AB v R

[2013] NSWCCA 273

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AB v R [2013] NSWCCA 273
Hearing dates:	18 October 2013
Decision date:	14 November 2013
Before:	Hoeben CJ at CL at [1]; Johnson J at [2]; Bellew J at [113]
Decision:	Application for extension of time to appeal against sentence refused
Catchwords:	CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in November 2009 -Applicant pleaded guilty to offences of knowingly taking part in the manufacture of a prohibited drug (s.24(1) Drug Misuse and Trafficking Act 1985), possession of a precursor (s.24A(1)) and manufacturing a large commercial quantity of a prohibited drug (s.24(2)) - s.24(2) offence committed whilst Applicant on bail for s.24(1) and s.24A(1) offences - only s.24(2) offence subject to standard non-parole period - claim of Muldrock error in relation to s.24(2) offence - no challenge made to sentences for s.24(1) and s.24(2) offences - held no Muldrock error demonstrated - claim of disparity between the sentences of the Applicant and his co-offender for the s.24(2) offence - held no legitimate sense of grievance in relation to the sentence imposed on co-offender - no lesser sentence warranted in any event - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited:	Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Listening Devices Act 1984 Weapons Prohibition Act 1996
Cases Cited:	Abdul v R [2013] NSWCCA 247 Alameddine v R [2006] NSWCCA 317 Hili v The Queen [2010] HCA 42; 242 CLR 520 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ng v R [2011] NSWCCA 227; 214 A Crim R 191 R v AB [2011] NSWCCA 229 R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 R v AZ [2011] NSWCCA 43; 205 A Crim R 222 R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505 R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 Vandeventer v R [2013] NSWCCA 33
Texts Cited:	---
Category:	Principal judgment
Parties:	AB (Applicant) Regina (Respondent)
Representation:	Counsel: Mr E Ozen (Applicant) Ms MM Cinque (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2009/4435
Publication restriction:	---
Decision under appeal	Citation: --- Date of Decision: 2009-11-11 00:00:00 Before: Ellis DCJ File Number(s): 2008/5378

Judgment

1. HOEBEN CJ at CL: I agree with Johnson J and the order which he proposes.

1. JOHNSON J: The Applicant, AB, seeks an extension of time to appeal against sentences imposed in the District Court on 11 November 2009. Because of the Applicant's assistance to authorities, a non-publication order was made concerning his name in the District Court, and this judgment also utilises a pseudonym to describe him.

The Offences and Sentences

1. The Applicant pleaded guilty to two groups of offences. The first group, described as the Mandalong offences, comprised:

(a) an offence committed between September 2006 and March 2007 of knowingly taking part in the manufacture of a prohibited drug, (28.3 grams of MDA), contrary to s.24(1) Drug Misuse and Trafficking Act 1985 ("DMT Act"), carrying a maximum penalty of imprisonment for 15 years;

(b) an offence committed between September 2006 and March 2007 of possession of a precursor (520.9 grams of pseudoephedrine) with intent to manufacture MDA contrary to s.24A(1) DMT Act, carrying a maximum penalty of 10 years' imprisonment.

1. Taken into account on a Form 1 when sentenced for the s.24(1) DMT Act offence, were offences of possessing a tablet press (two offences - a rotary tablet press and a single-punch tablet press), contrary to s.11B(1) DMT Act. Also taken into account on the Form 1, were three offences of possession of an unauthorised pistol contrary to s.7(1) Firearms Act 1996 and possession of a prohibited weapon contrary to s.7(1) Weapons Prohibition Act 1996 (a silencer).

1. If prosecuted separately for these offences, the maximum penalties would have been for each offence:

(a)   the tablet press offences - imprisonment for two years;

(b)   the pistol offences - 14 years' imprisonment with a standard non-parole period of three years;

(c)   the silencer offence - 14 years' imprisonment with a standard non-parole period of three years.

1. It will be apparent immediately that the Applicant obtained a substantial benefit by the placement of this range of serious offences on a Form 1 attaching to the s.24(1) DMT Act offence.

1. Whilst on bail for the Mandalong offences, the Applicant committed the Kanahooka offence, namely between 4 and 20 March 2008, manufacturing a large commercial quantity of a prohibited drug (52.6 kilograms of MDP2P), contrary to s.24(2) DMT Act, carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

1. Taken into account on a Form 1 for the Kanahooka offence was an offence of, between 4 and 20 March 2008, possession of a precursor for use in the manufacture of a prohibited drug (Safrole). If prosecuted separately, this offence under s.24A(1) DMT Act carries a maximum penalty of 10 years' imprisonment.

1. For the Mandalong offences, the Applicant was sentenced as follows:

(a) for the s.24(1) DMT Act offence, taking into account the matters on the Form 1, imprisonment comprising a non-parole period of two years and six months commencing on 30 September 2008 and expiring on 29 March 2011, with a balance of term of one year and six months commencing on 30 March 2011 and expiring on 29 September 2012;

(b) for the s.24A(1) DMT Act offence, imprisonment comprising a non-parole period of 15 months commencing on 31 March 2008 and expiring on 30 June 2009, with a balance of term of nine months commencing on 31 June 2009 and expiring on 30 March 2010.

1. For the Kanahooka offence, taking into account the offence on the Form 1, the Applicant was sentenced to a non-parole period of six years commencing on 31 March 2010 and expiring on 30 March 2016, with a balance of term of four years commencing on 31 March 2016 and expiring on 30 March 2020.

1. The total effective sentence comprised a non-parole period of eight years concluding on 30 March 2016, and a balance of term of four years concluding on 30 March 2020.

1. As will be seen, the sentencing Judge applied a total discount of 50% on sentence because of the Applicant's pleas of guilty and past assistance to the authorities.

The Present Application

1. Having been sentenced on 11 November 2009, the Applicant filed a Notice of Intention to Appeal with respect to sentence on 3 December 2009. Thereafter, the Applicant was refused legal aid and the Notice of Intention to Appeal lapsed.

1. It was not until 28 June 2013, some three years and seven months after sentence, that Notice of Application for an Extension of Time for Leave to Appeal against sentence was filed in this Court.

1. It is clear that the sole reason for this very lengthy delay is the revived attention given to the Applicant's sentences following the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 ("Muldrock").

1. The Applicant seeks to rely upon the following grounds of appeal:

(a)   Ground 1 - his Honour erred in his approach to the standard non-parole period legislation in light of the principles identified in Muldrock.

(b)   Ground 2 - there is erroneous disparity between the sentence of the Applicant and the sentence of the co-offender, [XY].

1. The co-offender is described by pseudonym as identification of him may serve to identify the Applicant.

1. The Crown submits that no error has been demonstrated in this case and says, in any event, that no lesser sentence is warranted under s.6(3) Criminal Appeal Act 1912, so that the Court should refuse the extension of time application.

1. The concept of Muldrock error was explained in Abdul v R [2013] NSWCCA 247 at [19]-[28]. What is said there will assist an understanding of the present judgment.

1. In Abdul v R at [42]-[53], the Court considered the principles to be applied where application is made for an extension of time to appeal in a case such as this. This approach has been adopted in determining the present application.

Facts of the Offences

1. Agreed Statements of Facts were placed before the sentencing Judge with respect to the Mandalong offences and the Kanahooka offence.

The Mandalong Offences

1. Between July and September 2006, the Applicant (then aged 32 years) arranged for the leasing of a 50-acre rural property at Mandalong. For this purpose, false documentation was provided by him and a cover name was used for the leasing of the property. A number of buildings were located on the property.

1. Between October 2006 and January 2007, neighbours observed the Applicant regularly attending the property. A false story was devised to explain the Applicant's presence on the property. The Applicant (using a false name) introduced himself to a neighbour, asserting that his uncle (allegedly then in the United Kingdom) was going to breed and train thoroughbreds on the property in six months' time.

1. As would become entirely apparent from events on and after 19 March 2007, the Mandalong property was in fact being utilised for the manufacture of prohibited drugs.

1. In the early evening of 19 March 2007, the Applicant was inside the house on the Mandalong property when a vapour explosion occurred. The vapour explosion was the result of the Applicant's activities of "cooking" chemicals to manufacture a prohibited drug.

1. As a result of the explosion, the Applicant was covered in toxic chemicals and fled the residence. Once outside, he discarded his clothes, including a pair of shorts from which police later recovered the sum of $3,475.00. DNA analysis of the shorts later established the garment as having been worn by the Applicant. Further forensic examination of the shorts revealed methylenedioxyamphetimine (MDA).

1. The chemicals continued to burn the Applicant's body and he was driven to Wyong Hospital. The Applicant's condition rapidly deteriorated and he was transferred to the Burns Unit at Concord Hospital, with burns covering 65% of his body.

1. Later on the evening of 19 March 2007, the residence on the Mandalong property was engulfed by fire. Members of the New South Wales Fire Brigade extinguished the fire. No person was then present on the property. Fire Brigade officers observed what appeared to be the remnants of a clandestine laboratory. This consisted of a number of flasks atop heating devices and other glassware on the western side of the premises, the only area of the premises which remained standing.

1. Police attended the scene of the fire and forensic chemical examination followed, revealing a substantial drug manufacturing operation, including:

(a)   air purifying respirator filters found on the floor of the separate garage containing, amongst other things, MDA, MDMA and MDP2P;

(b)   a methylated spirits bottle on the floor of the garage containing MDA and Isosafrole;

(c)   liquid from a 10-litre flask found on the floor of the garage containing 81.3% MDP2P;

(d)   the hopper from a tablet press found in the garage containing MDP2P;

(e)   the hopper from another tablet press on the floor of the garage containing MDMA and MDP2P;

(f)   tablets containing MDA and MDMA.

1. In the garage, police also located a vacuum-sealed bag containing 126 pink mottled pills stamped with a St George Dragon logo, weighing 28.3 grams and containing 24.5% MDA.

1. What has been recounted so far relates to the first Mandalong offence, being the s.24(1) DMT Act offence of knowingly taking part in the manufacture of a prohibited drug, MDA.

1. A large quantity of pseudoephedrine extract was located in the locked area of an open machinery shed. Analysis of this substance pointed to the extraction of pseudoephedrine from therapeutic products, as part of the illicit manufacture of methylamphetamine.

1. A total of 88 kilograms of pseudoephedrine extract was located, which was calculated as being able to produce 520.9 grams of pure pseudoephedrine.

1. These facts relate to the second Mandalong offence, namely the s.24A(1) offence of possession of a precursor, pseudoephedrine, with intent to manufacture MDA.

1. In the garage near the house, police located four tablet presses, two of which had motors attached, together with an instruction manual entitled "Secrets of Methylamphetamine Manufacture Including Recipes for MDA, Ecstasy and Other Psychedelic Amphetamines". The Yogesh tablet press and the Shanghi tablet press were fully functional. These matters give rise to the Form 1 offences of possession of tablet presses.

1. Police also located in the garage a shopping bag which contained a .25 automatic calibre Fabrique Nationale self-loading pistol, a .22 Long Rifle calibre Bernadelli brand model semi-automatic pistol (with a silencer attached) and a nine millimetre .380 automatic calibre Astra self-loading pistol. Each of the pistols was in working order. The Applicant was not the holder of a firearm's licence or prohibited weapons permit. These matters gave rise to the further offences on the Form 1 of possession of three pistols and possession of a silencer.

1. On 3 May 2007, police spoke to the Applicant at Concord Hospital. After legal advice, he declined to be interviewed. A bedside court was arranged and the Applicant was charged.

1. The Applicant was granted conditional bail on 9 May 2007.

1. On 21 May 2007, the Applicant was released from hospital and he continued to be treated for his injuries as an outpatient.

1. The Applicant remained at liberty on bail until 31 March 2008, when he was arrested for the Kanahooka offence.

The Kanahooka Offence

1. In February 2008, police from the Lake Illawarra Local Area Command, with the assistance of the New South Wales Crime Commission, commenced an operation to target a co-offender, XY, for alleged involvement in the manufacture and supply of ecstasy.

1. On 25 February 2008, lawful telephone intercepts detected conversations between XY and other persons involved in drug manufacture.

1. On 3 March 2008, a warrant was issued under the Listening Devices Act 1984 permitting installation of a listening device at premises at Kanahooka. The Applicant came to the attention of police as a result of monitoring of the listening device between 4 and 20 March 2008.

1. Over this period, the listening device recorded numerous conversations between the Applicant, XY and a relative of the Applicant, in which they discussed their involvement in a criminal enterprise to manufacture a prohibited drug. The men were discussing the sourcing of the premises, the purchase of chemicals used in the manufacture of ecstasy, problems encountered during this and previous "cooks", the pros and cons of various manufacture methods and the various stages of the manufacture process, as well as the non-use of mobile phones and the installation of a gate, and the parking of cars off the street, to avoid persons knocking on their door.

1. The Applicant was heard telling the others about the burns he had received during a "cook" at Mandalong. The Applicant also discussed how close they had come at the Kanahooka premises to a fire and potential disaster, apparently avoided by pouring water over smoking equipment.

1. Examples of recorded statements made by the Applicant included:

(a)   on 5 March 2008, an instruction to XY to "get rid of your phones";

(b)   on 6, 10, 18 and 20 March 2008, providing technical information concerning the manufacturing process including (on 18 March 2008) telling XY that, "You can't really do nothing at the moment until you get the sass".

1. On 20 March 2008, electronic and physical surveillance confirmed that XY, the Applicant and the third person were in the process of manufacturing five kilograms of ecstasy at the Kanahooka property, with intercepted conversations indicating that they were six hours into a 16-hour "cook".

1. In the late afternoon of 20 March 2008, the Applicant and his relative left the Kanahooka property by vehicle, with the Applicant as passenger. Police attempted to stop this vehicle, however, the driver drove directly at police, mounting the footpath before driving off at high speed, eventually crashing into a fence. Both the Applicant and the driver made good their escape, despite an extensive police search.

1. Whilst police were securing the scene near the vehicle, they were approached by a member of the public who handed them a rubber glove thrown from the vehicle, with the rubber glove containing numerous other rubber gloves. Fingerprints were later detected on a glove. A search of the vehicle located a tablet container bearing the Applicant's name.

1. XY was arrested on 20 March 2008 without incident.

1. The Applicant was arrested at the Burwood Local Court on 31 March 2008, after he had appeared in Court whilst on bail in relation to the Mandalong offences.

1. A search warrant was executed on the Kanahooka premises with the assistance of specialist chemical operations officers. Inside the premises, police observed that three rooms contained equipment used in varying stages of the manufacturing process of ecstasy.

1. During the search, police located numerous items, including:

(a)   scientific glassware and equipment used in the manufacture of prohibited drugs;

(b)   several 20-litre flasks containing a liquid undergoing a chemical process;

(c)   over 500 litres of chemicals that can be used in the manufacture of MDMA - scientific analysis of one container of those chemicals revealed that it contained 52.6 kilograms of admixture, containing at least 4,805 grams of MDP2P (the large commercial quantity for this drug is 500 grams);

(d)   a further 52 kilograms of Safrole and 2.3 kilograms of Isosafrole, being scheduled precursors used in the manufacture of MDMA;

(e)   a recipe on how to manufacture methylamphetamine;

(f)   two vacuum pumps.

1. According to the forensic chemical analyst who examined the premises and substances, with sufficient chemicals available, the maximum amount of MDA that could be produced from the substances located at the Kanahooka premises was about 65.4 kilograms, about 130 times the large commercial quantity for this drug.

1. Approximately 4.8 kilograms of pure MDP2P could be converted into 4.8 kilograms of pure MDA.

1. MDA is generally sold in tablet form, and its properties are usually more intense and hallucinogenic than MDMA or ecstasy. MDA is generally passed off as MDMA. Police estimated the street value in this case to be between $720,000.00 (if sold in bulk) and $3 million (the street-level value).

1. The Form 1 matter taken into account on sentence for the Kanahooka offence arose from the location in the premises of 58.9 kilograms of Safrole, a scheduled precursor used by the Applicant in the manufacture of a prohibited drug.

1. Of the various substances referred to in these facts:

(a)   Safrole and MDP2P are scheduled as precursors because of their use in the manufacture of prohibited drugs such as MDA and MDMA;

(b) MDP2P is scheduled as a prohibited drug under the DMT Act, with the large commercial quantity of this drug being 500 grams;

(c) MDA is a prohibited drug under the DMT Act, with the large commercial quantity being 500 grams.

The Applicant's Subjective Circumstances

1. The Applicant was aged 32 and 33 years at the time of the offences, committed between September 2006 and March 2008. He is now aged 39 years. He is a single man with no dependants.

1. The Applicant's criminal history included an offence of stealing from the person, for which he was sentenced in 1993 to 12 months' imprisonment by way of periodic detention. He was fined in 1994 for traffic matters.

1. The Applicant had an uneventful upbringing in a supportive family environment. He obtained his Higher School Certificate.

1. The Applicant worked for a period as a tiler and became involved in property development. Evidence was adduced on sentence concerning financial difficulties arising from property development which affected the Applicant. He had borrowed money, using his parents' home as security.

1. Medical evidence was adduced on sentence concerning the nature and extent of the injuries which the Applicant sustained in the vapour explosion at the Mandalong premises in March 2007.

1. In addition to evidence concerning physical injuries and disfigurement, psychiatric reports from Dr Stephen Allnutt were tendered on sentence. Dr Allnutt expressed the opinion that the Applicant had manifested symptoms of post-traumatic stress disorder arising from the explosion.

1. Dr Allnutt had seen the Applicant initially on 26 February 2008, whilst the Applicant was on bail for the Mandalong offences. Dr Allnutt was concerned at that time with respect to the Applicant's mental state. The second time Dr Allnutt saw the Applicant was when he was in custody after his arrest for the Kanahooka offence. At this time, there had been further deterioration in his mental state. Dr Allnutt considered that the Applicant continued to manifest symptoms consistent with post-traumatic stress disorder and depressive symptoms.

Some Findings of the Sentencing Judge

1. It is appropriate to refer to a number of findings of the sentencing Judge.

1. His Honour allowed a combined discount of 50%, taking into account the Applicant's pleas of guilty and his past assistance, allocating 25% for each of these two elements (ROS20-21). There was no promise of future assistance and thus no discount in this respect.

1. A lengthy sentencing hearing (occupying some 111 transcript pages) proceeded before his Honour over several days in October 2009. The Applicant and other persons gave evidence. The Applicant asserted that he had played a minimal role in the Mandalong offences, and that he had only become involved in the Kanahooka offence to obtain information which would be of assistance to the authorities, and which would therefore assist him in minimising the penalties to be imposed for the Mandalong offences.

1. These issues were resolved adversely to the Applicant. The sentencing Judge did not accept the Applicant's evidence, finding that he was not a reliable witness on the topic of his own motivation for involvement in the Kanahooka matter. His Honour concluded that the Applicant had become involved in the Kanahooka offence as a consequence of the financial difficulties in which he found himself following the failure of a property development, and the failure of the Mandalong offences to provide a second source of income to cover his then financial difficulties.

1. The sentencing Judge rejected, as well, the Applicant's claim that he had played a superficial role only in the Mandalong offences, although the Court accepted that it was likely that there were others behind the scenes who were providing finance and "pulling the strings" (ROS23-24).

1. Fortunately for the Applicant, despite the fact that there had been a lengthy contested sentencing hearing at which factual findings were resolved adversely to him, the Applicant maintained the full benefit of a 25% discount for his pleas: R v AB [2011] NSWCCA 229 at [2], [27]-[33].

1. His Honour noted the Applicant's injuries, which were taken into account as a form of extra-curial punishment in relation to the Mandalong offences (ROS26).

1. This Court has observed that burn injuries sustained by a person engaged in drug manufacture are capable of constituting extra-curial punishment to be taken into account on sentence: Alameddine v R [2006] NSWCCA 317 at [17]-[27]. It must be said, however, that any benefit which the Applicant may have been entitled to receive on sentence in this respect would be largely neutralised by his engagement, whilst on bail for the very offences in which the injuries were sustained, in an even larger drug manufacture enterprise. To the extent that the rationale for extra-curial punishment being taken into account on sentence where injuries are sustained in the commission of an offence is the expectation that that form of punishment will have a deterrent effect upon the offender, then that is clearly not the position in this case.

1. The sentencing Judge took into account Dr Allnutt's concern about the Applicant in February 2008 as a mitigating factor on the Kanahooka offence (ROS22). Elsewhere his Honour considered that the mental health issues were mitigating factors for both the Kanahooka and the Mandalong offences (ROS26). Although no causal connection had been demonstrated between the Applicant's mental health issues and the offences, his Honour took into account the Applicant's depression associated with his failed property development, and the impact of these issues upon his capacity to make clear, informed decisions to become involved in criminal activity (ROS26).

1. His Honour accepted that the Applicant was remorseful (ROS24, 26).

1. The sentencing Judge found, as a mitigating factor, that there was no substantial harm caused because all the drugs were seized (ROS29).

1. With respect to the Mandalong offences, the sentencing Judge characterised the s.24(1) offence as being "in the mid range or perhaps a little below the mid range" and the s.24A(1) offence as being "at least in the mid range" (ROS27).

1. Addressing the Kanahooka offence, the sentencing Judge observed that "the standard non-parole period does not strictly apply because of the plea of guilty" (ROS28). His Honour expressed the view that the Applicant's "involvement is in the mid range or slightly higher for that offence" (ROS28).

1. A number of objective and subjective factors were mentioned. The sentencing Judge then stated, in a paragraph emphasised by the Applicant at the hearing of this application (ROS29):

"The court notes that the standard non-parole period while not strictly applicable because of the plea of guilty and the impact of the mitigating matters that I have just mentioned which fall within s 21A is nevertheless a guidepost for this court, and that the Court of Criminal Appeal has made it clear that while this court exercises a sentencing discretion, there must be some relativity between the standard non-parole period and the non-parole period fixed. In this case specifically the s 23 and 22 matters impact significantly upon the standard non-parole period, and the special circumstances because of the cumulation will also impact on the length of the non-parole period for this particular offence as it is the offence which will bring with it the longest sentence, and will effectively be the sentence which determines the period on which he is on parole."

1. His Honour said, in a further passage relied upon by the Applicant in this Court (ROS31):

"In relation to count 1 on the Kanahooka matter, manufacture not less than a large commercial quantity of prohibited drug, and taking into account the matter on the Form 1 which in itself is a reasonably serious matter, the court convicts you and imposes a non-parole period of six years to date from 31 March 2010 and to expire on 30 March 2016. The court imposes an additional term of four years to date from 31 March 2016 and expires on 30 March 2020; that is a total of ten years from 31 March 2010 until 30 March 2020, again the starting point was double; namely, twenty years. In essence the court points out in relation to that matter that twenty years would have carried with it a statutory non-parole period of fifteen years, which is in fact the standard non-parole period, and the matter is to be deducted from that given the court's conclusion that the offending here was in the midrange or a little higher, the mitigating factors set out under 21A and more particularly the s 22 and s 23 factors."

1. His Honour accepted that there were prospects of rehabilitation, but that he could not assess the Applicant's prospects of rehabilitation, and not reoffending, as being good (ROS26).

1. Special circumstances were found because the sentences were to be partly cumulative and because of the mental health issues referred to by Dr Allnutt (ROS29).

1. On the issue of parity, the sentencing Judge noted that no other person had been charged with the Mandalong offences. XY had pleaded guilty to the Kanahooka offence, but had not at that time been sentenced. His Honour said (ROS19):

"Parity therefore is not strictly applicable in the Kanahooka matters in terms of this sentencing exercise, although this court will nominate the level of criminality, that is the level of involvement of this offender so that any subsequent court when considering the sentence imposed will have a clear understanding of the role played by this offender and can then make the appropriate determination as to the relatively [sic] between this offender and any subsequently sentenced co-offender."

Has Muldrock Error Been Demonstrated in this Case?

1. Only the Kanahooka offence carries a standard non-parole period. The Muldrock ground is directed to the sentence for that offence only.

1. In extensive remarks on sentence, the sentencing Judge addressed the objective circumstances of the offences, the Applicant's subjective circumstances and had regard to principles of concurrency, accumulation and totality before passing the sentences, one of which is presently under challenge. In light of the Applicant's early pleas of guilty and his assistance to the authorities, a total 50% discount was applied on sentence.

1. The sentencing Judge referred (at [79] above) to the standard non-parole period as a "guidepost" on sentence for the Kanahooka offence and observed that, whilst the Court exercises a sentencing discretion, "there must be some relativity between the standard non-parole period and the non-parole period fixed". His Honour observed further that the Applicant's pleas of guilty, assistance and a finding of special circumstances flowing from accumulation would also impact upon the length of the non-parole period (ROS29).

1. In my view, these statements do not disclose Muldrock error. The use of the standard non-parole period as a guidepost on sentence accords with Muldrock. An observation that there must be "some relativity" between the standard non-parole period and the non-parole period fixed is not a heretical statement in light of Muldrock. The standard non-parole period remains a significant guidepost on sentence.

1. The sentencing Judge returned again (at [80] above) to the standard non-parole period. By that time, his Honour had identified and passed sentence for the Kanahooka offence. What is said at that point concerning the standard non-parole period is superfluous. In any event, I do not accept that what is said there constituted either a prohibited two-step approach or an overly prescriptive use of the standard non-parole period.

1. It is necessary to keep in mind, as well, that the challenge on this application relates to only one of three offences for which the Applicant was sentenced at the same time. This Court has observed that a narrow focus on one of several sentences imposed at the same time tends to introduce an element of artificiality into the appeal process: R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320 [82]. That is the position in this case.

1. The Kanahooka offence involved a quantity of 52.6 kilograms of admixture, containing at least 4,805 grams of MDP2P, the large commercial quantity of which was 500 grams. The quantity involved far exceeded the large commercial quantity. A sophisticated and sustained drug manufacturing process was involved in the Kanahooka offence, with the Applicant playing a pivotal role.

1. Whilst committing this offence in early 2008, the Applicant was on bail for the Mandalong offences. The earlier offences had also involved a substantial drug manufacturing enterprise, with the Applicant playing a major role in the selection and establishment of the property for illegal purposes, and in the manufacturing process itself. The possession by the Applicant of three pistols, one with a silencer attached, together with tablet presses meant that the paraphernalia of a substantial drug supply enterprise were present in this case: R v AZ [2011] NSWCCA 43; 205 A Crim R 222 at 234 [76].

1. His Honour's finding, as a mitigating factor, that no substantial harm was caused because all the drugs were seized, was very generous to the Applicant. If the drugs had been disseminated into the community, it would have constituted a significant aggravating factor on sentence. However, the absence of an aggravating factor does not translate the matter into a mitigating factor. This Court has observed repeatedly, in the context of offences where police operations mean that the drugs are not actually disseminated into the community, that the moral culpability of an offender is not thereby reduced (see the cases gathered in R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at 166-168 [88]-[100]). This was a very large quantity of the relevant prohibited drug with the potential to cause a great deal of harm both individually and socially: R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505 at 524 [73].

1. The Kanahooka offence was not an isolated offence committed by the Applicant. To the contrary, he persisted in drug manufacture (on an even larger scale) despite his arrest for the Mandalong offences and his serious injuries sustained in that process.

1. The Applicant's reliance on sentencing statistics and other sentencing decisions provides no real assistance to him, in particular in the unusual and aggravated circumstances applicable to the Kanahooka offence: Hili v The Queen [2010] HCA 42; 242 CLR 520 at 537 [54]; Vandeventer v R [2013] NSWCCA 33 at [45]-[46].

1. Even if error had been demonstrated concerning the Kanahooka offence, the totality principle would have required attention being given to the sentences to be passed for the Applicant's total criminality. This would not have assisted the Applicant in this case.

1. There is no merit in the complaint of Muldrock error with respect to the Kanahooka offence. However, even if there were, I am not satisfied that any lesser sentence would be warranted under s.6(3) Criminal Appeal Act 1912.

The Parity Ground

1. Ground 2 complains of disparity of sentence when compared with that passed by the same sentencing Judge with respect to the co-offender, XY, on 14 March 2011. XY was sentenced to imprisonment comprising a non-parole period of seven years and three months, with a balance of term of four years for the Kanahooka offence (with an offence of possession of a precursor on a Form 1).

1. The evidence discloses no explanation at all for the Applicant's delay in advancing this ground of appeal.

1. Where the same Judge sentences two related offenders and gives detailed reasons for imposing the sentences, having regard to the differing criminality of each, the differing subjective circumstances and relevant sentencing principles, this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance because of different sentencing outcomes: Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at 209-210 [77]-[83].

1. In sentencing XY, his Honour had regard to his earlier remarks on sentence concerning the Applicant. XY was being sentenced for a single offence of knowingly taking part in the manufacture of a large commercial quantity of MDP2P (the Kanahooka offence), with a similar Form 1 offence as the Applicant for this offence.

1. XY received a 25% discount for his plea of guilty and his assistance to authorities (XY, ROS8).

1. The sentencing Judge concluded that the respective roles of the Applicant and XY were such that they were "on a par in terms of their level of criminality" (XY, ROS6).

1. His Honour pointed to differences between the position of the two offenders. These included the fact that the Applicant committed the Kanahooka offence whilst at liberty on bail for the Mandalong offences, and the fact that disregard for the safety of the public was significantly enhanced in the case of the Applicant in his commission of the Kanahooka offence, following the demonstrated explosive dangers surrounding the Mandalong offences (XY, ROS7).

1. Further, his Honour found that XY had good prospects of rehabilitation and was unlikely to reoffend (ROS11).

1. XY was 35 years' old at the time of sentence and had no significant record of convictions, so that he was treated as having good character, which could be called in aid (XY, ROS12).

1. His Honour was conscious of the need for "some relativity" between the sentences imposed on the Applicant and XY for the Kanahooka offence, whilst acknowledging differences between the two offenders in a number of respects.

1. The fact that the Applicant committed the Kanahooka offence whilst on bail for the Mandalong offences was, on its own, a very significant aggravating factor which applied to the Applicant, but not XY.

1. The sentencing Judge explained the differences between the Applicant and XY which contributed to the sentences actually imposed in each case.

1. The Applicant has failed to demonstrate a legitimate sense of grievance, viewed objectively, arising from the sentence imposed upon XY for the Kanahooka offence.

Conclusion

1. The application for extension of time was filed long after sentence had been imposed upon the Applicant in the District Court. The explanation for the delay arises from the Applicant's desire to take advantage of the decision in Muldrock. No explanation at all has been advanced for the delay in advancing the parity ground.

1. The grounds of appeal lack merit. No error has been demonstrated. Even if it had been, taking into account the further evidence adduced in this Court concerning the Applicant's custodial progress, no lesser sentence is warranted under s.6(3) Criminal Appeal Act 1912. In these circumstances, an extension of time should not be granted.

1. The application for extension of time to seek leave to appeal against sentence should be refused.

1. BELLEW J: I agree with Johnson J.

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Decision last updated: 14 November 2013