Cashel v R [2018] NSWCCA 292

Cashel v R [2018] NSWCCA 292 · Read the judgment on AustLII

Catchwords: Manufacturing prohibited drugs – requirement to actually produce the drug

How far do you have to go before you can be found guilty of ‘manufacturing’ a drug? The CCA has determined that, in order to be convicted of manufacturing a prohibited drug a person must have actually produced the drug.

The applicant was one of a number of people involved in an enterprise to produce methylamphetamine. The process started with the extraction of pseudoephedrine, which can be converted into methylamphetamine. About 360g of pseudoephedrine was found, which expert evidence establish could have been converted into about 320g of methylamphetamine. Only 12.7g of actual methylamphetamine was found, but once that was added to the 320g of potential methylamphetamine, the total was well over the commercial quantity. The offender was sentenced for a range of offences (including the breach of a suspended sentence) to a total sentence of 9 years 5 months with a non-parole period of 6 years and 8 months; he appealed. Initially he appealed only against the sentence on various bases (which are not discussed here). But ultimately he also appealed against his conviction in relation to the manufacture prohibited drug charge, arguing that the conviction should be set aside and substituted with a conviction for knowingly taking part in the manufacture of a prohibited drug. The primary basis for that submission was that, whilst it was clear that they were on their way to making prohibited drugs, the evidence did not establish that it had actually been made.

The CCA (Button J; Beazley P agreeing, R A Hulme J also agreeing, but with some brief additional remarks) acknowledged that it was contestable whether ‘manufacture’ as defined by the Drug Misuse and Trafficking Act requires the drug actually to have been produced. However, ultimately it determined that the drug does have to have been actually produced in order to be guilty of the offence (at [72]). Using his characteristic style of an enumerated list, Button J set out eleven reasons in support of that conclusion (at [73] to [90]). The most important (and one that R A Hulme J explicitly adopted in his short separate judgment) was that both manufacturing, and taking part in the manufacture of a prohibited drug, are to be found within the same offence provision, and carry the same maximum penalty.

Indeed, for that and other reasons the applicant’s victory on this ground of appeal was hollow: the conviction was quashed, and one for knowingly take part in manufacture was substituted – but the same sentence was imposed.