R v Kaddour

[2020] NSWDC 607

District Court

New South Wales

Medium Neutral Citation:

R v Kaddour [2020] NSWDC 607

Hearing dates:

1 July 2020

Date of orders:

2 July 2020

Decision date:

02 July 2020

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Aggregate term of imprisonment of 12 years and 6 months with a non-parole period of 7 years and 6 months

Catchwords:

CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity

SENTENCING — Mitigating factors — Good character

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Cahyadi v R (2007) 168 A Crim R 41

Imbornone v R [2017] NSWCCA 144

Category:

Sentence

Parties:

Regina (Crown)
Ahmad Gezar Kaddour (Offender)

Representation:

Counsel:
Mr P Lange (Offender)

Solicitors:
Mr G Whitaker instructed by Ms M Watts (DPP)
Mr M Ayache (Offender)

File Number(s):

2015/00239598

Publication restriction:

Nil

Judgment

1. The offender, Ahmad Gezar Kaddour, 57 years of age, appears for sentence in relation to the following two offences:

1. Manufacture large commercial quantity of a prohibited drug, namely 15.32 kilograms of 3,4‑Methylenedioxyamphetamine (hereafter MDA) (date of offence between 1 May 2015 and 16 August 2015), an offence pursuant to s 24(2), Drug (Misuse and Trafficking) Act 1985 (NSW) and;

2. Knowingly take part in the manufacture of a large commercial quantity of a prohibited drug (616 grams of MDA) (date of offence 16 August 2015), an offence pursuant to s 24(2), Drug (Misuse and Trafficking) Act.

2. The maximum prescribed penalty for each of those offences is life imprisonment. There is a prescribed standard non-parole period of 15 years’ imprisonment.

3. When dealing with the offender for the offence of knowingly take part in the manufacture of a large commercial quantity of a prohibited drug, the Court is taking into account a further four offences on a Form 1 of possess precursor with intent to manufacture a prohibited drug pursuant to s 24A(1)(a), Drug (Misuse and Trafficking) Act as follows:

• Sequence 4, possess precursor 3,4-MDP2P with intent to manufacture a prohibited drug MDA.

• Sequence 5, possess precursor, Safrole, with intent to manufacture prohibited drug 3,4-MDP2P.

• Sequence 6, possess precursor, Palladium with intent to manufacture prohibited drug, 3,4-MDP2P.

• Sequence 7, possess precursor, Formamide with intent to manufacture prohibited drug, 3,4-MDA.

4. The offender pleaded guilty to all offences on 27 February 2017 at the Moree Local Court. Having regard to the timing of the pleas, I propose to allow a discount on sentence of 25%.

5. I note at the outset that the Court has been advised that charges were laid in relation to a co-accused, David Rafter. That matter proceeded to trial and he was found not guilty.

6. The offender has been in custody since his date of arrest on 16 August 2015. Accordingly, the sentence imposed today will be backdated to that date.

The Crown material on sentence

7. The Crown tendered the following material on sentence (Exhibit A):

1. Notice of committal;

2. Form 1 document;

3. Statement of Agreed Facts;

4. Addendum to the statement of facts;

5. Expert certificate of forensic chemist, Nicole Gibson, 16 March 2016;

6. Expert certificate of Detective Sergeant Alison Smith 15 May 2017;

7. Criminal history of the offender;

8. Custodial history; and

9. Judicial Commission sentencing statistics.

Agreed Facts

8. David Rafter, born 28 July 1965 lived at 15 Keera Street, Bingara with his wife and some of their children.

9. This offender, Ahmad Kaddour, born 10 April 1963, lived at 9 Chestnut Avenue, Telopea.

10. The offender and Mr Rafter went to school together in Sydney as children. They worked together on occasions as adults. They fell out of contact for some time until about 2000 and 2002. By that time, Mr Rafter had moved to a small rural township of Bingara in North Western New South Wales. This offender would call at the Rafter home intermittently.

11. On 15 December 2011, the offender left Australia. He returned on 10 January 2012.

12. On 16 July 2012, he departed once more. He did not return until 22 February 2014.

13. After his first return, in February 2012, this offender purchased a large removalist truck.

14. Sometime before his departure in July 2012, the offender drove that truck to Bingara. It contained drums of acetone, methylated spirits which are chemicals which can be used in the manufacture of the prohibited drug, MDA.

15. The offender sought the permission of Mr Rafter to store the truck on his property at Keera Street, Bingara. It was ultimately agreed that the truck could be stored at the home of Charles and Annie Archer at 33 Bowen Street, Bingara. They are the parents-in-law of Mr Archer.

16. Sometime after the offender returned to Australia in February 2014, he also took the trailer section of the truck to Bingara. It was also stored in the yard at 33 Bowen Street. In the months leading up to his arrest, this offender visited Bingara with increased frequency. He brought additional chemicals and equipment with him to be used in the manufacture of MDA.

17. Over this period, this offender was engaged in the manufacture of MDA at 15 Keera Street with Mr Rafter. Various stages of the manufacture process were undertaken in a front garage and a rear shed. Scheduled precursors were stored there as well.

18. The MDA manufactured at Keera Street was taken to 33 Bowen Street. The truck trailer was used as a workshop for processing the MDA into tablet form. Both the offender and Mr Rafter were involved in this process. The removalist truck was used to store bulk quantities of chemicals.

MDA

19. MDA can be manufactured in a multiple step process. The first step involves the manufacture of 3,4-Methylenedioxy-phenyl-propane (MDP2P) from a combination of precursor chemicals and a solvent. MDP2P is both a prohibited drug and scheduled precursor.

20. The large commercial quantity of each of MDP2P and MDA is 0.5 kilograms.

Police investigation

21. On Saturday 8 August 2015, police received information about the operation of the drug lab and the involvement of this offender and Mr Rafter. An investigation commenced.

22. On Thursday 13 August 2015, police began surveillance of this offender in the vicinity of 9 Chestnut Avenue, Telopea. His ute was parked at the front of that house. There were two wooden crates in the tray. The crates were later found to contain solvent reclaiming units. They were intended for use in part of the second stage of the MDA manufacturing process which requires the heating of substances.

The offender travels to Bingara

23. Shortly before 9pm on 14 August 2015, this offender left 9 Chestnut Avenue, Telopea in his ute. He was bound for 15 Keera Street, Bingara with the two wooden crates.

24. Police followed the offender’s vehicle. The direct means of travel to Bingara is on main roads via the New England Highway. This offender took a less direct and longer route travelling through State forests and on unsealed country roads. He did so to avoid detection by police.

25. At about 6.15am on Saturday 15 August 2015, this offender arrived at 15 Keera Street, Bingara. He parked at the front of the premises and went to sleep. About an hour later, the wife of Mr Rafter came out of the house. She woke the offender and they both went inside.

The movements of the offender on 15 August 2015

26. Police made observations of the movements of the offender over the course of the following two days. At about 8.30 am on 15 August 2015, this offender and Mr Rafter moved the two wooden crates from the back of the offender’s ute to an area near the front garage in the backyard of the property. They opened one crate and looked inside. The offender, Mr Rafter and other members of the Rafter family then left the home about 9am and went to Armidale. They returned later that afternoon.

27. A short time later, the offender and Mr Rafter went into a shed in the backyard of the property, the rear shed. They stayed there for about 15 minutes before returning to the house.

The movements of the offender on 16 August 2015

28. On Sunday 16 August 2015, police saw Mr Rafter enter the front garage shortly before 9am. He stayed there for about ten minutes. Ten minutes later still, he began moving an excavator from the rear of his property to the front.

29. Over the course of the morning Mr Rafter and this offender were involved in the use of the excavator in a nearby property.

30. Shortly before midday and back at 15 Keera Street, Mr Rafter and the offender loaded some things into the back of the offender’s ute from the rear shed. On the part of this offender, this included a cardboard box with a funnel and a white bucket. He and Mr Rafter used a trolley to move the two wooden crates from the garage to the rear shed.

31. Shortly before 1.30pm, this offender drove to 33 Bowen Street. He parked his vehicle in the yard next to the truck trailer.

32. Over the course of the following four hours and 40 minutes, this offender was engaged in a process of preparing MDA powder for conversion to tablets, converting the powder into tablet form and packaging them. This occurred inside the truck trailer but also involved accessing things stored in the removalist’s truck.

33. Over the course of the afternoon, Mr Rafter made three trips between his home and 33 Bowen Street. He stayed for two shorter periods, returning in between to his home with an empty bucket. He left with a bucket, this time containing a substance.

34. He stayed at Bowen Street then for about one hour and 40 minutes. He was engaged with this offender in the process of preparing MDA powder for conversion to tablets, converting the powder into tableted form and packaging them.

35. The offender and Mr Rafter returned to Keera Street separately within a minute of one another. In the course of the constant surveillance, police saw no one other than this offender and Mr Rafter entering or leaving the truck trailer that afternoon.

Search warrants

36. Search warrants were issued for 15 Keera Street and Bowen Street, Bingara. Police maintained a continuous watch of both premises in the lead up to their execution.

Execution of search warrant at 15 Keera Street, Bingara

37. Police executed the search warrant at Keera Street shortly before 9pm on Sunday, 16 August 2016. Both the offender and Mr Rafter were inside the house. They were both arrested and cautioned. Mr Rafter provided the keys for the front garage and rear shed, each of which was locked.

The front garage

38. In a preliminary search of the front garage, police found two 11 litre ‘Maxipail’ buckets. Connected through the lid of each pail was a metal stirring rod, attached to an electric motor. The devices were in operation and the contents of the buckets were giving off a bubbling sound. There was a strong chemical-like odour inside the garage.

39. Police attached to the chemical operations unit attended the property the following day commencing a thorough search. Substances and items were seized and later examined.

40. Chemists determined that this was an active manufacture of MDP2P. The estimated total amount of pure MDP2P from the liquid in these buckets was 1,227 grams. The 1,227 grams of MDP2P is expected to yield 616 grams of pure MDA (knowingly take part in the manufacture of a large commercial quantity of MDA - s 24 (2), Drug (Misuse and Trafficking) Act (sequence 3)). Mr Rafter had been responsible for undertaking this process which he had begun earlier in the day.

41. A bucket of the same description was also found in the front garage, although not in use. It had been used in an earlier manufacture of MDP2P.

Precursors in the front garage

42. Two substances were found in the front garage which were later identified as scheduled precursors. They are used in the first stage of the manufacture process in which MDP2P is produced. They had been brought to Bingara by this offender.

43. A white plastic container containing liquid was found to contain Safrole being an amount of 1,961 grams of that substance in its pure form (possession of precursor for manufacture - s 24A, Drug (Misuse and Trafficking) Act (sequence 5)).

44. Palladium chloride (which is a salt of palladium) was found in two containers in a total amount of 89 grams (possession of precursor for manufacture - s 24A, Drug (Misuse and Trafficking) Act (sequence 6)).

45. A number of other chemicals essential to the first stage of the manufacture process, although not scheduled precursors were also found in the front garage and had been brought there by this offender namely:

• Benzoquinone (powder form) in an amount of 22,581 grams; and

• N,N-Dimethylformamide (liquid) in an amount exceeding 27 kilograms.

The rear shed

46. Following their execution of the search warrant, police also conducted a preliminary search of the rear shed. It also emitted a strong chemical-like smell. Substances and items from this shed were also ceased by police attached to the Chemical Operations Unit and later analysed.

More MDP2P

47. Two plastic bottles, each of two litre capacity, were seized. They each held liquid containing MDP2P. This had been manufactured at the premises at an earlier time. The estimated total amount of pure MDP2P from the two bottles was 3,352 grams (possess precursor for manufacture - s 24A, Drug (Misuse and Trafficking) Act (sequence 4)).

Precursor - Formamide

48. Formamide is a scheduled precursor which can be used in the second stage of the MDA manufacture process.

49. Four plastic 25 litre cubes were found in the rear shed, each containing formamide in liquid form. The total amount exceeded 111 kilograms. This substance had been brought to the premises by this offender (possession of precursor for manufacture - s 24A, Drug (Misuse and Trafficking) Act (sequence 7)).

Equipment, cutting agents and other substances

50. There was a collection of items in the rear shed which had earlier been used in various stages of the manufacture of MDA. These included:

1. Metal stock pots and a metal container with tubing attached to an outlet port;

2. Plastic buckets;

3. A used solvent reclaiming unit;

4. A coil condenser (joint size greater than B19), being scheduled apparatus;

5. A cement mixer, used to combine solid MDA with other dry substances to obtain an impure, ‘cut’ form of the drug

6. Industrial size metal dehumidifier unit; and

7. Two face masks which had been worn to limit exposure to chemicals during the manufacture process. The DNA of Mr Rafter was recovered from a swab taken from the face seal head strap of one mask.

51. As part of the process of ‘cutting’ the pure form of MDA, other substances are added including diluents to add bulk, dyes, or other active chemical ingredients. Things used for this purpose were found, being:

1. Microcrystalline cellulose in an amount of 21,740 grams stored in both the front garage and rear shed. This substance is used as a filter and binder; and

2. 18 unopened bottles of food colouring.

52. Commonly available chemicals are also used in the manufacture process. Various chemicals of this kind were also found at the premises:

1. Dichloromethane was found in the rear shed in three plastic jerry cans;

2. Methylated spirits in the rear shed;

3. Potassium hydroxide in the front garage and rear shed and;

4. Caustic soda in the rear shed.

53. There was also a collection of scientific and improvised glassware and equipment, as well as household items that are frequently used in the manufacture of MDA which were found in the rear shed (unless otherwise indicated), including:

1. Metal apparatus;

2. Metal stockpots;

3. Condenser;

4. Electric hotplates;

5. Electric scales (both in the front garage and rear shed);

6. Electric motor/pump;

7. pH indicator strips;

8. Thermometers;

9. Plastic measuring cylinders and jugs (both in the front garage and rear shed);

10. Plastic funnels;

11. Plastic tubing and;

12. Coffee filter papers.

Arrest of Mr Rafter

54. Following the execution of a search warrant, Mr Rafter was taken by police into the front garage. He said the two buckets contained oil which this offender had asked him to mix that day. He identified two other substances which he added, saying those had been brought to the property by this offender a few weeks prior. He said he had done the same thing on one or two prior occasions at the offender’s request, the first about a month or so prior.

55. He said he rented the rear shed to this offender but had received no payment. He had not received any payment for mixing the oils for him other than $50 or $100 here and there to buy diesel.

56. Police took him to the rear shed. He said this offender owned the two new solvent reclaiming units and industrial sized drying machine and drums inside this shed.

The offender following arrest

57. The offender was separately shown to the front garage by police. He said he did not know what the buckets were being used for, only that he had seen them there before. When shown to the rear shed, he said he brought the two crates to Bingara in his car, but did not know what they contained. He denied ownership of the drying machine or drums inside the shed. He said he came to Bingara for a social visit. He claimed his only movements for the day were helping Mr Rafter move an excavator. This offender denied manufacturing drugs.

58. Both this offender and Mr Rafter were taken to Moree Police Station and entered into custody.

Execution of search warrants at Bowen Street, Bingara

59. Police then made their way to 33 Bowen Street, Bingara. The search warrant was executed at those premises at 9.40pm in the presence of the occupants Charles and Annie Archer.

60. Police gained access to the truck trailer through an unsecured side roller door. On a preliminary inspection, they found an industrial multi‑functioning nine stage tablet press on a metal stand, white buckets containing MDA both in the form of powder and fragmented tablets, and plastic shopping bags holding multiple vacuum sealed bags containing MDA in tablet form. In the course of their ongoing surveillance, police had not seen anyone enter the truck trailer since the offender’s departure earlier in the afternoon.

61. Located in another area of the yard was a large removalist truck registered to this offender. A padlock securing the rear doors was cut. It was seen to contain many large drums.

62. An extensive search of the property was also undertaken by specialist police attached to the Chemical Operations Unit. Substances and items were seized and later analysed.

Inside the truck trailer

63. The residue of MDA was on surfaces of many items inside the truck trailer.

64. There were many items relating to the tableting process including:

1. Funnels, scoops and sieves, and;

2. Plastic gloves, including one which had earlier been used in the handling of MDA and which had a mixed DNA profile, the major profile being that of this offender. This offender’s DNA was also identified as a contributor to a mixed profile lifted off a screwdriver taken by police from the inside of the truck trailer;

3. An electric juicer;

4. An electric tablet dispenser;

5. A coffee grinder;

6. Buckets in various capacities;

7. A vacuum sealer with vacuum seal bags;

8. A drill press;

9. Metal stirring bars;

10. Plastic jugs;

11. Two digital balances and;

12. A metal wok.

65. The nine stage tablet press was removed. It had a number of tablet punches in situ, each bearing the image of a lightning bolt. Various stages of the press contained MDA in powder form. There were 18 other tablet punches in a wooden box nearby, including one bearing the image of a jester’s hat. The press had been brought to Bingara by this offender.

66. The tablets packaged in vacuum sealed bags were seized. The majority bore the imprint of a lightning bolt, some of a jester’s hat. On testing, they were identified as the prohibited drug, MDA. The total weight of the tablets was 7,450 grams. The purity of some of the tablets was tested and was found to be 16, 18, 19.5 and 20%.

65. An amount of the powder and tablet fragments were also seized from inside the truck trailer, some of which was contained in several buckets over in the pill press and an electric juicer. On testing, the powder and fragments were identified as the prohibited drug, MDA. The total weight was 7,869.79 grams.

66. In all, 15.32 kilograms of MDA was seized from 33 Bowen Street. This was the proceeds of an earlier manufacture at 15 Keera Street in which this offender participated (manufacture of large commercial quantity of MDA - s 24(2), Drug (Misuse and Trafficking) Act (sequence 1)).

67. The number of tablets capable of being produced by 15.32 kilograms of MDA is estimated to be 61,280 (assuming each tablet weighed 250 mg). After acknowledging that there is no evidence of how the tablets were to be sold and recognising the difficulties associated with estimating prices for prohibited drugs, Detective Sergeant Alison Smith provided an opinion that assuming the tablets were sold in bulk amounts of 1000 tablets, the expected potential return would be between 490,240 and 735,360. Assuming the tablets were eventually sold as single tablets, the potential return in relation to 61,280 tables is between $1,225,600 and $3,064,000.

Inside the removalist truck

Benzoquinone

70. As noted above, this substance is essential in the first stage of the MDA manufacture process in which MDP2P is produced. The removalist truck contained 21 boxes and a garbage bag, each containing Benzoquinone in a total amount exceeding 540 kilograms. This had been brought to Bingara by this offender.

Commonly available chemicals

71. A number of chemicals were found inside the removalist truck in large quantities, being chemicals often used in the drug manufacture process:

1. About 1,400 litres of acetone stored in 9 x 200 litre metal drums;

2. About 2,400 litres of N,N‑Dimethylformamide stored in 13 x 200 litre metal drums;

3. About 900 litres Dichloromethane stored in 7 x 200 litre metal drums;

4. Ethanol in 2 x 200 litre metal drums, each about 25% full; and

5. Methanol in a 20 litre capacity container about 33% full.

Other equipment

72. Various tablet press parts were inside the removalist truck. Two other single stage pill presses which had earlier been used in an MDA tableting process were also found in two other sheds on the property. One was partially assembled, and the other had some moving parts attached.

73. Four glass coil condensers (joint size greater than B19) were also found inside the truck trailer, being scheduled drug manufacture apparatus.

74. Two discarded large metal heating vessels, similar in appearance to the solvent reclaiming unit found in the back of the shed at Keera Street were also found at 33 Bowen Street. One had been discarded underneath the truck trailer, another in the yard. Both had been used sometime prior in the manufacture of MDA.

Substances used in the tableting process

75. Quantities of substances also used in the tablet conversion stage were found inside the removalist truck, inside the truck trailer and inside a tool shed.

76. As noted, microcrystalline cellulose is used as a filler to add bulk to a tablet, and as a binder to ensure its contents stick together. 19 kilograms of this substance was found at 33 Bowen Street, including a large quantity inside the removalist truck.

77. Magnesium stearate is used as a lubricant to reduce adhesion between the powder and the punch face to prevent the tablet from sticking. There was over 75 kilograms of this substance located at the property including a large quantity inside the removalist truck.

Interview with this offender at Moree police station

78. This offender declined to say anything until such time as he had received legal advice. He was then charged with the offences.

Photographs

79. A number of photographs were tendered during the sentence proceedings and formed part of exhibit A. Those photos show the premises where the offending occurred. Image 9 shows a very large quantity of tablets packaged in re-sealable bags and image 10 shows the removalist truck with large green barrels inside.

80. I note that whilst the Agreed Facts document in Exhibit A identifies at paras 75 to 78 a number of facts in dispute, they were resolved by the tendering of an addendum to the Statement of Facts (see Exhibit A, Tab 4). I have incorporated the further Agreed Facts in the addendum into the summary I have provided of the facts for sentence.

81. The following additional information was provided by the Crown by consent in relation to the four offences of possess precursor with intent to manufacturer prohibited drug on the Form 1.

• Sequence 3 - Possess precursor 3,4-MDP2P 3,352 grams can be expected to yield 1,683 grams of pure MDA.

• Sequence 5 - Possess precursor Safrole 1,961 grams can be expected to yield 500 grams of MDA.

• Sequence 6 - Palladium 89 grams can be expected to yield in excess of 2 kilograms of MDP2P.

• Sequence 7 - Formamide, 111 kilograms can be expected to yield 33.1 kilograms of MDA.

82. In relation to those estimated yields, the actual quantity produced depends on the skill of the operator, the formation of by‑products and also on the quality of reagents used.

Assessment of objective seriousness

83. Those Agreed Facts clearly disclose very serious objective criminality in circumstances where this can properly be described as a very large scale manufacture.

84. The crime of manufacturing prohibited drugs is regarded by the courts as extremely serious in circumstances where when prohibited drugs are supplied to the community there are very significant detrimental effects on the community.

85. Prohibited drugs destroy the lives of individuals. They disrupt families and they generate a significant cost to the community both socially and financially. The community expects, and is entitled to expect, that persons who commit these offences will face condign punishment.

86. In sentencing for drug manufacture offences, the quantity of prohibited drug is of significance when assessing the objective seriousness. Whilst it is of significance, it is not necessarily determinative, see generally R v West [2014] NSWCCA 250 where Adamson J noted:

“Although the quantity of drugs is not determinative of the objective seriousness of an offence of supply, it is an important material factor, although not necessarily the "chief factor": Wong v The Queen [2001] HCA 64; 207 CLR 584 at 609, [67]-[70]. Indeed the fact that different maximum penalties are provided for by Parliament by reference to quantities (indictable quantity, commercial quantity, large commercial quantity etc) for particular drugs is an indication of its importance: Wong v The Queen at [67]”

Sequence 1

87. In assessing the objective seriousness of the offence of manufacture large commercial quantity (sequence 1) 15.32 kilograms MDA, I have taken into account the following factors:

1. The quantity of the prohibited drug recognising that the large commercial quantity is 0.5 kilograms. This offence relates to 15.32 kilograms which is well over the threshold required to establish a large commercial quantity but still towards the lower end of the quantity in circumstances where the quantity is unlimited;

2. The nature and scope of the manufacture - I am satisfied that the manufacture can properly be described as being of a very large scale having regard to the amount of product that was produced and also the nature and extent of the items that were found relevant to the manufacture;

3. The duration of the manufacture was for a period of three and a half months;

4. The value of the product manufactured ranged between $490,000 and $735,000 in bulk or between $1.2 and $3 million if sold in single tablets;

5. The offender’s role in the manufacture - I am satisfied that this offender regularly attended the Bingara address in relation to the ongoing enterprise. He transported large quantities of chemicals and equipment to the premises in preparation for the manufacture. He was actively involved in the manufacture whilst under surveillance by police; and

6. The manufacture was carried out in a residential area and created a risk for the safety of premises nearby.

88. It was submitted on behalf of the offender that in relation to the offender’s role, there was no evidence to establish the offender was a principal relying on the observations of Simpson J as Her Honour then was in Nguyen v R (2011) 208 A Crim R 432 at [434] as follows:

“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.”

89. It was submitted on behalf of the offender that in the absence of any evidence of those matters identified by Simpson J, that the Court would be unable to characterise this offender as a principal. On that basis, it was submitted that the objective seriousness of this offence was towards the lower end of the mid-range.

90. The Crown submitted that the offending was above mid-range. Whilst the Crown conceded during submissions that there was no evidence of who was financing the manufacture or how the profit was being distributed, the Crown relied upon the degree of autonomy that the offender apparently had with respect to the manufacture to submit that the offender could not properly be described as lower in the drug hierarchy.

91. Whilst I accept there is no evidence from which the Court could be satisfied that the offender was a principal, I am satisfied from the available evidence that he played a very significant role in a large scale manufacture. On that basis, I am satisfied that the objective seriousness of this offence is in the middle of the range, towards the lower end of the middle-range.

Sequence 3 – Knowingly take part in the manufacture of a large commercial quantity of MDA

92. In assessing the objective seriousness of the offence of knowingly take part in the manufacture of a large commercial quantity of MDA (616 grams) (sequence 3), I have taken into account the following factors:

1. The quantity that was capable of being manufactured, namely 616 grams of MDA - This is at the lower end of the objective seriousness in circumstances where the threshold to establish a large commercial quantity is 500 grams;

2. The part played by the offender in the manufacture - I am satisfied that this offender actively assisted Mr Rafter in the manufacture, recognising that the offence of “knowingly take part” covers a very broad range of conduct including those persons who play only a passive role in the process;

93. It was submitted on behalf of the offender that the objective seriousness of this offence was below the middle of the range and at the lowest end. It was submitted on behalf of the Crown the objective seriousness was above the mid‑range having regard to the active role played by the offender.

94. I am satisfied that the objective seriousness of this offence is below the middle of the range but not at the lowest end. An important factor in making that determination is the quantity of the prohibited drug to be manufactured.

Subjective circumstances

95. The offender is now 57 years of age. He has one matter on his criminal history as an adult in 1994 when he was convicted of one offence of plates calculated to deceive. He was fined $500.

96. Having regard to the absence of any relevant criminal history, I am satisfied the offender is entitled to leniency on sentence.

97. The offender did not give evidence during the sentence proceedings. The following material was tendered on behalf of the offender:

1. Exhibit 1 - Affidavit of Caha Kaddour dated 29 June 2020;

2. Exhibit 2 - Affidavit of Abdul Kaddour dated 30 June 2020;

3. Exhibit 3 - Affidavit of Sahiba Kaddour dated 29 June 2020;

4. Exhibit 4 - Affidavit of Hyam Kaddour dated 1 July 2020;

5. Exhibit 5 - Letter under the hand of Enso Petrini dated 11 May 2020; and

6. Exhibit 6 - Defence written submissions.

98. The offender’s background is outlined to some extent in the affidavits that were tendered during the sentence proceedings.

Affidavit of Sahiba Kaddour

99. Sahiba Kaddour is the mother of the offender and is 87 years of age. She outlined that the family left Lebanon in 1976 because of the civil war. They came to Australia with their eight children. The offender attended Crows Nest Boys’ High School. She indicated that the language barrier made it difficult for the offender to assimilate. She described the offender as a committed student and as a very hard worker after he left school. She described that he worked multiple jobs to support his family including at Tip Top Bakery in a supervisory position and also in the towing field.

100. She described the offender as polite, caring and well behaved as well as a family man who was against smoking alcohol and drugs. She outlined that the offender married and had six children, two of those children have kidney problems and are on dialysis. She described that she was shocked to hear of the arrest of the offender in circumstances where such conduct was out of character.

101. She indicated that the offender had expressed his regret for what he had done and, in her opinion, he had learned his lesson.

Affidavit of Abdul Kaddour

102. Abdul Kaddour is 32 years of age and is the son of the offender. He outlined that he was shocked when he learned of the offending. He described that whilst he was growing up, the offender worked in a 24 hour tow truck business and worked hard to support his family.

103. He outlined that the offender would discourage gambling and drugs. At the time of the offending, Abdul Kaddour described that the offender seemed distant. He said that he could have never imagined that the offender would be involved in drugs. He described that the family continues to support the offender and that the offender has expressed remorse and shame.

Affidavit of Caha Kaddour

104. Caha Kaddour is 29 years of age and is the son of the offender. Caha Kaddour also described that he was shocked to learn of the offending and described the offender as being a role model when he was younger.

105. He also described that the offender was always against drugs and alcohol. He similarly considered that the offender was distant around the time of his arrest. He continued to support the offender and visits him whilst he is in custody. He described that the offender is sorry and ashamed for his conduct and he considers him to be genuinely remorseful.

Affidavit of Hyam Kaddour

106. Hyam Kaddour is the younger sister of the offender. She also described that she was shocked when she heard of the offender’s arrest. She outlined that the offender had led a positive lifestyle whilst he was growing up. She described him as hardworking and employed in various jobs since 16 years of age.

107. She said he dedicated his life to his family and was regarded as a role model. She outlined a number of traumatic events that occurred within the family including the offender’s sister being hit by a car when she was 14 years of age. Whilst she survived, she underwent lengthy medical treatment until she recovered. During this time, Ms Kaddour outlined that the offender supported his parents.

108. In the 1990’s, she described that the offender’s father had a stroke. Again, the offender cared for his father and supported his mother. Sadly, his father had another stroke and passed away. Since that time, Ms Kaddour described that the offender took on a father role with respect to his siblings and since that time two of the offender’s other brothers had passed away. Ms Kaddour outlined that the offender had been married and had four boys and two girls.

109. The eldest boy and the youngest daughter have kidney disease. Ms Kaddour outlined that that marriage broke down in 2012. In her opinion, the offender’s life went downhill after that time and she described the offender as becoming distant.

110. She outlined that the offender then had another relationship with a second partner with whom he has one son, Benjamin, who has a number of health problems. Ms Kaddour indicated that she visits the offender in custody. She described that he is extremely remorseful and he is sorry for what he has done.

111. Upon release from custody, the offender has told her that he wants to resume work and support his families.

Letter under the hand of Enzo Petrini dated 11 May 2020

112. Mr Petrini has known the offender since high school in the later 1970s and they grew up together. He described himself as being astonished to hear of the offender’s arrest and indicated it was not the person he knows. He outlined that he remains supportive of the offender and visits him in custody.

Submissions of the parties

113. Both the Crown and Mr Lange of Counsel who appears on behalf of the offender relied upon comprehensive written submissions supplemented by further oral submissions. During oral submissions, both the Crown and Mr Lange summarised various authorities with respect to sentences imposed for like offending, both acknowledging the limitation of those authorities as comparable cases.

114. In determining the appropriate sentences, I have had regard to those submissions.

Prospects of rehabilitation

115. I am satisfied the offender has reasonably good prospects of rehabilitation. He has no relevant criminal history. He is otherwise of good character. He has a strong employment background, an offer of employment upon release from custody and ongoing family support.

116. I am unable to conclude he is unlikely to re-offend in circumstances where there is no evidence before the Court in relation to what led him to offend on this occasion, so I cannot assess whether those circumstances may arise in the future.

Remorse

117. The offender has expressed his remorse to his children and his sister. I give those expressions of remorse limited weight in circumstances where they were not on oath (see Imbornone v R [2017] NSWCCA 144 per Wilson J at [57]).

Totality

118. In circumstances where the offender is being sentenced for two offences, I am required to consider the question of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not, there should be some accumulation see Cahyadi v R (2007) 168 A Crim R 41. In circumstances where each offence relates to separate and distinct criminal conduct and discloses serious objective criminality, I am satisfied that partial accumulation is required to reflect the totality of the criminality.

Special circumstances

119. It was submitted on behalf of the offender that the Court would be satisfied special circumstances are established in circumstances where it is the offender’s first time in custody. The Crown conceded special circumstances is established.

120. Accordingly, I am satisfied special circumstances is established and I propose to vary the statutory ratio between the non-parole period and the parole period pursuant to s 44(2B), Crimes (Sentencing Procedure) Act 1999 (NSW).

Form 1 offences

121. In sentencing the offender, I propose to take the four Form 1 offences into account in accordance with the principles enunciated in Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

122. I am satisfied that the four offences on the Form 1 are objectively serious having regard to the amounts of each precursor and the potential yields, as I have described in the Agreed Facts.

Delay

123. There has been a lengthy delay between the commission of the offences and the imposition of sentence. That delay was principally due to other trial proceedings involving the offender that were not finalised until 15 November 2019.

124. It was submitted on behalf of the offender that during that time the offender has demonstrated his capacity to rehabilitate relying upon an entry in the custody movement record dated 27 August 2019 which indicates that the offender has had no issues whilst in custody and that he is not considered a management problem.

125. In such circumstances, it was submitted his rehabilitation should be taken into account. I have taken into account that the offender has not had any adverse events whilst in custody. I have also taken into account that he has been on remand for almost five years which means he may have had restrictions upon him that are not placed upon sentenced prisoners.

Determination

126. In determining the appropriate sentence, I have had regard to the purposes of sentences as set out in s 3A, Crimes (Sentencing Procedure) Act.

127. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate for each offence pursuant to s 5(1), Crimes (Sentencing Procedure) Act.

128. I have had regard to the objective gravity of the offences, the relevant prescribed maximum penalties, the offender’s subjective circumstances and the prescribed standard non-parole period in accordance with s 54B(2), Crimes (Sentencing Procedure) Act.

129. I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act.

130. Pursuant to s 53A(2), the indicative sentences for each offence are as follows:

• Sequence 1 (manufacture large commercial quantity of a prohibited drug, 15.32 kilograms of MDA) - A total term of nine years and nine months with a non-parole period of five years 11 months. The starting term for that indicative sentence was 13 years which I have discounted by 25% for the plea of guilty.

• Sequence 3 (knowingly take part in the manufacture of a large commercial quantity of a prohibited drug, 616 grams MDA) - Taking into account the four offences on the Form 1, a total term of six years with a non-parole period of three years and seven months. The starting term for that indicative sentence was eight years discounted by 25% for the plea of guilty.

131. Mr Kaddour, in relation to each offence, you are convicted.

132. Taking into account the Form 1 offences, you are sentenced to a total aggregate term of imprisonment of 12 years and six months to date from 16 August 2015 and expire on 15 February 2028 with a non-parole period of seven years and six months imprisonment to date from 16 August 2015 and expire on 15 February 2023.

133. You will first become eligible for parole on 15 February 2023.

134. I have found special circumstances and I have varied the statutory ratio between the non-parole period and the parole period so I have imposed a lesser non-parole period.

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Decision last updated: 28 October 2020