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Court of Criminal Appeal 14 December 2018

Cashel v R

[2018] NSWCCA 292

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION STATUTORY INTERPRETATION CONVICTION FOR MANUFACTURE QUASHED SENTENCE ON COUNT 2 CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Cashel v R [2018] NSWCCA 292
Court: Court of Criminal Appeal, NSW
Date: 14 December 2018
Judges: Beazley P, R A Hulme J, Button J

Background

The appellant was sentenced in 2015 following guilty pleas to three serious drug offences and a breach of a suspended sentence. The offences arose from a joint criminal enterprise to manufacture methylamphetamine. Two premises were used: one in Annandale, where pseudoephedrine was being extracted from cold and flu tablets, and one in Strathfield, where a co-offender had also succeeded in actually producing a small quantity of methylamphetamine. Police arrested the appellant before the full intended production of methylamphetamine was complete.

The appellant was convicted on two relevant counts. Count 1 was manufacturing pseudoephedrine (a precursor chemical). Count 2 was manufacturing a commercial quantity of methylamphetamine. The commercial quantity for count 2 was calculated partly by reference to the pseudoephedrine that had been extracted but not yet converted into methylamphetamine.

On appeal, the appellant challenged both convictions. The central argument on count 2 was that, because he was arrested before the methylamphetamine manufacturing process was complete, he could not properly be convicted of "manufacturing" the drug. The argument on count 1 was that any criminality it captured was entirely absorbed by count 2, making the conviction on count 1 effectively redundant.

  • Whether the offence of "manufacturing" a prohibited drug under s 24 of the Drug Misuse and Trafficking Act 1986 (NSW) requires the drug to have actually been produced, or whether participation in the manufacturing process is sufficient.
  • Whether, if the completed-production interpretation is correct, a substituted conviction for "knowingly taking part in the manufacture" of a commercial quantity of methylamphetamine should be entered.
  • Whether the conviction on count 1 (manufacturing pseudoephedrine) should be quashed on the basis that the criminality it captured was entirely subsumed within the criminality of count 2, leaving no "remnant" of criminality requiring separate punishment.

Decision

Count 2: "Manufacture" requires actual production of the drug

Button J, with whom Beazley P and Hulme J agreed, held that the offence of "manufacturing" a prohibited drug requires the drug itself to have been actually produced. The physical element of the offence centres on the completed outcome, not the process. Because the appellant was arrested before the methylamphetamine manufacturing process was brought to completion, a conviction for "manufacturing" could not stand on the evidence.

The court allowed the appeal on count 2 and substituted a conviction for "knowingly taking part in the manufacture" of a commercial quantity of methylamphetamine. This alternative offence captures participation in the manufacturing process even where the drug is never ultimately produced. Hulme J noted that this interpretation was consistent with longstanding prosecutorial practice of roughly 30 years: charges of "manufacture" had typically been pursued only where the drug was actually brought into existence, with "knowingly take part" charges preferred otherwise.

Re-sentencing on substituted count 2

Despite substituting the conviction, the court imposed an identical sentence. Button J reasoned that the original sentence had already reflected the fact that the vast majority of the methylamphetamine underpinning count 2 had not actually been produced. Both offences carry the same maximum penalty, and there was nothing to suggest the process would not have been completed but for police intervention.

Count 1: Manufacturing pseudoephedrine

The appellant argued that the criminality captured by count 1 (manufacturing pseudoephedrine) was entirely subsumed within count 2, and that the conviction on count 1 should therefore be quashed. The court dismissed this ground. The pseudoephedrine conviction retained independent significance because the quantity of precursor located was factored into the calculation underpinning the commercial-quantity threshold for count 2. The conviction on count 1 was not rendered redundant simply because the same precursor was taken into account in establishing a separate offence.

Orders Made

  • Leave to appeal against conviction on count 1 granted; appeal dismissed.
  • Leave to appeal against conviction on count 2 granted; appeal allowed.
  • Conviction on count 2 for manufacturing a commercial quantity of methylamphetamine quashed.
  • Substituted conviction entered for knowingly taking part in the manufacture of a commercial quantity of methylamphetamine.
  • Sentence on count 2 quashed and replaced with a non-parole period of 5 years 1 month commencing 24 December 2014 and expiring 23 January 2020, with a parole period of 2 years 9 months expiring 23 October 2022.
  • First eligible parole date remains 23 January 2020.

Key Takeaways

  • A conviction for "manufacturing" a prohibited drug under s 24 of the Drug Misuse and Trafficking Act 1986 (NSW) requires that the prohibited drug was actually produced. Arrest before completion of the process is fatal to such a charge.
  • "Knowingly taking part in the manufacture" of a prohibited drug is a distinct offence that captures participation in the manufacturing process where the drug is never ultimately brought into existence. It carries the same maximum penalty as the manufacture offence itself.
  • The Court of Criminal Appeal confirmed that this construction is consistent with longstanding prosecutorial practice, under which "manufacture" charges were typically confined to cases where the drug was actually produced.
  • In substituting a conviction on an amended count, a court must resentence afresh, but identical sentences are available where the objective circumstances, maximum penalties, and original sentencing approach warrant them.
  • Dismissing the appeal on count 1, the court held that a precursor conviction is not rendered redundant merely because the quantity of precursor was also taken into account in establishing the commercial-quantity element of a separate methylamphetamine offence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1986 (NSW), s 24
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Britten v Alpogut [1987] VR 929
- Dayment v R [2018] NSWCCA 132
- Haughton v Smith [1975] AC 476
- Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444
- Island Maritime Limited v Filipowski [2006] HCA 30; 226 CLR 328
- McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51
- Mouroufas v R [2007] NSWCCA 58
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Blyth [2001] NSWCCA 402
- R v Bucic [2016] NSWCCA 297
- R v Butler (1834) 6 Car. & P. 367; 172 ER 1280
- R v Deng (1996) 91 A Crim R 80
- R v Jackson [2004] NSWCCA 110
- R v Roderick (1837) 7 Car. & P. 795; 173 ER 347
- R v Thomas (1993) 67 A Crim R 308