New South Wales Court of Criminal Appeal CITATION : Regina v Thompson and Falconer [1999] NSWCCA 50 FILE NUMBER(S) : CCA 60661/97; 60690/97 HEARING DATE(S) : 8 March, 1999 JUDGMENT DATE : 30 March 1999 PARTIES : Regina v Paul Neil THOMPSON and Terry FALCONER JUDGMENT OF : Simpson J; Smart AJ LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Mahoney DCJ P R Cantrill for the Appellant Thompson COUNSEL : P Byrne, SC for the Appellant Falconer W G Dawe, QC for the Crown Chandra Jamnadas for the Appellant Thompson SOLICITORS : T A Murphy for the Appellant Falconer S E O'Connor for the Crown CATCHWORDS : Appeal against severity of sentence for drug offences - Manufacturing a commercial quantity of Methylamphetamine and Tetrahydrocannabinol. ACTS CITED : Drug Misuse and Trafficking Act 1985 CASES CITED: R. v Bernath [1997] IVR 271 Pearce v The Queen (1998) 72 ALJR 1416 DECISION : Leave to appeal against sentences granted. Appeals against sentences allowed and sentences imposed quashed. In lieu of the sentences imposed applicants are sentenced as follows: On charge of manufacturing methylamphetamine Thompson is sentenced to a minimum term of 5 years 6 months starting 30 June 1996 and ending 29 December 2001 and an additional term of 1 year 10 months commencing 30 December 2001 on which date Thompson will be eligible for parole. On charge of manufacturing tetrahydrocannabinol Thompson is sentenced to a concurrent fixed term of 4 years 6 months starting 30 June 1996 and ending 29 December 2000. On charge of manufacturing methylamphetamine Falconer is sentenced to a minimum term of 5 years 6 months starting 30 June 1996 and ending 29 December 2001 and an additional term of 1 year 10 months commencing 30 December 2001 on which date Falconer will be eligible for parole. On charge of manufacturing tetrahydrocannabinol Falconer is sentenced to a concurrent fixed term of 4 years 6 months starting 30 June 1996 and ending 29 December 2000. IN THE COURT OF CRIMINAL APPEAL 60661/97…………………… 60690/97…………………… SIMPSON J SMART AJ …………………….. Tuesday, 30 March, 1999 REGINA v Paul Neil THOMPSON REGINA v Terry Wallace FALCONER JUDGMENT 1 SIMPSON J: I agree with the orders proposed by Smart AJ and with his reasons therefor. 2 SMART AJ: Paul Neil Thompson and Terry Wallace Falconer seek leave to appeal against the severity of their sentences for drug offences. Mr Thompson pleaded guilty to manufacturing a commercial quantity of methylamphetamine (795.6g) and for that offence he was sentenced to a minimum term of 6 years and an additional term of 2 years. After a trial he was found guilty of manufacturing a commercial quantity of tetrahydrocannabinol (THC or hashish). The precise quantity was not established. On this count Mr Thompson was sentenced to a minimum term of 8 years and an additional term of 2 years 8 months. Both sentences were to be served concurrently. 3 Mr Falconer who had pleaded not guilty to two counts which were in the same terms as those against Mr Thompson was found guilty of both by the jury. He was sentenced to concurrent minimum terms of 8 years on each count with an additional term of 2 years 8 months. The judge regarded each offence as part of the one escapade. That assessment was not challenged by either party on appeal. 4 It was agreed at the trial between the applicants and the Crown that the charge of manufacturing methylampetamine was the more serious of the charges and the judge stated that he proceeded on that basis. 5 Mr Falconer had an interest in a property in the Brewarrina district of the State. It was in a remote area. Within a large rural shed equipment was set up to manufacture the substances in question. There was evidence that two different processes had been used to manufacture methylamphetamine. The operator needed to know and follow the correct processes and procedures. Some training and expertise were required. The judge was satisfied that the equipment installed was capable of continuous production. Mr Thompson stated that the glassware and equipment were expensive. 6 The judge found that both applicants were engaged in the process of manufacture and that Mr Thompson was likely to have known more about the manufacturing process than Mr Falconer. Mr Thompson had a high level of intelligence and was very capable. Mr Falconer had a much lesser level of intellectual capacity. The activity was well planned and technical literature was found in the shed. The judge found that Thompson was cannier than Falconer and the directing hand. 7 The judge found that if the operation had been successful the applicants would have received large sums of money. Thus the offences were very serious. 8 Neither man had any recent significant criminal history. The matters recorded were at the lower end of the scale and mostly took place about twenty years ago or longer. 9 The judge approached the evidence given by Mr Thompson on sentence and the history which he gave to the psychologist with some scepticism, describing Mr Thompson as glib. The judge was not prepared to accept, at face value, each matter contained in the psychologist's report. The judge stated that he had distinct reservations about quite a few of the matters advanced by Mr Thompson by way of mitigation. 10 As to Mr Falconer, the judge noted that there was a "plethora of emotional traumata" contained in the history given to the psychologist for Mr Falconer. The judge thought that most of it, in a numerical sense, had been self induced by virtue of the company Mr Falconer had chosen to keep. The judge excluded from that generalisation the emotional grief associated with a mine disaster. The generalisation is less than fair. One of the major sources of Mr Falconer's difficulties arose from being shot by a rival tow truck operator. Mr Falconer did at some stages mix with undesirable company. 11 There was material indicating that Mr Thompson had had a hard and disadvantaged upbringing which affected his progress and resulted in him not being able to capitalise on his abilities. Too much should not be made of this. 12 The judge said that he took into account Mr Thompson's assertions that he had turned over a new leaf in gaol, that he was anxious to help young offenders and that he had worked hard in gaol. The judge was unable to accept the submission that Mr Thompson was unlikely to re-offend. 13 Mr Thompson was born on 30 September 1958. His wife and children have visited him in gaol and supported him. 14 Mr Falconer was born on 3 December 1948. His family upbringing was unsatisfactory with a mother who showed little or no affection and drank heavily. His father also drank to excess. His adult life has been difficult. He was much affected by the Appin Coal Mine disaster in about 1976. He worked in the Mine and lost some close friends. Normally he would have worked on the shift on which the blast occurred. He has not worked in the Mine since. He suffered serious physical injuries including brain damage when he was the subject of a shooting in 1980 by rivals in the tow truck industry. He had got by for a number of years by using amphetamines but he has never sought or had any rehabilitation for drug usage. He also had an alcohol problem. He has had a background of suicidal attempts, the first serious one being when he was aged twenty. He was in Parramatta Psychiatric Hospital for about one month. He next tried to hang himself in Bourke Hospital where he was taken with chest pains after he was charged with the subject offences. 15 He was transferred via other gaols to the Long Bay Prison Hospital where he remained acutely suicidal. He was treated with anti-depressant medication at night and received extensive supportive counselling from psychiatrists, psychologists and welfare staff. After a period he was transferred to the Remand Centre, remaining on anti-depressant medication. He had numerous ongoing stressors arising out of the case. He decided to stop taking his medication and over several months became severely depressed again. He was re-admitted to the prison hospital in an extremely withdrawn and depressed state with suicidal thoughts. He had lost interest in many things. He was treated with anti-depressant medication and gradually there was some improvement. 16 During his trial he took an overdose of anti-depressant medication leading to serious central nervous system depression. He required ventilatory support. He was treated with antibiotics for a possible aspiration pneumonia. This appears to have delayed the trial for a few hours. 17 Although arrest, incarceration and court hearings make his condition worse there does appear to be an underlying depression. He needs to take medication. 18 The applicants submitted that the statistics available from the Judicial Commission demonstrated that the sentences imposed upon both applicants were outside the permissible range. The sample available was small. The statistics for the period January 1990 to July 1998 revealed six cases of knowingly take part in the manufacture of a commercial quantity of amphetamines. The full terms were 12 months, 24 months, 36 months, 42 months, 48 months and 7 years and the minimum terms ranged from 12 months to 4 years. There was one case of conspiring to manufacture a commercial quantity of amphetamines for which the full term was 5 years and the minimum term was 2 years. There were no statistics for manufacturing amphetamines provided to the court. 19 The court was also referred to the statistics for the more serious offence of knowingly take part in the manufacture of a large commercial quantity of amphetamines. In only three out of eleven cases did the full term equal or exceed 10 years. 20 The statistics dealing with knowingly take part in supplying a commercial quantity of amphetamines reveal that the highest full term was 5 years and the highest minimum term was 4 years. 21 The Court has considered statistics for the same period relating to the cultivation of plants and the manufacture of other drugs but it is unnecessary to detail these. The drug "amphetamine" is generally regarded as a "mid range drug". The drug THC or hashish is also regarded as a "mid range drug" but less dangerous than amphetamine. 22 The venture was in its infancy and it seems that the manufacturing business had not got into its stride. It was not suggested that any manufactured amphetamine was ready for sale or had been sold. As Mr Falconer used amphetamines, a portion was to be retained for his own use. This is of some importance: R. v Bernath [1997] IVR 271. 23 When it was common ground, and correctly so, that the manufacture of amphetamines was more serious than the manufacture of THC it was incorrect for the judge to impose the same sentence on each count on Mr Falconer, even though the sentences were to be served concurrently. The correct sentence should be imposed on each count even where the sentences are to be served concurrently. See Pearce v The Queen , (1998) 72 ALJR 1416. 24 It was incorrect for the judge in Mr Thompson's case to impose a greater sentence for the lesser offence of manufacturing THC. 25 The full term sentence of 10 years 8 months imposed on each applicant for the offence of manufacturing THC was excessive. The full term sentence of 10 years 8 months imposed on Mr Falconer for manufacturing amphetamines was also excessive. 26 It is necessary for the Court to re-sentence. This will involve re-considering the sentence of 8 years imposed on Mr Thompson for manufacturing amphetamines in an amount not less than the commercial quantity. That sentence is also excessive. There is some further material to be taken into account. In his report of 30 September 1998 Dr Olav Nielssen, who has been the treating psychiatrist while Mr Falconer has been in prison, has furnished a more detailed history than that in his earlier report and with the benefit of the medical records. Mr Falconer was in the Prison Hospital from 2 July 1996 to 13 September 1996. He was pervasively depressed and wanted to commit suicide. He was re-admitted to the acute psychiatric ward of the Prison Hospital on 7 August 1997 after his suicide attempt in Bathurst Gaol and treatment in Bathurst Hospital. He was again severely depressed, slow in speech and hopeless. He improved gradually with treatment and was discharged from the Prison Hospital on 21 October 1997. He became severely depressed after he again stopped taking anti-depressant medication, and even when the dose was reduced out of concern about the side effects of the medication. Dr Nielssen has also recorded a history which indicates that Mr Falconer has been depressed for most of his adult life. Dr Nielssen has written: "I have reviewed Mr Falconer regularly in the last year. In recent months…..he has become more pervasively depressed with markedly nihilistic thinking, complete withdrawal from company, psychomotor slowing and constant suicidal ruminations." 27 Dr Nielssen detailed the medication prescribed and noted that Mr Falconer was receiving regular supportive counselling from a psychologist. 28 Dr Nielssen expressed this opinion: "Mr Falconer has a severe depressive illness on a background of chronic dysthymia, or low grade depression, and chronic drug and alcohol abuse. Factors which have prolonged his recovery from depression include his complicated legal predicament and the problems experienced by his children and his wife since he was arrested. His previous approach to feeling depressed was drug and alcohol abuse. His response to treatment with anti-depressant medication, including the recurrence of severe depression whenever he has stopped or reduced his treatment confirms that he has suffered a depressive illness with a biological basis, over and above the understandable feelings of depression caused by his circumstances and developmental influences, His prognosis is for gradual improvement although it is recommended that he take anti-depressant medication supervised by a psychiatrist indefinitely. Other conditions which may improve the prognosis of his depressive illness would include receiving what he would consider to be a more reasonable release date, his transfer to a lower security environment and the resolution of family problems for which he feels responsible but unable to influence. 29 It is significant that Mr Falconer's condition has a biological basis. The judge was not told this and did not have the benefit of a detailed report from Dr Nielssen and the information which it contained. 30 The Court also received a number of references testifying to praiseworthy conduct by Mr Falconer prior to these offences and a reference of good conduct from a teacher at the gaol. The teacher remarked upon the commitment of Mr Falconer to his wife, family and their farming property and his motivation to return to family life. 31 Counsel for Mr Thompson submitted that the judge had been less than fair to Mr Thompson. The judge had misheard a couple of the answers which Mr Thompson had given in evidence. The judge had taken a vigorous approach when cross-examining Mr Thompson. The judge rejected Mr Thompson's claim that he did not know how to manufacture methylamphetamine and, on the balance of probabilities, but not beyond reasonable doubt Mr Thompson's claim that there was a third man on the property. Mr Thompson declined to disclose the identity of the alleged third man. 32 The Crown contended that there was no useful statistical material which would help the Court. The Crown emphasised the maximum penalty of twenty years imprisonment, the profits which could have been made and the careful planning of the operation including the setting up of the manufacturing activity in a remote location. I agree with the Crown that the offences were very serious. Private and general deterrence and punishment are important. 33 While weight has to be given to Mr Thompson's plea of guilty to manufacturing methylamphetamine, the Crown case was very strong. In effect the plea recognised that a conviction was inevitable. Mr Falconer pleaded not guilty. His role was less important and he was less culpable than Mr Thompson. The subjective factors of Mr Thompson were less telling. 34 In the end the factors applicable to each applicant balance out and each should receive the same full term for manufacturing methylamphetamine. The correct sentence is a full term sentence of seven years four months. On the usual basis this would result in a minimum term of 5 years 6 months. An additional term of 1 year 10 months allows adequate time for supervision, support and the completion of rehabilitation. It also allows sufficient time for Mr Falconer's medication regime outside prison to be firmly established. I would not vary the usual ratio between the minimum and additional terms. 35 The correct sentence for manufacturing THC is a concurrent fixed term of 4 years 6 months. This equates to the minimum term. I would not fix an additional term in view of the other longer sentence. 36 I propose the following orders: 1. Leave to appeal against sentences granted. 2. Appeals against sentences allowed and sentences imposed quashed. 3. In lieu of the sentences imposed the applicants are sentenced as follows: On the charge of manufacturing methylamphetamine Paul Neil Thompson is sentenced to a minimum term of 5 years 6 months starting on 30 June 1996 and ending on 29 December 2001 and an additional term of 1 year 10 months commencing on 30 December 2001 on which date Mr Thompson will be eligible for parole. On the charge of manufacturing THC (tetrahydrocannabinol) Paul Neil Thompson is sentenced to a concurrent fixed term of 4 years 6 months starting on 30 June 1996 and ending on 29 December 2000. On the charge of manufacturing methylamphetamine Terry Wallace Falconer is sentenced to a minimum term of 5 years 6 months starting on 30 June 1996 and ending on 29 December 2001 and an additional term of 1 year 10 months commencing on 30 December 2001 on which date Mr Falconer will be eligible for parole. On the charge of manufacturing THC (tetrahydrocannabinol) Terry Wallace Falconer is sentenced to a concurrent fixed term of 4 years 6 months starting on 30 June 1996 and ending on 29 December 2000. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.