Diesing v R - [2007] NSWCCA 326

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Diesing & Ors v Regina [2007] NSWCCA 326

FILE NUMBER(S):
2007/00003314
2007/00003187
2007/00005103
2007/00005064
2007/00003275

HEARING DATE(S): 02/08/2007

JUDGMENT DATE: 27 November 2007

PARTIES:
Martin Diesing - Applicant
Rudolph Paul Czerwinski - Applicant
Terrence John Ackland - Applicant
Luke Palin - Applicant
Peter Hamilton - Applicant
Crown - Respondent

JUDGMENT OF: Hoeben J Latham J Harrison J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0556, 05/11/0552, 05, 11/0555, 05/11/0477, 05/11/0568

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 05/09/2006

COUNSEL:
CB Craigie SC - Applicant Diesing
M Johnston - Applicant Czerwinski
M Avenell - Applicant Ackland
Ms J Manuell - Applicant Palin
Ms A Francis - Applicant Hamilton
Mr P Miller/ Ms N Adams - Crown

SOLICITORS:
SE O'Connor - Applicant Diesing
SE O'Connor - Applicant Czerwinski
SE O'Connor - Applicant Ackland
SE O'Connor - Applicant Palin
SE O'Connor - Applicant Hamilton
S Kavanagh - Solicitor for Public Prosecutions - Crown

CATCHWORDS:
Sentence appeals - Judge incorrectly believing that standard non-parole period applied to offence - error conceded - operation of proviso - evaluation by Judge of psychological reports where basis of opinions not disclosed - importance of identifying role of participants in conspiracy - failure to give effect to a finding of special circumstances - parity.

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

CASES CITED:
Baxter v Regina [2007] NSWCCA 237
DAC v Regina [2206] NSWCCA 265 at [9]-[10]
Elyard v Regina [2006] NSWCCA 43
Ibbs v The Queen; Baumer v The Queen (1988) 166 CLR 51
R v AJP (2004) 150 A Crim R 575 at 585
R v Burgess [2006] NSWCCA 319
R v Chalmers [2007] NSWCCA 247
R v Kane [1975] VR 658
R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [10]
R v Moon (2000) 117 A Crim R 497 at 510
R v Ohar (2004) 59 NSWLR 596 at [84]
R v Reicher [2003] NSWCCA 300
R v So [2004] NSWCCA 362
R v Way (2004) 60 NSWLR 168
R v Wilkinson [2004] NSWCCA 468
Savvas v The Queen (1995) 183 CLR 1 at 7

DECISION:
Appeals allowed in all applications and new sentences imposed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/00003314; 2007/00003187; 2007/00005103; 2007/00005064; 2007/00003275
HOEBEN J
LATHAM J
HARRISON J
Tuesday 27 November 2007

Martin DIESING v REGINA
Rudolph Paul CZERWINSKI v REGINA
Terrence John ACKLAND v REGINA
Luke PALIN v REGINA
Peter HAMILTON v REGINA

Judgment

THE COURT: These applications were heard by the Court on 2 August 2007. Because the offences are related and the applications raise similar issues, the Court has dealt with the applications in a single judgment.
In order to understand the applications and the competing submissions, it is necessary to set out the background to the offences. For ease of reference the Court has used for its factual background the offences charged against Mr Hamilton.
Offence 1 - Supply of indictable quantity of methylamphetamine on 19 May 2003
In May 2003 police were investigating the supply of methylamphetamine and as part of that investigation obtained telephone interception warrants. Police were aware that Kevin Murphy (referred to in the Palin application as Murphy Snr), a long distance truck driver, was making frequent trips between South Australia, New South Wales and Queensland. On 19 May 2003 Murphy went to Hamilton’s property in rural New South Wales where Hamilton gave him 196 grams (7 ounces) of methylamphetamine at a cost of $3,600 per ounce.
On that day the police intercepted a telephone conversation between Czerwinski and Murphy. Czerwinski told Murphy that Hamilton had said he would pay him. Murphy replied that he had been told by Hamilton that Czerwinski was to pay him $1,000 and that Hamilton would repay Czerwinski. Czerwinski asked Murphy what he had for him and Murphy said a pound of speed and attested to its quality because he said that he had used some and he referred to it being cut four to one. Czerwinski gave Murphy $100.
That same evening Czerwinski spoke to Hamilton and said that Murphy had asked to be paid $1,000. Czerwinski asked Hamilton how much was in the parcel and Hamilton told him there were seven, a reference to seven ounces and they discussed the price. Hamilton said he was thinking of $4,000 an ounce. Czerwinski replied to Hamilton that he had told him that it would be $3,600 an ounce.
Offence 2 – Supply of a commercial quantity of methylamphetamine on 15 October 2003
Between January 2003 and May 2004 police had established an investigation into the manufacture and supply of methylamphetamine between New South Wales and South Australia. As part of the investigation police intercepted telephone conversations between various people being investigated. Hamilton was a party to some of those conversations. Also party to these conversations were Fumberger and Eyre, who were also charged.
As a result of the intercepted telephone calls police established that Hamilton directed Fumberger to package and arrange delivery of 450 grams of methylamphetamine to Eyre in South Australia.
In a recorded conversation of 15 October 2003 Eyre spoke to Hamilton and told him that the weight of the methylamphetamine delivered was less than he expected it to be. He had received 468 grams but had expected 484 grams. In that conversation he and Hamilton discussed whether someone might have removed some of the drug from the parcel.
After this conversation Hamilton spoke to Fumberger who confirmed that the package had weighed 484 grams when it had left his hands. They discussed who might have removed the drugs from the parcel.
Later that same day, Eyre rang Hamilton and told him that the methylamphetamine looked unusual. In the course of that discussion Hamilton said that he would sort out the person he believed to be responsible for taking the drugs. Later that day Hamilton spoke to Fumberger and asked him whether the drug was different to usual. Fumberger said that he had wrapped it himself. Hamilton then rang Eyre and told him that it was meant to look different to which Eyre replied that he hoped it was all right and that it smelt all right. The estimated street value of these drugs was $48,600.
Offence 3 – Conspiracy to manufacture an indictable quantity of methylamphetamine between 1 December 2003 and 31 December 2003
As part of the same taskforce police intercepted telephone calls between Hamilton, O’Grady, Czerwinski and Murphy.
The conversations were conducted in code, for example using the word “canaries” for pseudoephedrine. Part of the material on which the Crown relied on sentence was statements from police who were experienced in drug investigations and who decoded the conversations and described the processes by which pseudoephedrine is converted to methylamphetamine.
On 4 December 2003 Hamilton and O’Grady discussed obtaining a precursor for making methylamphetamine. O’Grady believed that he had some pseudoephedrine, which is an essential ingredient in the manufacture of methylamphetamine. O’Grady was worried about whether pseudoephedrine lost effectiveness over time. Hamilton told him to conduct a test on it to “turn it”, to which O’Grady replied that he had but that it was not “water friendly”. Hamilton told O’Grady to “grab 200” being a reference to 200 grams.
The next day O’Grady rang Hamilton and asked him to come and have a look at the pseudoephedrine. He explained that his source was a woman whose husband was a manufacturer of methylamphetamine and that she had kept the pseudoephedrine after he went to prison. O’Grady told Hamilton that he had conducted some tests on it and it behaved as it should. He told Hamilton that he had 200 and could probably get another 200.
On 7 December 2003 the 200 grams of pseudoephedrine was collected by Murphy from Hamilton and taken to Czerwinski, who lived in South Australia, where it was expected that the methylamphetamine would be made. On 8 December, Czerwinski rang Hamilton and told him that he needed to test a bit of what had been sent to him. Hamilton told Czerwinski that he was in a hurry. Czerwinski said that he had received 169 grams not 200 grams.
On the evening of 9 December Czerwinski rang Hamilton and told him that what he had been given seemed reasonable and said that he had given it a “wash” which was accepted to be a reference to part of the process of dealing with pseudoephedrine when starches and dyes associated with the pseudoephedrine are dissolved out.
Hamilton told O’Grady that he was waiting to hear that they had washed. Later Hamilton was called by Czerwinski who said that the pseudoephedrine was no good and he told Mr Hamilton not to bother getting any more. Czerwinski commented that the first stage went well, but it failed at the final completion and despite trying, they could not produce any methylamphetamine.
On 10 December Hamilton told O’Grady that the process was unsuccessful. Later on that day Czerwinski rang Hamilton and passed the phone to another man who told Hamilton that it may not have been pseudoephedrine. He said to Hamilton that it was close, but it was not pseudoephedrine. Czerwinski and Hamilton continued to discuss why the manufacture did not work and discussed experimenting with another sample of 20.
Hamilton rang O’Grady and told him to get another 20 and then reported that to Czerwinski. The next day Hamilton arranged for O’Grady to bring the 20 to him and on 14 December Hamilton told Czerwinski that he had the 20 but did not have anyone going to South Australia until Sunday.
On 28 December Hamilton told Czerwinski that he had the 20 and Czerwinski said he would try it and see what could be done with it.
Ultimately no methylamphetamine was produced as a result of this endeavour.
Offence 4 – Conspiracy to manufacture a commercial quantity of methylamphetamine between 18 December 2003 and 27 May 2004.
Again, as a result of intercepted phone calls, the police became aware that Hamilton was using couriers to take precursors between New South Wales and South Australia. Other people involved in the conspiracy were Czerwinski, Ackland, Eyre, Diesing, Fumberger, Varehov and Palin. The intercepts commenced from early 2003 and in March 2004 police placed a listening device in Hamilton’s home.
Through calls intercepted from December 2003 police became aware that Hamilton had obtained 10 litres of hypo-phosphorous acid from Fumberger. Hypo-phosphorous acid is an essential ingredient in the manufacture of methylamphetamine. It requires certification before it can be sold legitimately and is listed as a precursor in Schedule 2 of the Drug Misuse and Trafficking Act.
In March 2004 Hamilton discussed with Ackland the making of arrangements to get the precursor and take it to South Australia. Ackland arranged for Varehov to meet Fumberger, collect the hypo-phosphorous acid and drive it to South Australia. On 9 March 2004 Varehov collected the hypo-phosphorous acid from Fumberger and instead of delivering it to South Australia, abandoned the car and the hypo-phosphorous acid in a car-park in Sydney. He did this because he thought he was under observation by the police. Police seized the pre-cursor.
Ackland and Diesing discussed the missing hypo-phosphorous acid and considered that it might have been stolen by Varehov. In a conversation later that day, Ackland told Hamilton that Diesing was going to use his contacts to make sure that Varehov received no support from the hierarchy over there. Diesing at that time lived in South Australia.
Ackland and Diesing discussed obtaining other chemicals for the manufacturing process and later Ackland and Hamilton discussed a substance with which to extend the methylamphetamine. Hamilton instructed Eyre to send money to a person who was going collect the car that Varehov had abandoned and drive it to Hamilton’s house.
On 21 March Palin went to the house of Hamilton and told him that he had large supplies of medicines containing pseudoephedrine. Hamilton told him that they could use anything with pseudoephedrine in it.
On 24 March Hamilton was told by Fumberger that he would have another 10 litres of hypo-phosphorous acid within hours. This was later delivered to Hamilton. The 10 litres of hypo-phosphorous acid were taken and delivered to Eyre in South Australia by Murphy, the truck driver. After the hypo-phosphorous was delivered, Eyre rang Hamilton and confirmed its delivery. Hamilton gave Eyre some instructions for handling the hypo-phosphorous acid.
Telephone calls between April and May 2004 demonstrated that attempts to manufacture methylamphetamine were continuing. Ackland and Diesing were heard to discuss the purchase of other chemicals and Czerwinski told Hamilton that he knew a man who could get it done.
In mid April Ackland and Czerwinski complained to Hamilton about the quality of the hypo-phosphorous acid delivered. Czerwinski and Hamilton discussed whether Murphy had tampered with it and Czerwinski offered to use some hypo-phosphorous acid he had at home to see whether Murphy would tamper with that. Czerwinski complained that the acid had a smell of rotten eggs. Hamilton rang Ackland and told him that he suspected that something had been substituted for the hypo-phosphorous acid. On 25 April Eyre too complained about the smell of the acid and said that he had asked Ackland to come over.
On 4 May 2004 Czerwinski had a number of telephone calls with Palin in which Czerwinski said that the initial deal was “$27 grand up front for me”.
Czerwinski was arrested on 26 May 2004. After he was arrested police searched his work locker and found a six-page document downloaded from the internet which dealt with the properties of hypo-phosphorous acid. Hamilton was also arrested on 26 May 2004.
Application by Peter Hamilton
The applicant pleaded guilty to the following offences:
Offence 1: Supply indictable quantity of methylamphetamine on 19 May 2003 contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 15 years).
Offence 2: Supply commercial quantity of methylamphetamine on 15 October 2003 contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 20 years with standard non-parole period of 10 years).
Offence 3: Conspiracy to manufacture an indictable quantity of methylamphetamine contrary to s 24(1) Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 15 years).
Offence 4: Conspiracy to manufacture a commercial quantity of methylamphetamine contrary to s 24(2) Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 20 years).
A Form 1 matter of supply an indictable quantity of methylamphetamine contrary to s 25(1) Drug Misuse and Trafficking Act 1985 was taken into account in relation to offence 4.
The following sentences were passed by Ainslie-Wallace DCJ on 4 September 2006.
Offence 1: Imprisonment with a non-parole period of 1 year and 2 months to date from 26 March 2015 and to expire on 25 May 2016 with a balance of term of 4 years to expire on 25 May 2020.
Offence 2: Imprisonment with a non-parole period of 6 years to date from 26 May 2004 and to expire on 26 May 2010 with a balance of term of 2 years and 5 months to expire on 25 October 2012.
Offence 3: Imprisonment with a non-parole period of 4 years to date from 26 May 2005 and to expire on 25 May 2009 with a balance of term of 1 year and 10 months to expire on 25 March 2011.
Offence 4: Imprisonment with a non-parole period of 9 years to commence on 26 May 2006 and to expire on 25 May 2015 with a balance of term of 3 years and 5 months to expire on 25 October 2018.
The effect of the sentences was an overall sentence of 16 years with a non-parole period of 12 years, the applicant being eligible for release to parole on 25 May 2016. The applicant had been in custody since 26 May 2004. The applicant has appealed against the severity of those sentences.
Factual background
The factual background is that set out in relation to offences 1 - 4 paras [3] – [32] hereof.
Remarks on sentence
Having reviewed the facts and in particular the telephone intercepts, her Honour concluded that in relation to offence 2 there was insufficient evidence to establish that the applicant was a principal but that with the offenders Fumberger and Eyre he played an important part.
In relation to offence 3 her Honour found that the applicant was a principal in that enterprise to make methylamphetamine and held a position above O’Grady. Her Honour was not prepared to find that he was the principal organiser. Her Honour noted that in his communications with O’Grady it was the applicant who had the capacity and knowledge to engage others and had the ability to make the manufacture go forward. Her Honour regarded as significant the fact that Czerwinski reported back to the applicant in relation to his progress in trying to produce methylamphetamine. Her Honour found that the applicant’s participation involved a deliberate course of criminal conduct undertaken for financial gain.
In relation to offence 4 her Honour noted that there was no dispute that the applicant was a principal. As a result of the telephone intercepts her Honour found that although Eyre, Ackland and Czerwinski occupied important roles in the conspiracy, they reported to the applicant. Her Honour found that it was significant that it was to the applicant that Diesing mentioned that he knew who could get the job done and it was to the applicant that he complained that the hypo-phosphorous was not producing the same quantities as it had before. It was to the applicant that Palin offered the pseudoephedrine. Her Honour was satisfied that the applicant was at the top of the hierarchy in relation to this offence although Czerwinski, Ackland and Diesing occupied roles of importance. Her Honour concluded that the offence involved a deliberate and planned course of criminal conduct which engaged a number of people over two states and that it was conducted for financial gain and on a considerable scale.
In relation to the applicant’s subjective case her Honour noted that the applicant was born on 22 March 1969. He had a criminal record extending from 1987, which included four offences of possessing a prohibited drug between 1994 and 2003. While her Honour declined to find that the offences for which the applicant was to be sentenced constituted a course of criminal conduct involving similar offences, she was of the opinion that his criminal record deprived him of the leniency usually associated with a first offender and a person otherwise of good character.
The applicant did not give evidence on sentence. A psychological report from Mr Watson-Munroe, psychologist, was tendered which set out the applicant’s personal circumstances and family background. Her Honour was somewhat critical of this report in that it set out what the psychologist had been told by the applicant and the results of tests administered, but there was no attempt by the psychologist to evaluate what he had been told.
The report stated that the applicant was one of ten children born in country New South Wales. His parents had separated when he was five and thereafter he had little contact with his father. His mother remarried and he enjoyed a reasonable relationship with his stepfather.
The applicant left school after completing year 10 and worked for 10 years as a shearer and then six years in industry. He was unemployed at the time of these offences. He had been in a de facto relationship for four years and his partner continued to be supportive of him.
According to the report the applicant started drinking when he was 14 and this became a serious problem for him over the next 10 years. He had stopped drinking from the age of 28. He commenced using cannabis at age 14 and used it daily until he was imprisoned for these offences. He commenced using amphetamines to a substantial extent in about 2000. He had been smoking crystal methamphetamine on a daily basis until his arrest. This drug caused him to feel paranoid and depressed. He was also using cocaine and believed that he was addicted to it.

The psychologist reported that while in prison the applicant had stopped using drugs and had been given anti-depressants. In the opinion of the psychologist, the applicant’s expressions of remorse appeared to be genuine. In that regard her Honour noted that there was nothing in the report which set out what the applicant had said to the psychologist and there was very little detail concerning the offences other than that they had been committed in order to enable the applicant to get drugs.
Her Honour concluded that there was no indication in any evidence before her that the applicant felt any particular remorse or contrition except for that which was inherent in the pleas of guilty.
From the report and other evidence her Honour found that the applicant had attended courses in prison dealing with his addictions and had also completed education courses through TAFE. He had passed these courses with credits and a distinction. He was described as being interested and enthusiastic. Her Honour regarded this as a positive sign for his rehabilitation.
Because of the applicant’s early pleas of guilty, her Honour allowed discounts of fifteen percent in each of offences 1, 2 and 3 and of twenty percent in relation to offence 4.
It was her Honour’s understanding that in relation to offences 2 and 4, a standard non-parole period of 10 years applied. While this was correct in relation to offence 2, it was not so in relation to offence 4. Her Honour’s misunderstanding in this regard was brought about by incorrect information from the Crown and counsel for the applicant during the course of the sentence proceedings.
As a result of this incorrect understanding, her Honour found it necessary to assess whether those two offences fell within the mid range of seriousness for offences of that kind. Because the offences had significant similarities she considered them together in determining the issue of the standard non-parole period.
Her Honour said:
“I take into account that the methylamphetamine to be manufactured was part of a commercial operation in which the offender played a significant part. I also take into account that the offender’s crime was committed as part of a relatively sophisticated arrangement involving a number of people in two states.
Given the matters to which I have referred I am of the view that these two crimes do fall within the mid range of objective seriousness for crimes of this type. However I am satisfied that there are reasons for departing from the standard non-parole period, that the offender pleaded guilty to this offence, his lack of criminal history of crimes of this type and that this will be the offender’s first significant period of imprisonment. Nevertheless the standard non-parole period remains relevant to sentence as a guidepost in relation to sentence on those charges to which it applies.”
Grounds of appeal
1. The sentencing judge erred in referring to a standard non- parole period for the offence of conspiracy to manufacture no less than a commercial quantity of methylamphetamine.
It was common ground that there was no standard non-parole period applicable to offence 4. It was also common ground that her Honour had had regard to a standard non-parole period in relation to offence 4 when she said “Nevertheless the standard non-parole period remains relevant to sentence as a guidepost …”. The applicant submitted that there was no basis for consideration by her Honour of a standard non-parole period in relation to offence 4 and that in doing so patent error had occurred in that her Honour had taken into account an irrelevant factor. (See R v Ohar (2004) 59 NSWLR 596 at [84].)
It was submitted by the applicant that not only had her Honour had regard to an irrelevant consideration but that the sentence imposed by her Honour arose from a reasoning process which was tainted by patent error. It is clear from that reasoning process that her Honour was influenced by an irrelevant matter, ie the standard non-parole period. (See DAC v Regina [2206] NSWCCA 265 at [9]-[10].)
As noted at para [53], it has been conceded that there was error in her Honour’s approach to sentence. We accept that her Honour was influenced by an irrelevancy to the extent that her reasoning process was infected. Accordingly, the proviso in s 6(3) of the Criminal Appeal Act 1912 has been triggered. The question is whether this Court, after re-exercising the sentencing discretion, “taking into account all relevant statutory requirements and sentencing principles”, is of the view that some lesser sentence is warranted in law: Baxter v Regina [2007] NSWCCA 237 per Spigelman CJ at [19].
There are distinct aspects of the sentencing discretion involved in assessing an offence as falling within the mid-range of objective gravity, on the one hand, and the determination of the sentencing range appropriate to the offence and the offender on the other. The characterisation of an offence as falling within the mid range of objective gravity, for the purposes of determining whether the standard non parole period applies, is no different from the characterisation of an offence in the same terms, for the purposes of exercising the sentencing discretion, “unfettered” by the existence of a standard non parole period. The exercise undertaken by the sentencing judge is the same in either case, as was stressed in R v Way (2004) 60 NSWLR 168:-
We do not however consider that the exercise which is required will differ, to any material extent, from that which has always been necessary in evaluating the objective seriousness of a subject offence. Judges are well accustomed to considering and stating that a particular case falls into the worst category, or into the category of offences at a lower level of objective seriousness: see Ibbs v The Queen; Baumer v The Queen (1988) 166 CLR 51 at 57, and R v Moon (2000) 117 A Crim R 497 at 510.
Such expressions are commonly seen, for example, in sentences for drug offenders, where the scale of the operation, and the role played by the offender as a courier, or warehouseman, or middle man, or principal, have been factors taken into account.
While it may not be the case that particular attention has been given to the precise process of reasoning involved in this kind of assessment, it would appear to us to depend upon a combination of sentencing experience, which is based upon the range of instances which go to make up cases of the relevant kind that come before the courts, combined with an understanding of the facts which are necessary elements of the offence, as well as those which are concerned with its consequences, and the reasons for its commission.
The determination of the sentence range appropriate to the offence and the offender allows for many and varied factors to be taken into account, such that either alone or in combination, the sentence ultimately imposed for a mid-range offence may fall below, and sometimes well below, half the maximum penalty. Frequently, the presence of a compelling subjective factor such as youth or the absence of a criminal history for example, will ameliorate an otherwise appropriate penalty in the order of half the maximum penalty. Where such circumstances exist in the course of sentencing for an offence to which a standard non parole period applies, they may also provide a basis for departing from that standard non parole period.
However, this Court has recognised that, for offences to which standard non parole periods apply, the notional range of the sentence for a mid range offence will generally be higher than for offences in respect of which there is no standard non parole period, even where factors exist justifying a departure from it. That is because the sentencing judge must nonetheless have regard to the standard non parole period when fixing the appropriate sentence. This result is most starkly demonstrated where a standard non parole period in excess of half the maximum penalty has been prescribed by the legislation, such as for s66A offences; R v AJP (2004) 150 A Crim R 575 at 585; see also R v Burgess [2006] NSWCCA 319 at [52].
To acknowledge that there must be an upward trend in the sentences imposed for offences carrying a standard non parole period says nothing about whether a particular sentence, imposed for a mid range offence in the mistaken belief that it was necessary to have regard to a standard non parole period, is manifestly excessive. There may be, as there were in this case, factors that disentitle the offender to leniency. There will always be scope for sentences to exceed the range hitherto established by the courts, precisely because sentencing is tailored to the particular circumstances of the individual offender: R v So [2004] NSWCCA 362; Des Rosiers v Regina [2006] NSWCCA 16.
That said, it must be acknowledged that where a sentencing exercise proceeds on the erroneous basis that a standard non parole period applies, and the relevant standard non parole period for the allied offence is in the order of 60% of the maximum penalty (see s 54D of the Crimes (Sentencing Procedure) Act 1999 and ss61M(1), 66A of the Crimes Act 1900), a sentence that is manifestly outside the range is more likely to occur. The converse of that proposition is that a manifestly excessive sentence is unlikely to result from sentencing an offender on the erroneous basis that a standard non parole period applies, where the allied offence carries a standard non parole period in the order of 30% or less of the maximum penalty (see s 54D of the Crimes (Sentencing Procedure) Act 1999 and ss33, 98, 112(2) and (3), 154C(1) and (2), 203E of the Crimes Act 1900 and s 7 of the Firearms Act 1996).
In the instant case, the applicant’s counsel conceded that the offence could properly be characterised “in vacuo” as one falling within the mid-range of objective gravity for offences of this type. In the light of that concession, which was correctly made, it falls to this Court to re-sentence this applicant.
Ground of Appeal 2
2. The sentencing judge erred in concluding that the facts disclosed that the applicant was more criminally culpable than his co-offenders Czerwinski, Ackland and Diesing in respect of the offence of manufacture a commercial quantity of methylamphetamine.
Despite the description of the offence in the ground of appeal, it is clear from the submissions that this ground of appeal also relates to offence 4. The applicant submitted that her Honour’s finding as to the part played by the applicant in this offence was based upon an erroneous understanding of the facts. It was submitted that the Agreed Facts did not support her Honour’s conclusion that Diesing had reported to the applicant about problems with the hypo-phosphorous. The Agreed Facts showed that this conversation took place between Diesing and Ackland.
It was submitted that the applicant’s role in relation to offence 4 was only to source and provide the relevant precursor drugs for those who were conducting and responsible for the cook, namely Diesing, Ackland and Czerwinski. It was submitted that the applicant’s role was no more criminally culpable than that of those persons who were producing and no doubt distributing the methylamphetamine. It was submitted that there was no evidence to show that the applicant expected to obtain any profit from the manufactured drugs and was overseeing the manufacture.
It is true that the Agreed Facts do not refer to a direct report by Diesing to the applicant. What the submission ignores, however, is the following paragraph in the Agreed Facts:
“Hamilton was the centre of the conspiracy. Apart from being involved in the organisation and planning of the enterprise, Hamilton used a number of couriers to transport precursors between Sydney, western NSW and South Australia.”
Given the size of the operation and the considerable planning and co-ordination involved, the submission that there was no evidence that the applicant was engaged in this activity for profit is unsustainable. Her Honour’s finding as to the part played by the applicant was not only open on the evidence, it was compelled by it. No error has been established.
Ground of Appeal 3
3(a) The sentencing judge erred by failing to make proper findings of fact in respect of the applicant’s subjective case.
(b) The sentencing judge erred by entirely rejecting the evidence before her that the applicant was remorseful.
In relation to ground 3(a) the applicant submitted that it was not clear what findings her Honour had made in relation to the applicant’s subjective case because of the way in which she had qualified her acceptance of the report of Mr Watson-Munroe. In that regard her Honour had said:
“He was interviewed for the preparation of a psychological report which contained some outline of his personal circumstances and family background. It should not be assumed that by repeating these matters they are necessarily accepted by me as being accurate or even true …” (ROS 18.9)
The applicant submitted that her Honour had not made findings as to important matters in the applicant’s subjective case such as his poly-drug addiction with its paranoid and depressive effect upon him and his drug-free state while in custody. It was submitted that these were important matters in enabling the sentencing judge to achieve the appropriate balance between the circumstances of the offences and prospects of rehabilitation on the one hand and the principles of retribution and deterrence on the other.
In relation to Ground 3(b), the applicant submitted that her Honour had not followed Elyard v Regina [2006] NSWCCA 43 where Hall J (with whom Howie J and Basten JA agreed) said:
“… It is not, in my opinion, appropriate for a sentencing judge to reject out of hand expressions of remorse unless there is an evidentiary basis for determining that they are either not genuine or are motivated by some extraneous or self interested factor.”
It was submitted that there was clear evidence of remorse in the report of Mr Watson-Munroe where that doctor opined that “his expressions of remorse associated with this his desire to remain drug free and crime free in the future appear to be genuine” and her Honour had not set out a basis for rejecting this evidence.
Her Honour did not fail to take into account the applicant’s subjective case. What her Honour did was to express some reservations concerning the weight which she ought give to the evidence given its hearsay nature and the apparent failure by the psychologist to test and evaluate what the applicant told him. There is no error in such an approach.
Contrary to what was submitted, her Honour did find that the applicant had positively occupied himself whilst in custody and had remained drug free. It was for this reason that her Honour made favourable findings as to his rehabilitation. Similarly, her Honour’s comments as to the parole period (ROS 25) make it clear that she accepted that the applicant’s drug problem was a significant factor in his offending behaviour and that he would require assistance to maintain a drug free condition upon his release.
Her Honour did not “reject out of hand” the evidence of remorse. What her Honour said was:
“Mr Watson-Munroe said that in his opinion the expressions of remorse from the offender appeared to him to be genuine. There is nothing in the report which details what the offender said and, indeed, there is little in the report from the offender about the offences, other than an opinion from the maker of the report that the offender committed the offences to get drugs. There is no indication in any evidence before the Court that the offender feels any particular remorse or contrition except for that inherent in a plea of guilty.” (ROS 20.8)
There was no evidence other than that which was contained in the report of Mr Watson-Munro on the issue of remorse. The evidence was:
“Certainly his expressions of remorse and associated with this his desire to remain drug free and crime free in the future appear to be genuine. I say this advisedly on the basis not only of my observations of him, but indeed as reflected through his solid endeavours at rehabilitation and training whilst in prison.”
Her Honour was entitled to give that conclusion little weight when no basis for it had been set out. This is particularly so when the asserted expression of remorse was not related in any way to the offences. Her Honour’s approach in that regard is fully consistent with Elyard v Regina [2006] NSWCCA 43.
Ground 4 – The sentencing judge erred by having regard to evidence which was not admitted against the applicant in respect of count 3.
The applicant submitted that in relation to offence 3, her Honour incorrectly recorded the following as part of the factual background:
“On 17 December the offender told Czerwinski that there was 1200 of the pseudoephedrine. Czerwinski said they needed to find out whether it was any good and they could do something with it if it were good.”
The applicant submitted that it was not clear to what extent this irrelevant material had influenced her Honour in the exercise of her Honour’s sentencing discretion. Such material had the potential to affect the exercise by her Honour of her sentencing discretion. In making this submission the applicant acknowledged that having regard to the accumulation and concurrency of the individual sentences, the sentence which was passed in respect of this offence comprised 1 year fulltime custody.
The Crown accepted that this material had incorrectly been placed before her Honour. The Crown submitted that the conversation did not add materially to the applicant’s overall criminality and that it was incontrovertible that the conspiracy in respect of this offence was continuing at that time. The Court agrees with the Crown submission. Given the complexity of the facts surrounding this offence, this incorrect factual notation would have had minimal effect on her Honour’s reasoning process. No basis for intervention by the Court has been established.
Re-sentencing
The applicant has to be re-sentenced in respect of offence 4. The principles applicable to sentencing for a conspiracy have recently been re-visited by this Court in R v Chalmers [2007] NSWCCA 247. Simpson J (with whom the Chief Justice and Harrison J agreed) emphasised the importance of reflecting the organisational nature of a conspiracy in sentencing, rather than confining the sentencing discretion to the identification of the role of an offender by reference solely to the physical acts undertaken by that offender. Simpson J said at [83]:-
Identifying the “role” of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the “role” of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy – the agreement to participate in an organised criminal activity.
That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see 2 R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [10].
Thus, the criminality of the applicant extended beyond mere recognition of his role in the enterprise. He was essential to its success and stood to share in the considerable profits generated by the manufacturing process.

Whilst it is true that there was no evidence of the quantity of methylamphetamine actually produced, the quantity of hypo phosphorous acid sought by the co-conspirators on two occasions (10 litres each time) was clearly capable of producing considerably more than 0.25 kilos of that prohibited drug. Czerwinski, Ackland and Diesing were the South Australian members of the conspiracy, whose centre was the applicant. Some methylamphetamine was produced as part of the conspiracy, since the agreed facts in the applicant’s case referred to 214g of the drug being found at the applicant’s residence. The agreed facts also referred to Czerwinski’s complaint on 4 May 2004 to a co-conspirator that he had sent almost “$150,000 worth over and [he hadn’t] got a … dollar back for it”. Coupled with Diesing’s statement to Ackland on 13 April 2004 (two weeks before the applicant’s arrest) that Diesing would finish “the order” in the morning, it is inescapable that an indeterminate, albeit significant, amount of methylamphetamine had been produced in the course of the conspiracy.
These findings do not seek to punish the applicant for offences with which he was not charged. They merely recognise the overt acts of the conspiracy, or “the content and duration and reality of the conspiracy” : R v Kane [1975] VR 658 at 661 cited with approval in Savvas v The Queen (1995) 183 CLR 1 at 7. They reflect upon the degree of the criminality involved in the applicant’s participation as a principal in a conspiracy, extending over five months and constituting a large-scale commercial operation spanning two states.
This assessment of the applicant’s criminality and the importance of general deterrence call for an appropriately stern sentence. The applicant’s subjective circumstances do very little, if anything, to qualify that approach. The fact remains that the applicant made a calculated decision to contribute in a significant respect to the manufacture of an illicit drug, knowing the risks and the potential rewards. There is a strong element of personal deterrence to be factored into the sentencing exercise given the applicant’s criminal history.
Taking into account the discount of 20% her Honour must have started at a sentence of 15 years and 6 months in order to arrive at the sentence imposed. In our view that sentence exceeds the range within which such an offence falling within the mid-range of objective gravity should be placed. It follows that a lesser sentence is warranted in law.
A sentence of 13 years and 6 months but for the plea of guilty is in our opinion appropriate to the objective and subjective circumstances of this offence. Following application of a 20% discount the sentence to be imposed is one of 10 years and 9 months. We see no compelling reason to justify a finding of special circumstances and would impose a non-parole period of 8 years. The fact that this sentence is longer than any previously imposed upon the applicant does not constitute special circumstances and there is no other feature of the applicant’s case that suggests a longer period of supervision than 2 years and 9 months is required.
In order to have regard to the principle of totality and the overall structure of the sentences passed by her Honour, it is also necessary to change the sentence imposed in respect of offence 1. The only change, however, is to alter the commencement and finishing dates in that sentence. The effect of the new sentences is an overall sentence of 15 years with a non-parole period of 11 years.
The orders of the Court are:
(1)          Leave to appeal against the sentence imposed for offence 4 granted.
(2)          The appeal is allowed in respect of the sentence imposed for offence 4.
(3)          The sentence in respect of offence 4 is quashed.
(4)          In lieu the applicant is sentenced to imprisonment with a non-parole period of 8 years to commence on 26 May 2006 and to expire on 25 May 2014 with a balance of term of 2 years and 9 months to expire on 25 February 2017.
(5)          The sentence in respect of offence 1 is quashed.
(6)          In lieu the applicant is sentenced to imprisonment with a non-parole period of 1 year and 2 months to commence on 26 March 2014 and to expire on 25 May 2015 with a balance of term of 4 years to expire on 25 May 2019.
Application by Rudolph Czerwinski
The applicant pleaded guilty to the following offences (using the numbering in the factual background):
Offence 1 – supply indictable quantity of methylamphetamine on 19 May 2003 contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 15 years).
Offence 3 – Conspiracy to manufacture an indictable quantity of methylamphetamine contrary to s 24(1) Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 15 years).
Offence 4 – Conspiracy to manufacture a commercial quantity of methylamphetamine contrary to s 24(2) Drug Misuse and Trafficking Act 1985 (maximum penalty imprisonment for 20 years).
On 5 September 2006 her Honour sentenced the applicant as follows:
Offence 1 – Imprisonment with a non-parole period of 3 years and 6 months to date from 26 May 2005 and to expire on 25 November 2008 with a balance of term of 1 year and 6 months to expire on 25 May 2010.
Offence 3 – Imprisonment with a non-parole period of 4 years to commence on 26 May 2004 and expire on 25 May 2008 with a balance of term of 1 year and 10 months to expire on 25 March 2010.
Offence 4 - Imprisonment with a non-parole period of 7 years and 6 months to commence on 26 May 2007 and to expire on 25 November 2014 with a balance of term of 2 years and 6 months to expire on 25 May 2017.
The effect of the sentences was an overall sentence of 13 years with a non-parole period of 10 years and 6 months, the applicant being eligible for release to parole on 25 November 2014. The applicant had been in custody since 26 May 2004. The applicant has appealed against the severity of those sentences.
Factual background
The factual background is that set out in relation to offences 1, 3 and 4 (paras [3] – [5] and [11] – [32] hereof).
Remarks on sentence
In relation to offence 3 her Honour concluded that the applicant’s role was obviously a major one and that he and Hamilton were concerned to obtain more of the pseudoephedrine from O’Grady to see whether it could be turned into methylamphetamine. Her Honour found that the applicant and Hamilton were on the same level in terms of objective criminality in relation to this offence. She characterised offence 3 as a commercial venture which engaged a number of people over two states involving a deliberate and sustained period of criminal offending.
In relation to offence 4 her Honour found that the applicant’s role was not at the same level of involvement as that of Hamilton, who was orchestrating the manufacture. Her Honour was, however, satisfied that although his role was different, it was equivalent in objective criminality to that of Diesing and Ackland. Her Honour characterised offence 4 as very serious involving a period of determined criminal offending. Her Honour erroneously stated that this offence carried a standard non-parole period of 10 years. Her Honour was led into this error by the submissions of the Crown and counsel for the defendant.
In relation to the applicant’s subjective case, he was 62 at the time of the sentence, having been born on 2 January 1944. He had no previous criminal convictions in New South Wales. In South Australia he had some comparatively minor convictions in 1965 and 2000. Her Honour found that the applicant’s criminal history entitled him to a measure of leniency.
The applicant did not give evidence on sentence but wrote two letters to the Court. He was interviewed for the preparation of a pre-sentence report and was interviewed and assessed by a psychologist, Ms Pullen. This psychologist also interviewed the applicant’s wife. Her Honour used those sources to set out the applicant’s personal circumstances and details of his early life.
The applicant was born in Poland and came to Australia with his family when he was young. He has been married for 37 years and had three children, all of whom were adults. His wife and his children had maintained their support for the applicant.
The applicant completed school to year 10 and worked in a variety of positions until becoming a fireman in South Australia. As of the date of his arrest, he had been employed by the South Australian Fire Service for 36 years. He had reached the rank of Senior Fire Station Officer and was responsible for 18 fire crews.
According to the applicant he had had an alcohol dependence problem for many years, having started drinking as a teenager. He had himself admitted to hospital for detoxification in 2000 but relapsed within 18 months of being released. The applicant said that he suffered from nightmares from his experiences as a fire officer and it was his belief that he drank to deal with those experiences. His wife thought that he had been depressed for several years.
The applicant said that he felt suicidal whilst in custody and had been treated for depression with medication and was now seeing a psychologist. Ms Pullen believed that the applicant suffered from post traumatic stress disorder brought on by his work and that he suffered from a long standing depression. He had not had any assistance in dealing with these conditions before going to prison.
In the reports the applicant sought to explain his participation in the offences by the fact that one of the co-offenders owed him money and that his role was to direct the co-offender to a person who could convert the pseudoephedrine into methylamphetamine. Her Honour noted that this explanation was inconsistent with the contents of the telephone intercepts and with his involvement in two attempted manufacturers of methylamphetamine, one using pseudoephedrine from O’Grady and the other using hypo-phosphorous acid provided by Fumberger.
In a letter which the applicant wrote to the Court he said that he had time to reflect on the gravity of his situation and the effect that his crimes had on his family and on the community. He was strongly aware of how his actions had caused grief and anger and he accepted that he was accountable for his actions and apologised. Her Honour accepted that the applicant appreciated that his actions had far reaching effects beyond his immediate family and she accepted that his expressions of remorse were genuine. Her Honour also noted that there was a degree of remorse inherent in his pleas of guilty.
Her Honour noted that a number of persons had written to the Court in support of the applicant. Those with whom he worked spoke of him as a highly skilled professional who was prepared to take responsibility. He was regarded as fair-minded and compassionate. Her Honour accepted that the applicant was well regarded in his work and socially within the community.
Her Honour concluded that the applicant was a person of good character. Because of his family and community support, his consistent work history and because he was receiving help for his depression, her Honour found that the applicant’s prospects for rehabilitation were good.
Because of his pleas of guilty, her Honour allowed a discount of fifteen percent in relation to offence 1, fifteen percent in relation to offence 3 and twenty percent in relation to offence 4.
In determining what sentence was appropriate in relation to offence 1, her Honour had regard to the role played by Murphy and concluded that the applicant’s role was greater in this supply. It was for this reason that her Honour passed a head sentence of 5 years.
In relation to offence 3 her Honour compared the part played by the applicant with that of O’Grady. Because the applicant had the technical expertise needed to make the methylamphetamine her Honour was satisfied that the applicant had a more significant role in this conspiracy than O’Grady. Her Honour noted that the applicant was the person to whom Hamilton turned to have the methylamphetamine made from the pseudoephedrine supplied by O’Grady. It was for that reason that her Honour passed a head sentence of 5 years and 10 months.
In relation to offence 4 her Honour concluded that it fell within the mid range of objective seriousness for offences of that type. She did so because the conspiracy to manufacture was part of a sophisticated commercial operation involving a number of people in two states in which the applicant played a significant part. Nevertheless, her Honour was prepared to depart from what she believed to be the standard non-parole period for that offence. She did so because the applicant had pleaded guilty to the offence, was a person of prior good character, had good prospects of rehabilitation and because he was facing a period of imprisonment for the first time.
It was against that background that her Honour passed the head sentence of 10 years with a non-parole period of 7 ½ years. Taking into account accumulation and concurrence her Honour said:
“I propose then to make the sentences partially accumulated and that will result in a non-parole period of 10 years on a total sentence of 13 ½ years. The offender will need support on his release from prison to continue his psychological treatment and monitoring of his depression and I have made a slight adjustment to the ratio between the non-parole period and the additional term. However, the length of the additional term provides ample time in which the offender can be supported on his return to the community.”
As can be seen from the sentences actually passed her Honour’s intention was not achieved in that the non-parole term was 10 years and 6 months and the balance of term was 2 years and 6 months.
Appeal
Ground of Appeal 1 – the sentencing Judge erred in referring to a standard non-parole period for the offence of conspiracy to manufacture not less than a commercial quantity of methylamphetamine.
It was common ground that a standard non-parole period did not apply to this offence. The applicant submitted that because her Honour referred to the existence of a standard non-parole period in relation to this offence on three occasions, she must have been influenced by that consideration. It was submitted that it followed that her Honour must have taken into account an irrelevant consideration when passing sentence in respect of that offence. Reference was made to R v Ohar (2004) 59 NSWLR 596 and R v Wilkinson [2004] NSWCCA 468 at [24] – [26].
We accept that her Honour was influenced by an irrelevancy to the extent that her reasoning process was infected. Accordingly, the proviso in s 6(3) of the Criminal Appeal Act 1912 has been activated. The question whether this Court, after re-exercising the sentencing discretion, “taking into account all relevant statutory requirements and sentencing principles”, is of the view that some lesser sentence is warranted in law, should be answered in the affirmative, for the same reasons as were advanced in relation to Hamilton (paras [56] – [61] hereof) and Baxter v Regina [2007] NSWCCA 237 per Spigelman CJ at [19].
Ground of Appeal 2 – The sentencing judge erred in failing to give effect to her finding of special circumstances.
The applicant submitted that the sentence which her Honour passed did not reflect her stated intention (ROS 23). The effective non-parole period was 10 ½ years as opposed to 10 years and the ratio between the total non-parole period and the total head sentence was approximately 81%. This had the effect of producing a parole period of 2 ½ years which was significantly shorter than the 3 ½ years proposed by her Honour as “an ample time” to properly support the applicant on parole. The Court was invited at the very least to adjust the sentences so as to achieve her Honour’s stated intention.
The applicant also submitted that such a high ratio between the non-parole period and the parole period was indicative of error in that it failed to have adequate regard to the applicant’s age, antecedents, background and alcohol problems. The Court was invited to infer that her Honour overlooked those matters when accumulating the sentences. Reference was made to what Hulme J said in R v Reicher [2003] NSWCCA 300 at [19]:
“I think the inference urged is the appropriate one to draw. It is very unusual for the custodial portion of the sentence or a number of cumulative sentences to be in excess of 75% of the total period referred to in s 44 of the Crimes (Sentencing Procedure) Act as that section was in force at the relevant time. This is not to say that that percentage may not, in appropriate cases, be exceeded but where the excess is as high as it is in this case one would have expected any judge to have referred to the reasons for that. A fortiori is that so when one has regard to the applicant’s age, the fact that he has not been in prison for the last 30 years and to the fact that one would anticipate the usefulness of supervision over a not insignificant period on release from custody. This ground of appeal is made out.”
The specific matters to which the Court was referred were that the applicant was aged 62 at the time of sentence, he had no prior criminal convictions in New South Wales and only minor matters in South Australia. This sentence would be the applicant’s first time in custody and it was a sentence of significant length. Her Honour had accepted the evidence of Ms Pullen as to the applicant’s post traumatic stress disorder and his long standing depression. Her Honour had accepted that the applicant had not had any assistance in dealing with these matters before going into custody. It was submitted that although her Honour had regard to these matters in finding special circumstances, this finding had not been reflected in the sentences ultimately passed.
The applicant’s subjective case was a very strong one. It more than justified her Honour’s finding of special circumstances. This is particularly so when regard is had to the applicant’s exceptional employment record and to the absence of any significant prior offending. Such considerations are regrettably rarely encountered when a court considers offences of this kind.
The Court is of the opinion that having made her intentions clear, her Honour did not properly give effect to her findings so that this Court ought intervene in order to do so.
Re-sentencing
We approach the re-sentencing of the applicant in respect of offence 4 in the light of the principles explored in Chalmers and the assessment of this offence as one falling in the mid range of objective gravity. It is not correct to assess the applicant’s criminality solely by reference to the physical acts he undertook in the course of the conspiracy. Her Honour found that his role was not at the same level of involvement as that of Hamilton, who was orchestrating the manufacture. Nevertheless, she was satisfied that his role was equivalent in objective criminality to that of Diesing and Ackland.
A significant point of distinction between the applicant and Diesing and Ackland was his age, his employment history, the absence of prior offences and his otherwise very strong subjective case. The applicant has been progressing well in prison and has used his time well. His prospects of rehabilitation are very good and as indicated, his subjective circumstances are very favourable. It is necessary to take into account the sentences passed in respect of offences 1 and 3 so as to give effect to the principle of totality. Nevertheless the principle of general deterrence cannot be overlooked in respect of offence 4 and must also be given effect to.
Having regard to those matters a sentence of 10 years and 6 months is appropriate to the objective and subjective circumstances of this offence. Following application of a 20% discount, the sentence to be imposed is one of 8 years and 5 months with a non-parole period of 5 years. We have found special circumstances for the same reasons as her Honour and have given effect to that finding by allowing for a significant period of supervision on parole. The effect of this adjustment to the sentence imposed for offence 4 is an overall sentence of 11 years and 5 months with a non-parole period of 8 years.

The orders of the Court are:
(1)          Leave to appeal against the sentence passed in relation to offence 4 is granted.
(2)          The appeal is allowed in respect of the sentence passed in relation to offence 4.
(3)          The sentence imposed on 5 September 2006 in respect of offence 4 is quashed.
(4)          In lieu, the applicant is sentenced to imprisonment with a non-parole period of 5 years to commence on 26 May 2007 and to expire on 25 May 2012 with a balance of term of 3 years and 5 months to expire on 25 October 2015.

Application by Martin Diesing

The applicant pleaded guilty to Offence 4, namely Conspiracy to Manufacture not less than a Commercial Quantity of methylamphetamine, carrying a maximum penalty of 20 years imprisonment.
Her Honour sentenced the applicant to a non-parole period of 7 years and 6 months, commencing 5 January 2005 and expiring 4 July 2012, the balance of term being 3 years, expiring 4 July 2015.
Factual Background
The factual background is that set out at paras [22] - [32] hereof. It is however relevant to observe that this applicant rang Ackland on 7 February 2004 to tell him that he (the applicant) could get “the first leg of it going”, that is, the start of the manufacturing process, so that the second stage would be expedited. The applicant again rang Ackland two weeks later, pressing him for the hypophosphorous acid, and in particular, desperately seeking three and a half litres. The applicant called Ackland again a week later and reinforced the urgency of his request.
The applicant, jointly with Ackland, arranged for Varehov to meet Fumberger to collect the acid and drive it to South Australia. It was the applicant who paid $1000 to Varehov to cover his expenses. It was the applicant who agreed to cover the cost of the acid that was ultimately confiscated by the police when Varehov abandoned the vehicle. The premises in South Australia from which the applicant made a number of calls to Ackland, including one wherein the applicant asked for a 4 kilo gas bottle, contained a clandestine laboratory.
In April, the applicant spoke to Ackland a number of times requesting hypophosphorous acid, thinners and acetone. The applicant also complained of getting only a 50% return on the acid that was supplied, rather than the previous return of 85% or 90%. These complaints were the genesis of the complaints by Ackland and Czerwinski to Hamilton about the quality of the acid.
In short, the evidence was capable of establishing that the applicant was, as the Crown submitted, the major “cook” together with Czerwinski. As her Honour’s remarks demonstrate, that finding was not made against the applicant.
Remarks on sentence
Her Honour found that the applicant was intimately and actively involved in the manufacturing process, evidenced by the telephone call on 7 April during which the applicant spoke of finishing the order the next day and seeking further materials for use in the manufacturing process. Her Honour was satisfied that the applicant performed the function of a cook, but declined to find that he was the only or the major cook.
In describing the applicant's criminality, her Honour said that he had “involved himself in a deliberate and sustained course of criminal conduct in which he played a key role [and] that there was no dispute that his involvement was for financial gain”.
Her Honour allowed a discount of 20%, notwithstanding that the applicant did not plead guilty until 6 March 2006, after the hearing date had been set for trial. No complaint is made in relation to this aspect of the sentencing exercise, nor could it be. Accepting that the trial was estimated to have occupied some 12 weeks of sitting time, the discount of 20% might nonetheless be regarded as somewhat generous.
Her Honour undertook the same exercise as that undertaken in the case of the applicants Hamilton, Czerwinski and Ackland, on the mistaken assumption that the standard non-parole period applied. In determining whether the offence fell within the mid range of objective seriousness, her Honour made the same observations as are set out at para [52]. Disregarding the error inherent in adopting a standard non-parole period for this offence, no issue is taken with this characterisation of its objective gravity.
Her Honour went on to canvass the applicant's criminal history, which included 1987, 1989 and 1995 convictions for drug possession. The 1995 conviction and sentence resulted in a Crown appeal and re-sentencing of the applicant in 1996 in his absence. The sentence in relation to that offence commenced when the applicant was arrested in June 1999. The applicant was released to parole in December 2002, the sentence expiring in June 2004, with the result that the applicant was serving the additional term of that sentence when he committed the instant offence. Her Honour noted that that was a matter of aggravation and was also of relevance to the principles of personal deterrence and rehabilitation.
In the absence of any evidence from the applicant, the only source of information relating to the applicant's subjective case was the presentence report. The applicant was 38 years of age at the time of sentence, and enjoyed a positive upbringing by his adoptive parents. He has re-established contact with his birth mother. He has two children from two relationships and was described by the mother of his daughter and by the grandmother of his son as a loving and caring father.
The applicant left school after obtaining the equivalent of the HSC and worked in a variety of occupations of a semiskilled nature. He started using drugs, mostly marijuana and amphetamines, in his teens and continued to use amphetamines up until the time of his arrest.
The presentence report indicated that the applicant described his role in the commission of the offence as the introduction of key offenders between Adelaide and Sydney. It was submitted by counsel for the applicant on sentence that the applicant had introduced Varehov to Ackland and that neither of those persons could be described as key offenders. Her Honour accepted that Varehov may not have had a major role to play in the conspiracy, but that the same could not be said for Ackland, whose role was significant. For those reasons, her Honour declined to recognize any parity between the applicant and Varehov.
Whilst her Honour did not refer to special circumstances in explicit terms, it is clear that such a finding was made, given the proportion of the non-parole period to the sentence (71%).

Grounds of Appeal
1. The sentencing judge erred in law in having regard to the standard non-parole period provided for the manufacture of a commercial quantity of methylamphetamine, when no such standard non-parole period was applicable to a conspiracy to commit such an offence.
2. The sentence is manifestly excessive.

It is convenient to deal with these grounds of appeal together because of the way in which the applicant’s submissions were framed and because they raise interrelated considerations. In the event that the Court is of the opinion that some lesser sentence is warranted in law, the second ground falls away. In the event that the Court is not of that view, the second ground cannot succeed.

As noted at para [53], it has been conceded that there was error in her Honour’s approach to sentence. We accept that her Honour was influenced by an irrelevancy to the extent that her reasoning process was infected. Accordingly, the proviso in s 6(3) of the Criminal Appeal Act 1912 has been triggered. The question is whether this Court, after re-exercising the sentencing discretion, “taking into account all relevant statutory requirements and sentencing principles”, is of the view that some lesser sentence is warranted in law: Baxter v Regina [2007] NSWCCA 237 per Spigelman CJ at [19].
It is not necessary to repeat the considerations set out at pars [56] to [60] above. It remains to re-sentence the applicant, having regard to the concession made by the applicant’s counsel that this offence fell within the mid range of objective gravity for offences of this type.
Re-Sentencing
Having regard to the approach of this Court in R v Chalmers [2007] NSWCCA 247, the criminality of the applicant extended beyond mere recognition of his role as a cook in the enterprise. He was as integral to its success as were the other applicants and stood to share in the considerable profits generated by the manufacturing process. The fact that the applicant paid for the first shipment of the acid and was impatient to obtain more, demonstrates his sustained determination to achieve the ends of the agreement.
We have referred above to the significant amount of methylamphetamine which had been produced, and was capable of being produced, in the course of the conspiracy. The applicant’s criminality, reflected by the role he undertook in this conspiracy, extending over five months and constituting a large-scale commercial operation spanning two states, was of a high order.

This assessment of the applicant’s criminality and the importance of general deterrence call for an appropriately stern sentence. The applicant’s subjective circumstances do very little, if anything, to qualify that approach. The Court received an affidavit containing material that speaks positively of the applicant’s progress in the custodial system. He is undergoing a tertiary preparation course, undertaking drug counselling and is a compliant and co-operative prisoner. However, the fact remains that the applicant made a calculated decision to contribute in a significant respect to the manufacture of an illicit drug, knowing the risks and the potential rewards. It is also of considerable relevance that the applicant joined in this conspiracy while subject to conditional liberty in relation to a drug offence. There is a strong element of personal deterrence to be factored into the sentencing exercise, given the applicant’s criminal history, and a corresponding cloud hanging over the applicant’s prospects of rehabilitation.
The Crown took no issue with the extent of the discount applied at first instance for the applicant’s plea of guilty. It must be recognised that her Honour started at a sentence of 13 years and one month in order to arrive at the sentence imposed after application of the discount of 20%. In our view, that sentence exceeds, albeit only slightly, the range of 8 to 12 years within which such an offence falling within the mid-range of objective gravity should be placed. It follows that a lesser sentence is warranted in law.
A sentence of 11 years, but for the plea of guilty, is in our view appropriate to the objective and subjective circumstances of this offence. Following application of a 20% discount, the sentence to be imposed is one of eight years and nine months. We see no compelling reason to justify a finding of special circumstances and would impose a non-parole period of six years and six months. The fact that this sentence is longer than any previously imposed upon the applicant does not constitute special circumstances and there is no other feature of the applicant’s case that suggests a longer period of supervision than two years and three months is required.
The orders of the Court are:
1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. Sentence imposed on 5 September 2006 is quashed.
4. In lieu, the applicant is sentenced to six years and six months imprisonment to date from 5 January 2005, expiring 4 July 2011, the balance of term being two years and three months, expiring 4 October 2013. The applicant is eligible for release to parole at the expiration of the non-parole period.

Application by Terrence John Ackland

The applicant pleaded guilty to Offence 4, namely Conspiracy to Manufacture not less than a Commercial Quantity of methylamphetamine, carrying a maximum penalty of 20 years imprisonment.
The applicant was sentenced to a non-parole period of seven years to date from 10 November 2004, expiring 9 November 2011, the balance of term being three years expiring 9 November 2014.
Factual Background
The facts are those set out at paras [22] to [32] hereof. As outlined above, this applicant was part of the South Australian contingent.

In April 2004 the applicant had a number of conversations with Diesing, wherein the latter asks the applicant for hypophosphorous acid, thinners and acetones. There are also discussions about the yield Diesing is obtaining from the manufacturing process. During this time, the applicant talks to Hamilton about the quality of the acid in the manufacturing process.
The evidence of the applicant’s activities over the course of the conspiracy establishes the applicant as the primary link between Diesing and Hamilton. The applicant “reports” to Hamilton on a regular basis and is the co-conspirator to whom Diesing turns for his supplies.
Remarks on Sentence
Her Honour found that the applicant had a significant role in the conspiracy, although he appeared to be subordinate to Hamilton. In so far as the Crown submitted that the applicant was a principal in the South Australian arm of the enterprise, along with Diesing and Czerwinski, her Honour accepted that submission, but declined to find that the applicant was in a superior position to Diesing or Czerwinski. Rather, her Honour found that the three offenders were performing different roles, but on an equal footing.
The applicant’s role in the conspiracy was described as "extensive and important to its ultimate goal". His conduct was said to be determined and sustained.

His motivation for the commission of the offence was financial gain. The applicant did not give evidence on sentence but proffered an explanation through a psychological report, namely that whilst operating a steelyard and renovating a second house which he had bought, he encountered difficulties in meeting repayments on his loans. It was in these circumstances that the applicant claimed he had agreed to provide hypophosphorous acid to some criminal associates, for which he was to be paid $250 per litre. He claimed that he knew nothing of the manufacturing process for methylamphetamine and that his role was a relatively minor one. This explanation was found to be inconsistent with an account given to the maker of the presentence report, namely that the applicant was owed money by an associate who could not pay him, so he was given hypophosphorous acid instead, allowing the applicant to sell the acid in the knowledge that it would be used to make methylamphetamine.
Her Honour correctly observed that the applicant's contrition was suspect, in the light of his attempts to minimise his role in the commission of the offence. There was no reliable evidence that the applicant was in financial difficulties at the time of the offence and there was no explanation for the failure on the part of the applicant to sell his assets in order to relieve his asserted financial burden.
Her Honour referred to the applicant’s subjective circumstances, including the fact that he had no criminal convictions in New South Wales and a number of motor vehicle offences recorded against him in South Australia. The absence of any relevant criminal conviction allowed for a measure of leniency to be extended to him. The applicant was 38 years of age at the time of sentence. The applicant enjoyed a stable upbringing, being one of three children and having been educated to Year 12. Upon leaving school, the applicant had undertaken an apprenticeship as a motor mechanic and eventually owned his own business. He had always been in employment. A number of testimonials spoke highly of his work ethic and qualities as a parent of a teenage daughter. On this basis, her Honour found that the applicant's prospects of rehabilitation were good.
The applicant entered a plea of guilty on the date set down for trial and, consistent with the savings to the community afforded by that plea, her Honour allowed a discount of 20%. As with the applicant Diesing, her Honour declined to find that any parity existed between this applicant and Varehov, such that any regard should be had to the sentence imposed on him. Special circumstances were said to arise from the applicant’s first custodial sentence.

Her Honour made the same remarks in relation to the application of a standard non parole period that have been set out earlier in this judgment, albeit her Honour found reasons for departing from it.

Grounds of Appeal
1. The sentencing judge erred in law in having regard to the standard non-parole period provided for the manufacture of a commercial quantity of methylamphetamine, when no such standard non-parole period was applicable to a conspiracy to commit such an offence.
2. The sentence gives rise to disparity between the applicant and Martin Diesing.
3. The sentence is manifestly excessive.

These grounds can be considered together, in the light of the disposition of the applications by this applicant’s co-offenders. The success of the first ground and the need to re-sentence the applicant necessarily also deals with questions of parity and manifest excess.
As noted at para [53], it has been conceded that there was error in her Honour’s approach to sentence. We accept that her Honour was influenced by an irrelevancy to the extent that her reasoning process was infected. Accordingly, the proviso in s 6(3) of the Criminal Appeal Act 1912 has been triggered. The question whether this Court, after re-exercising the sentencing discretion, “taking into account all relevant statutory requirements and sentencing principles”, is of the view that some lesser sentence is warranted in law, should be answered in the affirmative, for the same reasons as were advanced in relation to Diesing: Baxter v Regina [2007] NSWCCA 237 per Spigelman CJ at [19].
Re-Sentencing
We approach the re-sentencing of the applicant in the light of the principles explored in Chalmers and the assessment of this offence as one falling in the mid-range of objective gravity. It is not correct to assess the applicant’s criminality solely by reference to the physical acts he undertook in the course of the conspiracy. Counsel on the hearing of the appeal maintained that this applicant did no more than arrange for the supply of chemicals and materials, yet that submission completely ignores the scope, duration and sophistication of the conspiracy of which he was an important part. The applicant was the main channel of communication between the South Australian contingent and Hamilton in NSW. He clearly occupied a position in the “hierarchy” of the conspiracy at least equal to that of Diesing. The finding made by her Honour at first instance was patently open to her.
In terms of parity, the applicant argues that his criminality falls short of Diesing’s, because of the lack of a relevant criminal history and because the applicant did very little in the way of overt acts towards the realisation of the conspiracy. For the reasons set out above, only Diesing’s criminal history distinguishes him from this applicant, in terms of criminality. Even so, it is questionable that the sentence ultimately imposed should vary substantially from that imposed upon Diesing on that basis alone, particularly when some account is taken of this applicant’s qualified contrition.
The applicant has been progressing well in prison and has used the time productively. His prospects of rehabilitation are sound and his subjective circumstances are favourable. Nonetheless, the emphasis upon the principle of general deterrence cannot be overlooked in favour of what is conceded to be a strong subjective case.
Having regard to the re-sentencing of Diesing, some adjustment must be made to the applicant’s sentence. Adopting a starting point of 10 years and 6 months, and applying a discount of 20% for the plea of guilty, a non-parole period of 6 years with a balance of term of 2 years and 5 months is appropriate to the applicant’s objective and subjective circumstances. We have found special circumstances on the basis of the applicant’s first experience of prison, although any further reduction in the length of the non-parole period would fail to reflect the objective gravity of the offence.

The orders of the Court are: -
1. Leave to appeal granted.
2. Appeal allowed.
3. Sentence imposed on 4 September 2006 is quashed.
4. In lieu, the applicant is sentenced to six years imprisonment to date from 10 November 2004, expiring 9 November 2010, the balance of term being two years and five months, expiring 9 April 2013. The applicant is eligible for release to parole at the expiration of the non-parole period.

Application by Luke Palin

The applicant pleaded guilty to the offence of possession of a precursor to the manufacture of methylamphetamine contrary to s 24A of the Drug (Misuse and Trafficking) Act 1985, carrying a maximum penalty of 10 years imprisonment or a fine of 2000 penalty units or both.
Her Honour Ainslie-Wallace DCJ sentenced the applicant to a non-parole period of three years commencing on 13 March 2005 and expiring on 12 March 2008, with a balance of term of 18 months commencing on 13 March 2008 and expiring on 12 September 2009.

Factual Background

The factual background includes that set out previously. In particular, the applicant was a party to some of the conversations that have been referred to earlier.
On 20 February 2004 the applicant told Hamilton that he had spoken to people from Victoria who wanted five litres of the precursor. Hamilton said that he could arrange that and they discussed the price. The applicant said that the Victorians wanted to pay $1000 a litre and Hamilton said that they would have to pay $1500. On 21 March 2004, the applicant went to Hamilton's house and their conversation was recorded. In that conversation the applicant told Hamilton that he had 500 cartons of Codral, fifteen cartons of Sudafed and about six bottles of children's medicine that contained ephedrine. Hamilton told the applicant that the liquid could not be used. There was no dispute that these preparations contained pseudo-ephedrine, which can be converted into methylamphetamine using a precursor such as hypophosphorous acid.
During the period of the investigation, Hamilton and the others were arranging to obtain ten litres of hypophosphorous acid that was to be delivered to South Australia where the methylamphetamine was to be made. There was no suggestion that the applicant was a party to that supply, although it is clear from the intercepted telephone calls that he was asked to supply some to people in Victoria. On 13 May 2004, Hamilton rang the applicant and asked him whether he had paid someone. The applicant replied that he had. There was no further evidence that illuminated that conversation.

Remarks on sentence

In the court below, the Crown submitted that the applicant's conduct was that of supplying pseudoephedrine in order to be part of the process of making methylamphetamine using the hypophosphorous acid obtained by Hamilton. However, her Honour noted that in the Crown’s written submissions it was also argued that the applicant was part of the criminal enterprise with Hamilton and the others and that he could acquire other precursors to enable the manufacturing to take place. Her Honour treated that as a reference to the conversation about the Victorians. Her Honour formed the view that, from the very limited facts tendered on sentence, all that could be said of that conversation was that the applicant was not only engaged in providing Hamilton and the others with a base material for conversion to methylamphetamine, but had others to whom he had agreed to supply hypophosphorous acid.
Her Honour expressed the view that the applicant's conduct with the Victorians did not take the matter further for the purposes of the sentencing exercise. Her Honour said that to rely upon it to show, as the Crown submitted, that the provision of pseudoephedrine was not an isolated offence, but part of a continuing criminal enterprise of acquiring other precursors to allow the manufacture of methylamphetamine, would take into account uncharged criminal conduct against the applicant.
Her Honour said that although the Crown submitted that "an enormous amount" of methylamphetamine could be made from the more than 500 cartons of tablets referred to by the applicant, none was found and no actual quantification of methylamphetamine, which may have been produced, had even been attempted. There was no material upon which her Honour could come even to a tentative view of how much methylamphetamine could be produced from those quantities. However, her Honour was of the view that the applicant clearly had access to large quantities of drugs containing pseudoephedrine and had approached Hamilton to use them in the production of methylamphetamine.
The applicant said that he had participated in the crime to get access to better quality drugs and did not seek any financial benefit from his involvement. The Crown submitted that the applicant's motive for the crime was financial. According to her Honour, there was little material before the court on sentence that would have assisted her to determine that issue. However, considering the quantity of pseudoephedrine that the applicant was offering to Hamilton, her Honour was satisfied that the offence could only have been committed for financial gain.
Her Honour accepted the Crown submission that without people like the applicant, the manufacture of methylamphetamine would be hindered. Her Honour found that the applicant's role was important to the process in supplying one of the essential ingredients. Her Honour did not however accept the Crown's submission that without his crime the process could not have occurred.
Whether or not the applicant's primary motivation was to get better drugs for himself or whether it was for financial gain, her Honour concluded that his participation in the enterprise of manufacturing drugs was objectively a serious one. Her Honour said that without people like the applicant the process of making methylamphetamine would no doubt have been more difficult. He had possession of the tablets knowing that they would be used to make methylamphetamine.
The applicant was arrested on 26 May 2004 and taken into custody. He was released on bail on 8 April 2005 but returned to custody on 26 March 2006 following his plea of guilty. The plea of guilty was entered after the matter had been set down for trial and after negotiations between the defence and the Crown. The result of those negotiations was the laying of the charge to which the applicant pleaded guilty instead of the charge of conspiracy to manufacture a large commercial quantity of methylamphetamine upon which he had been committed for trial.
It was argued by the Crown that little weight should attach to the plea and consequently that any reduction in the sentence to be imposed upon the applicant should be less. However, the Crown conceded that a proper discount should be made for the utilitarian value of the plea. The applicant argued that it had utilitarian value and was entered early because the charge was part of a fresh indictment. The plea to a charge of possessing a precursor reflected the negotiations between the defence and the Crown. However, even though the charge to which the applicant pleaded guilty was contained on a fresh indictment, her Honour was not prepared to accept that the plea was entered at an early stage.
It was also argued on behalf of the applicant before her Honour that the plea had considerable utilitarian value because of the nature of the case. It was said that had the charges been taken to trial, a great deal of time and many witnesses would have had to be called by the Crown. The background to the plea on the evidence on sentence demonstrated that there were many hours of intercepted telephone calls that would have been part of the Crown case together with evidence of a number of police officers engaged in surveillance of the various offenders. The rationale for allowing a discount on a sentence otherwise to be imposed by reason of a plea of guilty was to reflect the utilitarian benefit attracted by the plea. That benefit can reflect the complexity of evidence and the length of the trial. An early plea will afford a saving of costs to the community. It does not necessarily follow that a late plea will not attract the maximum discount.
Having regard to the nature and extent of the evidence that would otherwise have had to be called, her Honour regarded the plea as having considerable utilitarian value. She proposed a discount to the sentence otherwise to be imposed of twenty percent.
Her Honour noted that the applicant was aged 28 years. He was born on 20 February 1978. He had prior criminal convictions for drug-related offences in 1996 when he was convicted of two charges of possessing a prohibited drug, one charge of possessing an implement to administer a drug and self-administration of a drug. The applicant was fined for these offences. It was submitted on behalf of the Crown before her Honour that, based on that criminal history, her Honour could not find that the applicant's commission of the charged offence was an aberration but rather a course of criminal conduct which would warrant a more severe sentence. Her Honour rejected that submission. The applicant's criminal history did not persuade her Honour that the offence was characteristic. Her Honour said, "however, it does not entitle [the applicant] to any particular leniency".
The applicant was interviewed for the purposes of preparing a presentence report and was also interviewed by a psychologist, Mr W John Taylor. An account of the applicant's personal circumstances was contained in those reports. Her Honour noted that, so far as the history contained in Mr Taylor's report was concerned, there did not appear to be any evidence of an attempt made by him to verify any of the information supplied by the applicant. The author of the presentence report, in contrast, spoke to the applicant's partner who verified some of the information that the applicant had provided. The applicant did not give evidence before her Honour. Her Honour expressed the view that in relying upon the histories set forth in the reports, she was not necessarily accepting them as being accurate. Her Honour treated the reports as serving merely to repeat what the applicant had told others about himself.
The applicant was brought up in country New South Wales by his mother. His father left the family when he was about one year old. He had a brother and a half brother. The applicant said that his early years were impoverished and that his mother was a violent alcoholic who made suicide attempts. When he was sixteen the applicant was told by his mother to leave for reasons that he could not discern. The applicant has maintained a relationship with his father and has a good relationship with his older brother.
The applicant was living in a de facto relationship for the eight years preceding the sentencing hearing. His partner visits him in prison. She is prepared for him to return to live with her following his release from prison although she said to the maker of the presentence report that she would not tolerate any more drug use or criminal activity.
The applicant completed school to HSC level and had been employed as an opal miner with his father until 2004. He expressed the hope that he could return to that work when he was released. While he was on bail the applicant worked in a fencing business with a friend who was also prepared to give him that employment following his release. The applicant said he started using cannabis at 14 and by 18 he believed he was dependent on it. He also used amphetamines from time to time, two days each week from the age of 22. The applicant said that he became addicted to alcohol at about 22 years of age having started to drink when he was 13.
The applicant told the maker of the presentence report that he knew that what he was doing was wrong when he took part in the criminal activity but said that he did it to increase his access to drugs through an extended drug network. The applicant said that he believed that his judgment was clouded by his drug and alcohol dependencies. He said that he did not realise that his action, in taking a small role, could expose him to a charge for the whole offence. He told Mr Taylor that when he was released on bail after being arrested for this offence, he did not abuse alcohol or drugs. The presentence report notes that he had been disciplined while in prison for having drugs detected in his urine in 2004.
The applicant said to both reporters that he regretted becoming involved in the crime and believed that he was stupid to have done so. He wrote to the Court and apologised for his actions and said that he was selfish and stupid and that it was only after his arrest that he realised the effect that drugs have on the community. The applicant mentioned that he continued to be drug free and that he wished to make a new start on his life with the assistance of his family.
Her Honour said that while it was always difficult to assess whether such a letter was an expression of genuine remorse, the tone of the letter was consistent with how the applicant appeared to the makers of the reports. She regarded his contrition as having been genuinely expressed. Her Honour accepted the applicant when he said that he was committed to not re-offending and that he was sorry for his crime.
Her Honour said that it was clear that the applicant had had a significant drug and alcohol addiction at the time of the commission of the offence. That did not mitigate the seriousness of the crime but went some way to explaining why he became involved. Her Honour accepted that since being arrested the applicant had taken steps to address his dependencies and make a new life on his release from prison. He had completed a drug and alcohol course in prison. Mr Taylor thought he could be well served by a relapse prevention course on his release, and the maker of the presentence report believed that the applicant needed support to continue to manage his substance abuse. Given that he had been drug-free since 2004 and had support from family and friends, including opportunities for employment, her Honour was of the view that there were good prospects for his rehabilitation on release.

Grounds of Appeal

1. The applicant has a legitimate sense of grievance with the disparity between his sentence and the sentences imposed on his co-offenders.
2. The sentence was manifestly excessive.

It is convenient to deal with these in turn.
According to the applicant's submissions, he received a sentence that was significantly higher than the sentences imposed on Kevin Albert Murphy (“Murphy Snr”), Kevin Allen Murphy (“Murphy Jnr”) and Michael Varehov.

The applicant submitted that he had a justifiable sense of grievance at the disparity of the sentence imposed on Murphy Snr, Eyre, Fumberger and O'Grady because their criminality was considerably greater than his and their antecedents were either similar or more serious. The applicant submitted that although Murphy Jnr and Varehov had lesser roles than the applicant, Varehov's antecedents were considerably more serious than those of the applicant. These sentences require examination.
Donovan DCJ sentenced Murphy Snr on 2 March 2006 in respect of a s 24A offence and a s 25(2) offence. He was an interstate truck driver. On 19 May 2003 he had transported methylamphetamine from Hamilton's property to South Australia. After his arrival there, Murphy Snr was involved in discussions about the cutting of the drug. He received some money and drugs in payment. These facts founded the s 25(2) charge.
On 28 March 2004, Murphy Snr and his son drove to Hamilton's farmhouse. There they collected the ten litres of hypophosphorous acid and drove it to South Australia where it was given to Eyre. During the drive, a telephone conversation was intercepted between Murphy Jnr and Hamilton in which Murphy Jnr asked whether the "thing" should be transported in the toolbox or in the truck. After Hamilton said the "thing" should not sit on the ground or cement, Murphy Jnr said he would wrap it. These facts founded the s 24A charge.
Murphy Snr pleaded guilty to both charges after the matters had been listed for trial. He had some prior convictions although they were not detailed in his Honour’s remarks on sentence. His honour noted that Murphy Snr "has apparently been without any prior record now for many years". His Honour also noted that Murphy Snr had used methylamphetamine for some ten years to help him stay awake during his long haul drives. Murphy Snr had received only $100 for his participation but said he had also been given methylamphetamine as payment. In a psychiatric report tendered on sentence, it was asserted that Murphy Snr’s judgment would have been affected by his long-term use of "[a] psychoactive substance" which may have caused some cognitive impairment.
There was some evidence that Murphy Snr was providing assistance to the authorities although, in his remarks on sentence, Donovan DCJ did not expand upon the nature or extent of that assistance, and there did not appear to be a letter of comfort in evidence. His did not make specific reference to s23 of the Crimes (Sentencing Procedure) Act 1999.
Donovan DCJ imposed a total sentence of 3 years imprisonment with a non-parole period of 2 years. Although a separate sentence of 3 years imprisonment, with a non-parole period of 2 years, was imposed in respect of the s 24A offence, the two sentences were effectively to be served wholly concurrently. His Honour found special circumstances by reason of the assistance given by Murphy Snr, his plea of guilty and his prospects of rehabilitation.
Donovan DCJ also sentenced Murphy Jnr on 2 March 2006. He was sentenced in respect of one s 24A offence. The facts of this offence were the same as the facts for his father.
Murphy Jnr pleaded guilty to the charge after it had been listed for trial. He did not have any prior criminal convictions "for all practical purposes". He was 29 years old and also employed as a truck driver, although he did not travel the same distances as his father. He had used amphetamines in the past but (at some unspecified) stage had stopped doing so. He was married and his wife was expecting a child. It seems that he too may have provided some assistance to the authorities although, again, the nature and extent of that assistance is not clear from the remarks on sentence.
Donovan DCJ imposed a sentence of 2 years imprisonment with a non-parole period of 1 year. It is apparent from the sentence imposed (a ratio of fifty percent) that his Honour found special circumstances. Although the reasons for this finding are not specifically stated in the remarks on sentence, his Honour referred to the same factors as those referred to when dealing with his father, namely, assistance to the authorities, his guilty plea and his prospects of rehabilitation.
Walmsley DCJ sentenced Varehov on 8 November 2005 on one count pursuant to s 24A. The facts of the offence were that on 9 March 2004, Varehov drove a hire car to a McDonald's restaurant on the M4 freeway. He met Fumberger in the restaurant car park and they spoke briefly before both men were seen to drive separately out of the car park. Varehov followed Fumberger to his home where Varehov was given 10.7 kg of hypophosphorous acid. Varehov then left the premises and drove to Liverpool. From there, Varehov drove to the Capitol car park in George Street, Sydney. He was seen to park the car and leave the car park. He did not return. The police obtained a warrant to search the car and removed the hypophosphorous acid. Two days later, Hamilton obtained the car keys from Varehov. Hamilton went to the car and discovered that the hypophosphorous acid was missing. Three days later the car was stopped in South Australia. Varehov later provided a statement to the police falsely saying that he had lost the car keys.

Varehov entered a plea of guilty in the Local Court. A charge of making a false statement was put onto a Form 1 in the course of the District Court proceedings.
Varehov had a significant criminal history, having served lengthy prison sentences in South Australia and Victoria for the possession of a controlled substance and trafficking in heroin. He said he had ceased using heroin and amphetamines since being imprisoned in Victoria in 1998 but occasionally continued to use cannabis. Although he said he had only driven the hypophosphorous acid into Sydney as a favour for a friend, Walmsley DCJ did not accept that he was not to receive anything for his help. His Honour noted that the potential market value of the precursor was somewhere between $8 million and $13 million. His Honour was of the view that the offence was below the mid range of seriousness for an offence of this type.
Walmsley DCJ imposed a sentence of 1 year 10 months imprisonment, with a non-parole period of 1 year 4 months. His Honour did not find special circumstances.
Ainslie-Wallace DCJ sentenced Eyre on 5 September 2006 in respect of a s 25(2) offence and a s24A offence. The facts in relation to the former were that Eyre participated with Hamilton and Fumberger to supply a commercial quantity of amphetamine between January 2003 and May 2004. Ainslie-Wallace DCJ said that she was unable to form a view as to the value of the methamphetamine but that, because of its quantity, it must have had "a considerable value". In the hierarchy of offenders, Ainslie-Wallace DCJ found that Eyre "occupied a position equal to that of Fumberger and Hamilton".
The facts in relation to the s 24A offence were that Eyre was involved in the ongoing sourcing and supply of hypophosphorous acid between at least 24 December 2003 and 25 April 2004. From the remarks on sentence, it appears that Eyre supplied hypophosphorous acid to Czerwinski in December 2003 and to Diesing in January 2004, and received ten litres from the Murphies on 28 March 2004. In addition, telephone intercepts indicated that Eyre was told by Hamilton to make arrangements for the payment of the person who was to take over Varehov's role. Eyre was also recorded quoting prices for hypophosphorous acid. In one telephone conversation with Hamilton, Eyre said, "he charges fifteen and eighteen" and told Hamilton he could not get it any cheaper than that. When Hamilton said he would use some of it, Eyre replied that he could get "heaps".
Ainslie-Wallace DCJ found that Eyre was aware of the extent of the operation because he knew that ten litres of hypophosphorous acid had been lost and because he was present during telephone conversations between Hamilton and "the boss". Her Honour found that the actions of Eyre were pivotal to the manufacturing process. His role was an important one. It was clear from the telephone calls that he was not in charge of the arrangements for the manufacture but whatever his role in South Australia was, he was subordinate to others. His role was as a supplier of an essential ingredient. He was in contact with, and was given instructions by, Hamilton to pay money and he had sufficient contact with the process to know that the first ten litres of precursor had been lost. This level of involvement and his ability to provide as much precursor as Hamilton wanted, reflected what he and the others knew could only be a commercial venture.
Eyre entered pleas of guilty to both charges after the matters had been listed for trial. Her Honour discounted Eyre’s sentence in respect of the s25(2) offence by twenty percent and his sentence in respect of the s24A offence by fifteen percent in recognition of the utilitarian value of his pleas.
Eyre had previous criminal convictions in New South Wales and South Australia, and had previously served terms of imprisonment. At the time of these offences, he had been on some form of conditional liberty. He started using drugs eight years previously and had been introduced to methylamphetamine by friends. His use became heavy, to the point where he said he was using one gram a day and could not get out of bed without using drugs. While in prison on remand, he had undergone a drug and alcohol course. In a psychological report tendered on sentence, it was noted that he said he would not take drugs again. He was in a relationship at the time of the commission of the offences and had five children, some of them apparently very young.
Although the applicant was sentenced the day before Eyre, and although both the applicant and Eyre were charged with the same offence arising out of the same police strike force, Ainslie-Wallace DCJ made no reference to the sentence she had imposed on the applicant in her remarks on sentencing Eyre. Her Honour imposed a total sentence of 9 years imprisonment, with a non-parole period of 6 years on Eyre. A sentence of 4 years and 9 months imprisonment, with a non-parole period of 1 year and 9 months was imposed in respect of the s 24A offence.
It is apparent from the non-parole period imposed that her Honour found special circumstances. However, this is not specifically stated by her Honour in her remarks on sentence. The reasons for a finding of special circumstances would appear to be the need partially to accumulate the sentences to reflect the totality of their criminality and Eyre’s need for extended supervision on his release.
Ainslie-Wallace DCJ sentenced Fumberger on 5 September 2006 in respect of a s24A offence and a s25(2) offence. In respect of the former the facts were that Fumberger obtained ten litres of hypophosphorous acid at some time before 9 March 2004. He kept it at his home until he gave it to Varehov on 9 March 2004. After Varehov had taken the hypophosphorous acid, Fumberger telephoned Hamilton asking for payment. After the police removed the hypophosphorous acid from Varehov's hire car, Fumberger and Hamilton discussed whether the police could have intercepted it. Despite the hypophosphorous acid having gone missing, Fumberger was paid on 11 March 2004 for its supply. Then, on 19 March 2004, Fumberger and Hamilton had another telephone conversation in which Fumberger said there would be "no dramas" in getting more, and asked Hamilton when he wanted it. Fumberger obtained another ten litres of hypophosphorous acid on about 24 March 2004 and three days later Hamilton told another co-offender that he had the "water". Fumberger was again paid. It was this hypophosphorous acid that the Murphies collected from Hamilton's farmhouse near Dubbo on 28 March 2004 and transported to South Australia.
It was an agreed fact that twenty litres of hypophosphorous acid could produce between 176 and 266 kg of methylamphetamine. Her Honour said that the role played by Fumberger in being able to obtain and supply the precursor to Hamilton was an important one in the manufacture of methylamphetamine. Her Honour said that it was undisputed that the precursor was vital to the ultimate production of methylamphetamine. It appeared from the telephone calls that Fumberger could obtain it and provide it to Hamilton whenever it was needed. Her Honour said that it involved a sustained course of criminal conduct and that his involvement in it was clearly for financial gain.
In respect of the s25(2) offence, the facts were that Fumberger participated in the supply of 468 g of methylamphetamine valued at $48,600. Fumberger delivered the drug to Eyre. Eyre became concerned that the weight of the drug should have been 484 g. In subsequent telephone conversations between Fumberger and Hamilton, Fumberger assured Hamilton that the weight was right because he had packed it himself. Fumberger said he had checked the weight because of the "last mistake". In the hierarchy of offenders, her Honour did not accept that Fumberger was a principal in this supply but that his criminality was on a par with that of Eyre and Hamilton.
Fumberger entered guilty pleas to both charges after the matters were listed for trial. Her Honour discounted Fumberger’s sentence for the s24A offence by twenty percent and his sentence for the s25(2) offence by twenty five percent in recognition of the utilitarian value of his pleas.
Fumberger had prior convictions for assault and no prior drug convictions. There was evidence on sentencing that he first began drinking alcohol to excess while serving in the Navy and that he had thereafter used "speed". He had three children and was said to have been a good provider to his family. He had obtained some trade qualifications in gaol, and had attended a drug and alcohol course.
Ainslie-Wallace DCJ considered the question of parity of Fumberger’s sentence, but only in relation to the sentence imposed on Varehov. Her Honour distinguished the sentence imposed on Varehov by noting that although his criminal record was more serious than Fumberger's, his role was "limited to a small compass both in terms of what he was called on to do in furtherance of the manufacture process but also in terms of time". Her Honour imposed a total sentence of 9 years imprisonment with a non-parole period of 6 years. A sentence of 4 years and 4 months imprisonment, with a non-parole period of 1 year and 4 months, was imposed in respect of the s24A offence. Her Honour found special circumstances to permit a longer period of supervision after what was to be Fumberger's first custodial sentence.
O'Grady was convicted of conspiracy to manufacture an indictable quantity of methylamphetamine contrary to s24(1). He pleaded not guilty. The Crown case at trial was that O'Grady obtained a quantity of what he believed to be pseudoephedrine from a woman whose husband was in prison. O'Grady gave a 200 g sample of the substance to Hamilton to see whether it could be manufactured into methylamphetamine. In the course of intercepted telephone conversations with Hamilton, O'Grady indicated that he was able to provide more of the substance than the initial 200 g. When it later became apparent that the substance was not producing methylamphetamine, O'Grady urged Hamilton to continue trying.
O'Grady's defence was that he knew all along that the substance he gave Hamilton was not pseudoephedrine but that, nonetheless, he had hoped to obtain money from Hamilton for the substance. He gave evidence that he had serious financial problems caused by his gambling and addiction to amphetamines.
O'Grady was found guilty by a jury on 21 February 2006. He had only one prior conviction for offensive behaviour in 2001, for which he had received a good behaviour bond. He was in a long-term relationship from which there were three children, and referees spoke of the voluntary work he had done in his local community. He had "taken steps" since his arrest to address his drug and alcohol addiction.
Ainslie-Wallace DCJ imposed a sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years. Her Honour found special circumstances because of O'Grady's need for assistance with his rehabilitation upon release from custody.

Consideration

The principles governing this aspect of sentencing have been examined by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1996-97) 189 CLR 295. These principles are well known and it is unnecessary to repeat them. They have been recently summarised by Johnson J in R v Kelly (2005) 155 A Crim R 499 at par [9] ff.
Ainslie-Wallace DCJ presided over the proceedings of eight of the fourteen co-offenders and was aware of the extent of the manufacturing operation and the nature of the criminal charges against each of the co-accused. The evidence established a relatively clear hierarchy of the six co-offenders who were charged with the s24A offence. O'Grady's position in that hierarchy was also apparent. By the time the applicant was sentenced, the Murphies, Varehov and O'Grady had already been sentenced and submissions had been made to her Honour in respect of Fumberger and Eyre, who were each sentenced the day after her Honour sentenced the applicant.
It was submitted in this Court on behalf of the applicant that her Honour failed to give proper consideration to the principle of parity in sentencing him by failing to ascertain where his objective and subjective criminality lay in relation to that of the Murphies, Varehov, Eyre, Fumberger and O'Grady. According to this submission, the applicant's place in the hierarchy falls to be considered by reference to the following matters:

In respect of the s24A offence with which he was charged, there was no evidence that the applicant did anything other than tell Hamilton he possessed medications known to contain pseudoephedrine. Given the extensive surveillance then being undertaken by the police, an assumption should be made that if the applicant had given the medications to a co-offender, this act would have come to the attention of the authorities. The applicant therefore had to be sentenced upon the basis that he had done nothing with the medications. By contrast, the Murphies, Eyre, Fumberger and O'Grady not only possessed either hypophosphorous acid or pseudoephedrine (more refined forms of precursor than medications), but they also knowingly did something with the chemicals to facilitate the manufacture of the methylamphetamine.
There was no evidence that the applicant received any payment for the medications he possessed. Murphy Snr and Fumberger received money for the hypophosphorous acid they possessed. It also appears that that Eyre was paid.
Although Ainslie-Wallace DCJ found that the quantity of the medications possessed by the applicant was large, her Honour was unable to assess the value of any pseudoephedrine that may have been extracted from it. The Crown did not ascribe a value to any methylamphetamine that may have been manufactured from the pseudoephedrine because the medications were never located. By contrast, the Crown asserted, and her Honour accepted, that the ultimate value of the methylamphetamine that could have been manufactured from the hypophosphorous acid possessed by the Murphies, Varehov and Fumberger was in the millions of dollars.
Ainslie-Wallace DCJ found that the applicant's role was important but not essential to the manufacturing operation. By contrast, her Honour found that the roles of Fumberger and Eyre were on a par with Hamilton, who was a mid- to high-level organiser of the whole operation. Her Honour characterised Eyre's role as "pivotal".
Unlike O'Grady, the applicant pleaded guilty. O'Grady was also convicted of an offence carrying a maximum penalty of 15 years imprisonment, compared to the maximum penalty of 10 years imprisonment for a s24A fence.
The applicant had a minor criminal record for drug use offences ten years earlier. He had been fined a total of $250. By contrast, Varehov and Eyre had previously served terms of imprisonment for drug related and other matters. Murphy Jnr was the only one of the co-offenders who had no prior criminal record.
It was submitted on behalf of the applicant that his objective and subjective criminality fell somewhere between that of Murphy Jnr and Varehov on the one part and Murphy Snr, Eyre, Fumberger and O'Grady on the other. The applicant's total sentence and non-parole period exceeded that of Murphy Snr. The applicant’s sentence was identical to that imposed on O'Grady.
We agree in particular that the applicant is entitled to have a justifiable sense of grievance at the disparity between the sentence imposed on him and the sentence imposed on Murphy Snr. Although Murphy Jnr and Varehov had lesser roles than the applicant, Varehov’s antecedents were considerably more serious than his. The sentences imposed on the Murphies and possibly also Varehov were inadequate having regard to their respective roles and antecedents. However, no Crown appeals were lodged in respect of those sentences.
However, we do not consider that the sentence imposed upon the applicant is manifestly excessive. The matters taken into account by her Honour bespeak the seriousness of the offence. He was a participant in a commercial enterprise to manufacture drugs. Her Honour was entitled to approach the matter on the basis that the applicant’s role was to facilitate that enterprise even if he was not irreplaceable. In the circumstances we consider that a sentence of 3 years with a non-parole period of 2 years is appropriate. The applicant is accordingly entitled to be released forthwith.
The orders of the Court are as follows:-
1. Leave to appeal granted.
2. Appeal allowed.
          3. Sentence imposed on 4 September 2006 is quashed.
          4. In lieu, the applicant is sentenced to 2 years imprisonment to date from
          13 March 2005, expiring on 12 March 2007 with a balance of term of 1
           year expiring on 12 March 2008.
5. The applicant is to be released from custody forthwith.

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LAST UPDATED: 3 December 2007