Valerio v The State of Western Australia
[2017] WASCA 167
•11 SEPTEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VALERIO -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 167
CORAM: MAZZA JA
BEECH JA
HEARD: 4 SEPTEMBER 2017
DELIVERED : 11 SEPTEMBER 2017
FILE NO/S: CACR 108 of 2017
BETWEEN: SALVATORE VALERIO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
File No :IND 1663 of 2016
Catchwords:
Criminal law and sentencing - Offence of manufacturing DMT - Sentence of 3 years 4 months' immediate imprisonment - Whether sentence manifestly excessive - Whether factual error by sentencing judge
Legislation:
Misuse of Drugs Act 1981 (WA), s 6
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Rumenos v The State of Western Australia [2011] WASCA 59
Tai v The State of Western Australia [2016] WASCA 234
JUDGMENT OF THE COURT: The appellant seeks leave to appeal against sentence. Following a trial in the District Court, he was convicted of one count of aggravated manufacture of a prohibited drug, namely dimethyltryptamine (DMT), and sentenced to a term of 3 years 4 months' immediate imprisonment. He appeals on the grounds that the judge made a factual error and that his sentence was manifestly excessive.
For the reasons that follow, in our opinion there is no merit in the appeal and leave to appeal should be refused.
The facts
The appellant was convicted after a three‑day trial before a jury.
The State's case at trial was that on 2 April 2015, the appellant had manufactured DMT and was in the process of manufacturing more when a fire broke out, causing him to suffer burns to his chest, legs and arms. At the time of the fire, there were three people in the house: the appellant, Ms Vanessa Aslan, and Ms Aslan's daughter, Izzi Aslan, who was aged 7.
The defence case at trial was that the appellant was not manufacturing DMT, but Ms Vanessa Aslan was, in concert with another person. The defence case was that the appellant arrived at Ms Aslan's home just after the fire had broken out and suffered burns in his attempt to put out the fire and ensure the safety of Ms Aslan and her daughter.
The judge found the facts in accordance with the State's case. The judge found that, when the fire broke out, the appellant was, as he told one of the paramedics, mixing caustic soda and shellite, two of the ingredients used to manufacture DMT.
The judge found that 12.09 g of DMT was contained in liquid in pots in the kitchen. The appellant challenges this finding by ground 2 of his appeal. The judge also found that this DMT had been manufactured on that day, 2 April 2015.
The judge further found that the appellant received severe burns from the fire.
Personal circumstances
The appellant was aged 47 at the time of sentencing. He was separated from his wife.[1]
[1] ts 307.
The appellant was a disability pensioner who had previously worked for about 20 years at various places.[2] He suffered from depression and anxiety.
[2] ts 307.
The appellant started using marijuana at the age of 19. He had been using methamphetamine over the preceding three years after the breakup of his relationship.[3]
[3] ts 307.
The appellant had a substantial record of convictions from 1994 until 2016. These included convictions for possessing cannabis, amphetamine and methamphetamine, as well as offences of dishonesty, property, traffic matters and breaches of violence restraining orders.[4]
[4] ts 307 - 308.
The judge referred to a letter he had received from the appellant acknowledging his stupid and foolish behaviour. The judge observed that given the plea of not guilty, the appellant could not be given any real credit for that.
Sentencing remarks
The judge observed that the manufacture of drugs such as DMT is a potentially volatile situation, and that potential was realised by the fire.[5] The judge said that the appellant's offence put a child and himself at risk, and also police, ambulance and fire officers.[6]
[5] ts 306.
[6] ts 306 - 307.
The judge did not find that the manufacture was for commercial purposes, finding that it was intended for the use of the appellant and Ms Aslan.
The judge referred to observations of this court in Tai v The State of Western Australia,[7] to which we will refer later in these reasons, including that the inherent danger created by the process of manufacturing drugs is a significant element in the sentencing process for an offence of this kind.
[7] Tai v The State of Western Australia [2016] WASCA 234.
The judge also referred to the pervasive influence of drugs in many forms of criminal offending.[8]
[8] ts 310 - 311.
The judge reduced the length of sentence which he otherwise would have imposed, taking into account another offence for which the appellant had served 8 months in custody.
The judge imposed a term of 3 years 4 months' immediate imprisonment and ordered that the appellant be eligible for parole. The sentence was backdated to commence on 9 January 2017.
Grounds of appeal
The appellant's notice of appeal asserts a single ground of appeal, namely that the term imposed was manifestly excessive.
At the hearing of the application for leave to appeal the appellant sought and was granted leave to amend to add an additional ground 2 in the following terms:
The learned sentencing judge erred in fact by finding that the appellant had manufactured 12.09 g of DMT in the absence of any evidence to that effect.
In his submissions in support of ground 1, the appellant emphasises that he was not manufacturing for commercial gain, that he attempted to extinguish the fire, and that following his conviction he acknowledged his offending.
In support of ground 2, the appellant submits that the judge's finding of the manufacture of 12.09 g was not supported by any expert evidence at the trial.
It is convenient to begin with ground 2.
Ground 2: was the judge's finding unsupported by any evidence?
There is no merit in ground 2. At the trial, the State led evidence from a chemist, Ms Jessie Murdock. Her report was part of the prosecution brief. Her evidence was that one of the bottles contained 8.09 litres which, based on a sample, had a DMT content of 1.07 mg per ml,[9] and the other contained a volume of 5.28 litres which, based on a sample, had a DMT content of 0.65 mg per ml.[10] Ms Murdock also explained that the weight of DMT in fluid could be calculated by multiplying the volume by the concentration, as had been done and set out at the end of her report.[11] Ms Murdock's evidence at trial did not include the simple mathematical calculation for each bottle of fluid of multiplying the two figures to produce the weight in each, and then adding them to arrive at the total weight.
[9] ts 128.
[10] ts 130.
[11] ts 129.
The brief cross‑examination of Ms Murdock[12] did not challenge this or any material aspect of her evidence.
[12] ts 134 - 136.
Thus, the unchallenged evidence at trial supported the judge's finding that there was 1.07 mg per ml of DMT in 8.09 litres of fluid meaning 8.66 g in one lot and 0.65 mg per ml in 5.28 litres producing 3.43 g in the other, amounting to a total of 12.09 g of DMT.[13]
[13] ts 307.
Further and in any event, counsel for the appellant before the sentencing judge expressly invited the judge to sentence the appellant on the basis that there was 12.09 g of DMT.[14]
[14] ts 297.
For these reasons, we would refuse leave to appeal on ground 2.
Ground 1: was the sentence manifestly excessive?
The principles relevant to an appeal on a ground of manifest excess are well‑established, and may be summarised as follows:
1.Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error usually involves 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.
2.A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind, and the personal circumstances of the offender.
3.The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. The guidance afforded by comparable cases is flexible rather than rigid. Sentences customarily imposed in comparable cases provide a yardstick 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. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
4.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.
As the appellant emphasises, there are no appellate decisions of any assistance in discerning patterns of sentencing for offences of manufacturing DMT. Contrary to the appellant's suggestion, that does not mean that sentences imposed at first instance are of any assistance in determining whether the sentence imposed in this case was manifestly excessive. The question is to be approached by reference to the maximum penalty, general principles and to the circumstances of the particular case, including the offender's personal circumstances.
The maximum penalty for the offence of manufacturing a prohibited drug is 25 years' imprisonment. 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 1981 (WA) of deterring people from bringing into existence prohibited drugs, many of which are addictive and highly destructive.[15] The reasons for this were explained by Mazza J in Rumenos v The State of Western Australia[16] in a passage cited by the sentencing judge in this case. As his Honour rightly observed, although these observations were made with respect to methylamphetamine, the same can be said of the process of manufacturing DMT:
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.
[15] Tai v The State of Western Australia [29].
[16] Rumenos v The State of Western Australia [2011] WASCA 59, cited with approval in Tai v The State of Western Australia [31].
The dominant sentencing consideration in offences of manufacturing drugs is general deterrence.[17]
[17] Tai v The State of Western Australia [32]; Rumenos v The State of Western Australia [26], [39].
As Mazza J's observations in Rumenos explain, the danger inherent in the manufacture of drugs is a significant element in its criminality. In this case, that danger extended to endangering the life or safety of a child, a matter reflected in the circumstance of aggravation.
There were few mitigating factors in this case. The appellant pleaded not guilty. He did not have the mitigation of prior good character, nor of youth.
In our opinion, when proper account is taken of the seriousness of the appellant's offence, reflected in the maximum penalty, and the other matters to which we have referred, in all the circumstances of the case, it cannot be said that the sentence of 3 years 4 months' immediate imprisonment is manifestly excessive.
Conclusion
For the reasons we have given, neither ground of appeal has a reasonable prospect of succeeding. Leave to appeal must be refused on both grounds and the appeal dismissed.
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