REGINA v McMILLAN [2000] NSWCCA 241

New South Wales Court of Criminal Appeal

CITATION : REGINA v McMILLAN [2000] NSWCCA 241 FILE NUMBER(S) : CCA 60363/99 HEARING DATE(S) : 16 June 2000 JUDGMENT DATE : 16 June 2000

Regina

PARTIES : v

Michael Ivan David McMillan JUDGMENT OF : Giles JA at 1; Adams J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0548 LOWER COURT JUDICIAL Armitage DCJ OFFICER :

COUNSEL : Mr M Grogan (Crown) Mr B M Niven (Applicant) SOLICITORS : S E O'Connor (Crown) T A Murphy (Applicant)

CASES CITED: R v Cartwright (1989) 17 NSWLR 243 R v PPB (1999) NSWCCA 360 DECISION : See paragraph 21

IN THE COURT OF CRIMINAL APPEAL 60363/99 GILES JA ADAMS J FRIDAY 16 JUNE 2000

REGINA v Michael Ivan David McMILLAN

JUDGMENT

1 GILES JA: I will ask Adams J to deliver the first judgment. 2 ADAMS J: The applicant was sentenced on 12 April 1999 in the District Court in respect of a charge that between 30 October 1996 and 10 January 1997 at Pitt Town in the State of New South Wales, he knowingly took part in the manufacture of a prohibited drug, namely 1 - Phenyl 2 - Nitropropylene in the amount of 1830.5 grams. That quantity was not less than the large commercial quantity for such a drug. 3 The maximum penalty in respect of this offence is a fine of $550,000 and/or imprisonment for life. It is, therefore, a crime of serious proportions. It is unnecessary for me to set out the facts in detail but there are a number of most unusual features in this case which may fairly be said to render it unique. 4 The applicant had been involved in an unlawful enterprise concerning drugs which the police, having become aware of the transaction, frustrated in a way that resulted in the loss to his accomplices of $40,000. This involved the applicant in the offence for which he was sentenced in the District Court and from which he now appeals. 5 In dealing with the facts of the matter I should emphasise at the outset that the applicant gave evidence over a number of days before his Honour the learned sentencing Judge who, although approaching what he said at first with a degree of scepticism, in the end accepted that he was a witness of truth. The facts to which I will shortly advert are to those to which the applicant deposed, much of which was significantly supported by evidence from police and the rest which his Honour accepted, or largely accepted, on the word of the applicant. The Crown Prosecutor in this Court has conceded that it would not be appropriate to go behind his Honour's findings in this regard. Speaking for myself, even if this were not in principle the situation, I see no reason for departing from his Honour's findings of fact. 6 The applicant said that he was an unwilling and reluctant recruit to the scheme, in respect of which he was charged, of manufacturing amphetamines proposed by the persons to whom he owed the $40,000 to which I have already referred and who had explicitly or implicitly threatened his life. By his plea the applicant eschewed any defence of duress. Nevertheless, I consider that it should be accepted, as I think his Honour in the Court below did, although not explicitly, that the applicant was indeed unwillingly involved. His role was essentially twofold: firstly, it was his task to collect a number of the chemical agents which were essential to the production of amphetamine in the laboratory set up by the other participants; secondly, he was, as it were, the public face of the operation so that those persons would not be identified during its course. It was, accordingly, the applicant's role to sign the leases, to prepare the premises, pay the rent, purchase the chemicals, the glassware and the apparatus, order work to be done on a pressure vessel from an engineering firm, set up companies under fake names and the like. I am satisfied that, in undertaking these tasks, he was the instrument of the other persons involved and was in no sense a principal. During the ensuing months the applicant sought, ineffectually as it happened, to sabotage, or at least slow down the production of the amphetamines. He did this by failing to order the proper chemicals, by dropping apparatus and the like. These actions were ineffectual and as the weeks went on, a very large quantity of the prohibited drug (a precursor top the manufacture of amphetamine) was produced. It is clear that during this period the applicant became more and more concerned with the seriousness of the crime with which he was involved and increasingly reluctant to participate in it. 7 On the afternoon of 10 January 1997, the fire brigade and the police attended a house fire at the premises where the laboratory had been set up in part by the applicant. When the fire was extinguished, an examination of the premises disclosed that there had been an illicit laboratory set up in the premises. Quantities of reaction mixtures, precursor chemicals and laboratory apparatus were located. 8 It was estimated that a yield of 10 to 15 grams of amphetamine could have been produced from the 1 - Phenyl -2 - Nitropropene which was discovered. This quantity of amphetamine would have had a potential street value of approximately $10 million and a wholesale value of about one-tenth of that amount. 9 Also found in the premises was a document which had been created by the applicant during the time of his involvement and which set out in a very detailed way the process by which the laboratory had been set up and functioned. This was done to assist the police and was left in the premises deliberately for that purpose. 10 It was accepted by his Honour that the applicant had decided on 10 January that he wished to have nothing more to do with the matter. He had broken equipment and tried to destroy a quantity of drugs. By then leaving the premises and telephoning the police anonymously to inform them that there had been a break in of the premises, he hoped that the police, when they came to the premises, would find the laboratory and the remaining drugs. As it happened, what he did caused a fire to break out in the premises so that the fire brigade and then the police were called in all events. These circumstances strongly corroborated the applicant's evidence that he was at all times a reluctant recruit to the scheme, becoming increasingly reluctant as it progressed. 11 In the result, the applicant's actions prevented a very substantial quantity of amphetamine from being manufactured and effectively frustrated the object for which he had been recruited. The crime to which he pleaded guilty is a continuing offence but it seems to me to be critical, in properly assessing the applicant's culpability, to give full weight to his actions in frustrating the ultimate aim. It is this circumstance which gives the offence its unique character so far as this applicant is concerned and significantly reduces his culpability. It has the further significance that it is very much in the public interest that persons who become involved in crime be encouraged to prevent their actions from ripening into fruition. This is especially so in connection with the drug trade. 12 In this case, had the applicant simply refused to have been involved in the transaction (as, of course, he should have done) one can have little doubt that another person would have been recruited to play his role and the amphetamines in question in due course, and probably far more, would have been produced. In the result, not only did his actions mean that he himself had not effectively produced drugs, that is to say drugs for which ultimately a market would be found, but he frustrated the actions of others. 13 It is, clearly, in accordance with appropriate public policy to which the expressions in that regard contained in Cartwright (1989) 17 NSWLR 243 are analogous, that persons in the applicant's position should be encouraged so to act. If there is no substantial acknowledgment in terms of mitigation of penalty for such actions then persons such as the applicant may not be motivated to frustrate the crimes in which they became involved. 14 It remains to shortly describe what occurred after the discovery of the laboratory. Fearful of his own safety from those with whom he had been involved and who could have had little doubt that he was responsible for the destruction of the laboratory and also because of the legal consequences of his involvement, the applicant remained at large for something over one year. He ultimately surrendered himself to the police voluntarily. At that time, as he said, he was at the end of his tether. He was extremely anxious, fearful for the safety of his family, and considered after being counselled by his father, that he should deal with the legal consequences of what he had done. In due course he pleaded guilty and came to sentence. It is scarcely surprising in these circumstances that the learned sentencing Judge considered that his behaviour showed a high degree of contrition and remorse. 15 In addition to these relevant considerations, the applicant necessarily, whilst on remand and following sentence, has been placed on strict protection. It is as a consequence of this form of incarceration necessary to preserve his own safety which led to his losing all his teeth, because of the difficulties of treating in those circumstances an infection from which he, unfortunately, suffered. 16 With the sole exception of the matter I am about to mention, I consider that there was no error of law demonstrated in the reasons of the learned sentencing Judge. However, to my mind his Honour did not give appropriate consideration, independent of its establishing contrition and assistance to the authorities, of the frustration of the criminal enterprise. That aspect warranted, in the circumstances of this case, an independent evaluation and independent recognition in terms of the appropriate sentence to be imposed. 17 My reading of his Honour's reasons for judgment persuades me that his Honour did not consider this aspect of the matter as independent of and additional to the other elements with which it was connected and upon which it reflected. Accordingly, in my view his Honour did err in law. Whether this be so or not, I am satisfied, by considering the sentence itself which was passed, that his Honour erred. The sentence imposed was six years imprisonment comprising a minimum term of three years and an additional term of three years. His Honour found that there were special circumstances justifying departure from the statutory ratio. I consider that this sentence is manifestly excessive and demonstrable of error although, with the exception of the matter to which I have already adverted, the error is implicit. 18 I am of the view that, having regard to the culpability of the accused, expressed by his reluctant involvement in the crime and his frustration of its purpose, together with his plea of guilty and his lack of relevant prior record, the appropriate starting point before consideration of the Cartwright factors should have been five years. 19 Having regard to the extent of what the applicant's assistance which gave a considerable amount of valuable information to the police as to the modus operandi of this and other laboratories and went a significant degree towards identifying the other persons involved, although the applicant did not mention their surnames for fear in respect of his own life and that of his family, there should be a reduction of two years in the five years which I have specified as the starting point. This gives the term of imprisonment of three years. 20 Having regard to the special circumstances of this case, including in particular the way in which the applicant has served the sentence which resulted from his frustration of the crime and his assisting the authorities, I consider that there should be a non parole period of eighteen months. 21 The consequence is that the sentence below should be quashed and a new sentence substituted. I propose that the applicant be sentenced to a term of three years imprisonment to commence on 16 April 1998. I propose that there be set a non parole period of eighteen months which would then expire on 15 October 1999. It follows that the applicant is eligible for immediate release on parole. 22 GILES JA: I agree. I would add only that the considerable assistance which we have received from counsel included debate over what might or might not have been an appropriate starting term and an appropriate discount. The debate demonstrates the validity of this statement in R v PPB (1999) NSWCCA 360 "that it is prudent for a sentencing judge to include the arithmetic by which or she arrives at the appropriate sentence by identifying the starting point and the discount." The consideration of this application would have been made easier had that been done by the sentencing judge. 23 The order of the Court will be as proposed by Adams J.