R v Welch[2002] QCA 36

COURT OF APPEAL

DAVIES JA

McPHERSON JA

WILLIAMS JA

CA No 299 of 2001

THE QUEEN

v.

MICHAEL JOHN WELCHApplicant

BRISBANE

DATE 19/02/2002

JUDGMENT

DAVIES JA:  I will ask Justice Williams to deliver his reasons first.

WILLIAMS JA:   This is an application for an extension of time within which to appeal against sentence.  The applicant pleaded guilty on 17 September 2001 to a charge of producing amphetamine, the quantity of which exceeded two grams, that being a circumstance of aggravation for purposes of section 8 of the Drugs Misuse Act.

He was sentenced to imprisonment for a period of three and a half years but it was ordered that that period of imprisonment be suspended after serving 15 months, and the learned sentencing Judge fixed the operational period at a period of two years.

The application for extension of time for leave to appeal against sentence was lodged on 30 October 2001; that is approximately a fortnight out of time.  In my view that could have been overcome if the applicant was able to show any reasonable prospects of successfully appealing against sentence.

So far as the sentence is concerned, it is merely said that the applicant wishes to appeal on the ground that it was manifestly excessive.  In the course of oral argument he indicated that he also now wished to challenge the conviction.

It appears from the remarks of the learned sentencing Judge and the material before this court that police went to the applicant's residence in Cairns because a distinctive odour was noted coming from that place.  It was there found that the applicant had assembled all the relevant components and ingredients necessary for the production of amphetamine; apparently the smell was emanating from some chemical reactions that had or were taking place.

It was noted in the course of the sentencing remarks that the material which was found by the investigating police officers could have led to the commercial production of up to about 40 grams of amphetamine.  It was also noted that the motive for the production was entirely commercial.

The learned sentencing Judge, having observed that up to 40 grams could have been produced, indicated that he was sentencing in relation to the plea of guilty strictly construed, which was merely that the applicant had produced an amount exceeding the two grams.

The point taken by the applicant in relation to his challenge to the conviction was that no actual quantity of amphetamine had been produced and that therefore the circumstance of aggravation had not been established.  He referred to the decision of this Court in Boyd [2001] QCA 421.  Boyd, however, was a conviction after a trial; all relevant evidence was before the court.  Here there was a plea of guilty and in consequence no detailed evidence was led as to the actual production process and what actual quantity of drug, if any, was produced by the chemical reaction that had obviously taken place.  In consequence the plea of guilty is conclusive in this case of the fact that the circumstance of aggravation was established. 

In any event, as was pointed out in Boyd's case, the degree of criminality and therefore the basis on which the producer is to be sentenced is governed by the capacity of the materials to produce a quantity of the drug.  In other words, if the production went according to plan more than two grams would be produced, the sentence would reflect that fact and be greater than if there was only a capacity to produce less than two grams.

The learned sentencing Judge referred in particular to a South Australian authority of Zeimek.  The Crown in their submissions have referred to two decisions of this Court, Green, 372 of 1998 and Denton, 168 of 1999.  In my view they are all authorities indicating that the sentence imposed was within range.  It is true that the applicant only had a very minor criminal history, but it is of some significance that there was a minor conviction for possession of drugs in September of 1993.  As the learned sentencing Judge observed, this was a moderate sentence which duly reflected a discounting for the plea of guilty.

I am satisfied that the sentence imposed was well within range and there is no reasonable prospect of a successful appeal against it.  I would therefore refuse the application for extension of time to appeal against sentence. 

There is, however, one matter which needs to be addressed.  Section 144 of the Penalties and Sentences Act requires the operational period with respect to a suspended sentence to be not less than the term of imprisonment imposed.  Here the operational period was fixed at two years where the sentence imposed was three and a half years. 

The matter was brought on again before the far northern Judge in an attempt to resolve that difficulty.  The view was then expressed that it was intended that the operational period be for a period of two years after the 15 months had been served. But even on that construction section 144 would not be complied with. 

In consequence the Crown has asked this Court to deal with the matter under section 188 of the Penalties and Sentences Act and to reopen the sentence for the purpose of correcting that particular error.

The situation was explained to the applicant, who appeared on his own behalf on the application, and he indicated that there were no specific submissions he wanted to make on that particular issue. 

In the circumstances it appears that the appropriate order is to delete from the sentence imposed below the operational period of two years and in lieu thereof to fix the operational period as the period of three and a half years. 

In the circumstances the orders that I would propose would be: application for leave to appeal against sentence refused; order pursuant to section 188 of the Penalties and Sentences Act that the sentence be amended by deleting the operational period of two years and inserting in lieu thereof an operational period of three and a half years.

In so far as the applicant made an oral application for an extension of time to appeal against conviction I would refuse that application.

DAVIES JA:  I agree with the reasons for judgment of Justice Williams and with the orders he proposes.

McPHERSON JA:  Yes.  I also agree with what has been said by my colleagues and with the order.

DAVIES JA:  The orders are as indicated by Justice Williams.