manufacture to which solvent was later added.
The traces of methylamphetamine and other compounds associated with its production by the Nazi method found on forensic examination of two glass jars (items 8 and 11) are not satisfactorily explained by Mr Sudholz being a hoarder of old jars. It is likely that any vessel that had been used in drug manufacture in Coodanup in 2012 would have been seized and destroyed by the police as so many items clearly were, having regard to exhibit 12. It is unlikely that Mr Sudholz would have packed and taken to Wyalkatchem two or three crates of such valueless items. I reject the submission that Mr Sudholz is not a person who would throw away anything that might be of future use.

Ammonia solution

I have considered, but do not give any significance to the discovery of the ammonia solution at the gravel pit, or of the apparent absence of evidence of the pseudoephedrine extraction process occurring at any particular place.

The unknown visitor at midnight

Finally, the story about a person, then unknown to Mr Sudholz, without any prior communication with him, coming to his house in late at night and insisting on getting help to make ammonia gas is contrived. Against a background of palpably false evidence in other respects, and such incriminating forensic evidence, it is utterly unbelievable. There is no evidence that any other person was involved, except the offender's. The story is implausible, no more obviously than when he says he went inside the house and opened a container of orange juice as he thought about what he should do.

Conclusion

The defence has not satisfied me on the balance of probabilities that the admitted offending is mitigated by reason of the offender being put under pressure to commit the offence by a person who prevailed upon him to prepare the apparatus for ammonia production. I am not satisfied that his complicity was so limited.
On the other hand, I am satisfied on the evidence that the only reasonable inference to be drawn is that the offender, within little more than a year of his conviction of another drug manufacturing offence for which he was given a suspended sentence, actively engaged in the manufacture of methylamphetamine at his house in Wyalkatchem and at a location near the intersection of the Amery-Benjaberring Road and Hindmarsh Road.