R v Thomson [2000] NSWCCA 294

New South Wales Court of Criminal Appeal

CITATION : R v Thomson [2000] NSWCCA 294 FILE NUMBER(S) : CCA 60705/99 HEARING DATE(S) : 12/05/00 JUDGMENT DATE : 17 August 2000

PARTIES : Regina v David John Thomson JUDGMENT OF : Spigelman CJ at 1; Wood CJ at CL at 2; Foster AJA at 3; Grove J at 4; James J at 5

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/21/1066 LOWER COURT JUDICIAL Tupman DCJ OFFICER :

COUNSEL : J I Doris - Respondent P Berman/M Grogan - Crown SOLICITORS : Neil J O'Connor and Associates - Respondent S E O'Connor - Crown

DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60705/99 Spigelman CJ Wood CJ at CL Foster AJA Grove J James J 17 August 2000 REGINA v David John Thomson

JUDGMENT

1 SPIGELMAN CJ: I agree with James J. 2 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Justice James. I agree with his reasons and the orders he proposes. 3 FOSTER AJA: I have had the advantage of reading in draft the reasons for judgment of James J and agree with his reasons and the orders proposed. 4 GROVE J: I agree with James J. 5 JAMES J: The Crown has appealed against a sentence imposed on the respondent David John Thomson by her Honour Judge Tupman on 6 October 1999, after the respondent had pleaded guilty to one count of knowingly taking part in the manufacture of a prohibited drug, being amphetamine, an offence under s24(1) of the Drug Misuse and Trafficking Act ("the Act"). Her Honour sentenced the respondent to a term of imprisonment for two years to be served by way of periodic detention, commencing on 16 October 1999. By a letter dated 19 October 1999 the Director of Public Prosecutions informed the respondent that the Director was considering an appeal against the sentence imposed by Judge Tupman. On 17 November 1999 the Director signed a notice of appeal and the notice of appeal was served on the respondent on 28 November 1999. 6 The following summary of the facts of the offence is taken from her Honour Judge Tupman's remarks on sentence. Her Honour based her statement of the facts of the offence on a document which had been admitted by consent in the proceedings on sentence. 7 Shortly before 27 April 1995 the respondent, who wanted to manufacture amphetamine and was seeking assistance for such an enterprise, made an indirect contact through a third party with a person living in Brisbane, who the respondent believed knew how to manufacture amphetamine. This person, unbeknown to the respondent, was a registered police informant having the number 2007. He did not in fact know how to manufacture amphetamine. 8 Shortly after the respondent made contact with him, the informant advised police and officers of the National Crime Authority that he had been contacted by the respondent. 9 On 27 April 1995 there was meeting in Sydney between the respondent and the informant. This meeting was monitored by police and officers of the National Crime Authority. 10 Subsequently, the informant travelled again to Sydney, where he visited a man named Reid. With the knowledge and encouragement of the authorities, Reid agreed to provide technical information for the manufacturing of amphetamine, including what was described as a "recipe". 11 The respondent and the informant had a further meeting at the home of the respondent's sister in Sydney, where the respondent had items of laboratory equipment, including flasks, beakers, heating mantles and condensers, which he had acquired before he first contacted the informant and which he intended to use in the manufacture of amphetamine. 12 Conversations took place between the respondent and the informant regarding the setting up of a fictitious business by the respondent, which would ostensibly carry on the business of manufacturing detergents but which would in reality be used as a vehicle for purchasing chemicals needed for the manufacture of amphetamine. 13 Between 25 May 1995 and 19 June 1995 the respondent took various steps in the enterprise, including registering the fictitious business ("U-Clean"), establishing an office for the business and paying rent for that office and negotiating and entering into a lease of semi-rural land at Kurrajong, which was to be used for the actual manufacturing of amphetamine. The respondent informed the informant of the taking of these steps and the informant passed on the information to the authorities. 14 On 10 June 1995 the respondent, with the assistance of the informant, set up a laboratory at premises at Horsley Park. Laboratory equipment and quantities of a chemical used in the manufacturing of amphetamine were taken to the laboratory. 15 On 21 June 1995 the respondent, with the assistance of the informant, prepared a written order on the letterhead of the fictitious business for the supply of chemicals required for the manufacturing of amphetamine. The informant had told the respondent what chemicals to order and what quantities of them to order, on the basis of information given to the informant by the authorities, who had themselves obtained the information from the proprietor (Mr McCarroll) of a firm supplying industrial chemicals. The respondent paid $11,000 of his own money for the supply of the chemicals ordered. 16 Mr Reid supplied a recipe for the manufacturing of amphetamine to the informant and the recipe was transmitted by the informant to the respondent. The authorities permitted the supplying of the recipe to the respondent, knowing that the respondent intended to use it to manufacture amphetamine. 17 A few days later the respondent made arrangements for the chemicals which had been ordered and paid for to be collected from the supplier and delivered to the property at Kurrajong. 18 On 23 June 1995 the respondent and the informant moved laboratory equipment from the premises at Horsley Park to the newly leased property at Kurrajong. 19 The manufacturing operations commenced on 27 June 1995 and continued overnight. On 28 June 1995 police, having obtained a search warrant, went to the property at Kurrajong. At the property they observed the respondent, dressed in protective clothing, supervising the manufacturing operations. A quantity of a chemical known as phenol-2-propanone, known as "P-2-P", which is a "precursor" to methylamphetamine, that is an intermediate product in the process of manufacturing amphetamine, had already been produced. The respondent's father and the informant were also on the property at Kurrajong. Various documents, chemicals and items of equipment relating to the manufacture of amphetamine were seized by the police. An officer of the Australian Government Laboratories, who accompanied the police when the search warrant was executed, examined the equipment and chemicals and certified that the manufacturing process in train was capable of producing amphetamine. 20 It is convenient at this stage to outline the history of the criminal proceedings against the respondent. 21 After the respondent was arrested on 28 June 1995 he was charged with knowingly taking part in the manufacture of not less than a commercial quantity of amphetamine, that is with an offence under s24(2) of the Act. He was charged with an offence under s24(2), rather than an offence under s24(1) of knowingly taking part in the manufacture of amphetamine, because of the quantities of the chemicals which had been ordered by the respondent from the supplier. The charge against the respondent remained a charge under s24(2), until 11 August 1999. 22 The respondent remained in custody, bail refused, until the conclusion of a three day committal hearing in December 1995. At the conclusion of the committal hearing the respondent was committed for trial but was granted bail by the magistrate. The respondent was released on bail on 7 December 1995. He had spent twenty-three weeks in custody which was exclusively referable to the present offence. The respondent remained on bail, until he was sentenced by Judge Tupman. 23 There was a long delay between the respondent being committed for trial and the respondent being sentenced by Judge Tupman. Trial dates were fixed but the trial did not proceed on the dates fixed. 24 The trial of the respondent was ultimately fixed for 9 August 1999. On 9 August 1999 the Crown Prosecutor informed Judge Tupman that the Crown was proposing to have the respondent indicted on a charge under s24(2) of the Act. Counsel for the respondent said that he was making an application "that your Honour make an order excluding all the evidence in the prosecution case," in the exercise of the discretion conferred by s138 of the Evidence Act. There ensued a voir dire enquiry to determine the admissibility of the evidence the Crown proposed to adduce at the trial of the respondent. In the voir dire enquiry various documents were tendered, including statements by a number of prosecution witnesses and the transcript of the three days of the committal hearing, and some oral evidence was also given. 25 The voir dire enquiry continued until 11 August 1999, when Judge Tupman delivered a judgment. 26 In her judgment delivered on 11 August 1999 Judge Tupman made a number of findings of fact, which were in accordance with the findings of fact she later made when sentencing the respondent. Her Honour listed eleven steps which had been taken, either by the respondent alone or by the respondent together with the informant. Her Honour then said:- "I accept that all of these eleven steps and the other steps referred to earlier in these findings of fact taken by the accused along this final path to manufacture, were known by 2007 and reported back by him to the NCA investigators and that he was directed by them to continue to assist the accused towards this final goal of the production of amphetamines". 27 Her Honour further found:- "I accept that following earlier discussion between the accused and 2007 about the need to ensure a supply of chemicals without alerting police attention, the authorities in June 1995 spoke to a Mr McCarroll at Allab and advised that there would be an order from U-Clean for chemicals. I accept that Mr McCarroll would ordinarily have alerted drug enforcement agencies to this particular order, because of the nature and quantity of chemicals being ordered. I accept that authorities had in fact enquired of Mr McCarroll what quantity of the chemicals he would have been able to make available and it was as a result of this information that the actual quantity of chemicals ordered by the accused via U-Clean was decided. In other words, I accept that the accused ordered the quantity of chemicals he did, on the advice of 2007 and as a result of the NCA investigators finding out from Mr McCarroll how much was available for purchase". 28 Her Honour also found that the recipe or formula for manufacturing amphetamine had been obtained from Mr Reid by the informant, who had passed it on to the respondent, but only after he had been directed to do so by a National Crime Authority investigator. 29 Her Honour further found that in all his dealings with the respondent "2007 was acting as the agent of the National Crime Authority in his role as registered informant". 30 In the remarks she later made on sentencing the respondent Judge Tupman said that she incorporated into her remarks on sentence the findings of fact she had made in her judgment on the voir dire enquiry. 31 In her judgment on the voir dire enquiry her Honour held that the activities of the informant, acting as an agent of the authorities, amounted to contraventions of s27 of the Act and that the evidence obtained as a result of these activities of the informant was evidence obtained in contravention of an Australian law or in consequence of a contravention of an Australian law, within the meaning of s138(1) of the Evidence Act. 32 Her Honour, nevertheless, held that the evidence should not be excluded at a trial of the respondent, saying:- "On the basis of the findings made earlier in these reasons, I do not accept that the entire enterprise was instigated by the NCA through the agency of 2007 and, as I have already found, I accept that whilst the NCA was using 2007 as an informant and was aware right from the beginning of his involvement with the accused, it was the accused who had previously determined to commit the offence of taking part in the manufacture of amphetamines and continued to evidence that determination by the many independent steps he took along the way to that ultimate end. I do not accept that it falls into the second category of Ridgeway (Ridgeway v The Queen (1994-1995) 184 CLR 19) and taking into account the factors set out in Section 138(3) of the Evidence Act , including that contained in par (g)… I accept that the Crown has proved that the desirability of admitting this evidence would outweigh the undesirability of doing so. I thus refuse the application to exclude the evidence". 33 Her Honour then added:- "Before coming to what happens further in this trial, I might add that there remains the possibility for consideration of the issue of the quantity of chemicals actually ordered by the accused and the extent to which the authorities were involved in that decision. It has important ramifications ultimately on sentence and I do not rule out the possibility that there may be a further application on behalf of the accused in relation to the exclusion of part of that evidence or for some other course to be taken in the nature of fact finding, notwithstanding the findings that I have made on this application". 34 Immediately after her Honour delivered her judgment on 11 August 1999, she was informed that there had been discussions between counsel concerning the last matter referred to in her judgment, that is the quantity of the chemicals which had been ordered by the respondent and the extent to which the authorities had been involved in determining that quantity. As I have already observed, the quantity of the chemicals which had been ordered by the respondent formed the basis on which the respondent had been charged with committing an offence under s24(2) of the Act, and not merely an offence under s24(1). 35 Counsel informed her Honour that it had been agreed between counsel that if, when indicted, the respondent pleaded guilty, not to having committed an offence under s24(2) but merely to having committed an offence under s24(1), the Crown would accept such a plea of guilty in full discharge of the indictment. 36 The respondent was then formally indicted. The charge to which the respondent pleaded was in fact a charge of knowingly taking part in the manufacture of not less than a commercial quantity of amphetamine. However, the respondent's plea of guilty to that charge was taken by the court to be a plea of guilty to a charge under s24(1) of knowingly taking part in the manufacture of amphetamine and such a plea of guilty was accepted by the Crown Prosecutor in full discharge of the indictment. 37 On the application of counsel for the respondent, Judge Tupman directed that a pre-sentence report be prepared. 38 Counsel for the respondent then applied for bail pending the respondent being sentenced. The Crown opposed the granting of bail on the grounds that the offence to which the respondent had pleaded guilty was such as to require the imposition of a sentence of full-time custody. Counsel for the respondent said that the respondent had been on bail for more than three and a half years and added:- "He's always understood the reality of his position and always has been ready to enter an appropriate plea of guilty, should the evidence be admitted against him, which he's done". 39 Her Honour decided to grant conditional bail pending the sentencing of the respondent, expressly stating that she was not to be taken as holding out any expectation to the respondent of what her sentencing decision would be. 40 Earlier in this judgment I referred to the part of Judge Tupman's remarks on sentence in which her Honour stated the facts of the offence. In her remarks on sentence her Honour then turned to an assessment of the objective criminality of the offence. 41 Her Honour found that the respondent's offence was "not a minor example" of offences under s24(1) of the Act. There had been a significant degree of planning by the respondent and the respondent had spent large amounts of time and money committing the offence. His sole motive for entering into the enterprise to manufacture amphetamine had been to derive a significant financial benefit for himself. If the enterprise had come to fruition, the respondent could accurately have been described as a "drug trafficker". However, because what the respondent and the informant were doing was being monitored and, indeed, to some extent orchestrated by the authorities, there was no chance that the enterprise would have led to the distribution of drugs in the community. 42 In her remarks on sentence her Honour then turned to a submission made on behalf of the respondent that, in assessing the objective criminality of the offence, her Honour should take into account the extent to which the activities of the authorities had facilitated the commission of the offence by the respondent. 43 Her Honour found that the first contact between the respondent and the informant had occurred at the instigation of the respondent. The respondent had been a willing and active participant in the commission of the offence. Even before the first contact with the informant, the respondent had obtained laboratory equipment for the preparation of amphetamine. The respondent had not been provoked into committing an offence that he would not otherwise have committed. 44 On the other hand, her Honour found that the authorities had encouraged the provision of technical information and a recipe to the respondent. Her Honour also found that the authorities had facilitated the supplying of information to the respondent about the quantities of chemicals which should be ordered and were themselves responsible for the actual quantities of chemicals at the laboratory at Kurrajong. The authorities had allowed each step to be taken by the respondent, until they were satisfied that a stage had been reached, when they could catch the respondent "red handed, in the middle of a laboratory, producing the chemical precursor to amphetamine". Her Honour observed that, without the assistance provided by the authorities, "there is little evidence that the (respondent) would have been capable of actually manufacturing (amphetamine)." 45 Her Honour concluded that "the extent of the (respondent's) involvement in this offence was greater than it might otherwise have been, as a direct result of the facilitation provided by the authorities". Her Honour stated:- "That being the case, I accept the proposition put forward on behalf of the prisoner that the culpability of the prisoner is reduced as a result of these activities on behalf of the authorities and I take into account in making those findings, the dicta of the Court of Criminal Appeal in both the decision of R v Rahme (1991) 53 A Crim R at page 8 and R v Taouk (1992) 65 A Crim R at page 387". 46 Her Honour treated as a relevant factor in sentencing the respondent that no other person who had been involved, including the police, the respondent's father, the informant, Mr Reid and Mr McCarroll, had been charged, or was likely to be charged, with any offence. 47 In her remarks on sentence her Honour then turned to the respondent's plea of guilty. Her Honour said:- "I also take into account in assessing the appropriate penalty in this case, the fact that the prisoner, as I have said, entered a plea of guilty at what I accept to be the first reasonably available opportunity, namely immediately after the decision to admit the evidence proposed to be called by the Crown. I do not regard the challenge he mounted to the admissibility of the Crown case as being manifestly hopeless. I accept, and as I understand it, it is accepted on behalf of the Crown in this case that he was entitled to mount the challenge that he did and it could not be said that he was mounting a hopeless case in doing so. It is the case, and I accept this proposition put on behalf of the Crown, that, once the evidence had been admitted, his plea of guilty was an acceptance of the very strong Crown case against him, and an acceptance of reality on his part. Nonetheless, I note that the trial was listed to run for some two to three weeks and that his plea of guilty, notwithstanding that it is to an otherwise very strong Crown case, has saved the State the expense of running a lengthy trial and has saved the necessity of at least some of the witnesses who would have been called by the Crown coming to Court to give evidence. The plea of guilty for those reasons is a factor which I thus propose to take into account in assessing the appropriate penalty in this case. I also note in making this finding that the plea of guilty was entered some three and a half years, or slightly more, after the accused was first committed for trial in relation to these offences. There has thus been a significant period of time elapsed, both between the commission of this offence and his committal for trial on it and his plea of guilty. Notwithstanding that passage of time however, I accept that his plea of guilty amounts to one entered at the first available opportunity for the reasons I have expressed". 48 Her Honour then turned to the subjective circumstances of the respondent. The respondent was born in New Zealand in 1960. He apparently came to Australia in about 1981 or 1982. At the time he was sentenced he was thirty-nine years old, a married man living with his wife and the children of the marriage. 49 The respondent had a criminal history both in New Zealand and Australia. However, he had not been sentenced to any sentence of full-time custody. He had some minor convictions for drug offences, which related to the use, possession or cultivation of cannabis. 50 In February 1995 the respondent had entered into a recognisance to be of good behaviour for two years, after he had been convicted of offences of dishonesty, and the present offence was committed while he was subject to this recognisance. Her Honour recognised that this was a circumstance of aggravation. 51 Her Honour found that during the period of more than three and a half years which had elapsed between the respondent being released on bail in December 1995 and the respondent being sentenced, the respondent had taken "considerable steps to effect his own rehabilitation". The respondent had been continuously employed by the same employer since at least late 1996 and had devoted himself to his work and to his roles as a husband and a father. He was undertaking a trade course at a TAFE college. Her Honour found that the respondent fully accepted his culpability and was genuinely remorseful, as was evidenced by his plea of guilty. 52 Her Honour noted a submission made by the Crown that, because of the objective criminality of the respondent's offence, nothing less than a sentence of full-time custody would be appropriate. However, her Honour rejected this submission, saying:- "..in summary the fact that the prisoner has already spent some six months in custody, the fact that he has been free on bail since late 1995 without further offence, the fact that he has effected through his own activities a substantial rehabilitation, the fact that I accept it is unlikely that he will offend again and come before the courts, the fact that he has entered a plea of guilty to this offence, and the fact that his full involvement in this offence, I accept, was encouraged and facilitated by the authorities, it appears to me that it is unnecessary to sentence him to a term of full-time custody in relation to this offence". 53 Her Honour said that she considered that a sentence to be served by way of periodic detention was required and imposed the sentence against which this appeal has been brought. 54 The principal submissions made on behalf of the Crown on the hearing of this appeal were as follows:- 55 1. The respondent's plea of guilty merited a much lesser discount than the amount of the discount her Honour apparently allowed. 56 It was submitted that the plea of guilty was late and that her Honour had erred in finding that the plea of guilty had been entered "at the first available opportunity", that the utilitarian value of the plea of guilty was low, that the Crown case against the respondent was overwhelming and that the circumstances in which the plea of guilty had been entered suggested, not contrition, but rather a lack of contrition. 57 2. Her Honour had wrongly regarded as a significant mitigating factor that the police and the National Crime Authority had facilitated the carrying out by the respondent of his criminal conduct. 58 It was submitted that, as her Honour had found, this was not a case in which the activities of the authorities had led the respondent into committing a crime he would not otherwise have committed but a case in which the activities of the authorities had merely enabled the respondent to achieve part of what the respondent had always intended to achieve. The intention of the respondent, from before his first contact with the informant, had been to engage in a large scale manufacturing of amphetamine for personal financial gain. 59 3. The view expressed by her Honour in her remarks on sentence that "the authorities should not be encouraged to allow the furtherance of a crime in the name of investigation" was wrong. 60 It was submitted that it often happens that police receive information that an offence is to be committed or is being committed and the police commence surveillance of the potential or actual wrongdoer. In order to obtain evidence which will secure a conviction, it is often important for the police to allow the commission of the criminal conduct to proceed past a preparatory stage. 61 4. Her Honour had wrongly regarded as a reason for mitigating the penalty to be imposed on the respondent, that no person other than the respondent had been charged or was likely to be charged with an offence in connection with the manufacturing of amphetamine. It was submitted that this circumstance was irrelevant to the sentencing of the respondent. 62 5. Her Honour's finding that there was no chance that the enterprise would have led to the distribution of drugs in the community, while not irrelevant, was a matter to which only little weight should have been given. 63 6. The respondent was being sentenced for knowingly taking part in the manufacturing of drugs and her Honour was required to impose a sentence of full-time custody, unless there were exceptional circumstances and her Honour had erred in treating a strong subjective case as amounting to exceptional circumstances. 64 I will deal with each of these submissions in turn.