Eckersley v R [2013] NSWCCA 219

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Eckersley v R [2013] NSWCCA 219 Hearing dates: 27 September 2013 Decision date: 27 September 2013 Before: Hoeben CJ at CL at [1] Latham J at [2] Bellew J at [22] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW - application for leave to appeal sentence - plea of guilty - knowingly take part in manufacture of not less than commercial quantity of MDMA, knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine, supply not less than large commercial quantity of methylamphetamine - Three offences of supply prohibited drug and offence of knowingly take part in manufacture of not less than large commercial quantity of MDMA dealt with on Form 1 - whether trial judge made a finding in relation to existence of an aggravating feature - whether trial judge erred in extent of accumulation - whether sentence manifestly excessive - leave refused. Category: Principal judgment Parties: Shannon Eckersley - (Applicant) Regina - (Crown Respondent) Representation: Counsel P Lange - (Applicant) H Wilson SC - (Crown Respondent) Solicitors William Whitby Lawyers - (Applicant) Solicitor for Public Prosecutions - (Crown Respondent) File Number(s): 2009/131601 Decision under appeal Date of Decision: 2011-03-22 00:00:00 Before: Sides QC DCJ File Number(s): 2009/131601

Judgment 1HOEBEN CJ at CL : I agree with Latham J. 2LATHAM J : The applicant, Shannon Eckersley, applies for leave to appeal against sentences imposed upon him on 22 March 2011 by Sides QC DCJ, following pleas of guilty to the following offences :- (1)Knowingly take part in the manufacture of not less than a large commercial quantity of MDMA (count one) (2)Knowingly take part in the manufacture of not less than a large commercial quantity of methylamphetamine (count two) (3)Supplying not less than a large commercial quantity of methyl amphetamine. (count three) 3Each of those offences carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 4When sentencing the applicant in respect of count one, four further offences were taken into account on a Form 1. Those further offences were knowingly take part in the manufacture of not less than the large commercial quantity of a prohibited drug, supplying a prohibited drug, namely 11 tablets of MDMA, supplying a prohibited drug, namely 5.8 g of cocaine, and supplying a prohibited drug, namely 2.78 g of MDMA. 5On count one, the sentencing judge imposed a term of imprisonment of 18 years, commencing 30 October 2011, with a non-parole period of 11 years. On each of counts two and three, the sentencing judge imposed term of imprisonment of 12 years, commencing 30 October 2008, with a non-parole period of eight years. 6The sentences for counts two and three (which were entirely concurrent) were accumulated upon the sentence imposed on count 1 to the extent of three years. The overall sentence was one of 21 years with an aggregate non-parole period of 14 years. 7The grounds of the appeal are :- (i)His Honour erred in finding that it was an aggravating feature that some of the drugs the subject of count one could be consumed by vulnerable persons, including children. (ii)His Honour erred in the extent of the accumulation of the sentences for counts two and three upon the sentence for count one (iii)The overall sentence was manifestly excessive. 8Before proceeding to deal with these grounds, it is noted that there is no complaint with respect to the individual sentences. Nor is there any feature of the applicant's subjective case or any other finding made by his Honour that is relied upon for the purposes of this application. 9The applicant was sentenced on the basis of a statement of agreed facts. It is not necessary to reproduce those facts in full. It is sufficient for the purposes of this appeal to note the following :- (a)The applicant undertook a "very significant and managerial organisational" role in two distinct manufacturing ventures, one in Blackett for the manufacture of methylamphetamine and another in Erskine Park for the manufacture of MDMA. (b)The laboratory at Blackett contained items connected with the manufacture of prohibited drugs, together with purchase records relating to chemicals to the value of $617,000.00. In addition, 2,145 g of methylamphetamine was found in a safe in the premises (the subject of count three). A further 11 MDMA tablets found at these premises became the subject of the supply charge on the Form 1. (c)The laboratory at Erskine Park also contained equipment and chemicals used to manufacture prohibited drugs. There was sufficient raw product at this laboratory to produce at least 250,000 MDMA tablets. The equipment at the site bore signs of consistent use. In September 2008 some 15,000 tablets of MDMA were moved from the laboratory post production. (d)Other premises connected with the applicant and his co-offenders contained large quantities of chemicals and equipment used in the manufacture of drugs. One item located in an industrial unit at Moorebank was a pill press containing the applicant's fingerprint. (e)A search of the applicant's home revealed 5.8 g of cocaine (the subject of a supply charge on the Form 1) and 2.78 g of ecstasy (the subject of the further supply charge on the Form 1). (f)The charge of knowingly take part in the manufacture of not less than the large commercial quantity of a prohibited drug taken into account on the Form 1 arose out of the manufacture of 20 litres of methyl amphetamine oil in May 2008. 10Ground one may be briefly dealt with. 11The applicant relies upon the following passage to support the contention that the sentencing judge made a positive but erroneous finding in relation to the existence of an aggravating feature :- This was a substantial drug manufacturing business with the capacity to do substantial harm within the community and to earn substantial income to those involved. The offender would not have known who would ultimately use the drugs produced by this business and it is possible that the vulnerable, such as children, may have ended up using some of it. 12I do not accept that a very experienced and learned sentencing judge, who made an observation of that nature, almost in passing, intended to indicate by that remark that he regarded that feature of the offence as an aggravating one. If the judge had so intended, I do not doubt that he would have used the relevant terminology. 13In any event, the remark ought be understood in context. His Honour was merely referring to the capacity of the drug to do substantial harm within the community. The fact that persons under the age of 18 years are, regrettably, consumers of ecstasy is notorious. There is no error in acknowledging the extent and nature of the capacity for harm involved in the distribution of such drugs. 14I would refuse leave to rely upon this ground. 15It is convenient to deal with grounds two and three together. 16Yet again, this Court is being asked to find error in the exercise of the sentencing discretion with respect to the degree of accumulation having regard to the principle of totality. Whilst the applicant accepts that a degree of accumulation was warranted on the basis that counts one and two related to different drugs, it is submitted that "this point of distinction ought not to have led to an accumulation of three years". 17In addition, the applicant submits that the criminality in respect of count two only marginally increases the criminality encompassed by count one. It is said that these offences were committed over the same period of time, namely between 6 September 2007 and 30 October 2008, and that the applicant's role was identical in each case. It is further submitted that the fact that the drugs were produced at two separate laboratories "should have little, if any, bearing upon the proper extent of the accumulation." 18These submissions essentially failed to grapple with the only bases upon which this Court would be entitled to intervene, namely that some material error is disclosed by the reasons of the sentencing judge or the aggregate sentence itself is plainly unjust. The applicant does not contend for the former. 19Having regard to the maximum penalty in respect of all three offences, the appropriate increase in the sentence in respect of count one arising out of the individually serious offences on the Form 1, the standard non-parole period of 15 years on all three offences, the period of the applicant's offending, and the pivotal role played by the applicant in the manufacture of two distinct prohibited drugs in two distinct locations, I am far from persuaded that an aggregate sentence of 21 years, including an aggregate non-parole period of 14 years is outside the range of a legitimate sentencing discretion. The aggregate non-parole period is in fact less than the standard non-parole period applying to each of the three offences. The aggregate sentence of 21 years represents a very insignificant increase on the sentence imposed for count one, a sentence with respect to which the applicant has no complaint. 20I would refuse leave to rely upon grounds two and three. 21The order I propose is leave to appeal refused. 22BELLEW J : I agree with Latham J. 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. Decision last updated: 11 February 2014