Martin v R; R v Martin

[2021] NSWCCA 316

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Martin v R; Martin v R [2021] NSWCCA 316

Hearing dates:

1 September 2021

Decision date:

20 December 2021

Before:

Leeming JA; Hamill J; Lonergan J

Decision:

In proceeding 2013/11122 (Peter Martin):
1. Grant leave to appeal, confined to grounds 2 and 3.
2. Appeal allowed.

3. Set aside the sentence imposed by the District Court on 12 May 2017 and in lieu thereof sentence him to imprisonment for a term of 23 years and 9 months, commencing 13 January 2013, with a non-parole period expiring 13 October 2030, and with the balance of term expiring 13 October 2036. The earliest date on which he is eligible for release is 13 October 2030.

In proceeding 2013/11126 (Jim Martin):
1. Grant leave to appeal, confined to grounds 2 and 3.
2. Appeal allowed.
3. Set aside the sentence imposed by the District Court on 12 May 2017 and in lieu thereof sentence him to imprisonment for a term of 22 years and 4 months, commencing 13 January 2015, with a non-parole period expiring 13 October 2031, and with the balance of term expiring 13 May 2037. The earliest date on which he is eligible for release is 13 October 2031.

Catchwords:

CRIMINAL LAW – appeal against sentence – applicants pleaded guilty to manufacturing large commercial quantity of prohibited drug – whether error in finding applicants to be “principals” – whether error in determining discount for guilty pleas – significance of lengthy sentencing proceedings on contested issues of fact, resolved adversely to applicants – whether error in failing to find special circumstances – whether sentence manifestly excessive – all grounds save last dismissed – appeal allowed and applicants resentenced

Legislation Cited:

Crimes Act 1900 (NSW), s 203E

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22 (version date 25 October 2016)

Criminal Appeal Act 1912 (NSW), s 5

Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 24A, 33

Cases Cited:

Bell v R [2019] NSWCCA 271

Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54

Hall v The Queen [2021] NSWCCA 220

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kwok v R [2018] NSWCCA 200

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Magro v R [2020] NSWCCA 25

Nanai v R [2010] NSWCCA 21

Nealon v R [2021] NSWCCA 286

Nguyen v R [2011] NSWCCA 92

Olbrich v R [1999] 199 CLR 281

Owens v R [2017] NSWCCA 16

R v AB [2011] NSWCCA 229; 59 MVR 356

R v Kalache [2000] NSWCCA 2

R v Little and Walsh [2006] NSWCCA 406

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Wan [2017] NSWCCA 261

Regina v Oinonen [1999] NSWCCA 310

Category:

Principal judgment

Parties:

2013/11122
Peter Geoffrey Martin (Applicant)
Regina (Respondent)

2013/11126
Jim Martin (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Stratton SC, A Moen (Applicants)
G Newton (Respondent)

Solicitors:
Colin Daley Quinn Solicitors (Applicants)
C Hyland – Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2013/11122; 2013/11126

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

12 May 2017

Before:

Culver DCJ

File Number(s):

2013/11122; 2013/11126

Judgment

1. THE COURT: The applicants Jim Martin and Peter Geoffrey Martin seek leave to appeal from the sentences imposed following their guilty pleas to the offence of manufacturing a large commercial quantity of methylamphetamine, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Jim Martin is Peter Martin’s son; the men are now aged 36 and 63. The sentencing proceedings for both men took place concurrently, over some 8 days over an extended period of time between April 2016 and May 2017. Jim Martin also pleaded guilty to an offence of intentionally causing a fire and being reckless as to its spread to vegetation on public land, contrary to s 203E(1) of the Crimes Act 1900 (NSW). That sentence (which has already been served in its entirety) is outside the scope of the current applications for leave to appeal, except insofar as it impacts on the proper application of the principle of totality.

2. Because the offence involved not merely a “commercial quantity” but a “large commercial quantity” of methylamphetamine, the maximum penalty for the drug manufacture offence is life imprisonment, with a standard non-parole period of 15 years imprisonment: see s 33(3) of the Drug Misuse and Trafficking Act and s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW). At relevant times, a “commercial quantity” was 250g, and a “large commercial quantity” was 1 kilogram: see the Schedule to that Act. In fact, the applicants admitted that their offending involved some 44 kilograms of methylamphetamine.

3. Taken into account on a “Form 1” pursuant to s 33 of the Crimes (Sentencing Procedure) Act in the case of each man were two offences of possessing precursors with intent to manufacture, charged under s 24A(1)(a) of the Drug Misuse and Trafficking Act. The maximum penalty for each precursor offence is 10 years imprisonment. The offences were possessing slightly more than 10 kilograms of pseudoephedrine and slightly more than 2 kilograms of ephedrine.

4. The District Court applied, in the case of Jim Martin, a discount of 20% including 15% for his plea, and imposed a sentence of 28 years imprisonment with a non-parole period of 21 years, backdated to 13 January 2015 (being 2 years after his arrest on 13 January 2013, the delay reflecting partial accumulation of a sentence of 4 years and 6 months for the fire offence). In the case of Peter Martin, a discount of 15% was applied for his plea, and the sentence imposed was a term of imprisonment of 29 years and 9 months, with a non-parole period of 22 years and 3 months, backdated to the date of his arrest on 13 January 2013.

5. It will be seen that the starting points prior to the discounts were, in each case, 35 years.

6. Each man seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), on identical grounds, namely:

“1. Her Honour erred in assessing the role of the applicant.

2. Her Honour erred in determining the appropriate discount for the utilitarian value of the applicant’s plea of guilty to the manufacture methylamphetamine count by not taking into account the applicant’s offer and attempt to plead guilty to the charge when the matter was in the Local Court.

3. The sentence imposed on the applicant for the manufacturing offence was manifestly excessive.

4. Her Honour erred in not finding that there were special circumstances permitting a variation from the statutory ratio in the proportion between the non-parole period and the parole period.”

7. At the outset of the hearing in this Court, Mr Stratton SC who appeared for both applicants confirmed that the “primary” ground was ground 3, namely that the sentences were manifestly excessive.

Statement of Agreed Facts

8. Although as will be seen below there were many factual matters in issue, sentencing proceeded on the basis of a lengthy statement of agreed facts. What follows is taken from that document.

9. Peter Martin was a co-owner of land on a fire trail road in Yerranderie, a large, remote property in the Blue Mountains National Park. No one lives permanently on the land, which comprises dense bushland with various vehicle tracks.

10. In December 2012, police located two large, sophisticated clandestine laboratories in public bushland approximately 500m from the boundary of the land. The laboratories were approximately 300m apart. Both were destroyed by fire on 9 January 2013. The Crown contended that both fires were deliberately lit. The defence contended that one of the fires was accidentally lit on the evening of 8 January 2013, with the other being deliberately lit half an hour later.

11. Between 10 and 12 January 2013, police searched the area surrounding the laboratories and Peter Martin’s property, making 53 “finds” of methylamphetamine and items relating to its manufacture. Most had been well hidden and were covered in black plastic and bush debris. The finds were given various identifying call signs, notably “Echo Echo” and “Quebec Quebec”. The most relevant were the following:

“A001-A002

2,444 grams of methylamphetamine in oil form

'Victor'

52.5 grams of methylamphetamine in oil form.

'Echo Echo'

3,499 grams of methylamphetamine in powder/crystal form

6,649 grams of methylamphetamine in oil form

2,216 grams of ephedrine

10,463 grams of pseudo ephedrine

'Quebec Quebec’

32,101 grams of methylamphetamine in powder/crystal form

In total police located 44.7455 kilograms of methylamphetamine.”

12. (It may be noted that the offences of possessing precursors, taken into account in imposing sentence, were based on the more than 2 kilograms of ephedrine and the more than 10 kilograms of pseudoephedrine located at “Echo Echo”, and that the largest find, by far, comprising some 75% of the methylamphetamine located, was the more than 32 kg found at “Quebec Quebec”.)

13. On 15 May 2012, a co-accused Danny Sherry was observed driving with a trailer registered in the name of Peter Martin to a paint store where he purchased 800 litres of acetone for $5,390 in cash. It was agreed that he did so at the direction of Peter and Jim Martin. The vehicle and trailer were driven the following day to a road in the Blue Mountains National Park, where surveillance ceased because it could not continue undetected.

14. However, images from a motion-detecting camera on a neighbour’s gate captured those entering and leaving Peter Martin’s property. The images for 16 May 2012 just after midnight showed two four-wheel drive vehicles arriving at the property. The following morning at 10.07 am, Jim Martin could be seen on camera with his sister. Danny Sherry arrived at the property around midday and delivered 800 litres of acetone to Peter and Jim Martin and left a short time later.

15. On 17 May 2012, police attended the property pursuant to a surveillance device warrant and saw two locked shipping containers near the dwelling house. Next to one of the containers was the trailer used to deliver the acetone on the previous day. The trailer was unlocked, open and empty but for four car tires. The drums of acetone that had been in the trailer on the previous day could not be seen.

16. On 6 July 2012, Danny Sherry was observed by police to purchase 800 litres of acetone for $5,390 in cash. That afternoon, he drove to Yerranderie with the acetone and delivered it to Peter and Jim Martin.

17. In October 2012, a tracking device was placed on a car used at the property. On 8 October 2012, Peter and Jim Martin drove to Yerranderie and on the following day the vehicle with the tracking device drove to a location on the property. Police later attended that GPS location and found a large quantity of caustic soda concealed under camouflage netting.

18. On 5 November 2012, police observed Danny Sherry to leave his home and drive with Peter Martin’s trailer attached to a paint store where he purchased 400 litres of acetone for $2,800 in cash. The acetone was stored at Mr Sherry’s residence until 9 November 2012 when police observed it being collected by Peter Martin. On 21 November 2012, Peter and Jim Martin drove to Yerranderie. That evening, the car with the tracking device stopped at a location in the public bushland adjoining the land. Police attended this location on 29 November and found a place where a vehicle could be turned and parked. It was from this location that the walking trails leading to the laboratories commenced which became the subject of surveillance on 4 December 2012. On 30 November 2012, police saw at the front entrance to the property a backpack which they had previously observed in Peter Martin’s vehicle on 21 September 2012. A tracking device was put into that backpack.

19. The statement of agreed facts stated that the timeframe of 4-6 December 2012 was “particularly relevant because the backpack with the tracking device travels back and forth between the residents in both laboratories on the nights of 4, 5, and 6 December 2012, a time when Peter and Jim Martin were alone at the property”. The statement of agreed facts proceeded as follows in relation to those 3 days:

“On 4 December 2012 police were at the property conducting surveillance. At 7:50pm as it was starting to get dark police saw the Suzuki Jimny drive up the track. They heard the vehicle stop and a door open. They heard someone moving what sounded like a barrel in the bush.

Police remained at the location until 4:30am. on 5 December 2012 and saw two men [from a distance of ten metres] walking back to the vehicle illuminated by torch light. Each man was carrying a 20L plastic fuel container that appeared to be heavy given the way it was carried. The men got in the car and drove away. One officer heard several loud bangs as if heavy items were being loaded into the car. No officer saw the face of either man.

Police had placed a listening device inside the house. There are no admissions within the recorded conversations relied upon by the Crown however an ad hoc expert on voice ID listened to the recording and stated:

The night of 4 December 2012:

• At 00:37am she identified Jim and Peter Martin's voices [and no other voices].

• At 00:52am she heard a car start at the property and drive away.

• At 4:51am she identified Peter and Jim's voices returning to the property. She heard no noise at the property between 00:52am and 4:51am.

• At 4:51am she heard the sounds of water running and cupboards opening and closing. She heard a TV switch on at 4.58am and Jim and Peter conversing. She could make out some of the conversation, none of that conversation was drug related.

• She heard a television switch off at 5.54am and heard sleep related noises between then and 1.53pm.

This is relevant because the tracking device in the backpack during this period showed as follows:

1:56am Laboratory 1

2. 2:51am Laboratory 2

3. 4.40am residence

It is the Crown case that Jim and Peter Martin left the property at 00:52am, one of them carrying the backpack with the tracking device travelled to laboratory 1 followed by laboratory 2 and then back to the residence at about 4:40am.

The night of 5 December 2012

• She heard a conversation between Jim and Peter Martin between 1.57pm and 3.01pm. She heard what appeared to be them leave the house at 3.02pm. She heard no further noise until 6.06pm.

• At 6.12pm she heard what sounded like Jim and Peter Martin approaching the house. The TV was switched on at 6.15pm. She heard conversation between them between 6.15pm and 8.02pm. At 8:02pm she heard the noise from a television cease.

• She heard a vehicle engine at 8.09pm. She heard no more movement at the house until 4.25am. She heard conversation between Jim and Peter Martin until 5:44am. She heard noise consistent with sleep between then and 1:03pm.

The tracking device during this period showed as follows

1. 6.19pm residence

2. 8.57pm Laboratory 1

3. 2.50am Laboratory 2

It is the Crown case that Jim and Peter Martin left the property at 8:09pm, one of them carrying the backpack with the tracking device, travelled to laboratory 1 followed by laboratory 2 and then back to the residence at about 4:25am.

The night of 6 December 2012

• She heard movement in the house at 1.06pm and a television being switched on. She heard conversation between Jim and Peter Martin at 1.21 pm.

• At 3.12pm she heard Peter Martin say you ready? and heard the noise from a television cease and an engine move away from the house.

• She heard a car return at 00.56am. She identified Peter and Jim's voices as returning to the house. She heard a television switch on at 1.00am and heard conversation between Jim and Peter until 2.32am. She heard the television switch off at 2.33am and heard sounds consistent with sleep between then and 7.58am.

• She heard what sounded like an alarm at 8.00am and heard male voices though could not definitively identify them as Jim and Peter Martin. She heard a conversation between Jim and Peter Martin at 9.03am.

• At 10.04am she heard the television being switched off and movement in the house. At 10.07am she heard an engine leave the house.

The tracking device during this period showed as follows

1. 7.50pm Laboratory 1

2. 9.04pm Laboratory 2

3. 10.32pm Laboratory 1

4. 1.00am residence

It is the Crown case that Jim and Peter Martin left the property at 3:12pm, one of them carrying the backpack with the tracking device. By 7:50pm they had reached laboratory 1, travelled to laboratory 2 and back to laboratory 1 and arrived back at the residence at 00:52am.”

20. On 17 and 18 December 2012, police discovered each of the two drug laboratories. Both were covered with dark green camouflage netting and stood one metre off the ground. Each laboratory contained paraphernalia associated with the manufacture of drugs, including food dehydrators, electronic food vacuum sealing devices, pails and plastic funnels, and baking trays. In the larger of the two laboratories there were 10 separate “cooking stations”, each with a source of heat and a condenser attached in distillation mode. There were more than 20 round bottom glass reaction flasks as well as chemicals used in the manufacture of methylamphetamine.

21. The laboratory also had a television, a sink and food preparation area (and large quantities of camping style food), with lighting and electricity via a generator constructed inside a wooden box to reduce the amount of noise it would create.

22. Police also found a motion activated “UWay” bush surveillance camera, identical to one seen in September 2012 in the backpack, which had taken pictures of police who had activated the camera by movement. Police deleted those pictures before they departed. A sample of white crystal from a food dehydrator was taken. On analysis, this turned out to be 0.5g of methylamphetamine.

23. The statement of agreed facts then described in precise detail the large number of drug paraphernalia items discovered when police returned on 21 December 2012 at each of the laboratories. A camera installed on the gate showed a four-wheel drive vehicle arriving on 24 December 2012. An intercepted call made at 2.34am on 24 December 2012 recorded Jim Martin telling his girlfriend “I am going for a drive tomorrow to that property”.

24. The events leading to the fires were agreed as follows:

“Police were intending to execute a search warrant at the property on 7 January 2013 but it was called off while they were en route because of the extreme fire danger.

On 8 January 2013 at 3:54pm Peter Martin sent a text message to a friend saying that he will be leaving the following day to go to the Yerranderie property.

At 4:51pm in an intercepted call Peter called Jim and said he isn't feeling well and was intending to come tomorrow. Jim says he will be back the next night. Peter asks him if he is OK and Jim hesitates before saying yeah everything's fine' then says 'cat might be a bit sick, sort of thing.' Peter says oh OK. On the Crown case when looked at in context this is a coded conversation.

At 8.03pm on 8 January Jim called Peter and said

Hey man. Uh, just thought I'd let you know, uh, I accidentally ran over the cat man. Um, so, I'll see you when I see you.

On the Crown case listening to his tone of voice he is under some stress when making this call.

At 11.10pm Jim and Peter agree to meet up at Mount Victoria, which is approximately 100 kilometres from the West Hoxton address and 160 kilometres from the property. Jim confirmed whether Peter was bringing the Landcruiser and confirmed that it will be full of petrol. Peter asks 'will I bring any, will I bring anyone with me or?'. Jim says no.

In the hours that follow Jim and Peter Martin had a brief meeting and Jim drove back to Yerranderie.

At 3.10am Peter Martin was stopped at the Great Western Highway, Blaxland for a random breath test. The police officer looked inside the car and saw nothing of interest.

At 3.30am the vehicle was stopped a second time at Cecil Hills. The officer took the view that Peter Martin appeared nervous and was stuttering. The police officer saw a GPS unit on the back seat of the car partially concealed by a blanket. He asked if he could see it and Peter said I have nothing to hide go ahead. He was asked about where it came from and he said it could be my son's we own a trucking business. The officer saw nothing else of interest in the vehicle.

Between 6.00 am and 7.00am on 9 January 2013, with the intention of burning them down to remove the evidence, Jim Martin lit a fire at both laboratories. It is not known whether any accelerant was used.

At 7.06am Jim Martin called 000 from a landline at the property and identified himself by name and reported a fire. At 9.14am he called a second time from his mobile phone. He said nobody had come to assist regarding the fire and he was going to leave his property.”

25. Peter and Jim Martin evaded arrest between 9 and 13 January 2013 but were seen at a boat ramp in Oatley on the evening of 13 January 2013, where they were arrested, cautioned and detained. In Jim’s pocket there were car keys of a blue Subaru, which when searched was found to contain eight mobile phones, two recently purchased SIM cards, and a large quantity of camping gear.

26. That evening, Jim Martin participated in a police interview, and admitted that he had left the Yerranderie property on the morning of 9 January 2013. He denied any knowledge of the laboratories and denied lighting the fires. Peter Martin was also interviewed and made no comment on the allegations.

27. A search of premises occupied by the applicants at West Hoxton on 9 January 2013 uncovered a green cooler bag with 31 pairs of white cotton gloves in a vehicle which Jim’s mother said belonged to Jim.

28. Also on 9 January 2013, police executed a search warrant on the small house on the Yerranderie property, and recovered a backpack containing 2 empty boxes of resealable bags, with the backpack testing positive for the presence of methylamphetamine. Other backpacks tested positive for the presence of methylamphetamine and pseudoephedrine and triprolidine. One of the backpacks contained some stained cotton gloves which tested positive for methylamphetamine and a DNA profile taken from one of them was a match for Peter Martin’s profile. A pair of men’s pants with a pair of disposable gloves in the pocket was found. A swab of the inside pocket tested positive for the presence of methylamphetamine, and a mixed DNA profile inside the pocket had as a major contributor a match to Jim Martin’s DNA profile.

29. There were also 10 tins of acetone, each of 20 litres, which were identical to what had been in the laboratory and what had been purchased by Danny Sherry.

30. There were also two locked shipping containers on the property, which contained items which were agreed to be “strikingly similar” to items which had been observed in the laboratories, including LPG gas bottles, a red plastic jerry can labelled by hand “toll”, a roll of shade netting that if painted green would be identical to the camouflage netting at the lab sites, plastic hosing, plastic fold out tables, gas burner rings, black sheeting labelled “concreter’s underlay”, a large quantity of plastic funnels, an Abode brand blender, a pedestal fan, and an Arlec brand desk lamp.

31. Some 20 metres north of where the main laboratory had been located, a forensic chemist located two 20 litre flange glass neck reaction flasks. One was around 33% full of a liquid, and the other was about 25% full. Both flasks were found to contain solutions of d-methylamphetamine. The total amount of methylamphetamine in oil form was 2,444g.

32. The 53 individual “finds” were not summarised in full. What were agreed to be “the most relevant finds” were described as follows:

“Alpha

• Folders and CDs containing printouts of drug recipes and methods of drug manufacture

• Plastic bottles containing liquids which subsequent testing showed very low purity of methylamphetamine, P2P, ephedrine, pseudo ephedrine and hypophosphite.

Delta

• Clear plastic bottles full of liquids which subsequent testing showed the liquids contained very low purity pseudoephedrine.

• Blister strips of 10 gel caps per strip containing pseudoephedrine.

• Livingstone international laboratory catalogue. of glassware

• Two CDs containing recipes for the manufacture of methyl amphetamine.

• Glad brand clear plastic bag containing yellow solid with a net weight of 6 grams which subsequent testing showed it contained 46.2% pseudoephedrine.

Echo

• Crushed blue and silver 20L chemical drums of acetone branded 'Concept paints' identical to those purchased by Danny Sherry

lndia [hidden inside a tree log]:

• Blue drum containing scientific glassware and a red funnel

• Plastic chemical bottles including hydrochloric acid.

• Multiple containers containing liquids subsequent testing showed was hypophosphite and hypo phosphorous acid

Lima

• Two clear glass jars with clear liquid subsequent testing showed low level purity methylamphetamine.

Papa [Green garbage bag within a fallen log]:

• Inside was a Honeywell brand air filter and 3 condensers

Romeo - [Two items hidden beside a fallen tree covered with green hessian and dark plastic]:

• Toolbox containing laboratory equipment including metal stirrers

• Recipes for drug manufacture

Uniform

• Bucket with white sludge/residue of gross weight 3258 grams which subsequent testing showed contained pseudoephedrine.

• Plastic drum containing colourless liquid over white sludge with net weight 21,420 grams which subsequent testing showed contained pseudoephedrine and chlorpheniramine.

• Handy pail with white sludge of gross weight 4747 grams which subsequent testing showed contained pseudoephedrine and triprolidine.

• Victor [A plastic bucket with a red liquid]: Plastic garbage bag containing a plastic bucket that contained a number of bottles containing liquids that subsequent testing showed had very low purities of methyl amphetamine. The total methyl amphetamine 52.5 grams in oil form.

Zulu [fallen tree hollow covered by black plastic, camouflage netting and plant debris]:

• Numerous 20L red plastic jerry cans full/partially full of liquid one labelled 'cave'. Subsequent testing showed they contained hypo phosphorous acid or hypophosphite.

Bravo Bravo [black plastic covering]:

• 18 containers of caustic soda

• 15 packets of rubber gloves

• 6 boxes of coffee filters

Delta Delta [large piece of green material with leaf litter]:

• Handy pail containing burnt clothing: A number of these would later test positive for the presence of methyl amphetamine.

• Burnt brown shorts. Subsequent testing would show the material test positive for the presence of methylamphetamine. A mixed DNA profile was taken from the inside pocket of the shorts. Peter Martin could not be excluded as the major contributor.

• Black pants with burn marks. Subsequent testing would show the material test positive for the presence of methylamphetamine and other chemicals.

Echo Echo

• A blue Mount franklin bottle with the words 'scraps dry dust' another water bottle with the words 'scraps dry dist'. A DNA profile matched to Jim Martin was found on the lid of that bottle.

• Methylamphetamine in oil form in a number of different containers with a total weight of 6649 grams. The purity ranged from 5.2% to 73.9%.

• Methylamphetamine in powder/crystalline form in a number of resealable plastic bags with a total weight of 3499 grams.

• Pseudoephedrine in a number of resealable plastic bags. The total weight is 10,463 grams (Form 1 offence).

• Ephedrine in a number of plastic bags. The total weight is 2216 grams (Form 1 offence).

Kilo Kilo [Item covered in black plastic and leaf litter]:

• Large blue plastic drum containing cardboard folders with documents in the name of Peter Martin including tax documents

• Resealable bags containing mobile phones.

• Documents related to the purchase of the property by Peter Martin and Danny Sherry and the division of costs

• Paperwork addressed to and in the name of Peter Martin dating to 1997

• Bank account statement in the name of Peter Martin and Danny Sherry

Quebec Quebec [under plant debris and camouflage netting]:

This site is midway between laboratories one & two. Police found two blue drums with a metal clip lock seal.

Police opened the drum and saw it was full of large Hercules brand zip lock bags. Each bag contained a beige coloured substance each had some writing on them FV Holes, 12 xxx, Pe Now W plast, 107, scraps, Jelly, Noodle shit

The total quantity of methyl amphetamine in the drum was 32.101 kilograms in powder/crystal form

The purity ranged from 66% to 83.5%. The average purity was . . .

The forensic chemist (report attached) who inspected the laboratories in December 2012 provided an expert opinion that:

a) Pseudoephedrine was being extracted in and around the Yerranderie premises.

b) That methyl amphetamine was being manufactured and extracted at the premises.

c) A large commercial quantity of methyl amphetamine had been manufactured in the laboratories

d) A further large commercial quantity could be manufactured from the items located in and around the premises”

Disputed factual matters

33. During the sentencing proceedings, both applicants accepted responsibility for the total amount found (the details of how this occurred give rise to ground 2). However, four matters remained in dispute. There was extensive cross-examination of each of Jim and Peter Martin. These issues were addressed by the sentencing judge at length.

34. First, over some 42 pages of reasons delivered orally, her Honour reached the conclusion that “the offenders cannot discharge their onus on the balance of probabilities to satisfy the Court that they were acting under duress”. Her Honour found that there was no evidence of duress independent of the applicant’s evidence and that their evidence lacked credibility. The Court found that the offences were committed voluntarily in circumstances that did not give rise to mitigation for duress. One matter upon which her Honour relied was the applicants’ general reluctance to reveal any details, such as the identities of those who were subjecting them to duress.

35. Secondly, there was a dispute as to the applicants’ role in the offending. The applicants submitted that they should not be found, and the Court could not be satisfied beyond reasonable doubt, that they were “principals”. That was based upon submissions that there was no evidence of high ranking decision-making authority, no access to substantial finance, no evidence of receipt of large amounts of money, that Peter Martin did not “possess the acumen necessary to manufacture methylamphetamine on the scale seen here”, that Jim Martin was following instructions and that the true principals could be expected to remove themselves from direct involvement. Her Honour noted that the agreed direct evidence of the involvement included ownership of the property, sourcing the materials to make the laboratories, constructing the laboratories, stocking the laboratories with chemicals and equipment and engaging in at least two stages of the manufacture of methylamphetamine. Her Honour noted that apart from the applicants’ assertions, there was no other evidence arising in the investigation that others attended to engage in the manufacturing process, with the possible exception of Danny Sherry. Her Honour also noted that although they may not have received huge amounts of money, that might be because much of the methylamphetamine had been recovered before its onsale. Her Honour also noted that it had been Jim Martin’s decision to burn down the laboratories, and that while Peter Martin did not possess great acumen for the scale of manufacture involved in this case, he had worked cooperatively with Jim. Two pages later in her reasons, her Honour expressly stated:

“[A]s identified above, the Court does find beyond reasonable doubt that both offenders acted as principals in the drug manufacturing process.”

36. The third and fourth matters involved the timing of the fires and whether Jim Martin deliberately set both fires or just one fire. In circumstances where the grounds of appeal do not extend to the fire offence, these matters may be passed over.

Objective seriousness

37. Her Honour then noted evidence from a Chief Inspector that the operation was “one of the largest sized methylamphetamine manufacture processes” undertaken using that method of production he had seen. Another police officer stated that the scale of the operation and the purity of the finished product placed this operation “at the highest of the spectrum”. A forensic chemist called in the Crown case, who had participated in a covert walk-through prior to the fires, said that it was a “very sophisticated” operation and the quality of the end product was high.

38. A police officer with expertise in drug related offending estimated that the total potential value of the methylamphetamine in powder or crystal form was between $122.5 and $245 million, and in oil form, between $55 and $110 million.

39. Her Honour found that the objective gravity of the offending fell “at the upper range of offending”, taking into account the offenders’ role, the quantity of the drug manufactured and the scale and sophistication of the operation.

Subjective case

40. Turning to the applicants’ subjective cases, her Honour noted that Peter Martin was 52 years old at the time of the offences and at the time of sentence aged 57, while Jim Martin was 26 years old at the time of the offences and at the time of sentence was 31. Peter was the youngest of 5 siblings in a family that lived first in a tent and then a garage, with concerns about malnutrition. His father was a boxing champion who worked as a railway guard and a Methodist minister, and who inflicted domestic violence against the mother virtually every night, in the presence of the children. The father repeatedly sexually abused Peter Martin’s sister, and Peter Martin was himself physically abused from a young age as well as being bullied at school.

41. Peter Martin left home at 16, spent some time homeless, suffered a motorbike accident when aged 17 and was left with ongoing chronic and debilitating leg and hip pain. Aged 23, he commenced a relationship with Jim Martin’s mother, which endured until he was aged 31 and Jim was around 4 years old. They bought a share in a remote alternative community, camping in tents for the first 2 years.

42. Jim Martin reported that both he and his older sister were abused by their mother’s new partner after Peter had separated from their mother. Peter then underwent several months of hospitalisation for mild paranoid schizophrenia, delusions and depression. After recovery he worked as a gardener and farm labourer. He obtained interim custody of Jim and his sister, but in 1991 the Family Court ordered that they reside with their mother. She took them to live in New Zealand.

43. In 1997, Peter Martin and Danny Sherry jointly purchased the home in Toongabbie and the following year Jim’s sister moved in with them. In 2005, Jim moved there as well. In 2006, aged 21, Jim Martin was severely injured in a motorbike accident, losing the vision in his left eye.

44. The primary judge then addressed a dispute as to the appropriate discount to be afforded to the applicants’ pleas of guilty. Her Honour ultimately concluded that a discount for its utilitarian value was 15% for each offender in relation to the manufacturing charges. This finding, and the evidence on which it turns, is the subject of the proposed second ground of the appeal and we shall return to it below. It is not necessary to address the other aspect of the discount applied to one applicant’s sentence.

45. The primary judge noted that Jim Martin had no prior criminal history while there was no significant offending in Peter Martin’s history (which comprised relatively minor offences in the period from 1979 to 1995). Both had the advantage of ample good character references and her Honour found that, notwithstanding the rejection of the applicants’ version of duress given on oath, both had established remorse sufficient to engage s 21A(3)(i). Her Honour found that both men had positive prospects of rehabilitation and were unlikely to reoffend.

46. Jim Martin was at high risk of losing sight in his remaining eye, and gave evidence about the difficulty in receiving treatment and delays whilst in gaol and his anxiety that the prison environment makes him more vulnerable to losing vision. Her Honour accepted that his experience in custody was on that account more burdensome. Peter Martin relied on psychological evidence to the effect that his history of abuse suggested “a psychological vulnerability”. Her Honour found that while that did not impact on the assessment of moral culpability, it was taken into account in making his experience in custody more onerous. Her Honour also relied upon the substantial delay (more than 4 years) during which time they had remained in custody on remand, with a classification that equated with maximum security, thereby reducing the courses and work options available to them. Her Honour said that the effluxion of time and the uncertainty concerning the outcome which made their custody more onerous would be taken into account.

47. Her Honour also expressly had regard to considerations of parity and totality. Her Honour rejected applications made by both applicants for findings of special circumstances, finding that the matters relied upon had already been taken into account as part of the instinctive synthesis. This was the subject of proposed ground 4. Her Honour stated that neither counsel had been able to refer to any comparable authority, but that she had considered the cases of R v Kalache [2000] NSWCCA 2 and R v Little and Walsh [2006] NSWCCA 406, stating that those cases concerned serious offending but not on the same terms as present. Her Honour added:

“In the decision of Kalache, the offending and the subjective features caused the Court to place weight on the sentencing purpose for the protection of the community. Recidivism was clearly a matter of concern. Here although the offending is extremely grave and very strong weight must be placed on the sentencing purpose of general deterrence, the offenders have both satisfied the Court as to their good prospects of rehabilitation, so reducing the weight that otherwise would have to be given to the sentencing purpose of the protection of the community.”

48. Sentence was imposed on 12 May 2017. Almost four years later, applications for leave to appeal were filed, on 12 April 2021, in identical terms. Those applications were heard on 1 September 2021.

Proposed ground 1 – the role of the applicants

49. The first proposed ground of each appeal was that the primary judge “erred in assessing the role of [each] applicant”. This was directed to the finding that each was a “principal”. The applicants conceded that it had been open to the sentencing judge to find that the applicants were “principals” in the sense to which Simpson J referred in Nguyen v R [2011] NSWCCA 92 at [4], where her Honour said:

“‘Principal’ is an expression that is commonly used in sentencing in respect of drug offenders, but may not have a commonly accepted or applied meaning. In my opinion, the indicator of the role of an offender as "principal" involves at least some of the following characteristics:

• contributing financially to the cost of setting up the operation;

• standing to share in the profit (as distinct from receiving payment);

• having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise);

• having some decision making role (which may not be different from the item above).

• This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.”

50. This ground was directed to the proposition that if the sentencing judge found that the applicants were the sole principals, and at the apex of the operation, no such finding was open. The applicants said that any such finding would have to be established beyond reasonable doubt, in accordance with Olbrich v R [1999] 199 CLR 281 at [25]-[27]; [1999] HCA 54. It was submitted that the following evidence suggested that others had been involved: that it was a “very sophisticated” manufacturing operation, the quality of the product was “at the highest end of the spectrum”, the applicants “to say the least, were not well-educated men” without expertise in chemistry or manufacturing and in particular, the existence of “Quebec Quebec”. The defence case was that if Jim Martin had known of the existence of Quebec Quebec, he would have moved it so as to prevent its contents from being destroyed by the fires or discovered by police. No DNA or fingerprints from either applicant were found on Quebec Quebec, while the DNA of an unknown male was recovered from a swab taken from the press seal of a re-sealable bag labelled “Jelly”. The applicants also submitted that an inference could be drawn from approximately 4000 calls intercepted and recorded involving the applicants, none of which concerned distribution, which necessarily suggested that others were involved, with the further consequence that, so it was submitted, “the applicants were not at the apex of the operation”.

51. The Crown maintained that there was no finding that the applicants were “sole” principals or at the “apex” of the operation. The Crown added that the absence of a finding that they were “sole” principals or at the “apex” was not the same thing as making a positive finding that they were not “sole” principals or at the “apex”.

52. This proposed ground is readily resolved. Neither side contends that her Honour made a finding that the applicants were “sole” principals or at the “apex” of the operation. This proposed ground hypothesises that her Honour did make such a finding, and then contends that in that event it was not open to her to do so.

53. Her Honour’s finding is reproduced above. Her Honour did not find that the applicants were “sole” principals or at the “apex” of the operation. Her Honour merely found that “both offenders acted as principals in the drug manufacturing process”. The finding is as to a conclusion of the character of the role of each man in the manufacturing process. There is no challenge to any of the particular matters of fact which contribute to that conclusion (including directing Danny Sherry to buy acetone, receiving it from him, involvement in the manufacturing process, possession of the methylamphetamine and the precursors). Further, it was not established (to the civil standard) that the men were acting at the direction of a superior (for completeness, it was also not established that no one was directing the men). Categorising or labelling the applicants as principals, or sole principals, or attempting to place them within some putative hierarchy “must not obscure the assessment of what the offender[s] did”: see Olbrich at [19]. This was the case where the sentencing judge had “limited and imperfect information” as to the nature and extent of this substantial manufacturing operation: see Olbrich at [16]. The position occupied by each man readily falls with the description of “principal” given in Nguyen v R.

54. There is no basis to construe the finding by the sentencing judge as amounting to a finding that they were “sole” principals or at the “apex” of the operation. Construed in that manner, the parties are ad idem that there was no error.

55. We would not grant leave to raise a ground which does not arise.

Ground 2 – discount for utilitarian value of the plea

56. This ground challenged the 15% utilitarian discount applied by the primary judge for the guilty pleas to the manufacturing offence. It is expressed thus:

“Her Honour erred in determining the appropriate discount for the utilitarian value of [each] applicant’s plea of guilty to the manufacture methylamphetamine count by not taking into account [each] applicant’s offer and attempt to plead guilty to the charge when the matter was in the Local Court.”

Background

57. The sentencing process was lengthy, mostly complicated by the absence of agreement as to the precise facts upon which sentence would be imposed. Both applicants were cross-examined extensively. Ultimately their evidence on the major factual issue, namely, whether they acted under duress, was not accepted. There is no challenge to that conclusion.

58. Much earlier, on 9 July 2014, in proceedings in the Local Court at Campbelltown, guilty pleas were entered with a waiver of the committal process. However, junior counsel then appearing for both applicants made the position perfectly clear in the following exchange:

“MS MOEN: I appreciate that, your Honour. If your Honour looks at the Sequence 1 matter in relation to Peter Martin, that is a manufacture not less than large commercial quantity methylamphetamine; your Honour will see there that the quantity referred to in that charge is 40,601.4 kilos; there’s – as I understand it, the Crown case in relation to that current charge, the allegation is, in any event, about 47 kilos. But in any event, just to be clear for the record your Honour, the plea of guilty is to the elements of the offence, which doesn’t include the quantity, it certainly includes an admission of at least a kilo.

The same situation arises for Jim Martin; your Honour will see that that refers to in excess of 40 kilos of methylamphetamine. Again, Jim Martin’s plea of guilty is to the elements of the offence, that being the quantity being not less than 1 kilo.

The defence position is that both those matters, and also the summary matters under Sequence 2, and Jim Martin’s Sequence 3 matter: they could all be committed for sentence, and the issue of quantum would be a matter for the sentencing judge to resolve.

HIS HONOUR: Does the DPP agree?

MS BLIZARD: No, your Honour.”

59. That is to say, both applicants formally advised that they would plead guilty, but they would not admit any involvement in the manufacture of anything more than 1 kilogram of methylamphetamine. That proposal was not acceptable to the Director of Public Prosecutions.

60. Eventually both applicants did plead guilty to the manufacture of some 43 kilograms of methylamphetamine. Prior to that hearing in the Local Court, by email dated 19 May 2014, the DPP had rejected an offer sent on 8 May 2014 (the details of which do not appear to have been reproduced in the appeal books), and made a counter offer, which it described as “the Crown’s final offer”, based on pleas of guilty to the manufacture and “deemed” supply of the methylamphetamine found at Quebec Quebec, namely some 36.122 kilograms.

Reasons of the primary judge and the applicants’ submissions

61. The sentencing judge addressed the question of the utilitarian value of the applicants’ pleas at pp 79-82 of her reasons.

62. Her Honour commenced with the defence submission “that the offenders each indicated pleas of guilty in the Local Court on 9 July 2014” and that a 25% discount should be given. Her Honour then noted that the Crown referred to “a persistent disavowal by the offenders of the 33 kilograms of methylamphetamine found at the Quebec Quebec find”, although her Honour also noted the Crown’s concession that the applicants accepted responsibility for the drugs found at the Quebec Quebec find in May 2015, when the proceedings were listed to be heard in September 2015. Her Honour had regard to the fact that sentencing proceedings involved evidence taken over 7 days, ultimately resulting in factual findings made adversely to them, and concluded that the appropriate discount was 15%. Her Honour added the following:

“I note that the discount is not impacted upon by the fact that there was lengthy evidence in the sentencing proceedings insofar as it is appropriate in matters of such seriousness for the Court to be assisted by full detail.”

63. In oral submissions, junior counsel for the applicants sought to maintain, as had been put to the sentencing judge, that “questions such as the precise roles played by Peter and Jim Martin, the precise quantum of [methylamphetamine] located and the precise quantum for which Peter and Jim Martin are each to be held criminally responsible are all matters to be resolved as part of sentence proceedings”. It was said that none of those matters were either elements of the offence or “of the essence” of the offence. Indeed, in a hearing on 5 August 2014, the defence applied for each plea to be accepted.

Consideration

64. Sentence was imposed in 2017, prior to the introduction of Division 1A within Part 3 of the Crimes (Sentencing Procedure) Act. Section 22 required the Court to take into account the fact that both offenders had pleaded guilty, and the timing of the plea (or the indication of the intention to plead) and empowered the court to impose a lesser penalty than it otherwise would have done. A reduction is not mandatory, as s 22(2) made clear, but in that case the court is required to indicate its reasons for doing so and make a record of those reasons: see Nanai v R [2010] NSWCCA 21 at [37]-[43]. The appropriate levels of reduction are found in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; hence the reference to the 25% in this ground.

65. It is clear that the finding that there should be a discount of 15% was one with which this Court will interfere only in the event that error as described in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 is made out.

66. The ground as formulated was that “her Honour did not take into account this offer [in the Local Court] to plead guilty in determining the appropriate discount”. That is not made out. Her Honour commenced the four pages of reasons directed to this issue by stating that “The defence submits that the offenders each indicated pleas of guilty in the Local Court on 9 July 2014”. Her Honour then dealt with the parties’ submissions concerning the disavowal in the Local Court of responsibility for the 33 kilograms of methylamphetamine found at “Quebec Quebec”.

67. However, the ground was debated in this Court in a substantive way which disregarded the inapt form of the notice of appeal. Dealing with the matter at the level of substance, its gravamen is that the sentencing judge erred in not giving a discount of 25% in light of the applicants’ offer to enter pleas in the Local Court in July 2014.

68. It is clear that an early guilty plea in circumstances where nonetheless the offender puts the Crown to proof on factual issues and loses does not entitle the offender to the same discount on utilitarian grounds as a person who does not require a contested hearing: R v AB [2011] NSWCCA 229; 59 MVR 356 at [32]. There, Johnson J said, with the agreement of Bathurst CJ and Hoeben J, at [27]:

“Where a sentencing Court is required to undertake a lengthy hearing in circumstances where ... there are disputed questions of fact which are resolved adverse to an offender, then a sentencing Court is entitled, if not required, to have regard to these practical events in assessing the utilitarian value flowing from the pleas of guilty.”

69. That is not to penalise the offender, who is entitled to put the Crown to proof. It is merely to deny that there is, in such a case, the same utilitarian benefit as would be the case following a guilty plea which does not involve a contested hearing.

70. Moreover, as Johnson J said in AB at [33]:

“[A]s a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender.”

71. Bathurst CJ, who agreed, added by way of elaboration at [2] that:

“Whilst, as Spigelman CJ pointed out in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], the primary consideration for the extent of a utilitarian discount was the timing of the plea this should not obscure the fact that there may be circumstances as Johnson J has pointed out where the utilitarian value may be eroded. Equally, there may be some exceptional circumstances in which it is appropriate to give a full utilitarian discount for a plea, notwithstanding the fact that it has not been entered at the earliest opportunity.”

72. Those principles have been applied in Owens v R [2017] NSWCCA 16 at [64].

73. We note for completeness that there is some simplification in the summary of the plea given above. The charges proposed by the prosecution were altered, and there was a complaint by the applicants that they were unable to respond to a fully detailed Crown case. Nonetheless, the large sticking point was whether they were responsible for the 32 kilograms of methylamphetamine found at “Quebec Quebec”. On the view we take, it is not necessary to summarise the details of the correspondence between the Crown and the defence.

74. Let it be assumed, favourably to the applicants, that the offer to plead in July 2014 was capable of attracting a 25% discount. The discount actually applied when sentence was imposed could not put to one side the fact that the offenders had advanced a substantial factual issue, namely, whether they were acting under duress. They failed on that issue. That issue very substantially contributed to some seven days of hearings in the sentencing process. The utilitarian value of the early pleas was correspondingly diminished.

75. Against this, the applicants pointed to the statement by the primary judge that it was appropriate for the Court to be assisted in full detail by lengthy evidence. The primary judge took that view, but that does not detract from the fact that days of court time were occupied by a factual issue raised by the applicants on which they failed.

76. The primary judge concluded her reasoning thus:

“Pleas were not forthcoming. The matters proceeded to arraignment and were ultimately listed for trial in September 2015. The defence indicated to the Crown in May 2015, post-arraignment, that the offenders took responsibility for the Quebec Quebec find. The matters proceeded by way of sentencing proceedings for some seven days of evidence.

The appropriate discount to recognise the utilitarian value is 15% for each offender in the manufacturing charges.”

77. It was at least implicit that her Honour took into account the early offer to plead, but also the diminished utilitarian value of that offer, reflected in the lengthy sentencing proceedings, in reaching a discount of 15%. That approach reflects a long practice in courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted: see Regina v Oinonen [1999] NSWCCA 310.

78. We do not consider that a basis to interfere in the discount has been established. While we favour granting leave to appeal, this ground is not made out.

Ground 4 – failure to find special circumstances

79. The sentencing judge declined to make any finding of special circumstances. On appeal, it was said that the findings of good prospects of rehabilitation, prior good character, first time in custody coupled with the risks of institutionalisation, together with, in the case of Jim Martin, the hardship arising from his partial blindness and, in the case of Peter Martin, his psychiatric condition, all favoured a finding of special circumstances, so as to permit a variation in the statutory ratio between the parole period and the non-parole period.

80. This ground was addressed in a page in the written submissions and was not elaborated orally.

81. There is nothing in this ground. On any view, the sentences imposed will involve many years of supervised parole upon the applicants’ release from custody. In Magro v R [2020] NSWCCA 25, when dealing with a sentence with a non-parole period of 10 years and an additional period of 3 years and 4 months, this Court noted that:

“The sentence to be imposed upon Mr Magro will be of such a duration as to allow for a sufficient period of parole to assist him to reintegrate into society, without the need for a longer period than that which arises from the ordinary ratio of sentence.”

82. The position is a fortiori in the present case. Even in the absence of a finding of special circumstances, both applicants would inevitably have many years between the completion of the non-parole period and the balance of their terms of imprisonment.

83. It was open to the sentencing judge, who expressly considered the point, to decline to make a finding of special circumstances. This proposed ground does not warrant a grant of leave.

Ground 3 – manifest excess

84. The “primary ground” of these applications was that the sentences were manifestly excessive. That is to say it may be inferred that the sentence reflects some misapplication of principle, even though none appears on the face of what was said by the judge imposing sentence: see Nealon v R [2021] NSWCCA 286 at [18]-[20] and the authorities there cited.

85. The applicants accepted that the offences were “objectively grave examples of the offence”. That concession was properly made. The quantity of the drug was more than 40 times that sufficient to amount to a “large commercial quantity”, and the sophistication of the operation was clear from the agreed facts.

86. However, in light of the applicants’ good character, guilty pleas, remorse (as found by her Honour), positive prospects of rehabilitation, partial blindness (in the case of Jim) and emotional distress (in the case of Peter), the applicants had strong subjective cases, such that sentences with an undiscounted starting point of 35 years disclose manifest excess.

87. The applicants contrasted Kalache, which involved two counts, with no genuine remorse, and a “truly appalling background of antecedent drug-related crime” (at [11]) where on a Crown appeal, head sentences of 21 years and 16 years would have been imposed. In R v Little and Walsh [2006] NSWCCA 406, Walsh was 25 years old with no criminal record, an amphetamine addiction and a gambling habit who was sentenced to 32 years with a non-parole period of 24 years for a supply charge, to be served concurrently with firearms charges and matters of dishonesty.

88. The applicants also relied on three other cases which, although post-dating the sentence they challenged, were said to confirm that it was manifestly excessive.

1. In Kwok v R [2018] NSWCCA 200, a pure weight of 12 kilograms of methylamphetamine was found, and the calculated pure weight of methylamphetamine was some 61 kilograms, (the charged weight was 144 kilograms). Mr Kwok was found to be “at the apex of the known offenders”, pleaded guilty, was 58 when sentenced, and received 22 years imprisonment for manufacturing, and 15 years for the supply.

2. In R v Wan [2017] NSWCCA 261, a co-offender of Mr Kwok albeit with a subordinate role was sentenced to 18 years with a non-parole period of 12 years for the manufacturing offence, with a discount of 25%. The undiscounted starting point was thus 24 years, and it was not suggested that the sentence was inadequate.

3. In Bell v R [2019] NSWCCA 271, the offender pleaded guilty to a single count of manufacturing some 30 kilograms of methylamphetamine in a large scale, sophisticated laboratory. He was found to be a “worker”, although a significant one. He was 29 years old, with no prior criminal convictions and good prospects of rehabilitation. He was sentenced to 13 years and 4 months imprisonment, with a non-parole period of 10 years, reflecting an undiscounted starting point of 17 years and 9 ½ months. An appeal was allowed, reducing the sentence so that the starting point was 17 years 4 months.

89. The applicants submitted that they had stronger subjective cases that any of the offenders summarised above.

90. The applicants also relied on sentencing statistics. Very little can be derived from this, in light of the very substantial quantities involved in the present case, and the familiar limitations of statistics (the authorities may be found in Hall v The Queen [2021] NSWCCA 220 at [132]). In oral submissions, we did not understand Ms Stratton to place any substantial reliance on those statistics.

91. The Crown contended that the sentences were not plainly unreasonable or unjust, doubted the utility of comparable cases, and submitted that Jim Martin had enjoyed considerable leniency in the partial accumulation of the fire offence.

92. We have concluded that the sentences are so high that they are correctly described as “manifestly wrong” and “plainly unjust”: see, for example, Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ citing House v The King at 55). This is not to substitute our own opinions for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at 671-672 [15]. Rather, it is to recognise and give effect to the positive findings made by her Honour and to reach the conclusion that the sentences imposed on the applicants were so far outside of an appropriate discretionary range that this Court must intervene. The sentencing judge said that she recognised “that these sentences probably feel almost like a life sentence; they are intended to be fairly rigorous sentences for the reasons I have outlined”.

93. The offending is a grave example of a very serious offence. The maximum penalty and the standard non-parole period reflect the assessment of the harm to the community that the manufacture of illicit drugs causes; it is difficult to assess how much damage, directly and indirectly, such a substantial quantity of methylamphetamine does. We also bear in mind the precursor offences, which are themselves very serious instances of their type, which were to be taken into account imposing sentence. Even so, the undiscounted starting point of 35 years discloses error. As the applicants observe, and the Crown did not dispute, they have strong subjective cases, stronger than those who have been sentenced for similar offending and received lesser sentences.

94. It is necessary to resentence. Affidavits of both applicants were read without objection in that event. Neither applicant has been the subject of any disciplinary action while in custody. Both have undertaken and completed a series of educational and training courses (engineering, computing, horticulture and hospitality). Both are employed in positions of some responsibility in the correctional centres. It would not be unfair to say that, on the evidence placed before this Court, both have been model prisoners.

95. Further, both have been affected in ways that could not have been foreseen when sentenced, including by the COVID-19 pandemic, a serious injury suffered by Jim’s mother, and by the deaths of two relatives, one unexpectedly, whose funerals they were unable to attend.

96. The evidence confirms the findings of good prospects for rehabilitation.

97. For the purpose of resentencing we proceed upon the same factual basis as determined by the primary judge (no aspect of which was sought to be altered). The conduct amounted to a grave example of the offence. We take into account the possession of the precursors.

98. We would not find special circumstances. Both sentences should be backdated to the same extent as the primary judge (in the case of Jim, resulting in a partial accumulation with the sentence for the fire offence).

99. We would start with an undiscounted sentence of 28 years imprisonment for each man. Allowing the same discounts as the primary judge (and some rounding):

1. In the case of Peter Martin, the sentence is 23 years and 9 months imprisonment, with a non-parole period of 17 years and 9 months commencing 13 January 2013 and expiring 13 October 2030, which is the first date on which he is eligible to be released on parole. The balance of the term expires on 13 October 2036.

2. In the case of Jim Martin, the sentence is 22 years and 4 months imprisonment, with a non-parole period of 16 years and 9 months commencing 13 January 2015 and expiring 13 October 2031, which is the first date on which he is eligible to be released on parole. The balance of the term expires on 13 May 2037.

100. We make the following orders.

In proceeding 2013/11122 (Peter Martin):

1. Grant leave to appeal, confined to grounds 2 and 3.

2. Appeal allowed.

3. Set aside the sentence imposed by the District Court on 12 May 2017 and in lieu thereof sentence him to imprisonment for a term of 23 years and 9 months, commencing 13 January 2013, with a non-parole period expiring 13 October 2030, and with the balance of term expiring 13 October 2036. The earliest date on which he is eligible for release is 13 October 2030.

In proceeding 2013/11126 (Jim Martin):

1. Grant leave to appeal, confined to grounds 2 and 3.

2. Appeal allowed.

3. Set aside the sentence imposed by the District Court on 12 May 2017 and in lieu thereof sentence him to imprisonment for a term of 22 years and 4 months, commencing 13 January 2015, with a non-parole period expiring 13 October 2031, and with the balance of term expiring 13 May 2037. The earliest date on which he is eligible for release is 13 October 2031.

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Decision last updated: 20 December 2021