R v Drury[2005] QCA 187

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant, Mr Drury, pleaded guilty on 10 February 2005 at the Toowoomba Circuit Court to four counts of producing a dangerous drug (methylamphetamine), one count of possessing instructions for producing methylamphetamine, four counts of possessing things used in connection with producing methylamphetamine and three counts of possessing methylamphetamine.  On count 10, the fourth count of producing methylamphetamine, he was sentenced to three years imprisonment suspended after serving 15 months imprisonment with an operational period of four years.  He was sentenced to lesser concurrent terms of imprisonment in respect of the remaining offences.  He applies for leave to appeal against his sentence which he contends is manifestly excessive.

Mr Drury pleaded guilty at an early stage to an ex officio indictment before drug analysis certificates on some charges were available.  He was 36 years old at sentence.  He had some, but not an extensive criminal history.  He was first convicted as a teenager in Queensland in 1986 for an offence of break and enter a dwelling house with intent committed in 1984 and was placed on 12 months probation.  Fourteen years later, in March 2000 in the Cunnamulla Magistrates Court, he was convicted of assault occasioning bodily harm and placed on a $200 good behaviour bond for six months.  He also had some minor history of traffic, street and summary offences in both Queensland and New South Wales.  He had not previously been sentenced to imprisonment and had no previous convictions for drug offences.

Mr Drury had spent a total of 205 days (almost seven months) in pre-sentence custody which could not be the subject of a declaration under s 161 of the Penalties and Sentences Act 1992 (Qld). 

The offences involved his persistent production of methylamphetamine as an addict for his own use, an offence which, concerningly, seems to be coming more common.  The offences occurred in four distinct periods.  The first group of offences was committed on 8 October 2003 when Toowoomba police executed a warrant on Mr Drury's home.  He was the only occupant and he was detained.  Police located a clandestine drug laboratory in a room to the right of the doorway.  The laboratory consisted of a thermostatic controlled electric heater, a glass reaction vessel and a condensing tube and was operating at the time and producing methylamphetamine.  It was described as a well set up working laboratory with all the products necessary to produce methylamphetamine as well as a folder of documents with instructions on how to produce the drug.  Whilst the police were executing the warrant two other offenders, McTaggart and Shanks, arrived.  Police found further equipment including packets of Sudafed in their vehicle.  Mr Drury declined to take part in a police record of interview.  He was charged and released on bail.

The second group of offences (counts 4 to 6) occurred on 6 February 2004 when police investigated a single vehicle car crash in which Mr Drury was the driver and sole occupant on the Gore Highway south of Toowoomba.  Police found a blue case containing a plastic home-made device for use in a methylamphetamine laboratory and a quantity of caustic soda, Demazin tablets and other equipment used in the manufacture of methylamphetamine.  Police then executed a warrant on his Oakey residence where they found other substances used for manufacturing methylamphetamine.  Mr Drury was released on bail again. 

Police executed another warrant on his premises on 23 March 2004 which resulted in him being charged with summary offences relating to possession of a water pipe and nunchakus.  This is relevant only in that this unlawful conduct was also committed on bail.

The third series of offences (counts 7 to 9) occurred in this way.  On 19 April 2004 Mr Drury failed to appear in the Magistrates Court.  He was dealt with for that breach of bail  but not punished on the 3rd of June 2004 after he had been located in another police raid on his home.  On that occasion he was found in possession of equipment which constituted a clandestine home laboratory and substances including Sudafed tablets.  He told police he had purchased the equipment the day before and "done a cook" that afternoon.  He was in possession of a small quantity of methylamphetamine that he had made the night before together with some spoons with a white residue on them and 20 syringes at various locations in the house.  Mr Drury apologised for not disposing of them properly.  The white powder was analysed as methylamphetamine. Mr Drury was then remanded in custody until his release from bail again on 20 September 2004.  By this time he had indicated that he would be pleading guilty to all matters and requested that the offences be dealt with by ex officio indictment.  Unfortunately, there was a delay because the certificates of analysis had not been prepared. 

The fourth series of offences (counts 10 to 12) occurred on 6 November 2004 when police were patrolling in Toowoomba and intercepted Mr Drury driving his car.  They searched him and found a small glass stopper which appeared to be from a piece of laboratory equipment.  They then searched the vehicle and found laboratory equipment and substances used in the production of methylamphetamine and empty boxes of Sudafed. A yellowish coloured liquid was also found in a coffee plunger which appeared to be the by-product of the methylamphetamine cooking process.  Mr Drury again declined to be interviewed.  He was arrested and remanded in custody until sentence. 

The prosecutor at sentence urged the learned primary judge to impose a sentence on count 10 (the last count in time of producing methylamphetamine which had been committed whilst he was on three grants of bail and awaiting sentence on similar offences) to reflect the overall criminality of all his offending.  He submitted that a sentence of three years imprisonment reduced from the otherwise appropriate sentence of four or five years imprisonment would adequately reflect the mitigating factors of the plea of guilty and the time in pre-sentence custody.

Mr Drury's counsel at sentence emphasised the following matters.  Mr Drury has now separated from his partner with whom he has two children aged 12 and 10 and with whom he maintains contact.  He grew up in Cunnamulla and was educated to grade 10, later matriculating through TAFE.  He commenced but did not complete a Bachelor of Science degree and then worked very hard as a shearer with his partner who was a wool classer.  They were paying off two houses on a vendor finance arrangement but when the vendor became bankrupt the bank repossessed the properties.  This was a disaster, both financially and in terms of Mr Drury's personal relationship with his partner and children.  He and his partner and children had lived in one house and his father lived in the other.  His father was then diagnosed with cancer of the jaw. His partner sought solace in alcohol and left with the children.  Mr Drury stayed to care for his father in Oakey.  It was in these circumstances that he came to use and abuse methylamphetamine.  His father has subsequently died.

Mr Drury's counsel emphasised that all the offences concerned methylamphetamine for his personal use.  There was no commercial element.  He was extremely cooperative with the administration of justice.  He had, at sentence, rehabilitated himself.  He plans to return to his previous law abiding hard working lifestyle.  Counsel urged the learned sentencing judge to further ameliorate the sentence proposed by the prosecution by suspending it after about one-third or at least up to less than half of the sentence. 

Ms McGinness, who appears for Mr Drury on this application, contends that despite the sentence requested by defence counsel at sentence, the penalty imposed failed to adequately reflect that the methylamphetamine produced was solely for Mr Drury's personal use in circumstances where he was severely addicted to it.  Even taking into account his continued offending whilst on bail, she contends the starting point for such offending was not five years but two to three years imprisonment, that the sentence must then be further reduced to take into account his plea of guilty on an ex officio indictment and the 205 days spent in pre-sentence custody.  She contends a sentence of between 18 months and two years suspended after five months should be substituted.  This would mean that he serve a total of 12 months imprisonment and is consistent with comparable sentences. 

Methylamphetamine became a schedule 1 drug under the Drugs Misuse Act 1986 (Qld) in September 2001.  The maximum penalty for the most serious of the offences to which Mr Drury pleaded guilty was 25 years imprisonment (possession of instructions).  The maximum penalty for each charge of production of methylamphetamine was 20 years imprisonment.

Both counsel have referred us to numerous authorities of this Court but none can be said to realistically compare to the unusual combination of facts here where Mr Drury, who had no relevant prior convictions, persistently reoffended whilst on bail, yet the production of the methylamphetamine was apparently only in small quantities for his own use and did not have a commercial element.

Perhaps the case of most assistance is that of R v Griffiths, [2003] QCA 79; CA number 348 of 2002, 7 March 2003.  Griffiths did not continue to reoffend whilst on bail as often as Mr Drury.  He seemed to have achieved a higher degree of rehabilitation and at the time of his offences methylamphetamine was still a schedule 2 drug.  But Griffiths' offences of production of methylamphetamine occurred during the operational period of a suspended sentence of three years imprisonment for similar drug related offending.  The total amount of methylamphetamine involved was considerably more than here, 4.671 grams.  Griffiths committed two series of separate offences constituting breaches of the suspended sentence.  There was strong evidence of a two year period of drug free rehabilitation prior to sentence.  As here, there was no commercial element.  At first instance, the full period of the suspended imprisonment was activated and Griffiths was sentenced on the new offences to four and a half years concurrent imprisonment with no recommendation for early release or suspension.  He had spent 236 days or about nine months in pre-sentence custody in respect of the subsequent offences which was the subject of a declaration under the Penalties and Sentences Act 1992 (Qld).

This Court allowed the appeal and instead of the sentences originally imposed ordered that Griffiths serve six months of the suspended imprisonment and imposed an effective term of three years imprisonment suspended after serving six months imprisonment with an operational period of four years.  With his pre-sentence custody, Griffiths was released after serving about 15 months in actual custody.

Mr Drury was a mature man at sentence who apparently became amphetamine addicted in mid life following financial and personal hardship.  His commission of these offences was related to his personal addiction and did not have a commercial element.  Although he had some criminal history, it was relatively minor and not drug related.  It is concerning that he persistently reoffended whilst on bail and even whilst awaiting sentence.  But this perhaps reflects the insidious and desperate nature of his addiction.  He had spent 205 days, almost seven months, in pre-sentence custody which could not be the subject of a declaration.  He pleaded guilty by ex officio indictment and without drug analysis certificates in respect to many of the offences.  This demonstrated considerable cooperation with the administration of justice.  It seems that he has reasonably promising prospects of rehabilitation now that the chain of addiction has been broken by a substantial period in custody.  This has provided an opportunity for drug free reflection and has helped him gain insight into his previous unattractive drug-hazed lifestyle.  Because of his pre-sentence custody of seven months imprisonment, the sentence imposed below was effectively one of three years and seven months suspended after 22 months imprisonment. 

The sentence substituted by this Court in Griffiths and also that substituted by this Court in R v Armstrong [2005] QCA 116; CA number 83 of 2005, 15 April 2005 support Ms McGinness's submission that Mr Drury's sentence was manifestly excessive taking into account his lack of prior convictions for drug related offences, the small quantity of methylamphetamine found, the absence of any commercial element and his cooperation with the authorities.  Nevertheless, his sentence must reflect the seriousness of his persistent offending whilst on many grants of bail. 

I would grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence imposed on count 1, substitute a sentence of 12 months imprisonment suspended after serving three months imprisonment with an operational period of two years; on counts 5 and 7, a period of 18 months imprisonment suspended after serving six months imprisonment with an operational period of two years and on count 10, two years imprisonment suspended after six months with an operational period of three years.  On counts 4, 6, 8, 9, 11 and 12 I would substitute a period of imprisonment of six months.  I would otherwise confirm the sentences imposed at first instance. 

WILLIAMS JA:  The persistent offending by producing a schedule 1 drug on four occasions is off set to a significant extent by the concession that the production was of small quantities to satisfy his dependency.  Given the fact that he had no prior drug convictions and given the circumstances giving rise to his drug dependency I agree that the sentences imposed were manifestly excessive.  That is particularly so because he had already served seven months in custody which could not be taken into account as part of the sentence imposed.

I agree that the sentences, as detailed by the President in her reasons, should be imposed.  I agree with the orders she proposes.

ATKINSON J:  While a non-custodial sentence is within range for a first offence of producing the dangerous drug, methylamphetamine, for personal use, the persistent nature of the applicant's offending, including whilst on bail, makes the sentence of imprisonment to be actually served inevitable in this case. 

I agree with the sentences proposed by the President and with her Honour's reasons for granting the application and allowing the appeal.

THE PRESIDENT:  The orders are as I have proposed.