Citation: [2000] NSWCCA 255; (2000) 115 A Crim R 64
Court: NSW Court of Criminal Appeal
Date: 21 July 2000
Judge(s): Mason P; Sully J; Sperling J
Background
The appellant was charged with knowingly taking part in the manufacture of not less than the commercial quantity (250 grams) of amphetamine, contrary to section 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was tried jointly with a co-accused in the District Court and both were found guilty by a jury on 31 August 1999.
The prosecution's case centred on the appellant's involvement with factory premises fitted out as an amphetamine laboratory, his ordering of relevant equipment, and evidence that the co-accused had purchased 14 drums of a precursor substance. On 3 December 1999, the trial judge sentenced the appellant to 4 years and 10 months imprisonment, with a minimum term of 2 years and 4 months.
The appellant appealed against both his conviction and the severity of his sentence.
Legal Issues
- Whether the trial judge erred by failing to direct the jury on the alternative, lesser verdict available under section 24(3) of the Act (manufacture of an unspecified quantity, rather than a commercial quantity)
- Whether the evidence about quantities was sufficiently imprecise to require the lesser offence to be left to the jury, even though trial counsel had not requested such a direction
- Whether the sentence imposed was manifestly excessive, in particular given the trial judge's reference to a potential production of 40 to 50 kilograms
Decision
On the conviction appeal, the Court found no error in the trial judge's failure to direct the jury on the section 24(3) lesser offence. Sully J concluded that the case was, on the evidence, an "all or nothing" matter: the evidence regarding quantity pointed either to manufacture at or above the commercial threshold, or to no offence at all. There was no evidentiary basis that would have allowed the jury rationally to be satisfied of the basic offence under section 24(1) but not the commercial quantity element.
The appellant had relied on the Queensland Court of Appeal's decision in Ben Rehavi for the proposition that equivocal evidence requires a lesser offence to be left to the jury regardless of trial counsel's tactical decisions. All three judges found Rehavi distinguishable on the facts. Mason P and Sperling J expressed further reservations about the underlying principle, noting it risked inviting juries to convict of lesser offences even where the evidence supported the more serious charge, and could produce an unwieldy cascade of lesser alternatives in complex trials.
Mason P reserved his position on whether a conviction necessarily miscarries simply because an available lesser offence is not left to the jury, noting the principle appeared to elide the separation between executive charging decisions and judicial function, and sat uneasily with McHugh J's formulation in Gilbert v The Queen.
On sentence, the Court found no error in the sentencing judge's approach. Even accepting the submissions about the weight placed on the 40 to 50 kilogram estimate, the Court held that a more lenient sentence was not warranted. On a statutory scale reaching a maximum of 20 years imprisonment, a sentence of under 5 years was well within the range of a sound sentencing discretion for an enterprise of this nature.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the failure to direct a jury on an alternative lesser verdict will not vitiate a conviction where the evidence does not rationally support a finding of guilt on the lesser charge alone.
- Where the evidence makes a drug manufacturing case "all or nothing" on the question of quantity, there is no obligation to leave a lesser offence under section 24(3) of the Drug Misuse and Trafficking Act 1985 to the jury.
- Mason P expressly reserved his position on the broader principle in Ben Rehavi (Qld), flagging concerns about its consistency with the separation of executive charging functions and judicial responsibility, as well as the formulation of the Pemble principle adopted by McHugh J in Gilbert v The Queen.
- Sperling J observed that requiring all theoretically available lesser offences to be put to juries in every case risks prolonging trials, distracting juries from the central issues, and encouraging compromise verdicts on lesser charges where guilt of the more serious offence is established.
- In upholding the sentence, the Court confirmed that a term of under 5 years for commercial-quantity drug manufacturing, on a statutory maximum of 20 years, was within the range of a proper sentencing discretion on the facts.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24(2), 24(3)
- Criminal Appeal Rules
Cases:
- Gilbert v The Queen (2000) 170 ALR 88
- R v Ben Rehavi (1998) 101 A Crim R 569 (Qld CA)
- R v Maxwell [1988] 1 WLR 1265 (England and Wales CA)
- R v Naylor (1910) 5 CrAppR 19
- Elliott and Hitchins (1983) 9 A Crim R 238
- Ross v The Queen (1922) 30 CLR 246
- R v Evans and Lewis [1969] VR 858
- Pemble v The Queen (1971) 124 CLR 107
- R v Benbolt (1993) 60 SASR 7; 67 A Crim R 11 (Full Court of South Australia)
- Ridgeway v The Queen (1995) 184 CLR 19
- Maxwell v The Queen (1996) 184 CLR 501