R v Day & Gill[2005] QCA 100

SUPREME COURT OF QUEENSLAND

WILLIAMS JA:  I will ask Justice Philippides to deliver the first judgment.

PHILIPPIDES J:  On 7 February 2005 Sharon Leigh-Anne Gill and Clinton Day were sentenced on their pleas in respect of a number of drug offences.  The applicants were jointly charged with the following offences:  count 1, unlawful production of the dangerous drug methylamphetamine; count 2, unlawful possession of the dangerous drug methylamphetamine in a quantity exceeding 2 grams; count 3, possession of a mobile phone used in connection with the commission of the crime of supplying a dangerous drug; count 4, possession of chemicals used in connection with the commission of the crime of producing a dangerous drug.  And in addition Gill was charged with unlawful possession of a document containing instructions about the way to produce the dangerous drug, methylamphetamine.

In respect of count 1, the production charge, Gill was sentenced to three years' imprisonment suspended after 12 months for an operational period of five years.  Day was sentenced to three and a-half years' imprisonment suspended after 18 months for an operational period of five years.  In respect of count 2, the possession of methylamphetamine in a quantity exceeding 2 grams the applicants were each sentenced to 12 months' imprisonment suspended after four months for an operational period of three years.  Concurrent sentences of six months' imprisonment were imposed in respect of counts 3 and 4.  Gill was additionally sentenced to a concurrent sentence of six months' imprisonment for count 5.

The applicants seek leave to appeal against the sentences imposed in respect of count 1 on the basis that they were manifestly excessive.  The offences were detected on 25 October 2003 when a vehicle driven by Day and in which Gill was a passenger was randomly stopped by police.  The police noticed the smell of cannabis in the vehicle and in the course of speaking with Gill she provided them with a small tin containing a quantity of cannabis.  That, however, does not form a particularised charge.

The police also found a quantity of 3.818 grams of methylamphetamine powder which was packaged into three clip-seal bags, having a pure weight of 2.63 grams.  That concerns the count 2 offence of possession of methylamphetamine.  Police also seized from Gill a mobile phone which is the subject of count 3 and which contained a number of text messages.

The learned sentencing Judge found that the text messages on the mobile phone could only be construed as indicating that Gill was involved in the production of methylamphetamine, that is actively involved.

The police also located some further drug paraphernalia including plastic bags, small spoon, water pipes for smoking cannabis and a packet of 30 Actifed tablets which further alerted their suspicions.  After the applicants were apprehended further information was obtained by police which indicated the applicants had been residing on a rural property at a place called Moore, past Esk. 

Sometime earlier Day's father had apparently arranged for Gill to reside at the property in order for him to attempt to overcome his drug habit.  It was accepted by the learned sentencing Judge that Day, who had a criminal history which included drug offences, had a long-standing amphetamine addiction.

Upon searching the property police located a rudimentary set-up for a drug laboratory for the production of amphetamines.  Police also located items and chemicals used in connection with such production including caustic soda bottles, hydrochloric acid, methylated spirits, empty tablet boxes of Actifed, a pre-cursor for methylamphetamine production and glass beakers.  In addition, police found a hand-written note in the applicant's handwriting which was a recipe for the production of methylamphetamine.

Gill was 25 years of age at the time of the offences and 26 at sentence.  Day was 33 years of age at the time of the offences and 34 at sentence.  The applicants entered early pleas and there were full hand-up committals.  They made statements to police in which some admissions were made.  They gave police an address which turned out to be incorrect and after the location of the laboratory declined to be further interviewed.

Before the learned sentencing Judge it was submitted on behalf of the applicants that they had been approached by acquaintances and pressured into permitting those acquaintances to use the premises for the purposes of the production of the methylamphetamine.  It was said that Day was indebted to the acquaintances in respect of damage to a vehicle and was under pressure to pay for the damage and that as a means of working off the debt it had been agreed that the premises be used for the production of the drugs but only by the applicants' acquaintances and that the applicants were not themselves involved.

However, his Honour, as he was entitled to do, was not prepared to accept those assertions in the absence of supporting evidence that the applicants were simply providing facilities for others to use.  His Honour sentenced the applicants on the basis that they were actively involved in the production of the methylamphetamine.

In distinguishing between the sentence to be imposed on each applicant in respect of the production count his Honour took into account the fact that only Day had a prior criminal history.  However, although Gill had no prior convictions his Honour sentenced her on the basis that she was actively involved in the production of the drug.  His Honour noted the personal antecedents of the applicants including that they had the care of a four-month old child of their own and that Day had the care of two other children from a previous relationship.

His Honour also took into account the fact that Day had a long-standing drug addiction and that he had resorted to methylamphetamine to self medicate in respect of his attention deficit syndrome.  He had apparently been prescribed Dexamphetamine which he was subsequently unable to obtain because he permitted his brother to use the script he had for those drugs.  In those circumstances he was resorting to the use of methylamphetamine in part sourced from the production on the property.

At sentence the prosecution contended that on count 1 the relevant sentencing range was one of between three to four years' imprisonment, bearing in mind that a schedule 1 drug was involved and that the text messages suggested that the production was not for personal use.

On behalf of the applicants it was submitted that the sentences imposed were manifestly excessive and that his Honour erred in failing to take into account adequately the plea, the fact that an unsophisticated set-up was involved, the matter of Day's addiction and the matter of Gill's having no prior convictions. 

It was contended that the appropriate sentencing range in respect of the production count was, in the case of Gill, one of 18 months to two years' imprisonment wholly suspended, and in the case of Day, one in the vicinity of two years' imprisonment suspended after six to nine months' imprisonment.  Counsel referred to the following authorities as comparatives, R v Woods [2004] QCA 204, R v Lau [2002] QCA 542, R v Clapham [2003] QCA 418, R v Jeffs [2005] QCA 035 and R v Bagnall [2005] QCA 020.

On behalf of the respondent, it was submitted that the sentences imposed in respect of count 1 were appropriate for the commercial production of a schedule 1 drug and that his Honour erred in not finding that there was a commercial reason for the production.  It was said that while the laboratory was rudimentary the text messages suggested that it was capable of producing a considerable quantity of the drug and that in addition Gill, unlike Day, was not a drug addict.

As to the issue of commerciality, whilst his Honour made no express finding, except to refer with apparent acceptance to the submission that Day was not to receive any financial benefit other than the notional payment of the debt for the damage to the car, it is clear that his Honour proceeded on the basis also of the inferences to be made from the text messages which were contained on the mobile phone which Gill had.  The text messages were viewed by the Judge as excluding the proposition that the applicants were not personally involved and implying that there was a commercial element to the production.

The acceptance also of the proposition by his Honour that the applicants had a purpose of discharging the debt for the damage to the car and financing the debt in that fashion through the production also, in my view, sufficiently points to a commercial element.  I note that counsel for the applicants stated at sentence that even on his instructions the financing of the debt in this fashion indicated there was a commercial element, albeit not in the traditional sense.

Counsel for the respondent contended that the sentences imposed in respect of count 1 were within the appropriate sentencing range which it was said was in the case of Gill in the order of two and a-half to three and a-half years' imprisonment with a recommendation or suspension after 9 to 15 months, and in the case of Day in the order of three to four years' imprisonment with a recommendation or suspension after 12 to 18 months.  In this regard counsel referred to decisions such as R v Hall [2002] QCA 438, R v Welch [2002] QCA 36 and R v Woods [2004] QCA 204.

Some of these decisions are of not great assistance because they involved a sentence imposed when the drug was not a schedule 1 drug.  In this category is Welch, where a sentence of three and a-half years' imprisonment, suspended after 15 months for an operational period of three and a-half years was imposed in respect of the commercial production of methylamphetamine in circumstances where up to 40 grams of the drug could have been produced but where nothing had, in fact, been produced.

Also in the same category of the drug being a schedule 2 drug at the time of the offending is Lau.  That case concerned a chemist who sold large quantities of Sudafed tablets and iodine to an undercover police officer.  He pleaded to four counts of production of methylamphetamine and was sentenced to three years' imprisonment suspended after nine months for an operational period of five years.  The offender there was caught under the extended definition of production and had no active involvement in the production.

Jeffs was also such an offender who was caught under the extended definition of production, however that was a case where sentence was imposed on the basis that the drug was at the relevant time a schedule 1 drug and reflects the more severe sentences imposed after the reclassification of the drug.  In Jeffs a sentence of four years' imprisonment with a recommendation for post prison community based release after 18 months was imposed on appeal on an offender with a criminal history who pleaded guilty to unlawful production of methylamphetamine in circumstances where his participation in the production was confined to purchasing Sudafed for a small profit.

More lenient sentences have been imposed in respect of a production offence where a commercial element is not present.  This can be seen in relation to the cases of Clapham and Hall.  They concern the offences where the drug was, at the relevant time, a schedule 2 drug but nevertheless reflect the fact that more lenient sentences are imposed where a commercial element is lacking.

In the circumstances I consider that the sentences imposed were within the appropriate sentencing discretion as reflected in the authorities, given that the production involved a commercial element and whilst there was no specific statement to that effect, that is that there was a commercial element present, it is implicit in what his Honour said in his sentencing remarks that he was proceeding on that basis.

Furthermore, the significant matters which differentiated Gill from Day, being her lack of prior convictions, her age and her lack of drug dependency were, as submitted by the respondent, properly accommodated in the lesser sentence she received as reflected in both the head sentence and the period required to be served.

Whilst it was also within the sentencing discretion to have imposed a more lenient sentence and the sentences imposed were at the higher end of the range particularly in the case of Gill, nevertheless the sentences imposed cannot be said to be manifestly excessive.  I would dismiss the applications for leave.

WILLIAMS JA:  I agree.

KEANE JA:  I agree.

WILLIAMS JA:  The order is that the applications are dismissed.