R v AH - [2019] NSWDC 82

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AH [2019] NSWDC 82
Hearing dates: 30 October 2018; 4 December 2018 and 30 January 2019
Decision date: 22 March 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Imprisonment for 14 years with a non parole period of 10 years 6 months.

Catchwords: CRIME: SENTENCE: manufacture large commercial quantity of a prohibited drug and expose child to the manufacturing process - supply large commercial quantity of a prohibited drug - aggregate sentence
Legislation Cited: Drug Misuse and Trafficking Act, 1985, ss24(2A) and 25(2)
Category: Sentence
Parties:
Regina (Crown)
A.H. (Offender)
Representation:
Mr Sfinas (Crown)
Mr Ainsworth (offender)

File Number(s): 2017/382756 and 2017/94198
Publication restriction: Non publication order of the names of the children referred to in the Remarks on Sentence - and of anything that might identify them, directly or indirectly – including the name of the offender.

Judgment

A.H, you appear for sentence today in relation to four principal offences.
In relation to each of the first three of those principal offences, you have asked me to take into account matters on a relevant Form 1 which I have certified.
The first principal offence is manufacturing a large commercial quantity of a prohibited drug (i.e. 22 kilograms of MDA) and exposing a child to the manufacturing process.
This involves a contravention of s 24 (2A) of the Drug Misuse and Trafficking Act.
The maximum penalty for that offence is life imprisonment. There is no standard non-parole period.
In relation to this first principal offence you have asked me to take into account four matters on the relevant Form 1, they being: possessing drug manufacture apparatus; possessing a tablet press or drug encapsulator; possessing instructions for the manufacture of prohibited drugs; and knowingly deal with the proceeds of crime (approximately $250,000.00).
The second principal offence is supplying a large commercial quantity of a prohibited drug (i.e. 12.23 kilograms of N-formyl amphethamine).
This involves a contravention of s 25 (2) of the Drug Misuse and Trafficking Act.
The maximum penalty for that offence is also life imprisonment. There is, however, a standard non-parole period of 15 years imprisonment.
In relation to this second principal offence, you have asked me to take into account three matters on the relevant Form 1, they being: supplying a commercial quantity of a prohibited drug; possessing an unauthorised pistol (being an air gun); and not keeping that firearm safely.
The third principal offence is also an offence of supplying a large commercial quantity of a prohibited drug (i.e. 11.45 kilograms of MDA).
In relation to this third principal offence, you have asked me to take into account three matters on the relevant Form 1, they being: one matter of supplying a commercial quantity of a prohibited drug (specifically 308.6 grams of methorphan); and two matters of knowingly dealing with the proceeds of crime (i.e. $6,890.00 and $10,900.00).
The fourth principal offence is that of acting with the intention of influencing a witness.
This involves a contravention of s 323 (a) of the Crimes Act.
The maximum penalty for that offence is 7 years imprisonment. There is no standard non-parole period.
The facts surrounding the four principal offences and the various matters on the three Form 1s are contained in an agreed statement of facts. They may be summarised as follow.
From mid-2015 you were living in rented residential premises in a southern suburb in Sydney with your then de facto partner and two children who, as at December 2016, were 5 years and 10 months old (the eldest child was not your birthchild, but a child you treated as your stepchild. The youngest was your birthchild and that of your then partner).
Those premises had two storeys – and a double lock up garage and storage area.
You used that garage to setup a clandestine laboratory in which you manufactured a large quantity of illegal drugs which you subsequently sold.
The premises were, in part, secured by CCTV cameras and PIN code lock doors – all of which were installed by you.
As part of your manufacturing activities, amongst other things, you:

used your mobile phone to frequently access the internet to obtain information about the manufacture of a range of illegal drugs;

imported a wide variety of equipment and chemical ingredients for the manufacturing of illegal drugs;

used sophisticated technology and other measures to avoid detection of your supply of large quantities of illegal drugs; and

obtained significant amounts of cash for supplying large quantities of illegal drugs which you made in those premises.

And, as I have said, you made these illegal drugs in that garage in that house in which your de facto partner and those two children lived.
The police executed a search warrant on the premises on 28 March 2017 and you were arrested on that date.
At the time of your arrest, your partner and children were in the house. A strong chemical odour could be smelt in the living room of that house.
The police found not only manufactured illegal drugs but chemicals, equipment and significant waste product – all consistent with a substantial and ongoing manufacturing process. Specifically, the waste product was not the result of the manufacture of the drugs with which the first principal offence is concerned. This is one indicator that the production of the drugs in relation to that first principal offence was not a one-off event. Similarly, the very large amount of cash the subject of the Form 1s and the presence of a variety of illegal drugs in the hair of your children (to which I shall soon refer) are also not consistent with the production of the drugs in the first principal offence being a one-off matter.
And it was clear from intercepted telephone calls that, immediately before the execution of the warrant, you had been engaged in the manufacture of a large quantity of MDA – from which you expected to make a very significant amount of money. In that process, however, you made an error in production which could have had catastrophic effects for your family and possibly the surrounding premises and their occupants.
In relation to the first principal offence, as I have indicated, 22kg of MDA had been manufactured by you. There is no evidence as to the purity of that quantity of drug.
Following your arrest, samples were taken of the hair of your young children. Those samples contained quantities of methylamphetamine, amphetamine, MDA, cocaine, and benzoylecgonine – in the amounts set out in paragraph 51 of the agreed facts. That was a direct result of your activities in the garage of that house. There is no evidence as to how it was that those children were actually exposed to those drugs (i.e. whether it was because they had access to the garage during the manufacturing process, or whether because of the fumes that could be smelt in the house, or otherwise). Given the variety of the drugs, the only rational inference is that the children must have been exposed for a significant period of time. There is also no evidence as to any significant impact to the health of those children, either short or long term, by their exposure to those drugs. In the absence of such evidence, I am not going to speculate about that matter adversely to you.
In terms of its objective seriousness for an offence of its kind, the first principal offence is above the mid-range and into the upper range.
As I have already said, four matters on a Form 1 are to be taken into account in fixing the sentence for the first principal offence, they being sequences 3, 4, 10 and 17.
As sequences 3, 4 and 10 are, in effect, incidental to the first principal offence, they shall not result in any meaningful increase in the sentence for that offence. However, sequence 17 does require a meaningful increase.
The second principal offence is a deemed supply offence. It is not exactly clear to me from the agreed facts, but I understand that this was waste product not produced in the manufacture of the drugs with which the first principal offence is concerned. The only rational inference, therefore, is that you manufactured other illicit drugs in those premises before the first principal offence with which I am concerned.
In terms of its objective seriousness for an offence of its kind, it is slightly below a mid-range offence.
The matters to be taken into account on the Form 1 in connection with the second principal offence are sequences 16, 11 and 12. By reference to the nature of these matters, there will be no meaningful increase in the sentence of the second principal offence.
The third principal offence is also a deemed supply offence. Again, I understand that this was waste product not produced in the manufacture of the drugs with which the first principal offence is concerned. And again, the only rational inference in the circumstances is that you manufactured other illicit drugs in those premises before the first principal offence.
In terms of its objective seriousness for an offence of its kind, it is also only slightly below mid-range.
The matters to be taken into account on the Form 1 in connection with the third principal offence are sequences 8, 9 and 15. By reference to the nature of those matters there will be a slight increase in the relevant sentence.
I shall now summarise the facts concerning the fourth principal offence.
Mr Robert Bringolf provided limited assistance to you in your illegal activities. He carried some items into your house on occasion, you spoke with him on your phone during the manufacturing process of the drugs in the first principal offence, and he also drove you on one occasion to Mascot where you purchased some more equipment for use in your clandestine laboratory.
There is no suggestion in the material, however, that he was any more involved than that – that is, a person who would occasionally do odd jobs for you. You were clearly the principal participant in this manufacturing process - and the sums of money the subject of the relevant Form 1 means that the only rational inference is that you were also a significant person in the subsequent sale of the illicit drugs you manufactured. Clearly you were not a user / dealer, even though you had your own drug issues. You were manufacturing this large amount of drugs for mainly significant financial gain.
Mr Bringolf was arrested and charged with a number of offences including his involvement in your drug manufacturing operations. Ultimately he agreed to assist the authorities in connection with their prosecution of you in order to obtain a reduction in his sentence. He was sentenced by Jeffreys DCJ on 23 August 2018.
In the circumstances, parity is not a relevant consideration.
Surprisingly, after Mr Bringolf had provided a statement to police about you, he and you were both still detained at the same Correctional Centre. On 8 August 2017, in a conversation near the exercise yard, you sought to bring pressure on Mr Bringolf to discontinue his assistance. By your plea you have admitted that in that conversation you acted with the intention of causing him not to give evidence in accordance with his statement to police.
In terms of its objective seriousness for an offence of its kind, it is (bearing in mind that it was committed in a custodial setting) somewhere equidistant between the middle of the range and the bottom of the range.
Most of your subjective circumstances were advanced through a sentencing assessment report, a psychologist’s report, and two reports by a Justice Health psychiatrist – although you did give some sworn evidence in the sentencing proceedings in which you indicated that, although you pleaded guilty to Count 4, you did not admit you actually committed that offence. This is an adverse factor on the question of your remorse for that offence.
To the extent that there is a difference in opinion between the author of the psychologist’s report dated 15 April 2017 and the author of the psychiatric reports dated 2 June 2017 and 29 January 2019, I prefer the evidence of the psychiatrist whose expertise and qualifications are superior to the psychologist.
I also note that there were some unexplained contradictions in those reports about your drug use history. You told the psychologist in April 2017 that prior to your workplace accident in 2011 you had never used, or considered using, illicit substances. You told the author of the sentencing assessment report, however, that you had used ecstasy as your recreational drug of choice since your teenage years. You also told the psychiatrist in 2017 (apparently somewhat reluctantly) that you had been smoking amphetamines on a weekly basis before that accident.
You had an unremarkable childhood.
You left school at the end of Year 10 after which you worked hard in your own business as a steel metal fabricator until you had that workplace accident in 2011.
As a consequence of that accident, you effectively lost your business and your home.
Following that unfortunate development, you began regularly using ice, as a consequence of which you have developed a substance use disorder with related depressive symptoms. You do not have a mental illness such as schizophrenia. You do have long term issues with depression, but they have no causal connection with your offending.
In circumstances not revealed in any of the material, you began to engage in the manufacture of illicit drugs as a means of making a significant amount of money and this was done in the premises you shared with your then de facto partner and your children.
Following your arrest and subsequent imprisonment, your now former partner has cut-off all communication with you and you have had no access to your step-daughter or your son. And whilst it would be for another Court at another time to make any formal determination, it does seem unlikely, by reason of your exposure of those children to those drugs, that you will have any meaningful relationship with them (at least in the near future).
You have an understandable difficulty in being separated from your children and this is likely to be adverse factor in terms of prospects of rehabilitation.
You have a few relatively minor matters on your criminal record and, therefore, you are entitled to the leniency which, in appropriate circumstances, can be extended to first offenders – although that consideration is to a degree reduced because I have found that the drugs manufactured in connection with the first principal offence was not a one-off and certainly not a first offence, strictly speaking.
I am not satisfied on the balance of probabilities that you are genuinely remorseful for what you have done in relation to the 1st three principal offences. You have expressed only the most limited remorse in the written material with which I have been provided; and you did not express remorse when you were in the witness box. And as I have already indicated, you are also not remorseful for the 4th principal offence.
Remorse is an important factor in assessing your prospects of rehabilitation. Although I have not been satisfied on the balance of probabilities about the genuineness of your remorse, I have noted that you are working constructively whilst in gaol and that you apparently are receiving visits from members of your family and friends – although none gave evidence in the sentencing hearing. I also note that you have been assessed as a low to medium risk of reoffending by the experienced Community Corrections Officer.
My assessment of your prospects of rehabilitation is that they are guarded.
No sentence other than one of full-time imprisonment is appropriate for any of the principal offences.
And considerations of specific and general deterrence are fully engaged – that is, the sentences need to be ones that discourages you and others from engaging in this type of offending.
The term of imprisonment will be backdated to the date of your arrest, namely 28 March 2017. In this context I have not overlooked the brief period that you were on bail between 30 June and 14 July 2017.
Your pleas of guilty were entered late and accordingly there will be relevant discount of 15 per cent.
Through your counsel you have sought a finding of special circumstances to vary the ratio of the head sentence to the non-parole period based on two considerations: first, that this is your first time in custody; and secondly, because you have spent some time in protective custody to date. It would seem that the reasons for you being in protective custody have been because of demands which have been made of you for money and because you are an unsatisfactory cellmate due to snoring issues.
There is, however, no evidence before me that you will remain in protective custody following the imposition of sentence.
I am not persuaded that this is an appropriate case for the making of a finding of special circumstances.
I intend imposing an aggregate sentence.
Because I intend imposing such a sentence, it is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence.
In relation to the first principal offence and taking into account the matter on the relevant Form 1, the indicative sentence is 15 years imprisonment minus 15 per cent, that is 12 years 9 months imprisonment.
In relation to the second principal offence and taking into account the matters on the relevant Form 1, the indicative sentence is 8 years imprisonment minus 15 per cent, that is 6 years 9 months imprisonment. The indicative non-parole period is 5 years imprisonment.
In relation to the third principal offence and taking into account the matters on the relevant Form 1, the indicative sentence is also 8 years imprisonment minus 15 per cent, that is 6 years 9 months. The indicative non-parole period is 5 years imprisonment.
Finally, in relation to Count 4, the indicative sentence is 2 years minus 15 per cent, that is 1 year 8 months.
By having regard to the notion of totality, there would have been partial accumulation of the various indicative sentences if this matter had not been an aggregate sentence.
A.H, of the offence of manufacturing a large commercial quantity of a prohibited drug, the two offences of supplying a large commercial quantity of a prohibited drug, and the offence of acting with the intention of influencing a witness, you are convicted.
I sentence you to an aggregate term of imprisonment of 14 years imprisonment.
I fix a non-parole period of 10 years 6 months to date from 28 March 2017 and which will expire on 27 September 2027.
I fix a balance of 3 years 6 months to date from 28 September 2027 and which will expire on 27 March 2031.
By consent, I make the confiscation order in relation to the proceeds of crime in [12] above.
I note (surprisingly, to me) that I was informed by the Crown representative today that, the Director of Public Prosecutions has yet to decide whether to seek to confiscate the substantial amount of agreed proceeds of crime [6] above.
I make a non publication order of the names of the children referred to in [28] above and of anything that might identify them, directly or indirectly – including the name of the offender.

Amendments

29 March 2019 - Case name: [.] removed between initials

Decision: [12] changed to [14]

Decision last updated: 29 March 2019

Medium Neutral Citation:	R v AH [2019] NSWDC 82
Hearing dates:	30 October 2018; 4 December 2018 and 30 January 2019
Decision date:	22 March 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 14 years with a non parole period of 10 years 6 months.
Catchwords:	CRIME: SENTENCE: manufacture large commercial quantity of a prohibited drug and expose child to the manufacturing process - supply large commercial quantity of a prohibited drug - aggregate sentence
Legislation Cited:	Drug Misuse and Trafficking Act, 1985, ss24(2A) and 25(2)
Category:	Sentence
Parties:	Regina (Crown) A.H. (Offender)
Representation:	Mr Sfinas (Crown) Mr Ainsworth (offender)
File Number(s):	2017/382756 and 2017/94198
Publication restriction:	Non publication order of the names of the children referred to in the Remarks on Sentence - and of anything that might identify them, directly or indirectly – including the name of the offender.