The judgment of Maxwell P and Buchanan JA in R v Ververis & Ververis restates many familiar principles of sentencing. One that I was unaware of is that incompetent or flawed attempts to manufacture illicit drugs may be considered less serious than efforts with better prospects for success.

There’s logic to it. Offences under s 71AA, 71AB or 71AC of the Drugs, Poisons & Controlled Substances Act 1981 can be charged as completed offences or as attempts. The definition of traffick at s 70 is wide: Giretti v R (1986) 24 A Crim R 112.

70. Definitions

traffick in relation to a drug of dependence includes-

(a) prepare a drug of dependence for trafficking;

(b) manufacture a drug of dependence; or

(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence;

If a person engages in an attempt to manufacture a drug of dependence an offence is committed even if the chemicals or recipe that the accused relied upon were never capable of producing that drug, provided the accused is under the impression that they would. But on sentence, it’s reasonable that attempts to manufacture drugs which are doomed to failure should be treated more leniently than those which will actually yield a drug of dependence.

Buchanan JA,

19 It was submitted that three years’ imprisonment on count 3 was itself manifestly excessive. According to the submission:

The maximum penalty for this offence is 10 years’ imprisonment. The appellant had no prior convictions for this type of offence. The photographic evidence led the sentencing judge to note the ‘ramshackle nature of the laboratory’. In addition, the sentencing judge accepted the submission that the ‘laboratory was certainly not the most professional operation and appears to be untidy and disorganised’.

20 Developing this last point, senior counsel for Christopher submitted that the prosecution had not proved – and could not have proved – that Christopher had the capability to achieve his admitted aim of manufacturing methylamphetamine. All the prosecution could show, it was said, was that Christopher ‘was keen to have a real go.’ In those circumstances, it was submitted, Christopher’s conduct in establishing a laboratory had to be viewed as less blameworthy than the same conduct engaged in by a person with proven capability as a methylamphetamine ‘cook’.

21 Circumstances may perhaps be imagined in which an offender could demonstrate his own incapability as a ‘cook’ so clearly that it might be said to mitigate the seriousness of his having had in his possession the requisite equipment and substances with intent to manufacture.

The Court emphasised that this mitigatory point is not easily proven,

But that would be a matter to be proved by the defence, on the balance of probabilities. In the present case, a submission along these lines was advanced on the plea but the judge pointed out – correctly – that the evidence showed that Christopher had successfully manufactured some methylamphetamine. The defence called no evidence to substantiate the ‘incapability’ argument, which was therefore properly rejected.

There are evidentiary hurdles in proving that a particular combination of chemicals or process would not create the desired effect. If the proposition is so obvious as to satisfy a court on the balance of probabilities, it’s hard to accept that the accused would have the requisite intent to be guilty of the offence in the first place.