White v The State of Western Australia
[2007] WASCA 119
•29 MAY 2007
WHITE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 119
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 119 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:124/2006 | 14 MAY 2007 | |
| Coram: | STEYTLER P McLURE JA MILLER AJA | 29/05/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CRAIG STEPHEN WHITE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law Sentencing Manufacture of methylamphetamine Sentence of 4 years' imprisonment Whether manifestly excessive |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(b) |
Case References: | Abela v The Queen (2002) 134 A Crim R 392 Bellissimo (1996) 84 A Crim R 465 Bolton v The State of Western Australia [2006] WASCA 120 Brady v The Queen [2003] WASCA 154 Cabassi v The Queen [2000] WASCA 305 Collins v The State of Western Australia [2007] WASCA 108 Dann v The State of Western Australia [2006] WASCA 254 Dinsdale v The Queen (2000) 202 CLR 321 Ditri v The State of Western Australia [2006] WASCA 283 Dixon v The State of Western Australia [2006] WASCA 255 Dodd v The Queen [2002] WASCA 55 Headley v The Queen [2004] WASCA 88 Lim v The Queen [1999] WASCA 296 Pallister (2002) 131 A Crim R 452 R v Osenkowski (1982) 30 SASR 212 The State of Western Australia v Skaines [2006] WASCA 160 Townsend v The Queen [2001] WASCA 249 Tulloh (2004) 147 A Crim R 107 Worth v The Queen [2001] WASCA 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WHITE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 119 CORAM : STEYTLER P
- McLURE JA
MILLER AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
File No : IND 469 of 2005
Catchwords:
Appeal - Criminal law - Sentencing - Manufacture of methylamphetamine - Sentence of 4 years' imprisonment - Whether manifestly excessive
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Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Appellant : Robert Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Abela v The Queen (2002) 134 A Crim R 392
Bellissimo (1996) 84 A Crim R 465
Bolton v The State of Western Australia [2006] WASCA 120
Brady v The Queen [2003] WASCA 154
Cabassi v The Queen [2000] WASCA 305
Collins v The State of Western Australia [2007] WASCA 108
Dann v The State of Western Australia [2006] WASCA 254
Dinsdale v The Queen (2000) 202 CLR 321
Ditri v The State of Western Australia [2006] WASCA 283
Dixon v The State of Western Australia [2006] WASCA 255
Dodd v The Queen [2002] WASCA 55
Headley v The Queen [2004] WASCA 88
Lim v The Queen [1999] WASCA 296
Pallister (2002) 131 A Crim R 452
R v Osenkowski (1982) 30 SASR 212
The State of Western Australia v Skaines [2006] WASCA 160
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Townsend v The Queen [2001] WASCA 249
Tulloh (2004) 147 A Crim R 107
Worth v The Queen [2001] WASCA 303
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1 STEYTLER P: I agree with Miller AJA and with the additional comments of McLure JA.
2 McLURE JA: I agree with Miller AJA that the appeal should be dismissed. The facts and grounds of appeal are detailed in the judgment of Miller AJA and not repeated here.
3 In his plea in mitigation, the appellant's counsel relied on The State of Western Australia v Skaines [2006] WASCA 160 in support of his submission that suspended imprisonment was the appropriate disposition for the appellant's conviction on one count of manufacturing methylamphetamine. The sentencing Judge interpreted my reasons in Skaines as identifying pre-conditions which must exist in all cases before a sentence of suspended imprisonment could be imposed for the offence of manufacturing amphetamine. That was not my intention. As stated in my reasons (at [51]) the facts therein identified (the appellant's comparatively minor role, his clean record and his early guilty plea and genuine remorse) were essential but not themselves sufficient inthat case to depart from the type of sentence ordinarily imposed for the offence. However, what is capable of being sufficient can vary from case to case.
4 The position is that a sentence of immediate imprisonment is ordinarily imposed for manufacturing methylamphetamine. Suspended imprisonment is, as a matter of fact, exceptional. Whether or not a specific combination of factors in a particular case renders suspended imprisonment appropriate must be assessed by the sentencing Judge having regard to all relevant sentencing factors: Collins v The State of Western Australia [2007] WASCA 108.
5 However, the sentencing Judge was correct not to impose a sentence of suspended imprisonment in this case. The offence is very serious and the frequency of offending in this State is unacceptably high. The appellant played a key role in the manufacture of the methylamphetamine in that he purchased ingredients, harboured equipment used for manufacturing methylamphetamine, knew the drugs manufactured were for sale to third parties and tried to dispose of equipment which connected him to the manufacture. Further, the appellant had prior convictions for burglary (eight counts) and fraud (116 counts). Between 6 February 2003 and 7 July 2005 the appellant was also convicted of the offences of unlawful possession (13 counts), stealing (17 counts), burglary (one count), fraud (97 counts) and receiving (two counts). These convictions were for offences committed prior to the end of 2003. For all the
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- convictions between February 2003 and January 2005 the appellant received either an intensive supervision order or suspended imprisonment.
6 There was evidence that the appellant had been rehabilitated from his drug addiction. The appellant pleaded guilty in February 2006 which was not an early plea but nevertheless was a mitigating factor. The delay between the commission of the offence and sentencing is only significant because the appellant used part of the delay to facilitate his drug rehabilitation. However, notwithstanding the mitigating factors in this case, the seriousness of the offence, the significant role played by the appellant, and the weight properly accorded to general deterrence for offences of this type means that a term of immediate imprisonment is the only appropriate sentencing option. Sentences of immediate imprisonment are ordinarily imposed for serious drug offences even if the offender has a clean or minor criminal record. The appellant is certainly not in that category.
7 Further, I agree with Miller AJA for the reasons he gives that the sentence of 4 years is not manifestly excessive. The sentences imposed for serious drug offences such as trafficking and manufacturing have firmed up in recent years: Ditri v The State of Western Australia [2006] WASCA 283; Dixon v The State of Western Australia [2006] WASCA 255; Dann v The State of Western Australia [2006] WASCA 254. Offenders close to the source of manufacture of prohibited drugs are properly regarded as more culpable than offenders involved closer to the retail level.
8 MILLER AJA: The appellant came before the District Court at Perth on 1 September 2006 on an indictment which alleged that, between 29 July 2002 and 28 January 2003 at Perth, he manufactured a prohibited drug; namely, methylamphetamine. This was an offence against s 6(1)(b) of the Misuse of Drugs Act 1981 (WA), the maximum penalty for which was a fine of $100,000 or imprisonment for 25 years, or both.
9 The applicant pleaded guilty and, after hearing submissions, Williams DCJ sentenced him to 4 years' imprisonment with eligibility for parole, with the sentence to commence on 15 July 2006.
Grounds of appeal
10 The appellant has been granted leave to appeal to this Court on three grounds:
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- (1) The learned sentencing Judge erred in considering that the sentence of imprisonment could only be suspended if the appellant met various preconditions.
(2) The learned sentencing Judge erred in failing to suspend the sentence of imprisonment.
(3) In the alternative, the sentence was manifestly excessive and failed to reflect an appropriate discount for mitigating features.
11 The mitigating features were listed in relation to the second and third grounds of appeal. They were:
(a) the length of time since commission of the offence;
(b) the fact that the appellant was not the principal offender and played essentially a passive role;
(c) the appellant's plea of guilty; and
(d) the appellant's proven rehabilitation between the commission of the offence and sentence.
Sentencing
12 The learned sentencing Judge's sentencing comments were extensive. It is unnecessary to canvass all of them. In essence, the learned sentencing Judge pointed out the following:
• The appellant had acquired a quantity of iodine at a chemical company in Welshpool. Iodine is an ingredient in the manufacture of methylamphetamine.
• The appellant was observed on 28 January 2003 to be taking various items from a house used as a storage location by his former mother-in-law. These items included flasks, rubber seals, funnels, iodine, hydriodic acid and a bottle which contained 30 ml of a liquid marked "failed batch".
• On 28 January, police seized a number of items at the mother-in-law's house and at the appellant's residence in Leederville. A quantity of iodine was also located at a site near the Leederville tennis club.
• There was evidence that, of the items seized by the police, a substantial number were associated with the
- manufacture of methylamphetamine. Seven items actually tested positive to methylamphetamine.
- • Expert opinion established that, from the iodine located near the Leederville tennis club, a yield of 257 grams high purity methylamphetamine chloride would reasonably be expected to be produced.
13 The appellant was interviewed by investigating police on two occasions. In one of the interviews he contended that he was holding materials for another person and he had entered into an arrangement to assist this person by purchasing chemicals. His reward was to have been ecstasy tablets. He said that he stored the property for some months as part of the arrangement. He received 50 ecstasy tablets for his assistance.
14 The learned trial Judge held that the appellant played a substantial role in the manufacture of amphetamine and was not a mere assistant who had been responsible only for storage. This conclusion was based upon a concession by counsel for the appellant that the prosecution case in that respect was correct.
15 The learned trial Judge pointed out that counsel for the appellant had accepted that the starting-point was a term of imprisonment and the ultimate question was whether or not that term should be suspended. The learned trial Judge took into account four primary factors. They were, first, that the offence had occurred three and a half years prior to the date of sentencing; second, that the appellant was a 40-year-old former medical practitioner, whose career had been terminated because of drug addiction; third, the appellant had a bad record of convictions between 1997 and 2003; and, fourth, that the appellant had been granted re-registration as a medical practitioner in May 2006 and, as a condition of re-registration, was required to undertake medical treatment. He had, thus, shown rehabilitation.
16 Since the learned sentencing Judge dealt with the matter, the appellant's name has, once again, been removed from the register of medical practitioners. In the State Administrative Tribunal on 30 April 2007, the tribunal found that, by reason of the appellant's conviction in the District Court on 1 September 2006, he was unfit to practise as a medical practitioner.
17 The learned trial Judge pointed to authority which established that the dominant sentencing consideration in cases of this nature is deterrence: Pallister (2002) 131 A Crim R 452.
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18 The learned trial Judge took into account mitigating factors. The first was that the appellant had pleaded guilty. The plea had been entered in 2006, which the learned sentencing Judge said was "not an early plea", but, nevertheless, justified a discount in sentence. The second was that there was clear evidence of the appellant's rehabilitation.
19 The learned trial Judge took the view that an appropriate sentence before deduction of one-third in accordance with the transitional provisions was 6 years' imprisonment. After the deduction of one-third, it became a sentence of 4 years' imprisonment.
20 The learned trial Judge considered the question of suspension of sentence. In doing so, he felt bound by the observations made by McLure JA in The State of Western Australia v Skaines [2006] WASCA 160. There her Honour had referred to a number of what she termed "essential preconditions" in the case before her. I have read the judgment of McLure JA in this case, and I respectfully agree that, in Skaines, her Honour was not laying down any rule that certain essential preconditions were required in cases of this nature before a suspended sentence could be imposed. They were not guidelines or restrictions upon the discretion to impose a suspended sentence. That discretion remains at large: Dinsdale v The Queen (2000) 202 CLR 321.
21 The learned sentencing Judge was particularly influenced by the fact that there were five "essential preconditions" missing in the present case. They were the absence of any prior convictions of the appellant; the substantial role of the appellant in the offence rather than a "comparatively minor role"; the absence of a plea of guilty at the earliest opportunity; the absence of any psychiatric condition which caused the commission of the offence; and the fact that the appellant had prior convictions and it could not therefore be said that his conduct was "out of character".
22 The learned sentencing Judge concluded that, in all the circumstances, he should not exercise his discretion in favour of suspension of sentence. He felt that the essential preconditions referred to by McLure JA were not met and, having regard to the appellant's prior convictions and substantial role in the offence, it was not a case for suspension.
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Error in approach to suspension of sentence
23 Counsel for the appellant contends that the learned trial Judge misunderstood the effect of the decision in Skaines, arguing that McLure JA did not seek to lay down a rule that essential preconditions were required in all cases of this nature before a suspended sentence could be imposed. Counsel argued that there are no guidelines or restrictions placed upon the discretion to impose a suspended sentence: Dinsdale v The Queen (2000) 202 CLR 321.
24 Counsel for the appellant conceded that the matters to which McLure JA had referred in Skaines were relevant, but contended that each case called for an independent exercise of discretion and no statement of law to constrain that discretion was intended.
25 The submission of counsel for the appellant is correct. The judgment of McLure JA in Skaines (with which Buss JA agreed) is not to be taken as establishing any new principle. The case was a State appeal against sentence, where a suspended sentence had been imposed, being a sentence of 4 years 8 months' imprisonment suspended for 2 years. McLure JA (with some hesitation) agreed with Roberts-Smith JA that the appeal should be dismissed. Her Honour pointed out that a suspended sentence for the offence in question (conspiring to manufacture methylamphetamine) could only be appropriate if it fell within the category of a case calling for the exercise of mercy: R v Osenkowski (1982) 30 SASR 212, per King CJ at 212. Her Honour referred to matters which were "an essential precondition to any exercise of mercy", being a minor role in the commission of the offence, no relevant prior convictions, an early plea of guilty and genuine remorse. Her Honour found other factors to be present, which included a psychiatric illness, the fact that the conduct was out of character and the fact that imprisonment would cause greater than usual hardship to the appellant. In addition, the evidence established that the appellant was the sole carer of two dependent children, one of whom required particular attention.
26 In all these circumstances, one can easily see how Skaines was considered to be a case which called for an exercise of mercy and put it in an exceptional category. The learned sentencing Judge took the case to be authority for the need for essential preconditions before suspending a term of imprisonment and in this respect he was in error. By reason of the fact that the learned sentencing Judge has been shown to have erred in the way in which he approached the question of suspension of sentence, the matter calls for reconsideration before this Court.
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Comparable cases
27 Counsel for the appellant concedes that there have been a number of recent cases in which sentences approximating 6 years have been imposed for the offence of manufacture of methylamphetamine. They are Lim v The Queen [1999] WASCA 296; Cabassi v The Queen [2000] WASCA 305; and Worth v The Queen [2001] WASCA 303. Each of these cases arose before the transitional provisions contained within the Sentencing Legislation Amendment and Repeal Act 2003 (WA) which amended the Sentencing Act1995 (WA) and the Sentence Administration Act 2003 (WA) to require all sentences to be reduced by one-third. The cases of Lim, Cabassi and Worth are not the only cases which have dealt with the offence of manufacture of methylamphetamine in recent years. There are other cases in which sentences of the order of 4 years were either upheld or imposed. Some of these cases involve sentences imposed before the introduction of the transitional provisions. However, converting those cases to the equivalent of sentences now to be imposed under the transitional provisions, the following are cases in which sentences of the order of 4 years were either upheld on appeal or resulted from successful appeals: Bolton v The State of Western Australia [2006] WASCA 120 (3 years 4 months); Headley v The Queen [2004] WASCA 88 (5 years); Brady v The Queen [2003] WASCA 154 (4 years); Abela v The Queen (2002) 134 A Crim R 392 (4 years 8 months).
28 In cases of conspiracy to manufacture methylamphetamine, sentences ranging between 4 and 8 years have been imposed. In Dodd v The Queen [2002] WASCA 55, the sentence was 4 years, but the operation was small in scale. In Townsend v The Queen [2001] WASCA 249, the sentence was 8 years, but the offender was the principal organiser of a conspiracy and a huge quantity of the drug could have been manufactured. These sentences were under the old regime and have been converted in accordance with the post-transitional provisions.
29 In Tulloh (2004) 147 A Crim R 107, at [21], the Court pointed out that comparable cases provide guidance on appropriate sentences, but the facts vary widely and have to be applied with considerable care. Sentences imposed almost invariably reflect the quantity of the drug involved. Much the same can be said in relation to the cases to which I have referred. In some instances, the manufacture was of a specified quantity of methylamphetamine, but in others the methylamphetamine had not yet been produced or, if produced, may have been either a substantial quantity or a small quantity. The sentences also reflect various factors personal to the offender in each case.
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30 Nevertheless, taking a line through the decided cases, it can be seen that a sentence of 4 years' imprisonment (under the transitional provisions) is nowhere near demonstrably excessive in the circumstances of the present case.
31 On behalf of the appellant, it is submitted that in Lim, Cabassi and Worth the offender was a principal and there was an operating laboratory at the time of arrest. Had the police not intervened, the manufacture of methylamphetamine would have continued. It is argued that, in the present case, the appellant played a much lesser role.
32 In my view, the learned sentencing Judge correctly concluded that the appellant had not played a "comparatively minor" role in relation to the offence. Rather, his role was substantial. This fact had been accepted by defence counsel during the course of sentencing submissions, when the following exchange occurred between the learned sentencing Judge and counsel:
"YOUNG, MR: ... We don't dispute what was put forward as a suggestion that he had a perhaps a [sic] fairly significant role in the event but we would not say he was a principal offender. We would say it could be classified as having played a lesser role in the - - -
WILLIAMS DCJ: So what do you accept? He played a significant role?
YOUNG, MR: A significant role but certainly something less than the principal."
33 Later, counsel for the appellant made the following concession:
"YOUNG, MR: Yes. Perhaps we can just flesh out this issue of his level of involvement. Again I don't dispute that it was going to be characterised as a significant involvement ... "
34 The learned sentencing Judge was correct to reach the following conclusion in his sentencing remarks:
"Mr White had a substantial role in the manufacture of the methylamphetamine and that is accepted by Mr Young on behalf of Mr White and that is the basis on which I proceed to do the sentencing in relation to this matter."
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35 Whilst it is true that counsel for the appellant used the word "significant" and the learned sentencing Judge said "substantial", nothing turns on this. The words mean the same thing in the context in which they were used in this case.
Grounds of appeal: Ground 1
36 The argument of counsel for the appellant was concentrated on ground 1. It was contended that, in all the circumstances, the term of imprisonment imposed by the learned sentencing Judge ought to have been suspended. For my part, I cannot accept that submission. Manufacture of methylamphetamine is an extremely serious offence in society. The maximum term of imprisonment of 25 years, provided for after conviction pursuant to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA), indicates Parliament's concern about the seriousness of the offence.
37 It has been said many times in this Court that manufacturing drugs (particularly methylamphetamine) for profit and distribution in society is an offence for which a substantial penalty should be imposed. In my view, the seriousness of the offence of manufacture of methylamphetamine is such that, in the circumstances of this case, it would have been inappropriate to have suspended the sentence of imprisonment. The appellant had previously been sentenced to periods of imprisonment which were suspended. Such sentences were imposed in July 2005 for receiving and stealing, and in February 2003 for burglary. There is nothing to suggest that those terms of suspended sentence were not served out. However, given the circumstances of the commission of the offence and the appellant's prior record of convictions, a finite sentence of imprisonment to be served immediately was inevitable. In my view, the first ground of appeal should be dismissed.
Grounds of appeal: Ground 2
38 The second ground of appeal, which contends that the sentence of 4 years' imprisonment was manifestly excessive, was only faintly argued by counsel for the appellant. In written submissions, reference was made to three cases which were said to be comparable. These I have already referred to, but they need to be considered in more detail. Two were concerned with manufacture of methylamphetamine and one with manufacture of amphetamine. The first case was Lim (supra), where the Court of Criminal Appeal (Pidgeon, Murray and Anderson JJ) refused to grant leave to appeal against a sentence of 6 years' imprisonment imposed in respect of five counts of manufacturing methylamphetamine, three offences of possession of ecstasy and one of possession of
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- methylamphetamine. The offences of possession were dealt with pursuant to the provisions of s 32 of the Sentencing Act1995. Murray J, at [18] - [19], made reference to the accepted hierarchy of criminality in drug cases:
"The uppermost level is occupied by an importer or manufacturer handling substantial quantities for high profits and making it available for further distribution. Further down the chain one often encounters an intermediary who is effectively a wholesaler and who shields the person or persons at the top of the pyramid by supplying the drug to those who resell it in the community. Of course there are those who become involved also as mere couriers, transporting the drug through the different levels of the chain of distribution.
The higher one gets into the chain of distribution, the more there is a need for punishment and a proper reflection of the principles of particular and general deterrence in the attempt, by imposing appropriately severe punishments, to deter those who promote the drug trade with all its dreadful consequences to victims and the community. In the case of such individuals, circumstances proffered in mitigation have little force to reduce proper punishment … "
"The effect on the young is noted by his Honour, and it can be seen dramatically almost every day in the courts and in the media. Those mature adults involved in the supply cannot be unaware of the effects that this drug has, and all, and especially those who are involved solely for the money, must be aware of the public concern that this type of activity continues. The courts must give effect to a genuine public concern. Matters personal to an offender will often, in these cases, play a
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- secondary role in the sentencing process. Questions of general deterrence will play a greater role ... "
- Unfortunately, little has changed in our society since Anderson J made these comments in 1996. More than 10 years on, the problems of amphetamine abuse, and the ready availability of methylamphetamine in particular, have worsened.
40 In Cabassi (supra), the Court of Criminal Appeal (Pidgeon, Wallwork and Wheeler JJ) dismissed an appeal against a sentence of 7 years' imprisonment imposed for the offence of manufacture of methylamphetamine. This was a case in which sentence was imposed after conviction at trial. The offender was 58 years of age without any prior criminal history and had a number of impressive references directed to his character, previous hard work and community spirit. He was in financial difficulties and entered into a plan for the manufacture of methylamphetamine to overcome those difficulties. He and a co-offender were interrupted in the course of manufacture, and at a time when they had made only 1.4 grams of methylamphetamine. The sentencing Judge considered that there was the potential to produce 60 grams.
41 Wheeler J, at [10], repeated much of what had been said by Murray J in Lim (supra) and Anderson J in Bellissimo (supra). Her Honour said:
"The manufacturer of a prohibited drug is at the highest end of the chain of supply. Accordingly, the conduct of a person who manufactures a prohibited drug with intent that it be distributed, should be viewed more seriously than the conduct of a person who merely obtains possession of the same quantity of that drug with intent to sell or supply it to another. Indeed, the legislative view of the seriousness of the offence is reflected in the maximum penalty to which I have already referred. The distribution of amphetamines in the community results in very serious consequences for both its consumers and the community generally. The courts have therefore recognised that in sentencing for offences involving the manufacture and distribution of amphetamines, deterrence and the protection of the community are the principal considerations, while matters personal to the offender will be of limited significance ... "
42 In Worth (supra), the appellant had pleaded guilty to one count of manufacturing amphetamine and had been sentenced to 6½ years' imprisonment. Roberts-Smith J (with whom Wallwork J and Einfeld AJ agreed) allowed an appeal against sentence on the basis that a greater
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- discount for the plea of guilty was called for than that allowed by the sentencing Judge. The sentence was reduced to one of 5 years 6 months.
43 As I have previously pointed out, each of Lim, Cabassi and Worth was decided prior to the introduction of the transitional provisions and the sentences under review in each of those cases must be considered in that light. Nevertheless, it seems to me that, in all the circumstances, the sentence of 4 years' imprisonment imposed on the present appellant was within the range of sentences that could be expected for the offence of manufacture of methylamphetamine. The three cases to which I have referred are now several years old and since that time there has undoubtedly been a firming-up of sentences in drug cases generally. This is particularly so in cases of possession of methylamphetamine with intent to sell or supply because manufacture of methylamphetamine puts the offender at the top of the hierarchy of criminality in drug cases. There is every reason why sentences imposed for that offence should be severe deterrent sentences. I would dismiss the second ground of appeal.
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