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Court of Criminal Appeal 22 August 2002

R v PARKER

[2002] NSWCCA 330

Also reported as (2002) 132 A Crim R 413
Drugs
CRIMINAL APPEAL 'STEP IN THE PROCESS OF MANUFACTURE' R V BD [2001] NSWCCA 184 CONSIDERED IMPOSSIBILITY OF MANUFACTURE APPEAL AGAINST SEVERITY OF SENTENCE TOTALITY OF SENTENCES

Citation: R v Parker [2002] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 22 August 2002
Judge(s): Sheller JA, Hidden J, Howie J

Background

The appellant pleaded guilty in the District Court in March 2000 to five counts under the Drug Misuse and Trafficking Act 1985, relating to the supply and manufacture of methylamphetamine in large commercial quantities. The offences occurred between December 1995 and September 1997. The sentencing judge found that the appellant had played a significant role over several years, including storing and transporting drugs and assisting in gathering chemicals for manufacturing purposes.

On count 1 (supply), the appellant received 13 years imprisonment. Counts 2, 4 and 5 (manufacture) attracted fixed terms of 6, 7, and 7 years respectively, all concurrent. Following decisions of the Court of Criminal Appeal handed down after he was sentenced, the appellant sought leave to change his guilty pleas on counts 2, 4 and 5 to not guilty. He also appealed the severity of the sentence on count 1.

The Crown conceded that the sentence on count 1 was excessive and reflected a flawed sentencing structure, but argued that the overall totality of the sentences should remain undisturbed.

  • Whether the appellant should be granted leave to withdraw his guilty pleas on the manufacture counts, in light of subsequent Court of Criminal Appeal decisions on what constitutes a "step in the process of manufacture"
  • Whether removing Sudafed tablets from blister packs, with the intention of using them to manufacture methylamphetamine, could constitute a step in the manufacturing process
  • Whether the alleged impossibility of producing a large commercial quantity (due to poor quality raw materials) provided a basis to reopen the guilty plea
  • Whether the sentence on count 1 was excessive and had been structured inconsistently with the principles in Pearce v The Queen
  • Whether the sentences should be concurrent, cumulative, or partially cumulative, having regard to totality

Decision

Change of pleas. The Court confirmed that a guilty plea constitutes an admission of the essential elements of the offence and is treated as final once entered, subject only to the sentencing judge's discretion to allow a change before sentence is passed (following Maxwell v The Queen). To reopen a plea on appeal, an appellant must demonstrate a miscarriage of justice.

The "step in manufacture" question. The appellant argued that the decision in R v BD established that removing Sudafed tablets from their packaging could not constitute a step in the process of manufacture. The Court rejected that reading. It held that R v BD should not be treated as a blanket rule that such activity can never qualify as a step in manufacture, particularly where the act is performed with the clear intention of using the contents to manufacture the drug. The Court drew support from R v Kouroumalos and R v Thomas. Leave to change the plea on count 2 was refused.

The impossibility argument. The appellant contended, relying on R v McCoy, that the poor quality of raw materials made it impossible to produce large commercial quantities, so the offences on counts 4 and 5 could not have been committed as alleged. The Court distinguished R v McCoy on the facts: unlike that case, counts 4 and 5 each spanned more than 12 months of conduct. The sentencing judge had correctly concluded that the appellant played a significant role in manufacturing and supply across several years. Leave to change those pleas was also refused.

Sentence. The Crown's concession that the count 1 sentence was excessive was accepted. The Court quashed that sentence and re-sentenced the appellant to 9 years imprisonment. On the question of structure, the Court held that making all sentences concurrent was not appropriate given the distinct nature of the supply and manufacture offences. Partial cumulation was adopted so that the count 1 sentence commenced on the expiry of the shortest fixed term among the other counts. The partial cumulation also constituted a special circumstance justifying a non-parole period of 6 years, being less than three-quarters of the total term.

Orders Made

  • Leave refused for the appellant to change his pleas on counts 2, 4 and 5.
  • Sentence on count 1 quashed.
  • In substitution, the appellant sentenced on count 1 to 9 years imprisonment, commencing 10 November 2002 and expiring 9 November 2011, with a non-parole period of 6 years commencing 10 November 2002 and expiring 9 November 2008.

Key Takeaways

  • A guilty plea is treated as final upon entry; an appellant seeking to reopen a plea must demonstrate a miscarriage of justice, and subsequent appellate decisions that reframe the law do not automatically satisfy that threshold.
  • The Court of Criminal Appeal declined to read R v BD as establishing that removing Sudafed tablets from packaging can never constitute a "step in the process of manufacture" under the Drug Misuse and Trafficking Act 1985. The defendant's intention at the time of the act remains a relevant consideration.
  • Where charges span an extended period of conduct, R v McCoy (which concerned activities judged at a single point in time, proximate to arrest) may not apply to defeat a large commercial quantity charge on impossibility grounds.
  • Under Pearce v The Queen, a sentencing court must consider each offence individually and then assess whether concurrent, cumulative, or partially cumulative sentences best reflect the totality of the criminality. In this case, full concurrency was found to be inadequate.
  • Partial cumulation of sentences can itself constitute a special circumstance justifying a non-parole period below the standard three-quarter proportion of the total head sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(1), 25(2), s 6
- Criminal Appeal Act 1912 (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Maxwell v The Queen (1996) 184 CLR 501
- R v BD [2001] NSWCCA 184
- R v McCoy [2001] NSWCCA 255
- R v Kouroumalos [2000] NSWCCA 453
- R v Thomas (1993) 67 A Crim R 308
- R v El Azzi [2001] NSWCCA 397
- R v Bavadra (2000) 115 A Crim R 152
- Vougdis & Rossides v R (1989) 41 A Crim R 125
- R v Perese [2001] NSWCCA 478
- R v Carrion (2000) 49 NSWLR 149
- Liberti (1991) 55 A Crim R