Nastoski v The Queen

[2010] NSWCCA 187

New South Wales
Court of Criminal Appeal

CITATION:	Nastoski v R [2010] NSWCCA 187 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13 August 2010
JUDGMENT DATE:	10 September 2010
JUDGMENT OF:	McClellan CJatCL at 1; Hulme J at 2; Davies J at 3
DECISION:	1. Leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - conspiracy to manufacture controlled drugs - relative roles of co-conspirators - parity of sentencing - whether reasons for different sentences for co-conspirators were adequate - no basis for a justifiable sense of grievance.
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Pettitt v Dunkley [1971] I NSWLR 376 R v Cook (unreported – Court of Criminal Appeal – 12 December 1991) R v Julie Anne Duffy [1999] NSWCCA 321 R v Olbrich (1999) 199 CLR 270 Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247
PARTIES:	Vance Nastoski (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/15041
COUNSEL:	C Steirn SC & T Jones (Applicant) N Adams (Respondent)
SOLICITORS:	The Law Practice (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/15041
LOWER COURT JUDICIAL OFFICER:	Zahra DCJ
LOWER COURT DATE OF DECISION:	22 May 2009

- 1 -

2007/15041

MCCLELLAN CJ AT CL, HULME RS & DAVIES JJ

10 SEPTEMBER 2010

NASTOSKI V R

Judgment

1 McCLELLAN CJ at CL: I agree with Davies J.

2 RS HULME J: I agree with the orders proposed by Davies J and with his Honour's Reasons.

3 DAVIES J: On 19 February 2008 the Appellant pleaded guilty to the offence of conspiracy to manufacture a commercial quantity of a controlled drug, being amphetamine, contrary to ss 305.3(1) and 11.5(1) of the Criminal Code Act 1995 (Cth). The maximum penalty is imprisonment for life and/or a fine not exceeding $825,000.

4 On 22 May 2009 the Applicant was sentenced by Judge Zahra to 11 years 6 months imprisonment with a non-parole period of 7 years 8 months commencing on 7 April 2006 and expiring on 6 December 2013.

5 The Applicant was one of four persons sentenced in respect of their roles in the conspiracy. Two of the other offenders, Kane Jarrod Holland and Benjamin Franciscus Wuyts, were sentenced by Judge Zahra, and the fourth offender, Scott David Alve was sentenced by Judge Geraghty.

6 Mr Holland also pleaded guilty to the same offence with which the Appellant was charged. Judge Zahra sentenced him to a period of 10 years and 6 months with a non-parole period of 7 years.

7 Judge Geraghty sentenced Mr Alve on 29 February 2008. He was similarly charged with conspiracy to manufacture a commercial quantity of a prohibited drug. He was also charged pursuant to s 306(2) of the Criminal Code Act that he conspired to pre-traffic in a substance being a controlled precursor (safrole) of a commercial quantity. That offence carried a maximum penalty of 25 years imprisonment.

8 Judge Geraghty sentenced Mr Alve on the conspiracy to manufacture a controlled drug to a period of 16 years imprisonment. In relation to the offence of conspiring to pre-traffic in a controlled precursor he was sentenced to a period of 11 years. The non-parole period for both offences was set at 10 years and 8 months.

9 Mr Wuyts was sentenced by Judge Zahra on 18 September 2009. He was charged with the 2 offences with which Mr Alve was charged and, in addition, he was charged with possession of a pistol while not authorised.

10 On the charge of conspiring to manufacture a commercial quantity of a controlled drug Mr Wuyts was sentenced to 18 years and 6 months imprisonment with a non-parole period of 12 years. On the charge of conspiracy to pre-traffic a commercial quantity of a controlled precursor Mr Wuyts was sentenced to a period of 12 years and 6 months imprisonment with the same non-parole period of 12 years.

11 For the count of possession of a pistol while not authorised he was sentenced to a term of 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months. That was subsumed in the other 2 sentences.

12 The Applicant appealed on 4 grounds as follows:

1. The sentencing Judge erred in his characterisation of the Applicant's role and position in the conspiracy, relative to his co-offenders;

2. The sentencing Judge erred in failing to impose a sentence that properly reflected the applicant's role in the conspiracy, relative to his co-offenders;

3. The non-parole period imposed by the sentencing Judge failed to take into account the Applicant's good prospects of rehabilitation; and

4. In all the circumstances, the sentence imposed was manifestly excessive.

13 However, Grounds 3 and 4 were abandoned, leaving the appeal concerned with the proper characterisation of the Applicant’s role in the conspiracy as the matter for consideration. Although Grounds 1 and 2 referred generally to the Applicant’s co-offenders most of the submissions made on his behalf at the hearing of the appeal were directed to a comparison with the role of Mr Holland. That was made clear by Mr Steirn SC, who appeared with Mr Jones for the Applicant, when he submitted that the sentencing Judge recognised the principle of parity and appeared to apply it as far as Mr Alve and Mr Wuyts were concerned but not where Mr Holland was concerned.

Factual background

14 His Honour sentenced the Applicant and Mr Holland on the same day. The nature and circumstances of the offence are set out in his Honour’s Remarks on Sentence on that occasion. Because the issues concern the relative roles of the participants it is necessary to set these out at some length.

On the 6th April 2006 Australian Federal Police executed a search warrant at a property located at Eungella, a town approximately 16 kilometres south west of Murwillumbah. The offender Holland owned that property which comprised some 70 acres.

The property is in a remote area and was accessible by a dirt road from Tyalgum Road. The area was sparsely settled. The buildings on the property consisted of a residence and a number of sheds. Underneath one of the larger sheds on the property was a basement which was only accessed by a trap door.

Inside the basement police located a number of items including a beer keg which had been modified with a flange valve and pressure gauge. That keg had been placed inside an electric cement mixer so that the keg could be rotated. At the time police entered the basement, the cement mixer containing the modified beer keg was on and rotating the beer keg. The beer keg contained chemicals in liquid form which were in a process of reaction in the presence of Palladium, a metal used in the production of amphetamine and Hydrogen gas. That liquid had the potential to produce 2.5 to 3 kilograms of amphetamine.

Also inside the basement, police located a bottle of Nitrogen gas and 3 bottles of Hydrogen gas, two plastic containers containing Palladium, two stainless steel vats and a stainless steel condenser and lengths of pressure hose.

Inside the shed above the basement police located quantities of chemicals used in the manufacture of amphetamine, various pieces of equipment used in the manufacture of amphetamine and a large stainless steel tray which contained 1422.8 grams of pure amphetamine (3436.6 grams gross).

Inside other sheds on the property police located two 200kg drums of Benzaldehyde, 27 bottles of Nitroethane and 14 bottles of n-Butylamine. All these chemicals can be used in the manufacture of amphetamine.

The evidence would indicate that the conspirators began to operate the amphetamine laboratory during mid March 2006 and by 3rd April 2006, had started to produce amphetamine.
It is the Crown case on sentence that, taking into account the scale of operation and the additional quantities of chemicals found on the property that the conspirators intended to continue to produce further quantities of amphetamine in the clandestine laboratory.

Evidence of particular acts of the offender Holland relied on by the Crown :
The Crown relies on the following facts:

1. The offender Holland had purchased the Eungella property in July 2002. The offender himself constructed the basement in late 2003 to early 2004 from cement blocks and materials he had purchased at about that time. The offender also installed electrical power, lighting, drainage and ventilation.

2. During 2006, the offender purchased equipment and gas cylinders which were used in the production of amphetamine at the Eungella property. On the 13th March the offender purchased hydrogen and nitrogen using a false identity.

3. On the 20th March the offender purchased a cement mixer and took it to the Eungella property some time prior to the 22 March. It was this cement mixer which was operating in the basement at the time of arrival of police.

4. On the 24th March the offender was seen with Benjamin Wuyts, Rodney Vinen and his father, Wayne Holland. At the time the offender was seen to remove an orange/red cylinder from a vehicle in which the others had travelled and then place the cylinder into his own vehicle. On that day the offender had returned an empty hydrogen cylinder to BOC Gases and obtained a replacement cylinder. The offender obtained another cylinder of Hydrogen on the 25th March 2006. Police later found this cylinder in the basement at the Eungella property on the 6th April.

5. On the 3rd April telephone calls were intercepted which were in coded language and which the Crown argues support an inference that the offender was involved in the distribution of amphetamine. The first of the calls is at 7.23pm between Alve and an unidentified male and the second at 7.44 pm between Alve and a person "Jason".

6. On 4th April Holland purchased a cylinder of hydrogen from BOC gases in Queensland. He was later seen at a service station in Murwiliumbah and he then took the cylinder to the Eungella property.

7. The offender was arrested subsequent to his arrival at the Eungella property on the 6th April. Police guarding the Tyalgum Road entrance to the property observed Mr Holland drive in and then to divert from the property and travel to Tyalgum where he was placed under arrest. A search of the offender's car revealed a false licence with the photograph of the offender. That licence had been used to obtain gas from BOC gases.

8. On the 6th April at 5.30 pm, a search warrant was executed on the Eungella property and there police located receipts relating to the obtaining of gas bottles. One of the receipts bore the name of a false identity used by the offender. A fingerprint of the offender was located on this receipt. Police also found a note from a Scott McConologue addressed to "Kaneo" which the Crown argues is a note to the offender alerting him to possible police intervention.
9. Police also located within the house a plastic container containing 102.4 grams of amphetamine with the same chemical profile of the amphetamine located in the stainless steel drying tray found in the shed above the basement. Police also located a firearm in the house.

…

Evidence of particular acts of the offender Nastoski relied on by the Crown :
The Crown case on sentence is that the offender Nastoski was one of the principal organisers of the syndicate. The offender challenges this description.

The Crown argues that the offender communicated regularly with Scott Alve and Benjamin Wuyts between October 2005 and April 2006 in relation to the operation of the laboratory and arranged for the supply and paid for many of the chemicals found at the laboratory. The Crown further argues that during the operational phase of the manufacture of amphetamine, the offender had someone in Northern NSW monitoring his interest in the laboratory.

The Crown further relies on a number of additional acts of the offender which include the following:

1. Frequent telephone conversations with Scott Alve and Benjamin Wuyts which related to the progress of the manufacture of amphetamines which was in coded language.

2. Intercepted phone calls and airline records establish that Scott Alve and Benjamin Wuyts regularly travelled to Sydney to meet with the offender for the purpose of organising the manufacture of amphetamine at the Eungella property. These include 20th February (intercepted conversation); evidence of Alve meeting Nastoski between 23-25 February; an intercepted conversation of the 2nd March where Mr Alve and Nastoski talk about meeting together and 8th March (an intercepted conversation where a meeting is discussed).

3. During the period of the conspiracy a Branko Kojic of Nationwide Cleaning Distributors obtained large quantities of Benzaldehyde and n-Butylamine. The offender ordered amounts of these chemicals and nitroethane from Kojic. Nationwide continued to obtain chemicals of a kind located at the Eungella property in the months leading up to the 6th April. It is the Crown case that the offender organised and paid for many of the chemicals used in the manufacture of amphetamine.

4. Conversations in February 2006 between Alve, Wuyts and the offender would suggest that the offender had some knowledge of particular "fittings” to be used in the manufacturing process.

5. On the 6th March Alve flew to Sydney, the same day that Nationwide placed an order for n-Butalmine (sic). Intercepted conversations suggest that Nastoski and Alve met at that time.

6. On the 13th March during an intercepted conversation between Alve and the offender which the Crown argues was in coded language, Alve states: "car primed...get ready to paint tomorrow.. ."(the Crown argues that an inference can be drawn that this relates to the process of amphetamine manufacture). Later in the conversation Alve states: "[the] [expletive] boy keeping an eye on your end". The Crown argues that this conversation points to the offender having a person looking after his interests in the manufacture of amphetamine at Eungella.

7. On the 14th March there is a further conversation in coded language which would indicate awareness by the offender of the stages of the process undertaken, and that he had engaged in conversation with Mr Wuyts to that effect.

8. On the 15th March there were further substantial purchases of chemicals through Nationwide Cleaning.

9. On 20th March during an intercepted conversation Mr Alve tells the offender: "… the other job went good... a bit slow but we've sort of sorted a few things out." and in a later call: "Everything else is good...you'll be quite pleasantly surprised". Alve tells the offender at this time that he will come to Sydney. The offender tells him he would need to speak with him. A further call later that day indicates that the offender had been in contact with Benjamin Wuyts.

10. On the 22nd March an intercepted conversation between Alve and Wuyts suggests that a truck was being organised to bring something up from the offender.

11. Between the 23rd March and 30th March Alve and the offender are seen to meet at the offender's address on at least five occasions.

12. On the 24th March 2006 the offender met with Kojic of Nationwide and discussed purchasing chemicals. At about this time Nationwide had provided benzaldehyde, n Butylmine (sic) and nitroethane. Chemicals of this kind had been delivered to the offenders’ home unit in Mortdale.

13. On the 31st March the offender met Alve at Mortdale. In an intercepted call later that day the offender tells Alve that he had forgotten the money. The offender tells Alve to "just work it out with the old bloke". Again later that day Alve sent a text message to Wuyts which stated, "Do you have 15K for village". Counsel for the offender argues that, in the context of other calls, that this conversation relates to the repair of a boat and does not relate to the conspiracy.

14. On 2nd April the offender engages in a lengthy conversation with Alve which was intercepted. Alve tells the offender that "the old bloke"... "Pulled it out….and they put it back in...". The Crown contends that this is a reference to the manufacturing process at Eungella. Also in the same call there appears to be some acrimony between the speakers during which the offender tells Alve, "that's what I was concerned about, only you know what's going on..." Alve replies " ...we’ve got your boy here he knows what's going on..."

15. Mobile phone records relating to a phone service used by the offender indicate that between 19th January 2006 and 4th April 2006 the offender contacted the mobile phone found in the possession of Alve when Alve was arrested on 62 occasions.

16. On the 3rd of April, in an intercepted conversation between Alve and Wuyts, Alve tells Wuyts "it dropped like a beauty" and "I rang the village up he's ecstatic". During this call there is a reference to "three" which the Crown contends is a reference to the quantity of amphetamine produced. It is the Crown case that the reference to "village" is a reference to the offender.

17. On the 5th April in an intercepted call between Wuyts and Alve there is discussion about travelling to meet the offender in Sydney. Alve tells Wuyts "he wants you to come and have a look at this rotary engine...it's a two litre". And later "...if we look at it would be able to scale it up a six a bigger bowl on it or something you know" and again later "it would be handy to have it anyway...” It is the Crown case that this is a reference to an apparatus referred to as a "rotary evaporator". A "rotary evaporator" is a piece of equipment commonly used in illicit drug manufacture to enable efficient purification of amphetamine oil into amphetamine sulphate.

18. On the 6th April police located inside the offender's motor vehicle, a document that contained the words "rotary evaporator"... "Need two glass bowls" "2L Bottle cap..."The document also contained a diagram. The Crown contends that the diagram is consistent with a reference to a "rotary evaporator". A fingerprint of the offender was located on the document.

19. On the 6th April at 10.45am in an intercepted conversation Alve, who was on his way to Townsville is heard to say: "catchin a flight to Townsville...to see Big LJ". It is the Crown case that this call relates to distribution of the amphetamine.
20. Further on the 6th April Wuyts spoke by telephone to the offender. The offender queried Wuyts whether Wuyts was coming down to Sydney. Wuyts explained he could not leave because he had to "keep an eye on it". Wuyts and the offender speak of Alve travelling north for a day or two.

21. At about 11.30 pm on the 6th April the offender was arrested at his home in Rockdale. At the time of arrest police located a number of mobile phones.

15 His Honour then considered the fact that there was a number of participants in the criminal enterprise and said this:

A sentencing judge, in considering the appropriate sentence to be imposed upon an offender who was involved in a criminal enterprise with others, should if able, ascertain the position the offender held in order to determine the degree of culpability.

Difficulties may, however, arise when a court attempts to categorise the role of the offender in the criminal enterprise. Difficulties arise as the sentencing court is unlikely to know the full nature and extent of the roles of particular offenders within the enterprise. The application of labels such as "principal" or "middle order" may obscure the assessment of what the offender did leading to an erroneous sentencing process: see R v Olbrich (1999) 199 CLR 270 [19].

Factors that differentiate between particular offenders in cases such as the present include the time over which the offender was involved, the acts of the individual offender contributing to the processes in the operation, the importance of the offender's acts in that process, the scale of the operation, the knowledge of the extent of the operation and the reward which the offender hoped to gain from participation. Caution should however be exercised to ensure that the sentencing process does not simply involve a mathematical process of isolating and attaching weight to particular acts of each offender involved in a conspiracy. To do so would be to "...ignore the essential feature of the offence of conspiracy which is the agreement to participate in organised criminal activity." Tyler v R; R v Chalmers [2007] NSWCCA 247 at [83].

Further, it does not necessarily follow that intermediaries should receive particular leniency, as without them the objectives of those who manufacture, procure or distribute illicit drugs would not be achieved.

Judgments of the Court of Criminal Appeal have highlighted the importance of deterrence in setting sentences imposed upon those involved in drug networks at any level.

16 His Honour assessed the objective gravity in the case of the offender Holland. In the course of so doing his Honour referred to evidence given by Mr Alve. Mr Alve suggested that the most significant person in the arrangement was a person called Rodney Vinen who was the amphetamine cook. His Honour noted that at one point in Mr Alve’s evidence he said:

Mr Nastoski was not involved in the conspiracy, his job was to procure the chemicals and that was it.

Mr Alve also said that Mr Nastoski dealt only with him and did not know Mr Vinen.

17 His Honour found the evidence of Mr Holland and Mr Alve implausible in relation to a number of matters. He noted that Mr Holland had admitted lying on oath during evidence in his trial when he denied any involvement in the conspiracy. His Honour said also that he was of the view that Mr Alve’s evidence was not credible.

18 His Honour then made findings as to the role of Mr Holland. He found that Mr Holland was more significantly involved than he asserted but he said he could not conclude that Mr Holland built the basement intending that illicit drugs such as amphetamine could be manufactured there. It was more likely that it was intended for the growing of cannabis. His Honour made these findings in relation to Mr Holland:

Further I cannot be satisfied that the offender was to ultimately play a role in the distribution of the amphetamine. I have considered the nature of the calls between Alve and a person "Jason" and an unidentified male together with the other evidence including the fingerprint on the plastic container. When considering the weight of this evidence my mind has wavered as to its strength and ultimately I find I cannot conclude that the offender was to play a role in distribution. Similarly, I cannot be satisfied that the offender possessed the firearm.

The role of the offender was significant. He provided the property for the manufacture of amphetamine. The basement and other physical characteristics of the property including its remoteness made it ideal for the clandestine production of significant quantity of amphetamine. Additionally the offender provided other logistical support in the obtaining of gas bottles and the cement mixer. At the same time however there is no evidence that he had the necessary knowledge as to the manufacturing process. The intercepted calls clearly show that others were involved in the actual manufacturing processes. Further, the absence of regular communication between the offender and the others concerning the processes being undertaken permit the conclusion that his role in the actual production was limited. It is likely that he was involved as there were significant financial rewards for those participating in the manufacture of amphetamine here.

As I have indicated, it has been argued on behalf of the offender that his judgment at the time was impaired. There is evidence before me, which I will refer to shortly, that would suggest that the offender has a lengthy history of cannabis use that is likely to be the manifestation of underlying emotional issues. Those factors may have had some bearing on his decision to become involved in the conspiracy here. However his acts could not be said to be impulsive. The offender was knowingly involved over some months and knowingly provided valuable assistance to those involved in the actual processes. His involvement was an important part in the success of the operation.

19 His Honour assessed the objective gravity in relation to Mr Nastoski. In doing so, his Honour noted the evidence given by Mr Alve in relation to Mr Nastoski and his role. In short, Mr Alve said that he (Alve) was Mr Nastoksi’s only connection to the syndicate.

20 His Honour noted this:

The primary submission is that the role of Nastoski is significantly less than that of the offender Alve and consequently the sentence to be imposed on the offender should be varied substantially from that imposed on the offender Alve.

21 His Honour then noted at some length the submissions made on behalf of Mr Nastoski and dealt with the Crown’s submissions as to his role in the enterprise. His Honour having noted that Mr Nastoski did not give evidence at the sentence hearing, said this:

Much of the role of the offender can be discerned with some precision from the intercepted calls. The offender was engaged in frequent contact with those who were involved in the organisation of the laboratory and the production of amphetamine there. The nature of these conversations indicates that the offender was anxious to know about the progress of the production. The calls suggest a significant level of involvement of the offender. The calls support a conclusion that he was contributing to discussion concerning production methods. Over time, that contribution increased such that the offender, at the time of the discussion concerning the rotary evaporator, had sufficient knowledge about production and was contributing towards refinement of the production process to ensure significant yields. The conversation is an indicator of the offender's position in the hierarchy at the time the laboratory was in the process of production of the amphetamine. There is no real evidence that the offender's judgment was impaired.

The calls, the evidence of meetings with Wuyts and Alve and his critical acts in the obtaining of large quantities of chemicals, all support a conclusion that the offender had a significant role in the manufacture of amphetamine.

This was a large-scale enterprise where there was a potential for substantial financial reward.

I cannot be satisfied that at the outset the offender brought into the conspiracy any particular skill or knowledge other than the ability to source the chemicals which was an essential and critical component of the success of the enterprise. Further, I cannot be satisfied that he played a role as an initial promoter of the enterprise, though his involvement becomes more apparent and critical over time. He provided the connection to Nationwide Cleaning and the supply of many of the chemicals.

On the material before me I cannot be satisfied that the offender used another person to look after his interests surrounding the laboratory.

Though the offender's role was critical the intercepted calls also reveal a differentiation between the offender on the one hand and Wuyts and Alve on the other. I am of the view that the role of Wuyts and Alve was greater. They provided the knowledge of the processes, the organisational and construction skills in setting up the laboratory and the skill to undertake the manufacturing process.

There is no evidence to suggest that the offender was to be involved in the distribution of the amphetamine.

The differentiation in the roles in my view must be reflected to some extent in the sentence to be imposed.

22 His Honour then dealt with what can be regarded as the subjective factors in s 16A Crimes Act 1914 (Cth) in relation to Mr Holland. In doing so he considered a discount of 10% should be allowed in relation to his plea of guilty. His Honour noted that Mr Holland did not have a significant prior record and there had been significant periods where he had led a relatively stable life. His Honour thought with continuing treatment Mr Holland had good prospects of rehabilitation.

23 His Honour dealt with the subjective factors in relation to Mr Nastoski. He first gave a discount of 15% in relation to his plea. In relation to his antecedents he noted a number of convictions going back to 1992. including cultivation, possession and supply of prohibited drugs. Nevertheless, this his Honour noted that the penalties imposed would suggest that the matters were not of a high order. His Honour noted that with appropriate counselling during his imprisonment the likelihood of his re-offending upon his release would be significantly reduced.

24 His Honour then summarised what was said about Mr Alve at his sentence by Judge Geraghty. In relation to the extent of Mr Alve’s involvement Judge Geraghty said this:

Alve was involved in the planning of the manufacture and production of the drugs, in the manufacturing of the drugs itself, and at least partially in the marketing of the drugs, acting independently at one stage of Nastoski... Alve was principally involved in the construction and the equipping of the laboratory, and in supervising the mixing process. He was centrally involved in the business and clearly had a proprietary interest in the proceeds!
of trade in an ongoing business. It is unknown whether he had money invested, but he certainly had an interest in the business and it was a going to be a pecuniary interest... It was submitted to me on behalf of Alve that ...he was not at the top of the hierarchy. He was not considered as a senior management person, or an entrepreneur, but someone who was receiving instructions. It was submitted that he often reported to others as to the progress of the enterprise, keeping others up to date, even acting on their beck and call. However, on my reading of the evidence, these submissions are not supported. Alve was at the heart of the operation. He was one of the principals in it, with a day to day responsibility for planning and production, and some role albeit limited, in marketing.

25 Judge Geraghty gave a discount of 20% for Mr Alve’s early plea. He noted also that Mr Alve had a criminal record comprising firearms offences, threatening to kill and assault with a weapon.

26 Judge Zahra then made these remarks concerning parity of sentencing:

Care must be taken in sentencing the offenders here to ensure that the sentences imposed do not result in the offenders having a justifiable sense of grievance concerning the sentence to be imposed.

As was submitted by counsel for the offender Nastoski, a complication arises as Mr Alve was sentenced to concurrent sentences firstly for the common offence of which the offenders are charged here and secondly for an additional offence of substantial additional criminality.

It is consequently not sensible to make a merely arithmetical comparison. However the effect of the sentence imposed on Mr Alve for the common offence must be taken into account when dealing with the application of the principle of parity. Lowe v The Queen (1984) 154 CLR 606 ; R v Tran [2006] NSWCCA 266 .

It is the Crown case that Alve, Wuyts and the present offenders were four equals and all principals in the enterprise. In my view this is a case where any attempt to attach a label or classify the offenders as principals may lead to error.

The starting point in sentencing the offenders is the consideration that it is the entering into of the criminal agreement which lies at the heart of the offence of conspiracy. It does not follow however that every conspirator must receive the same sentence, as there may be different levels of involvement and culpability. It is particularly important in the present case to consider with some precision the respective roles of each of the conspirators in assessing their culpability.

In arriving at the ultimate sentence I have considered the evidence before me in relation to the roles of the offenders and applied the principles referred to in R v Olbrich.

In my view the sentences to be imposed here must reflect the varying levels of culpability and give effect to the principle of parity. At the same time the sentences must reflect the fact that both offenders played a critical role in the conspiracy.

27 The complaint made by the Applicant was not that his Honour did not detail his conclusions about each of the conspirators but that when he came to deliver the sentence for the Applicant and Mr Holland he did not spell out why he gave a more severe sentence to the Applicant than he did to Mr Holland. In this regard the Applicant points to what was said in a number of cases including Pettitt v Dunkley [1971] I NSWLR 376, R v Cook (unreported – Court of Criminal Appeal – 12 December 1991) at 1, and R v Julie Anne Duffy [1999] NSWCCA 321 at [11] to suggest that the sentencing Judge failed in his obligations to provide proper reasons, so that this Court is able to see what was regarded as significant in the sentencing process and to expose his process of reasoning.

Proper consideration given to respective roles

28 Whilst it is true that at the point in his Remarks on Sentence where his Honour came to sentence Mr Holland and the Applicant he did not there weigh up their respective roles, that does not lead to the conclusion that his Honour either failed to carry out that weighing up role nor that his Honour’s reasoning process is not able to be understood.

29 His Honour referred to what the High Court said R v Olbrich (1999) 199 CLR 270 at [19] and what this Court said in Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247 at [83] in relation to the approach to be taken to co-conspirators. His Honour went into considerable detail about the role of each of the offenders. He set out in detail the subjective factors in respect of each of the offenders. Those included the different criminal records and the different prospects for rehabilitation.

30 It is not difficult to understand why it was, given the matters referred to by the sentencing Judge in relation to each of the offenders, that he sentenced the Applicant to a slightly longer period in prison than Mr Holland. As his Honour found, there were similarities between them, but there were also differences. The similarities included the finding that neither was to play a role in the distribution of the drugs, both had abused illicit drugs, and both pleaded guilty although at a relatively late stage. With regard to the pleas, it is noteworthy that the Applicant was provided with a discount of 15% for his plea compared to 10% for Mr Holland.

31 The differences, however, were more significant. First, although both offenders had a significant role in the conspiracy, the Applicant’s involvement increased and became “more apparent and critical over time”. The applicant had the necessary knowledge as to the manufacturing process, which Mr Holland did not. There were frequent phone calls involving the Applicant and other members of the conspiracy, whereas there was an absence of such contact on Mr Holland’s part. The subject matter of the calls involving the Applicant suggested a “significant level of involvement” of the Applicant, and this involvement included the contribution of his knowledge about the production process. In particular, a conversation concerning the rotary evaporator was an indication of the Applicant’s “position in the hierarchy” at the time of production.

32 Secondly, the Applicant’s ability to source the chemicals was “an essential and critical component of the success of the enterprise”. One of the submissions made on behalf of the Applicant was that his contribution was of legally obtained chemicals and that that meant that he was replaceable within the syndicate of conspirators, something which was said to be more difficult had he been sourcing illegal chemicals. In my opinion, that is not a distinction that needed to have weighed heavily with the sentencing Judge.

33 Thirdly, there was no evidence that the Applicant’s judgment was impaired whereas Mr Holland’s lengthy cannabis abuse was likely to have impaired his judgment and provided an explanation for his involvement in the conspiracy. Associated with this is that the Applicant did not give evidence at the sentencing proceedings whereas Mr Holland did. The absence of the Applicant from the witness box reduced the weight the sentencing Judge felt that he could give to the report from the Applicant’s psychologist.

34 Fourthly, Mr Holland had no prior drug convictions whereas the Applicant had drug convictions, albeit not of a high order, dating back to 1992. It is apparent that his Honour regarded Mr Holland to be further along the path to recovery from his substance abuse than the Applicant was, and spoke of Mr Holland’s rehabilitation in more positive terms.

35 The basis of the appeal is really a complaint concerning parity. Bearing in mind the differences between Mr Holland and the Applicant, and that the difference in sentence is relatively small, it cannot be said that such a difference is such as to give rise to a justifiable sense of grievance in the Applicant. No error has been shown in relation to the sentencing Judge’s approach to the relative roles of the various conspirators, nor in relation to the sentence imposed on the Applicant.

36 The orders I propose are these:

1. Leave to appeal granted.

2. Appeal dismissed.

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20/09/2010 - Counsel's names corrected on coversheet - Paragraph(s) coversheet