Hitchen v The The King

Case •

[2023] NSWCCA 51

•

14 December 2022

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Hitchen v R [2023] NSWCCA 51
Hearing dates: 20 April 2022
Date of orders: 14 December 2022
Decision date: 14 December 2022
Before: Simpson AJA at [1]
Harrison J at [117]
Fagan J at [118]
Decision:

1. Leave to appeal against sentence granted;

2. Appeal allowed, sentence imposed in the District Court on 3 August 2020 quashed;

3. The applicant be sentenced to an aggregate term of imprisonment for 6 years and 6 months commencing on 11 October 2018 and expiring on 10 April 2025 with a non-parole period of 4 years and 2 months which expired on 10 October 2022.

4. The applicant is eligible for release on parole.

Catchwords:

CRIME – appeals – appeal against sentence – knowingly take part in supply of prohibited drug – conspiracy to manufacture prohibited drug – low purity of drug - relevance to objective seriousness – no evidence of standard purity of methylamphetamine – no error

CRIME – appeals – appeal against sentence – manifest excess – parity considerations – dramatic differences in charges faced by co-offenders – stark differences in sentencing outcomes – appeal allowed – resentencing

SENTENCING – appeal against sentence – limited weight given to evidence of remorse and contrition where offender did not give evidence in sentencing proceedings – proper exercise of sentencing discretion – no error

SENTENCING – appeal against sentence – non-parole period – error regarding application of inapplicable non-parole period conceded – whether conspiracy offences are subject to a non-parole period – no need to determine issue

Legislation Cited:

Crimes Act 1900 (NSW), ss 19A, 26, 193B

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 21A, 25D, 44, 53A, 166, Pt 3 Div 3, Pt 4 Div 1A

Crimes (Sentencing Procedure) Amendment (Standard Minimum Term) Act 2002 (NSW), Sch 1

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW), ss 7A, 39

Interpretation Act 1987 (NSW), s 34

Cases Cited:

Alvares v R [2011] NSWCCA 33

Butters v R [2010] NSWCCA 1

DA C v R [2006] NSWCCA 265

El Kheir v R [2019] NSWCCA 288

Hitchen v R [2021] NSWCCA 293

IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107

Imbormone v R [2017] NSWCCA 144

Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25

Meis v R [2022] NSWCCA 118

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Pfitzner v R [2010] NSWCCA 314

R v Edwards (1996) 90 A Crim R 510

R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83

R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174

R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369

R v Stafrace (1997) 96 A Crim R 452

TS v R [2007] NSWCCA 194

Vaiusu v R [2017] NSWCCA 71

Category:Principal judgment
Parties: Ross Hitchen (Applicant)
The Crown (Respondent)
Representation:

Counsel:
T Kent (Applicant)

E Wilkins SC (Crown)

Solicitors:
Mark Mulock & Co (Applicant)
Director of Public Prosecutions (Crown)
File Number(s): 2018/311061
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
03 August 2020
Before:
Bourke SC DCJ
File Number(s):
2018/311061

Court of Criminal Appeal Supreme Court

New South Wales

JUDGMENT

  1. SIMPSON AJA: On 3 August 2020 the applicant (Ross Hitchen) was sentenced in the District Court at Penrith following his pleas of guilty to three counts of offences in respect of which he had been committed for sentence. The offences were:

  1. conspiring to manufacture not less than the commercial quantity of a prohibited drug (methylamphetamine), an offence against s 26 of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”) (“the conspiracy offence”);

  2. knowingly taking part in the supply of a large commercial quantity of a prohibited drug (methylamphetamine), an offence against s 25(2) of the DMT Act (“the supply offence”);

  3. possession of an unauthorised firearm, an offence against s 7A of the Firearms Act 1996 (NSW) (“the firearms offence”).

    1. A further offence, of knowingly dealing with the proceeds of crime, an offence against s 193B(2) of the Crimes Act 1900 (NSW) (“the money laundering offence”), was, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure Act 1999 NSW (“Sentencing Procedure Act”), taken into account for sentencing purposes.

    2. An offence against s 193B of the Crimes Act, if charged separately, carries a maximum penalty of imprisonment for 15 years. Manufacturing the commercial quantity of a prohibited drug is an offence against s 24(2) of the DMT Act (located in Div 2 of Pt 2 thereof) and is (except where the drug is cannabis plant or cannabis leaf) subject to a maximum penalty of imprisonment for 20 years and, pursuant to Pt 4 Div 1A of the Sentencing Procedure Act, subject to a standard non-parole period of imprisonment for 10 years. Conspiracy to commit an offence under Div 2 of Pt 2 of the DMT Act is, by s 26 thereof, subject to the same punishment as the offence the subject of the conspiracy.

An offence against s 25(2) of the DMT Act is subject to a maximum penalty of imprisonment for life and a standard non-parole period of 15 years. An offence against s 7A of the Firearms Act is subject to a maximum penalty of imprisonment for 5 years.

  1. The sentencing judge, Bourke DCJ, sentenced the applicant, pursuant to s 53A(1) of the Sentencing Procedure Act, to an aggregate term of imprisonment for 10 years and 6 months commencing on 11 October 2018 with a non-parole period of 6 years and 9 months, which will expire on 10 July 2025. In doing so, as required by subs (2) of s 53A, his Honour specified the sentences that he would, if sentencing separately for the three offences, have imposed. The specified sentences were:

  1. the conspiracy offence: imprisonment for 8 years and 6 months, with a non-parole period of 5 years and 6 months;

  2. the supply offence (taking into account the money laundering offence): imprisonment for 6 years and 6 months with a non-parole period of 4 years and 3 months;

  3. the firearms offence: imprisonment for 6 months.

    1. Pursuant to s 25D of the Sentencing Procedure Act, the sentencing judge reduced by 25% the indicative sentence he otherwise would have imposed, and found special circumstances justifying, in the aggregate sentence, departure from the ratio between the non-parole period and the head sentence prescribed by s 44(2) of the Sentencing Procedure Act.

    2. The applicant sought leave, on seven proposed grounds, to appeal against the sentence. On 14 December 2022 the following orders were made, with reasons reserved:

  1. Leave to appeal against sentence granted.

  2. Appeal allowed, sentence imposed in the District Court on 3 August 2022 quashed.

  3. The applicant be sentenced to an aggregate term of imprisonment for 6 years and 6 months commencing on 11 October 2018 and expiring on 10 April 2025 with a non-parole period of 4 years and 2 months which expired on 10 December 2022.

  4. The applicant is eligible for release on parole.

    1. The following are my reasons for joining in the orders.

The relevant facts

  1. Having regard to the grounds of appeal, and the conclusions to which I have come, it is necessary to set out in some detail the facts of the offences.

  2. The conspiracy offence was committed over a period commencing on 17 August 2017 and concluding on the arrest of the applicant on 11 October 2018 (although the Charge Certificate specified 31 October 2018 as the end date) in circumstances to be outlined below. All other offences were committed on 11 October 2018.

  3. The relevant facts were put before the sentencing judge by way of an agreed Statement of Facts. The Statement of Facts established that the applicant was engaged in a criminal enterprise with three others – his brother Geoffrey Hitchen, Christian Meis and Craig Bloom (although, as will be seen, different charges were brought against the participants). The participants had, since 2017, been under surveillance. Surveillance included electronic monitoring of conversations that took place in the applicant’s motor vehicle, and telephone intercepts. The product of the visual and electronic surveillance was a substantial component of the Statement of Facts.

  4. The manufacturing enterprise was centred in a clandestine laboratory in the south-western Sydney home of Christian Meis (“the Meis premises”). The Statement of Facts shows that the applicant was actively involved with the co-offenders. His role, so far as can be gleaned from the Statement of Facts, appears to have involved:

  • frequently travelling to hardware stores and other retail outlets to purchase chemicals, equipment and other items used in the manufacture of methylamphetamine;

  • meeting with other participants and travelling with them to the Meis premises with items that had been purchased, and spending significant periods of time there. It is a reasonable (if not inevitable) inference that he spent some of that time engaged in the manufacture of the drug, although the precise nature of his participation cannot be specified; and

  • storing at his home quantities of methylamphetamine and equipment used in the manufacture of the drug.

  1. On 16 November 2017, the applicant and Bloom spent 5 hours at the Meis premises. On 30 January 2018 they spent about 8 hours at the Meis premises, leaving on two occasions to make purchases of items used in the manufacture of methylamphetamine. On 20 March they spent about 12 hours at the Meis premises. On 10 April they spent about 8 hours at the Meis premises.

  2. On 22 January 2018, a somewhat obscure conversation took place between the applicant and his brother. The applicant asked why “the step was left open”; Geoffrey Hitchen said that it had been open when he parked the car, and that he “ran the car over it”, to which the applicant replied:

“If the cops come here we’ve got real problems. If they come here, we’ll be doing 20”.

It may be inferred that this was included in the Statement of Facts to support an inference that the applicant was conscious of his guilt of the offences. “Doing 20” may be taken to be a reference to the anticipated prison sentence in the event that police attended the property.

  1. On one occasion (23 January 2018), in a conversation with his brother, the applicant was recorded saying:

“I’m gunna tell ya one time cunt. You listen to me. If you cause a drama at that house, and the coppers come around and lose my mate’s money and gear I will fucking bury you and disown you. You will have a tribe of cunts wanting to kill you.”

  1. On another occasion (15 February 2018) the applicant was recorded saying to his brother:

“You went and cooked the gear, you made it.”

  1. On 29 June 2018 Bloom was recorded saying to the applicant:

“Do you want me to go around to the little guy’s place and ask him if that guy wants a litre? Maybe I’ll see him at the gym tomorrow. That’s where I usually see him. I bought him a new ice machine now. He has the ice machine working in there now. I left him some money for new ducting. Remember the ducting was fucked.”

It was an agreed fact that the ice machine and ducting were to be used in the manufacture of methylamphetamine. It is a reasonable inference that reference to “the little guy” was a reference to Christian Meis.

  1. On the same day the following conversation between the applicant and Bloom was recorded:

“Applicant:   the guy from Adelaide is starting to pick up now too.

Bloom:   I gave the bloke a half. We’ll have to see what he comes back for”

  1. On 10 October 2018 the applicant and his brother were recorded, while they were travelling in a motor vehicle, as follows (as transcribed for the purposes of the Statement of Facts):

“Applicant:   What do you want to do about this cash … How big is it can you put it down your pants if they fuckin pull us over.

Geoffrey Hitchen:   Where is it?

Applicant:   In there in the glove box. Just put it down your pants now mate.

Geoffrey Hitchen:   I’m not having it the whole way down my fuckin pants, idiot.”

  1. On 11 October 2018 a covert search warrant was executed at the applicant’s home. Chemicals and equipment used in the manufacture of methylamphetamine were located in a garage, and in a spare bedroom. 179.8 grams of methylamphetamine was found in two bottles and a plastic bag in the garage. Also located in the garage were various quantities, in all amounting to 1386.54 grams, of methylamphetamine. The applicant’s possession of the drug (deemed by s 29 of the DMT Act to have been for the purpose of supply) was the principal foundation for the supply offence, together with some of the applicant’s recorded conversations.

  2. Under the bed in the bedroom used by the applicant was located a .177 calibre Baikal single shot air rifle, and other chemistry equipment (a flask, a 10 litre glass beaker and a white plastic filter funnel). The air rifle gave rise to the firearms offence.

  3. On the same day the applicant and his brother were stopped by police while travelling together in a motor vehicle. The applicant was in possession of $15,250 in cash, concealed in his underwear. This was the foundation for the money laundering count, taken into account for sentencing purposes, but ultimately not separately prosecuted.

  4. The applicant took part in an electronically recorded interview with police. He gave an exculpatory explanation for his possession of acetone, one of the many chemicals purchased by him and one used in the manufacture of methylamphetamine (the explanation being that he had used acetone in a mirror-importing business 7 years previously), said that he had put the cash in his pants the night before (without, apparently, disclosing its source or the reason for his possession of such a sum) and said that he had forgotten about the air rifle, which had been his father’s. The remainder of the interview was not provided to this Court.

  5. On 31 October 2018 a crime scene warrant was executed at the Meis premises. Numerous items indicating that the garage was being used as a laboratory were located. A small amount of methylamphetamine and substances known to be precursors to methylamphetamine manufacture were also located.

The applicant’s personal circumstances

  1. The applicant did not give evidence in the sentencing proceedings. Evidence of his personal circumstances was put before the court, in hearsay fashion, from two sources – a Sentencing Assessment Report dated 30 April 2020, prepared by a Community Corrections Officer (Christopher Baker), and a psychological report by Dr Mark Milic. From these sources the following emerged.

  2. The applicant was born in April 1974. He was 44 years of age at the time of the offences. He had a relatively minor criminal history, which included no fewer than 3 instances of driving whilst his licence was cancelled or suspended (once in 1997 and twice in 2010), one offence (in 1997) of having custody or control of a false instrument, and a Commonwealth offence (in 2014) of failing to report the transfer of currency out of Australia, with respect to which he was fined $5,000. None of his previous offences resulted in a sentence of imprisonment.

  3. The applicant described to Mr Baker a “good upbringing” with his brother. He had had regular employment of various kinds, including conducting an importation business, and has qualifications as a carpenter.

  4. Information given to Mr Baker by the applicant appears to have been somewhat equivocal with respect to his acknowledgment of his participation in the criminal enterprise. He is recorded as saying that he “was looking after goods left at his house by a friend” and that the money he had was owed to and belonged to his brother (although he was in the company of his brother when apprehended in possession of the money). He also maintained that “he was not an illicit drug manufacturer”. The applicant told Mr Baker that he had, with his co-offenders, been a social user of amphetamines for a short period leading up to his apprehension.

  5. Dr Milic provided a more detailed history, following two telephone conferences with the applicant in July 2020. Dr Milic recorded that the applicant presented as:

“…a polite, cooperative, and lucid person who was embarrassed about his offences.”

  1. The applicant told Dr Milic that his father died in 2016 from cancer, and his mother in 2000 from lymphoma at the age of 56. She was first diagnosed when the applicant was about 8 years of age.

  2. The applicant was married until 2009 or 2010 when the marriage came to an end because his wife, who was Chilean, became homesick and returned to Chile. During the marriage the couple had suffered three miscarriages. The applicant is now in a relationship with a woman who lives in Thailand.

  3. The applicant had experienced health issues. He suffered from a serious spinal infection while in Thailand in 2013. He told Dr Milic that a number of circumstances in the years before his offending affected his mental health. These included concerns about his brother’s alcoholism, some estrangement from his father during his illness, and distress about financial matters that resulted in the loss of a house in Sydney that he had renovated. In the period leading up to the offences he had been severely depressed. Dr Milic thought it likely that at the time of the offending the applicant was suffering from “major depression”.

  4. Dr Milic recorded that the applicant accepted responsibility for his offending, explaining that he had become involved after using alcohol to excess, and amphetamines. It may here be observed that his acceptance of responsibility to Dr Milic was a significant departure from his apparent denial to Mr Baker, only 3 months earlier.

  5. Dr Milic considered that the applicant’s offences “have taken a high emotional toll on him” and that:

“His mortification at his offenses [sic], good conduct as a sweeper and painter in prison, trade and other work skills, and realistic plans for the future suggest that he has good prospects for rehabilitation.”

  1. The bank had taken possession of the house in which the applicant and his brother had lived due to their inability to meet mortgage repayments.

The remarks on sentence

  1. The sentencing judge recorded in some detail the facts as put before him in the agreed statement. No issue was taken with the account of facts given by the sentencing judge.

  2. His Honour observed, uncontroversially, that the drug offences were very serious. He accepted a submission made on behalf of the applicant that he was not the “manufacturer” in the sense that he was not shown to have had the technical knowledge or expertise to carry out the chemical processes, but found, nevertheless, by reference to the evidence of the various attendances by the applicant at the Meis premises, that the applicant “occupied a central role in the drug manufacturing conspiracy and the supply business”. His Honour went on to say that the applicant “had a close knowledge of and involvement in the manufacturing processes that were carried out in the house”. He said:

“[the applicant] held a central role in the conspiracy to manufacture, and appears to have been an equal partner with Bloom and Meis”, … [and] “was fully aware of the chemical processing operation being carried on in the house and was involved at least in obtaining and replenishing equipment and supplies needed in that operation.”

  1. His Honour gave some weight to the length of time (more than 12 months) over which the conspiracy existed, and took into account (expressly not as an aggravating feature) the fact that drugs were successfully manufactured before the police intervention. His Honour found the objective seriousness of the conspiracy offence to be “around the mid range”, and of the supply offence to be “below the mid range but not in the lowest range of objective seriousness”. In reaching this latter assessment, the sentencing judge said:

“Indeed it is an agreed fact that the offender and his brother were actively involved in the supply of methylamphetamine for profit. I have no doubt that this was an ongoing business, although of course the offender is only to be sentenced in relation to the drugs that were in fact found at his house.”

  1. His Honour went on to refer to evidence of conversations between the applicant and Bloom and others, including his brother, and including the conversation about the “step” (see [13] above).

  2. The sentencing judge rejected an argument advanced on behalf of the applicant that, because of the relatively low purity of the drug located, the supply offence should be regarded as at “the very bottom of the range of objective seriousness”. He said:

“While I take this fact into account it does not to my mind reduce the objective seriousness to any substantial degree given that under the [DMT Act] it is the impure quantity or admixture that is of relevance”

This was a reference to s 4 of the DMT Act, and is considered in the context of ground 2 of the appeal.

  1. His Honour then dealt briefly with the money laundering offence (taken into account in the specified sentence for the supply offence); he considered that the cash found on the applicant ($15,250) was appropriately to be treated as part of the profits of the supply offence and therefore did not merit more than a moderate increase in the punishment for the supply offence.

  2. Finally, the sentencing judge considered the firearms offence to be “of some seriousness”, noting a concession by the Crown that there was no evidence that the firearm was connected in any way with the drug offending. He assessed the objective seriousness of that offence as “low”.

  3. Overall, however, his Honour considered that the applicant’s moral culpability in relation to the conspiracy and supply offences was high.

  4. His Honour then turned to consider the applicant’s personal circumstances. He noted evidence of the applicant’s conduct whilst in custody and assessed his prospects of rehabilitation as reasonable.

  5. His Honour went on to impose the sentence set out above.

Sentences of co-offenders

  1. The applicant was the first of the participants in the enterprise to be sentenced. Each of the co-offenders came before the same judge for sentence, although at different times. Notably, all were charged with different offences. Geoffrey Hitchen was charged with possession of an unauthorised firearm, and with knowingly taking part in the supply of not less than the commercial quantity of a prohibited drug (s 25(2) of the DMT Act). He was sentenced on 12 October 2020 to an aggregate term of imprisonment of 6 years with a non-parole period of 3 years and 10 months. The sentencing judge indicated that, if sentencing separately for the offences, he would have imposed a fixed term of imprisonment for 6 months with respect to the firearms offence, and imprisonment for 5 years with a non-parole period of 3 years and 9 months for the drug supply offence. The latter indicative sentence took into account a money laundering offence under s 193B(2) of the Crimes Act. An appeal against sentence was dismissed: Hitchen v R [2021] NSWCCA 293. One of the unsuccessful grounds of appeal raised issues of parity with the sentence imposed on the applicant.

  2. Christian Meis and Craig Bloom were sentenced on 12 February 2021, six months after the applicant was sentenced. Bloom was charged with a single offence against s 24(1) of the DMT Act of knowingly taking part in the manufacture of a prohibited drug (methylamphetamine), an offence subject to a maximum penalty of imprisonment for 15 years, and with failing to keep a firearm safely, an offence against s 39(1)(a) of the Firearms Act, carrying a maximum penalty of imprisonment for 12 months. After a reduction of 25% in recognition of his plea of guilty, the sentencing judge imposed a sentence of imprisonment for 22 months. Hs Honour directed that a report be prepared for assessment of Bloom’s suitability for an order under s 7 of the Sentencing Procedure Act (as it then stood), that the sentence be served in home detention. The material before this Court does not disclose the outcome of that investigation.

  3. Meis was also charged, under s 24(1) of the DMT Act, with an offence of manufacturing a prohibited drug (methylamphetamine), being less than or equal to the small quantity, and, under s 25(1), for supplying in excess of the indictable quantity of the same drug (24.58 grams). The maximum penalty applicable to each of those offences was imprisonment for 15 years. Meis also admitted his guilt of two offences against s 24A(1)(a) of the DMT Act (offences of possession of precursors intended for use in the manufacture or production of a prohibited drug); one offence involved 5 kilograms of iodine, and the other 5 kilograms of hypophosphorus. Each of these offences is subject to a maximum penalty of imprisonment for 10 years, but, because they came before the court from the Local Court on a certificate under s 166 of the Sentencing Procedure Act, the maximum custodial penalty that could be imposed was 2 years.

  4. After a successful appeal Meis was sentenced to imprisonment for 3 years with a non-parole period of 1 year and 6 months: Meis v R [2022] NSWCCA 118.

The application for leave to appeal

  1. As indicated above, the applicant identified seven separate grounds on which he sought to appeal. The grounds were stated as follows:

GROUND 1:   The sentencing judge erred by taking into account an inapplicable standard non-parole period in sentencing for the conspiracy offence.

GROUND 2:   In assessing the objective seriousness of the supply offence, the sentencing judge erred:

i. by misconstruing the operation and effect of s 4 of the Drug Misuse and Trafficking Act;

ii.   by not taking into account the purity of the admixture as relevant to the commercial value of the drug and the potential harm to the community.

GROUND 3:   In assessing the objective seriousness of the supply offence and the offence on the Form 1, the sentencing judge erred:

i.   by mistaking that it was an agreed fact that the applicant was actively involved in the supply of methylamphetamine for profit;

ii.   by not taking into account evidence that the applicant was holding the drug for another person.

GROUND 4:   in assessing the objective seriousness of the conspiracy offence, the sentencing judge erred:

i.   by finding that the applicant occupied a central role in the drug manufacturing conspiracy;

ii.   by finding that the applicant was an equal partner with the co-offenders Bloom and Meis.

GROUND 5:   the sentencing judge erred in principle by reducing the credit given for remorse and contrition on account of the applicant not having given evidence on sentence.

GROUND 6:   the sentence imposed was manifestly excessive

GROUND 7:   the applicant has a justifiable sense of grievance in light of the sentences imposed on the co-offenders Meis and Bloom.

Ground 1: taking into account an inapplicable standard non-parole period on the conspiracy count.

  1. The sentencing judge opened his sentencing remarks by observing that the maximum sentence applicable to the conspiracy offence is imprisonment for 20 years, and that “a standard non-parole period of 10 years is specified”. Later in his remarks, when addressing the issue of objective seriousness, his Honour said:

“Objectively these drug offences are clearly very serious, having regard firstly to the maximum penalties and the standard non-parole periods that apply.”

  1. It is apparent from these passages, in combination, that the sentencing judge took into account, in determining the appropriate sentence for the conspiracy offence, that a standard non-parole period of 10 years was applicable. The applicant contended that that was erroneous, because, he maintained, no standard non-parole period is applicable to the conspiracy offence. The Crown conceded the asserted error. Accordingly, no argument was addressed to whether a standard non-parole period applies to an offence against s 26 of the DMT Act, of conspiring to manufacture a prohibited drug.

  2. Section 26 of the DMT Act is located in Div 2 (Indictable Offences) of Pt 2 (Offences) of the DMT Act. Section 26 is in the following terms:

“Conspiring

A person who conspires with another person or other persons to commit an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the first mentioned offence.”

  1. The charge to which the applicant pleaded guilty was that he:

“…did conspire with Craig Bloom and Christian Meis to manufacture an amount of a prohibited drug, namely methylamphetamine, which was not less than the commercial quantity applicable to that prohibited drug.”

  1. Manufacturing not less than the commercial quantity of a prohibited drug is an offence against s 24(2) of the DMT Act, also located in Div 2 of Pt 2 thereof. Accordingly, by s 26, the applicant was liable to the same punishment as he would have been had he committed the s 24(2) offence. The question that arises under ground 1 of the proposed appeal is what that punishment was.

  2. Section 33 of the DMT Act relevantly provides:

“Penalties for offences involving commercial quantities or cultivation for a commercial purpose

(1)   This section applies to the following offences –

(a)   an offence under section 23(1A) or (2), 24(2) or 25(2) or (2A),

(b)   an offence under section 26 of conspiring to commit an offence referred to in paragraph (a),

…

(2)   The penalty for an offence is –

(a)   except as provided by paragraph (b), a fine of 3,500 penalty units or imprisonment for 20 years, or both, or

(b)   where the offence relates to cannabis plant or cannabis leaf, a fine of 3,500 penalty units or imprisonment for 15 years, or both.

…”

  1. Having regard to the terms of s 26 it is difficult to see why it was necessary to include par (1)(b); that section already makes the sentence applicable to any of the offences identified in par (1)(a) applicable to a conspiracy offence. In any event, it is clear that, on his plea of guilty to the conspiracy charge, the applicant became liable to imprisonment for 20 years.

  2. That, however, is not the only sentencing provision relevant to an offence against s 24(2). Division 1A of Pt 4 of the Sentencing Procedure Act (introduced into that Act by cl 4 of Schedule 1 of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Terms) Act 2002 (NSW), with effect from 1 February 2003) provides for “standard non-parole periods”. A Table to Div 1A identifies certain offences and specifies a standard non-parole period applicable to each. Section 54A(2) of the Sentencing Procedure Act provides:

“(2)   For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division, that taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.”

  1. Section 54B(2) (substituted from its original form following the decision of the High Court in Muldrock v The Queen (2011) 244 CR 120; [2011] HCA 39 (“Muldrock”)) provides:

“(2)   The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.”

  1. The standard non-parole period, like the maximum prescribed sentence, operates as a “legislative guidepost”: Muldrock at [27]. The likely outcome, in practical terms, of taking into account a standard non-parole period will be, at least in some cases, “a move upwards in the length of the non-parole period” specified: Muldrock at [31]. An applicable standard non-parole period may thus affect, adversely to the offender, the sentencing outcome.

  2. It follows that, taking into account a standard non-parole period that is inapplicable will constitute error in the sentencing process: see R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83 (“Ohar”) at [84]-[85] per James J (Studdert and Dunford JJ concurring); D A C v R [2006] NSWCCA 265 (“D A C”) at [9]-[10] per Howie J (Tobias JA and Rothman J concurring).

  3. Included in the Table to Div 1A are offences against s 24(2) of the DMT Act. The standard non-parole period specified (where the offence does not relate to cannabis leaf) is 10 years.

  4. Not expressly included in the Table are offences against s 26 of the DMT Act. For this reason, the applicant contends (and the Crown accepts) that, in taking into account, as he undoubtedly did, the standard non-parole period applicable to offences against s 24(2), the sentencing judge erred.

  5. It is arguable that the “punishment” referred to in s 26 includes the standard non-parole period applicable to the substantive offence the subject of the conspiracy. The contrary proposition is that s 26 does no more than render an offender liable to the maximum penalty provided for the offence the subject of the conspiracy, without regard to provisions, such as s 54B(2) of the Sentencing Procedure Act, that governs the determination of the sentence to be imposed. However, the question was not argued in this Court, the Crown conceded the asserted error, and, having regard to the view to which I came with respect to Grounds 6 and 7, it is unnecessary to spend more time on the question.

Ground 2: Drug Misuse and Trafficking Act, s 4

  1. This ground arises in the following circumstances.

  2. In the Statement of Facts (at [33]) it was asserted that, in an area under the staircase in the garage of the applicant’s home, methylamphetamine was found in the following quantities:

  1. 83.2 grams of liquid in a soft drink bottle;


    (ii)

       1078.5 grams of liquid in another soft drink bottle;


    (iii)

       179.8 grams solid in a plastic bag;


    (iv)

       27.88 grams solid in a water bottle;


    (v)

       17.16 grams solid in another water bottle.

The total of these amounts was 1386.54 grams.

  1. During the course of the sentencing proceedings the Crown Prosecutor advised the sentencing judge that an analyst’s certificate showed that the purity of each of those quantities was, respectively:

  1. 70.5%;

  2. 13.5%;

  3. unknown;

  4. 54.5%;

  5. 42.7%

    1. It was submitted on behalf of the applicant that, having regard to what was said to be the low purity of the substances, the actual commercial value was “ameliorated”. It was acknowledged that 83.2 grams (item (i)) in a soft drink bottle, with 70.5% purity “was a substance that had commercial value” but that 1078.5 grams (item (ii)) in a soft drink bottle, with a purity of 13.5%, had “substantially less value” and that, overall:

    “the objective seriousness falls to the very bottom of the ladder … because of the limited purity of the vast amount of that substance”,

and that the danger to the community by the distribution of that quantity would be small relative to other instances of offending of this kind.

  1. The sentencing judge acknowledged this submission, but said:

“While I take this fact into account it does not to my mind reduce the objective seriousness to any substantial degree given that under the [DMT Act] it is the impure quantity or admixture that is of relevance. In this regard, Parliament has set the large commercial quantity at 500 grams. The drugs seized from the offender’s home therefore represents more than two and a half times the large commercial quantity which is a highly relevant, though not determinative, factor in assessing objective seriousness.”

It is the first sentence of this passage that gives rise to Ground 2.

  1. The reference to the DMT Act was a reference to s 4 thereof which provides:

4.   Admixtures

In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug.

  1. On behalf of the applicant it was contended in this Court that the sentencing judge misconstrued s 4 and therefore acted on a wrong principle. It was submitted that the sentencing judge assessed the objective seriousness of the supply offence on the basis of the “admixed quantity to the exclusion of the significance of the purity”. The submission went on:

“40.   …given the very low purity of the vast majority of the admixture, it was not reasonably open to the trial judge to give that fact other than substantial weight in assessing the criminality of the offence. … [O]n the facts of this case, it was not reasonably open to find that the admixed weight was highly relevant in circumstances where the overall purity was so low.”

  1. It was next submitted that the sentencing judge failed to take into account other relevant considerations, such as the low commercial value of the substances, the smaller financial reward potentially available from their distribution and the reduced potential harm of the drug being released into the community.

  2. The Crown made essentially two responses to the applicant’s submissions. First, it maintained that the passage of the remarks on sentence extracted established that the sentencing judge had in fact taken the purity of the drug into account, by saying, expressly, “while I take this fact into account …” and adding that “this fact” did not “reduce the objective seriousness to any substantial degree”.

  3. The second part of the Crown’s response concerned the applicant’s criticisms that the sentencing judge failed to take into account other material circumstances, such as commercial value, financial reward or potential harm. The point made by the Crown was that there was no evidence to support the suppositions underlying the applicant’s submissions in this respect.

Consideration of Ground 2

  1. It is established that, notwithstanding s 4 of the DMT Act, the purity of a prohibited drug is a relevant consideration. Section 21A of the Sentencing Procedure Act, which specifies aggravating, mitigating and other factors to be taken into account in sentencing, expressly nominates, in subs (1)(c), “any other objective or subjective factor that affects the relative seriousness of the offence” as a matter the sentencing court is required to take into account.

  2. This very question was dealt with at some length by Leeming JA (with whom Hoeben CJ at CL and Lonergan J agreed) in El Kheir v R [2019] NSWCCA 288. It is worth extracting passages from his Honour’s reasons. After setting out the terms of s 4 and dealing with some other matters, his Honour said:

“37 Section 4 of the [DMT Act] is an interpretation provision. It applies to references to ‘prohibited drugs’ elsewhere in the Act. No other sense can be given to its opening words ‘In this Act, a reference to a prohibited drug includes …’. Section 4 is not a deeming provision which applies in all circumstances. Its effect is limited.

38 Confined as it is to references to ‘prohibited drugs’ in the [DMT Act], s 4 has real work to do. In particular, it will have a powerful effect on the availability of more serious charges available when a ‘commercial quantity’ or a ‘large commercial quantity’ of a prohibited drug is manufactured or supplied. A dilute mixture, which if purified might fall well short of a commercial quantity, might nonetheless sustain a conviction of a commercial quantity or even a large commercial quantity. What matters for the purposes of the elements of the offences created by the [DMT Act], by reason of s 4, is the weight of the mixture, not the weight of the prohibited drug contained within the mixture. …

39   But it does not follow that for the purpose of sentencing, the court is to shut its eyes to the facts giving rise to the offences of which the offender has been found guilty or to which he or she has pleaded. …

40 …the purity of a mixture manufactured by an offender is an objective factor that affects the seriousness of the offence within the meaning of s 21A(1)(c) of the [Sentencing Procedure Act]. How could it be otherwise? There is a material distinction between the objective seriousness in manufacturing, say 5 litres of a liquid from which 4 kilograms of methylamphetamine can readily be extracted, and manufacturing 5 litres of a liquid from which 1 gram of methylamphetamine can be extracted. Both instances amount to manufacturing a large commercial quantity of a prohibited drug. However, the criminality of the former exceeds that of the latter. The harm to the community, and the financial gain potentially available to the offender, are many times greater in the case of the former as opposed to the latter. But the [DMT Act] merely specifies the elements of the offences created by it, and the maximum penalties and standard non-parole periods applicable to those offences. That Act does not otherwise speak to the sentencing discretion, which falls to be exercised according to the [Sentencing Procedure Act] and judge-made law.”

[His Honour then referred to s 21A(1)(c) of the Sentencing Procedure Act, and continued:]

“42 Section 4 of the [DMT Act] is merely an interpretation provision applicable to that statute. Section 4 is not expressed to circumscribe the matters to which regard may be had when imposing sentence including as regulated by the [Sentencing Procedure Act]. Still less is it expressed to circumscribe the matters to which the sentencing court must have regard, such as those in s 21A(1)(c). The purity of an ‘admixture’ which is taken to be a large commercial quantity of a prohibited drug is one such matter.” (italics in original)

  1. The first question, therefore, was whether the sentencing judge did misinterpret s 4 of the DMT Act and fail to take into account the purity of the admixture, particularly as relevant to the commercial value of the drug and the potential harm to the community. After consideration, I was not persuaded that he did commit those errors. He expressly said that he took into account the applicant’s submission. He made it plain, however, that he gave limited weight to that circumstance. It is well established that the weight to be given to relevant circumstances is very much a matter for the sentencing judge.

  2. That led to another consideration. The submission made on behalf of the applicant emphasised what was repeatedly called “the very low purity of the vast majority of the admixture” (or words to similar effect). It is true that the largest single quantity of the admixture (1078.5 grams, item (ii) above) was of low purity (13.5%). However, as was acknowledged in the sentencing proceedings, a significant quantity (83.2 grams, item (i)) was of 70% purity; and 27.88 grams and 17.16 grams (items (iv) and (v) respectively) were of 54.5% and 42.7% purity.

  3. Moreover, as the Crown pointed out, there was no evidence before the court as to what is or may be a standard or accepted purity of methylamphetamine on the market. It is not possible to accept, as the applicant submitted, that the overall quantity of the drug the subject of the supply offence was of low purity.

  4. It was not erroneous for the sentencing judge to place little weight on the purity of the drug.

  5. I therefore concluded that Ground 2 of the proposed appeal should be rejected.

Ground 3: the objective seriousness of the supply and money laundering offences

  1. This ground arose out of that part of the sentencing remarks in which the sentencing judge said:

“Indeed it is an agreed fact that the offender and his brother were actively involved in the supply of methylamphetamine for profit. I have no doubt that this was an ongoing business, although of course the offender is only to be sentenced in relation to the drugs that were in fact found at his house.”

  1. Two complaints were made about these observations. First, it was said that there was no agreed fact that the applicant was “actively involved in the supply [as distinct from manufacture] of methylamphetamine for profit”. Second, it was said that the sentencing judge failed to take into account evidence that the applicant was holding the drugs at his home for another person.

  2. As to the first of these asserted errors, it is correct that there was no explicit statement in the Statement of Facts that the applicant was “actively involved” in the supply (of methylamphetamine for profit). To that extent the point was well made. However, the applicant’s next proposition was that the evidence did not support any inference that he had “more than a peripheral role in the supply operation, limited to storing drugs at his house”. I considered that proposition should be rejected. There was ample evidence in the detail of the facts that were agreed to support the conclusion that the applicant was actively involved in the supply enterprise.

  3. For example, on 29 June 2018 the applicant was recorded in a conversation with Bloom which was plainly to do with supply; on 10 October 2018 the applicant was recorded advising his brother to conceal cash (of an unspecified quantity) in his pants; 1.38 kilograms of methylamphetamine was stored at his home; and, when arrested on 11 October 2018, he was in possession of $15,250 in cash concealed in his pants.

  4. As to the second point, no evidence was identified that was capable of establishing (on the balance of probabilities) that the applicant was merely holding, or storing, the drugs for another person. Such a proposition is quite contrary to the evidence overall. The proposition appears to derive from the Sentencing Assessment Report in which the applicant was recorded as saying that he was looking after goods left at his home by a friend and from the conversation in which the applicant referred to “my mate’s money or drugs”. That is an inadequate basis for a finding of fact of the kind proposed. The proposition is unsupported by any other evidence. The applicant was clearly part of an enterprise that both manufactured and supplied (or intended to supply) methylamphetamine.

  5. I considered that ground 3 of the proposed appeal should be rejected.

Ground 4: the objective seriousness of the conspiracy offence

  1. This ground derives from the finding that the applicant:

“held a central role in the conspiracy to manufacture, and appears to have been an equal partner with Bloom and Meis.”

  1. It was submitted on behalf of the applicant that, while it was accepted (and established by his plea of guilty) that the applicant:

“was a participant in that conspiracy and was involved to the extent [that] he obtained equipment and supplies directed toward furthering the conspiracy”,

the evidence was nevertheless not capable of establishing beyond reasonable doubt that he had any greater role or involvement than:

“obtaining and replenishing equipment and supplies needed in the operation”.

  1. There was, it was submitted, evidence to the contrary of the finding that the applicant had a central role in the conspiracy, and was an equal partner with Bloom and Meis, that being:

  • that the clandestine laboratory was located in Meis’s home;

  • that there was no evidence that toluene [one of the chemicals the applicant had purchased] was used in the manufacture of methylamphetamine;

  • that, on 4 of the 5 occasions on which the applicant was involved in the purchase of equipment related or potentially related to the conspiracy, he was accompanied by another person (most frequently Bloom);

  • that Bloom attended the Meis premises more frequently than did the applicant and on numerous occasions alone, and that on each occasion that the applicant attended the Meis premises, Bloom was also present;

  • that the applicant only attended the Meis premises on 4 occasions from August 2017 to October 2018, the dates particularised for the conspiracy;

  • that the last occasion on which the applicant was observed to have attended the Meis premises was April 2018, more than 6 months before his arrest;

  • that there was no evidence that the applicant was aware of the presence at the Meis premises of precursor substances;

  • that the evidence did not establish that methylamphetamine was actually manufactured in furtherance of the conspiracy.

  1. None of these persuaded me that the sentencing judge’s conclusion as to the role played by the applicant was erroneous. The last mentioned matter (no evidence of actual manufacture) is entirely irrelevant to the applicant’s role – it may well suggest that the enterprise was ineptly conducted, but it does not diminish the applicant’s participation as a conspirator. Actual manufacture of the drug is not an element of the offence charged – conspiracy. Whether the drug was successfully manufactured does not bear upon the applicant’s role in the conspiracy alleged.

  2. It is correct that the laboratory was located at the Meis premises, and that multiple items used in drug manufacture were there located. However, it is also the fact that the only manufactured drug was located at the applicant’s premises. The Statement of Facts demonstrates an ongoing involvement by the applicant in the purchase of chemicals and equipment, ongoing involvement with Bloom and Meis, and lengthy attendances at the Meis premises on at least three occasions (30 January 2018 for 8 hours, 20 March 2018 for 12 hours, and 10 April 2018 for 8 hours). (Respectively, pars 17, 23 and 24 of the Statement of Facts).

  3. In my opinion the evidence amply justified the findings made by the sentencing judge. I therefore considered that ground 4 of the proposed appeal should be rejected.

Ground 5: credit for remorse and contrition

  1. Section 21A(3) of the Sentencing Procedure Act states mitigating factors that a sentencing court is required to take into account in determining the appropriate sentence for an offence. Relevantly, par (i) specifies that one such factor is:

“(i)   the remorse shown by the offender for the offence, but only if:

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)”

  1. With respect to remorse and contrition the sentencing judge said:

“In relation to his offending, the offender accepted responsibility telling the psychologist ‘I knew I was breaking the law’. He expressed shame about what his parents and other family members and neighbours would think of him and his offending. The offender’s acceptance of responsibility and his expressions of shame are some evidence of remorse or contrition. There is also the fact that the offender told the Community Corrections Officer that he did not realise the impact of illicit drugs on the community until he came to gaol, which I will treat as some further acknowledgement by the offender of the harmful nature of his offending. But, as the offender did not give evidence on sentence the extent to which I will give credit for remorse and contrition is somewhat reduced.”

It was the last sentence of this passage that gave rise to ground 5.

  1. Two propositions are well established. The first is that it is not necessary, in order to satisfy s 21A(3)(i), that an offender give evidence of remorse or contrition in the proceedings. Remorse or contrition may be established by means other than the direct evidence of the offender: Butters v R [2010] NSWCCA 1 at [17] per Fullerton J, with whom McClellan CJ at CL and McCallum J agreed.

  2. The second proposition is that a sentencing judge is not obliged to accept evidence of remorse and/or contrition even if given on oath or affirmation (R v Stafrace (1997) 96 A Crim R 452; Alvares v R [2011] NSWCCA 33 at [65]) and may be justified in not accepting that evidence where the evidence is given via a third party such as a psychiatrist, psychologist or Community Corrections Officer, or through family or friends: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]; TS v R [2007] NSWCCA 194 at [30]; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40]-[41]; Pfitzner v R [2010] NSWCCA 314; Imbormone v R [2017] NSWCCA 144 at [57]; IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107.

  3. Presumably in recognition of these decisions, on behalf of the applicant it was submitted that:

“72   …there is a distinction between declining to accept evidence of remorse on account of it not being given by way of sworn evidence and reducing the weight to be given to remorse in the sentencing discretion on account of the offender not giving sworn evidence. … The latter approach is erroneous [and was adopted by the sentencing judge].”

  1. If it be correct that there is such a distinction, it is a narrow one. On a fair reading of the passage in the remarks on sentence, the sentencing judge did no more than, as he was entitled to do, give limited weight to the applicant’s expressions, such as they were, of remorse and contrition.

  2. I considered that ground 5 of the proposed appeal should be rejected.

Ground 6: manifest excess

Ground 7: parity

  1. These grounds may conveniently be addressed together.

  2. It was accepted on behalf of the applicant that the principles applicable to a ground of manifest excess were uncontroversially stated in Vaiusu v R [2017] NSWCCA 71 at [28] by R A Hulme J with whom Bathurst CJ and Beech-Jones J (as the Chief Judge then was) agreed. Those principles are:

“(a)   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

(b)   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

(c)   It is not to the point that this Court might have exercised the sentencing discretion differently.

(d)   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principles.

(e)   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

  1. While acknowledging that, where an aggregate sentence has been imposed, the indicative sentences required to be specified by s 53A(2) of the Sentencing Procedure Act in respect of individual offences are not amenable to appeal, the applicant contended that latent error could be inferred by the indicative sentence (8 years and 6 months, non-parole period 5 years and 6 months) applicable to the conspiracy offence. That was because, by reference to sentencing statistics provided by the Judicial Commission of NSW, it could be seen that only one sentence equal to or higher than 8 years and 6 months had been imposed in respect of s 26 conspiracy offences, where the substantive offence the subject of the conspiracy was a s 24(2) offence, involving the manufacture of not less than the commercial quantity of a drug other than cannabis leaf. That may be so. But that is not the question for this Court. The question for this Court is whether an aggregate sentence of imprisonment for 10 years and 6 months with a non-parole period of 6 years and 9 months, imposed in relation to –

  1. the conspiracy offence;

  2. the supply offence, taking into account the (relatively serious) money laundering offence; and

  3. the firearms offence,

having due regard to all sentencing considerations, including totality, is, in the circumstances of this case, unreasonable or plainly unjust.

  1. It is, of course, relevant that the aggregate sentence was based upon indicative sentences that comprehended a reduction of 25% referable to the pleas of guilty. Implicitly, without the 25% reduction in the indicative sentences, the aggregate would have been imprisonment for 14 years.

  2. In support of this ground the applicant relied on the errors asserted in relation to the assessment of the objective seriousness of the conspiracy and supply offences. The argument, as I understand it, was that those erroneous assessments resulted in a manifestly excessive aggregate sentence. That argument must meet the same fate as the grounds on which it was based.

  3. Essentially, the submissions finally advanced on behalf of the applicant under this ground relied on his age (46 at sentencing), his relatively limited criminal history (somewhat optimistically described as “unblemished”), the finding that he had reasonable prospects of rehabilitation, and the evidence of remorse and acceptance of responsibility.

  4. I confess to some hesitation over this ground. Ultimately, I came to the view that the ground is made good. Manifest excess is most clearly evidenced by reference to the fact that it is implicit in the aggregate sentence that, had the applicant been convicted after trial and not received the reduction on the indicative sentences, the objective and subjective features of the case would have resulted in an aggregate sentence of 14 years. I was satisfied that that was outside the available sentencing range and was unreasonable or plainly unjust: Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25. The aggregate sentence arrived at after allowing the reduction to the indicative sentences must therefore also be treated as unreasonable or plainly unjust. It therefore became necessary to set aside the sentence imposed, and re-exercise the sentencing discretion.

  5. The view that the sentence imposed is manifestly excessive is independent of, but reinforced by, parity considerations to which I will shortly come. For resentencing purpose, I adopted the following findings of the sentencing judge, at which I arrived independently:

  1. the applicant had a central role in the conspiracy. So much is apparent from his regular purchases of equipment and chemicals; his regular contact with Bloom and Meis; his extended attendances at the Meis premises which I infer were for the purposes of participating in whatever manufacturing process was taking place at the time; and his possession of 1.38 kilograms of methylamphetamine at his home which, like the sentencing judge, I inferred was for the purposes of supply. I accepted, as did the sentencing judge, that the applicant was not the manufacturer, in the sense that he performed technical operations in the manufacturing process.

  2. the applicant was actively involved in the supply of the drug, although, I accepted, the evidence did not establish that the commercial aspect of the enterprise proceeded to any significant degree of success;

  3. both drug offences are regarded by the legislature (and must be regarded by this Court) as very serious;

  4. the objective seriousness of the conspiracy offence lies in approximately the mid-range;

  5. the objective seriousness of the supply offence is somewhat below mid-range, but not in the lowest range;

  6. the money laundering offence (possession of $15,250) taken into account in the indicative sentence nominated in respect of the supply offence, was relatively serious, but clearly associated with the supply offence, and therefore did not warrant more than a moderate increase in the sentence for that offence;

  7. the firearms offence could be treated as of moderate seriousness, the firearm not having been shown to have been connected with the drug offences;

  8. the applicant’s moral culpability was high; he was aged 43 at the time of the offending, had a satisfactory family background, regular employment and there was nothing to suggest that he was other than fully aware of the consequences of his conduct. In that context, however, I did not overlook that Dr Milic was of the view that the applicant was suffering from major depression at the time of his offending;

  9. there was some evidence, sufficient to satisfy s 21A(3)(i) of the Sentencing Procedure Act, of remorse and contrition, although the weight to be given to that circumstance is (as the sentencing judge thought, and contrary to the argument of the applicant) limited by the absence of any evidence on oath or affirmation actually from the applicant. The real significance of that evidence is the extent to which it may be taken to signify the unlikelihood of reoffending. I inferred that, given the applicant’s age and his newly discovered insight into his offending, further offending was unlikely;

  10. the applicant’s pleas of guilty warranted a reduction in the indicative sentences that otherwise would have been nominated of 25%;

  11. there were adequate reasons to justify departure from the ratio of the non-parole period to the head sentence prescribed by s 44(2) of the Sentencing Procedure Act, those reasons including that it would be not only the applicant’s first term of imprisonment, but also, inevitably, of some length (even after resentencing);

  12. both general and personal deterrence had a role to play in the sentencing decision, although the latter was to be considered in the light of the finding above, that the applicant is unlikely to reoffend;

  1. the applicant’s personal circumstances did not significantly mitigate moral culpability (see (viii) above); and

  2. it was not in contest that the threshold set by s 5 of the Sentencing Procedure Act had been crossed and that no sentence other than of imprisonment would be adequate to meet the criminality involved.

    1. It then became necessary to consider the sentences imposed on the co-offenders, Bloom and Meis. I have set out above the charges against each of them, and the sentences imposed. To repeat:

    2. Bloom was charged under s 24(1) of the DMT Act with an offence of knowingly taking part in the manufacture of a prohibited drug (falling short of the commercial quantity), carrying a maximum penalty of imprisonment for 15 years, and an offence of failing to keep a firearm safely, carrying a maximum penalty of imprisonment for 12 months. The sentence imposed on him was imprisonment for 22 months, although the final form of the sentence (to be served in custody or by way of home detention) was not known.

    3. Meis was charged with an offence against s 24(1) of the DMT Act, of manufacturing a prohibited drug in a quantity less than or equal to the small quantity; and an offence against s 25(1) of the DMT Act, of supplying not less than the indictable quantity of the same drug. He admitted his guilt to two further offences under s 24A(1), each carrying a maximum penalty of imprisonment of 10 years, of possessing precursors intended to be used in the manufacture of a prohibited drug, which (because they were brought on a certificate under s 166 of the Sentencing Procedure Act) carried a maximum penalty of imprisonment for 2 years. After appeal Meis was sentenced to imprisonment for 3 years with a non-parole period of 1 year and 6 months.

    4. In sentencing Meis and Bloom, the sentencing judge set out at length the agreed facts. It is quite apparent that the facts in respect of each of those offenders were, essentially, the same facts as were given in the Statement of Facts in the applicant’s case, a circumstance upon which the sentencing judge commented in sentencing Meis. Significantly, in Meis’ case, the Crown expressly acknowledged (in submissions) that no more than 1 gram of methylamphetamine had in fact been manufactured. The facts in relation to the supply count (noting that this was charged as supply of not less than the indictable quantity, by contrast with the charge against the applicant, of supplying not less than the large commercial quantity) implicate Meis to a much greater extent in the activities of actual supply. In relation to Bloom, the sentencing judge recorded a powerful subjective case, centred on family circumstances. He did not, however, consider that those circumstances reached the level of “exceptional circumstances” required before the sentence could be mitigated for that reason: R v Edwards (1996) 90 A Crim R 510.

    5. Parity considerations are difficult to apply where co-offenders face different charges. In this case, the differences in charging could be called dramatic. On the facts stated in the Statement of Facts in the present case, and recorded in the remarks on sentence in respect of Meis and Bloom, and the judgment of this Court in Meis, there is little to distinguish the participation of the offenders. If anything, the fact that Meis provided the premises for the manufacturing enterprise could be seen to elevate his level of participation. There is nothing in the materials before this Court to explain the different charges, and therefore the different sentencing outcomes.

    6. The discrepancy in the outcomes for the three participants is stark. While there are significant differences in the personal circumstances of Bloom and Meis compared those of the applicant, no real basis of distinction in the respective participation of the offenders is discernible in the material before this Court. The different outcomes are plainly, in large measure, attributable to different prosecutorial decisions, which are ordinarily beyond the reach of this Court. That does not mean, however, as the Crown fairly accepted in this case, that some amelioration of the apparent unfairness cannot be effected. This is an appropriate case in which to take that course.

    7. I took into account evidence presented on behalf of the applicant, establishing that his conduct whilst in custody has been satisfactory, even exemplary. He has completed an educational course, and has held responsible employment positions. He has, as have all prisoners in 2020, 2021 and 2022, suffered the effects of restrictions made necessary by the Covid 19 pandemic. This last factor in particular has resulted in slightly lower indicative sentences (and therefore a slightly lower aggregate sentence) than I otherwise would have proposed.

    8. The sentence I proposed was, pursuant to s 53A of the Crimes (Sentencing Procedure) Act, an aggregate sentence of 6 years and 6 months commencing on 11 October 2018, with a non-parole period of four years and 2 months, which expired on 10 December 2022. I indicate that the sentences I would have imposed, if sentencing separately for the three offences, are as follows:

    1. for the offence of conspiracy to manufacture not less than the commercial quantity of a prohibited drug: imprisonment for 6 years with a non-parole period of 3 years and 3 months;

    2. for the offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug, and taking into account the money laundering offence: imprisonment of 3 years;

    3. for the offence of unlawful possession of a firearm: imprisonment for 6 months.

    1. The orders I proposed (and that were made with concurrence of Harrison J and Fagan J) were, accordingly:

    1. leave to appeal against sentence granted;

    2. appeal allowed, sentence imposed in the District Court on 3 August 2020 quashed;

    3. the applicant be sentenced to an aggregate term of imprisonment for 6 years and 6 months commencing on 11 October 2018 and expiring on 10 April 2025 with a non-parole period of 4 years and 2 months which expired on 10 December 2022.

    4. The applicant is eligible for release on parole.

    1. HARRISON J: I agree with the reasons of Simpson AJA.

FAGAN J: Simpson AJA’s reasons for rejecting grounds 2-5 and for upholding ground 6 accord with my own reasons for having joined in the orders made on 10 December 2022. I have not found it necessary to form a concluded view on ground 1 in order to determine the application for leave or the appeal. Ground 7, concerning parity, does not require separate determination and I agree with the consideration of parity that Simpson AJA has undertaken in her Honour’s reasons for resentencing.

My own reasons for upholding ground 6, quashing the aggregate sentence imposed by the learned sentencing judge and joining in the resentencing orders of 10 December 2022, include the following. The essential objective features of the applicant’s part in the count 1, conspiracy to manufacture not less than the commercial quantity of methyl amphetamine, were his extensive involvement in the manufacturing project over more than a year, procurement of laboratory equipment and ingredients/reagents and possession of quantities of methyl amphetamine, in various stages of refinement, exceeding the threshold for the commercial amount. Taking into account the applicant’s subjective case, the indicative sentence for this offence had to exhibit reasonable consistency with sentences imposed in other broadly comparable cases.

Very few cases of conspiracy to manufacture have been considered in this Court but sentencing decisions on the substantive offence of manufacturing a commercial quantity and the offence of being knowingly concerned in manufacture are also relevant. I summarise some examples as follows:

Mammone v R [2013] NSWCCA 95 – substantive offence of manufacture commercial quantity – eight serious matters on a Form 1 – offender delivered equipment to a laboratory in a rural location and had an organisational role – sophisticated laboratory in which several people were involved – evidence of recent manufacture at the time of arrest and three occasions of manufacture recorded by surveillance devices – estimate of 995g of production (being just under the limit of 1kg for the commercial range that applied until 1 September 2015) – offender had prior convictions for drug and firearms offences, was on bail at the time and had doubtful prospects of rehabilitation – 10 years with a non-parole period of 6 years and 2 months after 20% discount – equivalent to 9 years and 4 months head sentence if discounted by 25%.

Mammone (Pino) v R [2013] NSWCCA 325 – brother of the offender in Mammone v R – slightly lesser role, less serious offences on Form 1 – 9 years and 1 month head sentence after discounting by 25%.

Cashel v R [2018] NSWCCA 292 – knowingly concerned in manufacture of commercial quantity – 12g manufactured and enough pseudo-ephedrine on hand to manufacture another 320g (total 332g) – highly organised manufacturing project involving two premises – the offender was one of two principals in the enterprise – prior drug offences including present but resentenced on the basis of a favourable rehabilitative progress in prison – 7 years and 10 months with a non-parole period of 5 years and 1 month based upon 12.5% discount – equivalent to 6 years and 9 months with a non-parole period of 4 years and 4 four months at 25% discount.

R v Campbell; R v Smith [2019] NSWCCA 1 – substantive charge of manufacture in early 2015 (before the threshold for large commercial quantity was lowered to 0.5kg) – 641g of pure drug manufactured – “sophisticated and well-organised illicit drug manufacturing operation by two OMCG-affiliated offenders” – “very little by way of mitigation available to the respondents in their subjective cases” – resentenced following successful Crown appeal – indicative sentences after 25% discount: Campbell 6 years and 9 months with a non-parole period of 4 years and 4 months; Smith 7 years with a non-parole period of 4 years and 6 months.

Diesing v R [2007] NSWCCA 326 – four offenders pleaded guilty to conspiracy to manufacture commercial quantity – three resentenced in this Court to head sentences of between 8 years and 5 months and 8 years and 9 months after 20% discount – equivalent to 7 years and 10 months to 8 years and 2 months at 25% discount – Hamilton sentenced to 10 years and 8 months as the principal.

Having regard to the above decisions, for reasonable consistency in application of the law, I consider that an indicative head sentence of 6 years for the conspiracy to manufacture charge, count 1, is appropriate after applying the 25% discount. With respect to the charge of supply commercial quantity in count 2, the methyl amphetamine in the applicant’s possession appears to have comprised product part way through the manufacturing process. The great majority of the liquid was at very low purity and the pure equivalent was only 226.8g. After taking into account the money laundering offence and allowing for the discount of 25%, an indicative sentence of 3 years for count 2 is appropriate. The criminality of count 2 is to a considerable extent comprehended within the conspiracy to supply charge so that the aggregate head sentence should reflect very substantial concurrence between the indicative terms for counts 1 and 2. Also, very little notional accumulation is warranted in respect of the sentence of 6 months for the minor firearms offence concerning an air rifle, hence the aggregate of 6 years and 6 months.

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Decision last updated: 17 March 2023

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Vu v The King [2023] NSWCCA 315
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