SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA: The applicant pleaded guilty to one count of producing the dangerous drug methylamphetamine between 22 May and 22 July 2004 and was sentenced to three years imprisonment with parole fixed at 21 July 2008.  That meant that the applicant had to serve 16 months in custody.  Seventeen days pre-sentence custody was declared as time served.  He seeks leave to appeal against that sentence on the ground it was manifestly excessive, and his counsel on the hearing of the application contended that it resulted in a manifestly disparate sentence as between the applicant and co-offenders.

[2] The applicant was the owner of a house in Offham Court, Arundel.  The applicant lived in that home on an intermittent basis, but clearly had lived there on occasions during the period referred to in the indictment.  Police officers searched the premises on 21 July 2004 while investigating another matter.  They discovered a number of indicia consistent with the production of methylamphetamine, including precursor chemicals and equipment.  Subsequent tests proved that methylamphetamine had been produced in the bathroom of the house. 

[3] A number of people lived in the house during the relevant period.  A man named Philson was also charged with a drug offence arising out of the investigation in question.  He was sentenced before the applicant and more will be said about his sentence later.  On the applicant's sentence his counsel referred to the fact that Philson's evidence was that on occasions as many as 15 or 20 people were residing in the house in question.

[4] The Crown prosecutor indicated to the sentencing judge that the prosecution case against the applicant was "restricted to the fact that the process obviously took place on his premises, and that he had some active involvement in at least recruiting Philson to participate in the Sudafed runs."  During submissions by counsel for the applicant the sentencing judge observed: "So on two bases he is convicted then.  He's procured the box runs and provided the premises."  That was not substantially disputed by the applicant's counsel.  A little later in his submissions he said:

"So the defendant's tie to his own home was less than perhaps a person who was living there 24/7 as such.  I certainly can't put up that its just that he had no knowledge because he was receiving some amphetamine for his own struggles that he had with the drug but at the same time it wasn't perhaps as clear a plan and as organised as it might have otherwise been."

[5] The sentencing remarks of Douglas J, who sentenced Philson, were placed before the sentencing judge in this case and those sentencing remarks were referred to both before the sentencing judge and again in this Court.  Relevantly Douglas J there recorded with respect to Philson:

"You were what has been called a, 'box runner', purchasing pseudoephedrine and associated products, which were to be later used in the production of methylamphetamine.

…

Your marriage had disintegrated.  You were living in very hard times, and for some months had been reduced to living in a box trailer.  You had given almost all the proceeds of the sale of the matrimonial home to your wife, and you were not in employment.  You were offered a roof over your head and some food in return for doing these purchases which you did about five times. … You are unable to remember precise details of previous numbers of boxes of drugs, or prescription drugs, or non-prescription drugs, that you had bought, but said that some times you would only buy one box. 

I was asked to sentence you on the basis that you probably purchased fewer than 20 boxes overall."

[6] The application proceeded on the basis that it was the applicant who provided Philson with a roof over his head and food in return for his purchasing precursor drugs.  The sentencing judge in this case was told that Philson "indicated to police that once he had moved into the house that he had been approached by Sabine to participate in what was called a 'Sudafed run' where he would go to chemists and obtain either Sudafed tablets or Telfast Gold tablets, both of which have the active ingredient of Pseudoephedrine".  The sentencing judge was also told that Philson indicated that he would travel with a person named Max to the various chemists where the relevant drugs would be obtained.

[7] Whilst the production process obviously took place on the applicant's premises it was not alleged that the applicant was the "cook".  It was also conceded that no commercial element was involved.  The drug was produced for use by the applicant and other occupants of the house.

[8] In the course of submissions the sentencing judge made the following observation with respect to the applicant:

"He refused, effectively, to be interviewed.  He told lies when he was interviewed.  He has not cooperated by giving the names of people whose names he must know, or quite likely knows, and he's left it until very late to plead guilty."

[9] The latter remark was a reference to the fact that the plea of guilty came on the day his trial was listed to start.

[10] Mr Moynihan SC who appeared for the applicant submitted that the sentencing discretion miscarried in three ways:

"–taking into account in sentencing the applicant an offence (permitting use of a place: s 11 of the DMA) of which he was not charged or convicted;

–finding that the applicant procured other persons to purchase drugs containing pseudoephedrine…; and

–imposing a manifestly disparate sentence as between co-offenders creating the appearance of injustice."

[11] In the course of his sentencing remarks the judge said: "…you permitted your premises to be used for the purposes of manufacture of amphetamines."  That was submitted to be an error because the applicant was not charged with the offence under s 11 of the Drugs Misuse Act of being a person "who, being the occupier or concerned in the management or control of a place, permits the place to be used for the commission of a crime" including the offence of unlawfully producing a dangerous drug.  That submission must be rejected.

[12] Section 7(1)(b) of the Criminal Code provides that every person who does an act for the purpose of enabling another person to commit the offence may be charged with actually committing the offence.  In the present case the uncontested evidence was that the applicant made his home available for the purpose of enabling other persons to produce amphetamines some of which the applicant would use.  In those circumstances the offence of production was established and the fact that it was the applicant who provided the premises in which the production took place was a significant feature of the case against him.  It is not to the point that his conduct may also have constituted an offence under s 11 of the Drugs Misuse Act.  Conduct may frequently constitute an offence against one or more of the provisions of the Criminal Code and it is for the prosecution to determine which charge should be laid.  Of course, an offender can only be punished once for particular criminal conduct and a conviction of the charge laid would prevent the laying of any further charges said to be established by the conduct in question.  The present situation is clearly distinguishable from that considered in cases such as The Queen v De Simoni (1981) 147 CLR 383 and Weininger v The Queen (2003) 212 CLR 629.

[13] Further in the course of his sentencing remarks the judge said: "You also sought to procure and did procure other persons to conduct what were called runs or at least one run to purchase drugs containing pseudoephedrine from chemists."  That was said to be an error because on the material placed before the sentencing judge only one person, namely Philson, was procured to carry out a run.  The sentencing remarks of Wilson J when imposing sentence on a man named Ratcliffe were also placed before the sentencing judge.  Ratcliffe had conducted box runs which obtained Sudafed for processing in the home owned by the present applicant, but there was no evidence that the applicant had procured him to do so.  The submission in this case was that the sentencing judge, by referring to the applicant procuring "other persons", was erroneously acting on the basis that the applicant had also procured Ratcliffe.  That does not necessarily follow from the remark made.  As already pointed out the sentencing judge was told that "a person by the name of Max would attend at the house" and "Philson would travel with Max to the various chemists."  Whilst the actual role played by Max is not entirely clear it could well be that what the sentencing judge had in mind was that Max and Philson together were procured by the applicant to conduct the box runs.  But in any event the use of the plural does not in all the circumstances indicate a material error on the part of the sentencing judge. 

[14] Before considering the submission that there was a disparity between the sentence imposed on the present applicant and that imposed on Philson and Ratcliffe it is necessary to refer to the antecedents of the applicant.  He was born in June 1964, making him aged about 40 when the offence was committed and 42 when sentenced.  He had a criminal history which included a number of convictions for drug offences.  In 1985 he was given probation and ordered to perform community service with respect to offences of stealing, attempted false pretences, and three counts of false pretences.  His next conviction was in 1988 for dangerous driving.  His first drug convictions were imposed in the Ipswich Magistrates Court on 16 October 1989.  He was convicted and fined for possession of a dangerous drug and possession of a thing used in connection with smoking a dangerous drug.  His next conviction was in April 1991 for possession of a dangerous drug and possession of a pipe used in connection with smoking a dangerous drug; again he was convicted and fined.  That was followed by a further conviction in August 1993 for two counts of possessing a dangerous drug and one count of possessing a utensil used in connection with smoking a dangerous drug; he was convicted and fined.  In July 2004 he was fined for a breach of a domestic violence order.  It will be noted that he had not been sentenced to a period of imprisonment for any of those offences.  He committed some serious offences whilst on bail for the present offences but the sentence imposed for those offences can be disregarded for present purposes.

[15] Philson made an early plea of guilty to a charge of producing the dangerous drug methylamphetamine, and some lesser associated offences.  His involvement in obtaining Sudafed for the present applicant has already been set out.  Douglas J recorded that Philson had co-operated fully with the authorities and had no serious criminal history.  By the time of sentence he had returned to employment and was earning a reasonable wage.  Philson was born in September 1957 so he was aged 46 when the offences were committed.  The sentence imposed in those circumstances on Philson was two years imprisonment wholly suspended with an operational period of three years.

[16] Ratcliffe pleaded guilty to one count of production of methylamphetamine.  The charge was based on his buying drugs which were a precursor to the production of methylamphetamine.  Wilson J noted in her sentencing remarks that he co-operated with the police and it was a timely plea of guilty.  Ratcliffe was born on 29 April 1986 so he was 18 at the time of the commission of the offence.  He had no criminal history at all.  Wilson J noted that if Ratcliffe had not made a full statement to the police they would have had no evidence of his activity in procuring precursor drugs.  It was also said that the statement he made was of assistance to the police "in the prosecution of the principle offender or offenders".  Because of his youth Wilson J declined to impose a period of imprisonment.  She noted that he was not a drug user but had become involved with the group of persons associated with the present applicant's house because he was out of work at the time.  Ultimately Wilson J determined not to record a conviction and imposed two years probation coupled with 150 hours community service.

[17] The contention of counsel for the present applicant is that the sentence imposed on him was "manifestly disparate" as compared with the sentences imposed on Philson and Ratcliffe (particularly the former) so that there was the "appearance of injustice". 

[18] In my view a careful comparison of the sentences imposed on the applicant, Philson and Ratcliffe demonstrates that each is the appropriate sentence taking into account the degree of criminality of the conduct involved and the offenders' antecedents.  Ratcliffe was clearly in a very different situation to the present appellant and it is not surprising he received a non-custodial sentence.  In my view Philson can also be readily distinguished.  The applicant made his home available for the production of methylamphetamine and procured Philson to obtain the precursor drugs.  Philson was obviously in a very vulnerable position and the applicant exploited that vulnerability in order to obtain a personal benefit.  He provided food and lodging to Philson in return for Philson undertaking the risky task of obtaining Sudafed so that methylamphetamine could be produced for use by the applicant and others.  In the circumstances the applicant's criminality was far greater than that of Philson.  In addition, the applicant's criminal history was significantly worse.  Also, the applicant had not co-operated with the police investigation to the extent the others did.

[19] In those circumstances it would have been entirely inappropriate to impose the same sentence on both the applicant and Philson as was contended for by counsel for the applicant.

[20] Given the particular facts of this case the sentence could be regarded as towards the top of the range but it cannot be said that it was manifestly excessive.

[21] The application for leave to appeal against sentence should be dismissed.

[22] JERRARD JA: I have read the judgment of Williams JA and agree with the reasons and orders proposed therein.

[23] MULLINS J: I agree with Williams JA.