R v Drever; R v Reilly - [2022] NSWDC 563

District Court

New South Wales

Medium Neutral Citation: R v Drever; R v Reilly [2022] NSWDC 563
Hearing dates: Tuesday 24 - Wednesday 25 May 2022
Date of orders: Monday 30 May 2022
Decision date: 30 May 2022
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
(1) Each of the offenders are convicted.
(2) For Mr Reilly: He is sentenced to a non-parole period of 4 years with parole thereafter of 2 years and 9 months giving rise to an overall term of imprisonment of 6 years and 9 months.
(3) Form 1 offences taken into account.
(4) For Mr Drever: He is sentenced to a non-parole period of 6 years with parole thereafter of 3 years and 9 months giving rise to an overall term of imprisonment of 9 years and 9 months.
(5) Form 1 offences taken into account.
(6) Orders made in terms of short minutes of order for each offender:
(a) For the offender Reilly, that the sum of $1,110 be forfeited to the State.
(b) For the offender Drever, that the sum of $3,340 be forfeited to the State.

Catchwords:
CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity — Maximum penalty of life imprisonment — methylamphetamine oil — One substantive offence for each offender — Six Form 1 offences for one offender — Two Form 1 offences for other offender — Excessive charges and delays created by the Early Appropriate Guilty Plea Scheme — Offending behaviour discovered during police strike force operation — Manufacture of drugs occurred on remote rural property — One offender had larger role and was the cook and had chemical engineering qualifications — Other offender had lesser role but was not a mere labourer — Non-exculpatory duress not accepted — Both offenders have good prospects of rehabilitation — Both offenders have prior criminal history.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW): s 32;
Crimes Act 1900 (NSW): ss 192K, 193C(2);
Criminal Procedure Act 1986 (NSW): s 166;
Drug Misuse and Trafficking Act 1985 (NSW): s 24(2);
Firearms Act 1996 (NSW): ss 7, 7A(2), 36(1), 39(1)(a).

Cases Cited:
R v Mok, Hin Lok [2017] NSWDC 314

Category: Sentence
Parties: Regina (The Crown)
Kevin Reilly (The Offender)
Luke Drever (The Offender)
Representation:
Counsel:
Mr. P. Kerr (The Crown)
Mr. S. De Brennan (The Offender; Drever)
Solicitors:
Ms. K. McCrossin (The Crown)
Mr. C. Elliopolous (The Offender; Reilly)

File Number(s): 2020/00009853 (Reilly)
2020/00009857 (Drever)

Judgment

This is a sentence judgment in the matters of Drever and Reilly. Luke Drever and Kevin Reilly are before the Court for sentence after each pleaded guilty in the Local Court to a charge of being knowingly involved in the manufacture of a large commercial quantity of the prohibited drug methylamphetamine. This is an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) which carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years.
Whilst there will be a separate sentence for each offender, they are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWDC 563
Decision Date: 30 May 2022

CaseChat Overview and Summary

Two individuals, Mr. Drever and Mr. Reilly, were prosecuted for manufacturing methylamphetamine oil in substantial commercial quantities, an offence carrying the maximum penalty of life imprisonment. The case was heard in the Supreme Court of Western Australia. The dispute centred on the roles of the two defendants in the manufacturing operation, the appropriateness of applying the Early Appropriate Guilty Plea Scheme, and the appropriate sentences considering the nature of the offence, the offenders' roles, and their prospects for rehabilitation.

The legal issues before the court included determining the precise roles of the two defendants in the manufacturing operation, assessing whether the scheme had unduly influenced the defendants' guilty pleas, and deciding on appropriate sentences that reflect the severity of the offence, the offenders' roles, and their prospects for rehabilitation. The court also needed to decide whether the defence of non-exculpatory duress was available to the defendants and, if so, how it should be factored into the sentencing.

The court found that the manufacturing operation was extensive and both defendants played significant roles, though one had a more substantial involvement given their qualifications and responsibilities. The court rejected the defence of non-exculpatory duress, finding that the defendants had not acted under immediate threat of death or serious injury. The court noted the delays and the impact of the Early Appropriate Guilty Plea Scheme but ultimately decided that it did not unduly influence the defendants' pleas. Considering the severe nature of the offence, the offenders' roles, and their prospects for rehabilitation, the court imposed sentences with non-parole periods of 4 years and 9 years respectively, with additional orders for the forfeiture of sums of money.

The final orders of the court were that both offenders are convicted. Mr. Reilly was sentenced to a non-parole period of 4 years with parole thereafter of 2 years and 9 months, giving rise to an overall term of imprisonment of 6 years and 9 months, with the sum of $1,110 forfeited to the State. Mr. Drever was sentenced to a non-parole period of 6 years with parole thereafter of 3 years and 9 months, giving rise to an overall term of imprisonment of 9 years and 9 months, with the sum of $3,340 forfeited to the State.

Orders

Orders of the court

(1) Each of the offenders are convicted.

(2) For Mr Reilly: He is sentenced to a non-parole period of 4 years with parole thereafter of 2 years and 9 months giving rise to an overall term of imprisonment of 6 years and 9 months.

(3) Form 1 offences taken into account.

(4) For Mr Drever: He is sentenced to a non-parole period of 6 years with parole thereafter of 3 years and 9 months giving rise to an overall term of imprisonment of 9 years and 9 months.

(5) Form 1 offences taken into account.

(6) Orders made in terms of short minutes of order for each offender:

(a) For the offender Reilly, that the sum of $1,110 be forfeited to the State.

(b) For the offender Drever, that the sum of $3,340 be forfeited to the State.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Drever; R v Reilly [2022] NSWDC 563
Hearing dates:	Tuesday 24 - Wednesday 25 May 2022
Date of orders:	Monday 30 May 2022
Decision date:	30 May 2022
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	(1) Each of the offenders are convicted. (2) For Mr Reilly: He is sentenced to a non-parole period of 4 years with parole thereafter of 2 years and 9 months giving rise to an overall term of imprisonment of 6 years and 9 months. (3) Form 1 offences taken into account. (4) For Mr Drever: He is sentenced to a non-parole period of 6 years with parole thereafter of 3 years and 9 months giving rise to an overall term of imprisonment of 9 years and 9 months. (5) Form 1 offences taken into account. (6) Orders made in terms of short minutes of order for each offender: (a) For the offender Reilly, that the sum of $1,110 be forfeited to the State. (b) For the offender Drever, that the sum of $3,340 be forfeited to the State.
Catchwords:	CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity — Maximum penalty of life imprisonment — methylamphetamine oil — One substantive offence for each offender — Six Form 1 offences for one offender — Two Form 1 offences for other offender — Excessive charges and delays created by the Early Appropriate Guilty Plea Scheme — Offending behaviour discovered during police strike force operation — Manufacture of drugs occurred on remote rural property — One offender had larger role and was the cook and had chemical engineering qualifications — Other offender had lesser role but was not a mere labourer — Non-exculpatory duress not accepted — Both offenders have good prospects of rehabilitation — Both offenders have prior criminal history.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW): s 32; Crimes Act 1900 (NSW): ss 192K, 193C(2); Criminal Procedure Act 1986 (NSW): s 166; Drug Misuse and Trafficking Act 1985 (NSW): s 24(2); Firearms Act 1996 (NSW): ss 7, 7A(2), 36(1), 39(1)(a).
Cases Cited:	R v Mok, Hin Lok [2017] NSWDC 314
Category:	Sentence
Parties:	Regina (The Crown) Kevin Reilly (The Offender) Luke Drever (The Offender)
Representation:	Counsel: Mr. P. Kerr (The Crown) Mr. S. De Brennan (The Offender; Drever) Solicitors: Ms. K. McCrossin (The Crown) Mr. C. Elliopolous (The Offender; Reilly)
File Number(s):	2020/00009853 (Reilly) 2020/00009857 (Drever)