R v Kassis

[2015] NSWDC 178

District Court

New South Wales

Medium Neutral Citation:	R v Kassis [2015] NSWDC 178
Decision date:	02 April 2015
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Total effective sentence of 7 years 10 months with a total effective non-parole period of 5 years, comprised of the following: Count 2: Sentenced to a term of imprisonment of 3 years 9 months with a non-parole period of 2 years 3 months Count 1 plus Form 1: Sentenced to a term of imprisonment of 7 years 8 months with a non-parole period of 4 years 10 months
Catchwords:	CRIMINAL LAW – sentence – knowingly take part in the manufacture of a prohibited drug Nexus greater than the commercial quantity – supply prohibited drug MDMA greater than commercial quantity; CRIMINAL LAW – sentence – fact finding
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 25, 29, 33, 33A
Cases Cited:	Aoun v R [2011] NSWCCA 284 Ayshow v R [2011] NSWCCA 240 Briouzguine v R [2014] NSWCCA 264 Diesing v R [2007] NSWCCA 326 Farkas v R [2014] NSWCCA 141 Hill v R [2012] NSWCCA 265 Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444 Mokhaiber v R [2011] NSWCCA 10 R v AB [2011] NSWCCA 229 R v Achurch [2011] NSWCCA 186 R v Campbell [2014] NSWCCA 102 R v Chan [1999] NSWCCA 103 R v DW [2012] NSWCCA 66; 221 A Crim R 63 R v El-Azzi [2004] NSWCCA 455 R v Gao; R v Lim [2007] NSWCCA 343 R v Girard; R v Girard [2004] NSWCCA 170 R v Li [2014] NSWCCA 327 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v X [2004] NSWCCA 93 Simpson v R [2014] NSWCCA 23 Winter v R [2011] NSWCCA 59
Category:	Sentence
Parties:	Regina (Crown) Mark Kassis (Offender)
Representation:	Counsel: A Martin (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Nikola Velcic & Associates (Offender)
File Number(s):	2013/00121689

SENTENCE

1. Mark Kassis pleaded guilty on 12 December 2014 to two offences in an indictment. Those offences are as follows:

One, between 5 March 2013 and 19 April 2013, at Putney in the State of New South Wales, did knowingly take part in the manufacture of an amount of a prohibited drug, namely, 7,008.63 grams of 4 Bromo-2,5-dimethoxyphenethylamine, which is not less than the commercial quantity applicable to that prohibited drug.

Two, on 19 April 2013, at Putney in the State of New South Wales, did supply an amount of a prohibited drug, namely, 426.5 grams of 3,4-Methylenedioxymethylamphetamine, being an amount which is not less than the commercial quantity applicable to that prohibited drug.

2. The first offence is contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The amount being not less than the large commercial quantity for that drug, the maximum penalty prescribed for this offence is imprisonment for life and/or 5,000 penalty units, pursuant to s 33(3) of the Drug Misuse and Trafficking Act.

3. The large commercial quantity prescribed for the drug known as Nexus is 100 grams or 0.1 kilogram. Accordingly, the amount here was in the order of 70 times the large commercial quantity.

4. The maximum penalty available for this offence, as already noted, is life, which means actual life imprisonment: s 33A(1) Drug Misuse and Trafficking Act. Although s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply in this case.

5. The section attracts a standard non-parole period of 15 years.

6. The maximum penalty prescribed for count two, it being an offence contrary to s 25(2)/29 Drug Misuse and Trafficking Act, is imprisonment for 20 years and/or 3,500 penalty units. This offence attracts a standard non-parole period of 10 years.

7. The commercial quantity prescribed for the drug known as Ecstasy is 125 grams. The amount here is in excess of three times the commercial quantity.

8. I convict Mr Kassis of both of these offences.

9. There is also an offence of supply prohibited drug, being 6.05 grams of amphetamine, on 19 April 2014 at Merrylands. This offence is to be taken into account on a Form 1 in respect of count one. The amount, 6.05 grams, is twice the trafficable quantity, the trafficable quantity prescribed, being in the Schedule, being three grams. The indictable quantity is five grams.

PLEA OF GUILTY

10. The plea of guilty was entered at the earliest opportunity. Accordingly, he is entitled to a reduction of 25 percent for utilitarian considerations only. The indictment was presented only because there was a defect in the Court Attendance Notice.

11. I am of the view that 25 percent is appropriate even though evidence had to be given in respect of disputed facts: R v AB [2011] NSWCCA 229 at [27].

12. The mitigating factor found in s 21A(3)(i) Crimes (Sentencing Procedure) Act is as follows:

“the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)”.

13. The prisoner pleaded guilty. This is a case though where I reject his account of his involvement in relation to all three offences. Put another way, I am not satisfied on the balance of probabilities his account is truthful. I will return to that shortly.

14. Further, even on his account, he has not acknowledged the injury, loss or damage caused by his actions.

15. He has nowhere acknowledged the very considerable harm to others resulting from the dissemination of drugs into the community. He said in his evidence he did not consider himself responsible for the consequences to the community. The prisoner in his evidence effectively took no responsibility for what was going on (see cross-examination, transcript 16/12/2014 p 37 lines 44-46 and p 38 line 44 through to p 40 line 15).

16. In his letter to the Court dated 27 August 2014, he says, “I’ve let my family down and the community.” There is no acknowledgement of the damage occasioned by his offending behaviour. In a number of the testimonials there is reference to his remorse. The comments are made though in the context of the effect on his family or with no specific reference made in respect of damage to the community.

17. I am not satisfied, even on the balance of probabilities, he is entitled to this mitigating feature. I am in fact satisfied beyond reasonable doubt he is not.

FACTUAL CIRCUMSTANCES OF THE OFFENCE

18. The agreed facts form part of Exhibit A and are as follows:

"In November 2012, a strike force was established as a joint investigation between the New South Wales Police Force and the New South Wales Crime Commission of police investigations to investigate the drug related activities of Mark Kassis (the offender) and associates. Throughout the course of this investigation, police monitored as well as made observations of his activities and recorded intercepted information which involved his physical surveillance and telephone interception.

During November until his arrest on 19 April 2013, the offender resided at a rented property at 27 Patten Avenue, Merrylands. He owned the property at 2 Riverside Avenue, Putney, which consists of a front house and a freestanding granny flat at the rear. The front house has an automatic security lock-up gate that opens from the Riverside Avenue road.

The granny flat at the rear is separated from the front house by a white colorbond fence with no interconnecting door or access between the two premises. The granny flat can be accessed from outside through a remote roller garage door built into the side fence of it. There is no other entry/exit way to it.

About 20 February 2013, police commenced a recorded surveillance on the property at 2 Riverside Avenue, Putney, which continued intermittently on a few days. The offender was observed to access only the granny flat through the roller garage door entry from the side street.

SEARCH WARRANT AT 2 RIVERSIDE AVENUE, PUTNEY

Following regular but non-continuous recorded surveillance conducted on the property since about 5 March 2013, on 18 April 2013, police conducted a recorded covert search at the granny flat. During the covert search, police relevantly located in the kitchen a quantity of powder located in a tub on kitchen bench, a tablet with CK logo in top drawer, a tablet with Superman logo in top drawer, a large number of white tablets in a “Glad” plastic bag in top drawer, 150 tablets in a resealable “Glad” plastic bag in top drawer. Main room, one pill in a rimmed tub, 7,000 to 8,000 tablets with CK logo in plastic containers on a chair. Second bedroom, a large quantity of tablets (about 7,000 to 8,000) in a blue sports bag on a table, a large quantity of powder located in 15 containers on a table, a large quantity of brown powder in a clear plastic container on a table, a number of plastic and yellow gloves, bottles of water, one Superman metal punch near a pill press on a white plastic tray, a number of metal punches with CK , Superman and Mitsubishi brand logos.

Police seized a number of items including a large quantity of tablets and Mount Franklin bottles but the remaining items were left in situ. On 18 April 2013, police installed listening device/s and commenced a 24 hour surveillance on both 2 Riverside Avenue, Putney, and the offender’s residence at 27 Patten Avenue, Merrylands.

About 8am on 19 April 2013, the offender was observed to drive into Riverside Avenue, Putney, and enter the granny flat. A short time later, as he left the granny flat and was walking on Church Street, police arrested him.

Police returned him to the granny flat confines and he was informed of his arrest on video camera. Police conducted a frisk search on him with nothing of relevance located and conveyed him to Ryde Police Station where he was entered into custody. He declined to participate in an electronically recorded interview with a suspected person but consented to a forensic procedure. The offender was charged with the offence of manufacturing prohibited drugs.

On the same date, a recorded crime scene warrant was executed at the subject granny flat and further exhibit items were seized from there.

On 23 July 2013, upon analysis, the tablets and powder were found to contain 7,008.57 grams of 4 Bromo-2,5-dimethoxyphenethylamine, with an estimated purity of 1.5 percent (commonly known as Nexus), and 426.5 grams of 3,4-Methylenedioxymethylamphetamine, with an estimated purity of 8 percent."

19. I interrupt to note the Crown, with no objection from the defence, have now tendered all of the Analyst’s Certificates and in fact the total of “Nexus” in tablet and powder form is 7,008.63 grams. Nothing turns on this minute difference. I do note that in the indictment the amount charged in respect of count one is in fact 7,008.63 grams.

20. As noted in the certificates, the total weight of the “Nexus” tablets was 6,919.3 grams.

21. Returning then to the agreed facts:

"SEARCH WARRANT AT 27 PATTEN AVENUE, MERRYLANDS

Later on 19 April 2013, a recorded search warrant was executed at the offender’s residence at 27 Patten Avenue, Merrylands. Police located two plastic bags containing orange crystals in the garage. Police located a set of scales and a sum of cash in the laundry. Police located food saver bags, a number of plastic resealable bags and a number of gloves from the kitchen.

On 26 July 2013, upon analysis, the crystalline substances were found to contain 6.05 grams of amphetamine (Form 1 matter).

DNA / FINGERPRINT

On 12 August 2013, the profile found on the three handles of the blue sports bag that contained tablets and the mouthpiece of one Mount Franklin bottle that was found in the garbage box from within the granny flat was found to match with the offender’s DNA. No fingerprints were found.

Police obtained CCTV footage and a receipt of purchase from a shop dated 7 April 2013. The footage depicts the offender in the vicinity of the store at the time the bags were purchased. This bag is similar to the blue sports bag which was found to contain a large quantity of tablets at the granny flat at 2 Riverside Avenue, Putney, and which returned a positive DNA match with him.

During police surveillance, the offender was the only person seen to enter and remain at the granny flat, other than on one occasion, on 26 March 2013, when another person was seen to leave the granny flat with the offender.

It is agreed by the parties that the offender’s role was a little more than merely providing the premises for the purpose of manufacturing the prohibited drugs."

22. In the defence written submissions and the psychological report of Dr Milic, dated 22 August 2014, and in the sworn evidence of the prisoner, he gave an account of his involvement. In a summary way, he said he only allowed this person to have a pill press in the flat. He did not agree to any manufacture taking place.

“A few days later I walked into the granny flat to discover that there was actually a process of manufacturing taking course in the granny flat and this is when I panicked and I went and saw the gentleman that I had an agreement with, a friend and I asked him to remove everything from the granny flat. He asked for a two to three week period to be able to remove everything that he had put in there.” (Examination-in-chief, transcript 16/12/14, p 9 line 46 to p 10 line 1)

He explained the bags in his sworn evidence in the following way:

“Q.   We’ve also heard evidence that pills were stored in certain blue bags, what can you tell us about those blue bags?

A.   Well when I saw what I saw and I gave the person the time he requested to remove all the stuff in the granny flat, things weren’t moving quickly so I went and purchased some bags and put them in there to decide what to do, whether I should pick up the stuff and move them elsewhere to one of his associates or just keep them in there and give a little bit more time and wait and see if they can move them themselves.

Q.   So how did the blue bags come into it?

A.   To help them pack stuff and get them out of there asap.

Q.   And you indicated to him that you were prepared to move them yourself, is that what you’re saying?

A.   Well at the time I said to him you’ve got to be out of there within two, three week period as he insisted first because at the time I was panicking about the whole situation and so to help the situation I purchased those bags and I left them there.

Q.   And you offered to take them to another one of his associates?

A.   Anywhere, just to get them out of my way.” (Examination-in-chief, transcript 16/12/14, p 10 line 32 to p 11 line 5)

In cross-examination, he said at p 39 lines 16-26:

“Q.   And you are saying it is not your responsibility as to what happens with it?

A.   No, I just needed to get it out of there.

HER HONOUR

Q.   But you didn’t?

A.   But my intentions were, that’s why I got the bags to get everything out of there, but when he said, ‘Give me those few weeks’, I was sitting there tippy-toeing, don’t know what to do till I had to make that decision myself. ‘Take it and dump it anywhere, I need you to get it out of my way and out of there.’”

This is the supply. And he explained the Form 1 in the following way:

“Q.   You’ve also entered a plea in relation to - sorry, you’ve asked her Honour to take into account the possession of a certain amount of amphetamine that was located in the garage of the premises where you live?

A. Yes.

Q.   What can you tell us about that?

A.   Well the amphetamine, I have a chronic back injury that I normally take medication for but at times I use those amphetamine just to get me through the day when medication doesn’t help. I’ve had it for a long time so I use some of that and at times when I’m at home playing, I do play a little bit of poker games, private games, I use some of that when games go on for 24 to 48 hours, I use some of that and I also give to my friends that are there just to help assist us in prolonging the game.

Q.   Do you still use amphetamines or were you still using amphetamines before you went into custody?

A.   From time to time, sparingly according to what I’m doing.

Q.   When was the last time you had amphetamines?

A.   Maybe six months ago, before my arrest.” (Examination-in-chief, transcript 16/12/14, p 11 lines 7 to 26.)

23. By way of comparison, in relation to this, in the psychological report it is said “shortly before he began a supportive relationship with his wife in his early thirties, he gave up recreational drugs.”

24. I find his account inherently implausible. The account is in my view tailored to the Crown case. Put another way, it explains the evidence against him in an exculpatory way and he concedes to no more.

25. I am aware his account, being in his favour, it is sufficient it be proved on the balance of probabilities. I do not accept his account, even on the balance of probabilities, in relation to any of the offences.

26. I reject his account beyond reasonable doubt, in addition to what I have noted, for the following reasons:

1. Only one other person was seen to enter the flat, even though there was surveillance. The Crown said in the written submissions:

“During 60.12 hours of police active surveillance since November 2012 until up to his arrest on 19 March 2013, there was only one occasion when one other male person was observed to leave the granny flat with him on 26 March 2013. Except for that one occasion, it was only the offender who was seen to attend regularly and remain at the granny flat, on occasions over a number of hours.”

2. The granny flat was his. He owned the whole property.

3. On his account, what the police had implicating him, or the independent evidence against him, just happened to disclose his exact participation. This coincidence is just not believable.

4. Again in relation to the supply, he says he bought the bags to get the “stuff” out. Defence counsel phrased it in this way at transcript p 53 of 16 December 2014, lines 31 to 41:

“MARTIN: My understanding is that he is in effect saying that he’s prepared to take this stuff and take it from one person’s possession and deliver it to another. He’s making that offer to the manufacturer. He is agreeing to supply and agreeing to supply is supply.

HER HONOUR: To supply to a cohort or a confidant of the--

MARTIN: Or accomplice or something but it’s another person, it’s a person other than the manufacturer. That, in my submission, is enough for a supply.

HER HONOUR: So it’s actually an agreement to supply.”

As noted in the cross-examination above, he varied this somewhat in his evidence.

This is inherently unbelievable. I fail to see how a person, if indeed the other “real” offender exists, as Mr Kassis would have it, could not have obtained his own bags. The bags would have been of no use clearly in relation to the pill press.

5. In the written submissions, the account concerning the blue bag is different. At [9] it is said:

“It is noted that about 7,000 to 8,000 of the pills were found in a blue sports bag on a table in the second bedroom and that the offender’s DNA was found on the handles of the sports bag. It is submitted this does not demonstrate that he purchased the bag and/or handled it for that purpose. Rather it is our instructions that he purchased it for tools associated with his business in strata building maintenance and renovation work. He was also in the process of renovating the granny flat and associated house. The bag was thereafter just opportunistically used by the principal to store his/her pills.”

6. As to the supply amphetamine on the Form 1, because of the nature of his evidence generally, I assessed him as a person completely lacking in credit and again I reject his exculpatory account of the supply of the amphetamine.

27. On the other hand, I am not satisfied beyond reasonable doubt of the facts the Crown contends for adverse to the prisoner.

28. Accordingly, I will sentence the prisoner on the basis of the agreed facts, including:

“16 It is agreed by the parties that the accused’s role was a little more than merely providing the premises for the purpose of manufacturing the prohibited drugs.”

29. There is a lack of particularity concerning the supply, being count two, in the agreed facts. I will sentence the prisoner on the basis that he was in possession of the 426.5 grams for the purposes of supply. I make no finding as to the exact circumstances beyond the essential elements of the offence, except to say the MDMA, known as Ecstasy, was part of the enterprise being undertaken in the granny flat in respect of which the prisoner’s role “was a little more than merely providing the premises for the purpose of manufacturing the prohibited drugs.” He is not though of course charged with manufacturing in relation to the Ecstasy.

30. The Analyst’s Certificates disclose the MDMA tablets weighed 39.0 grams and 360.4 grams, a total of 399.4 grams in tablet form. The MDMA powder weighed 27.1 grams, the total being 426.5 grams.

31. In relation to the supply on the Form, I will take that into account on the basis he had all of the drugs for the purposes of supply, the essential elements of the offence.

32. In relation to the seriousness of the offence, each of the offences in the indictment are objectively serious. They are given the amounts involved and the basis upon which I am sentencing the prisoner: Simpson v R [2014] NSWCCA 23 at [25] to [27] (Hoeben CJ at CL). Put another way, each is a serious example of the behaviour made criminal by each of the sections: R v Campbell [2014] NSWCCA 102 at [27]-[33] (Simpson J).

33. The maximum penalties and standard non parole periods specified in respect of each count, life and 15 years in respect of count one and 20 years and 10 years in respect of count two, are not “mere formality, but a yardstick created by the legislature to guide sentencing courts”: R v Li [2014] NSWCCA 327 at [55], also at [51] (Fullerton J).

34. Weight must be given to the offence on the Form.

DEFENCE SUBMISSIONS AND SUBJECTIVE FEATURES

35. In the defence written submissions, the following is found at [12]:

“It is also important to note the Nexus pills only had a purity of 1.5 percent, the powder only 8 percent, there were no cutting agents found and their value would have been at the lowest end of the range.”

36. No expert evidence concerning purity was tendered: Farkas v R [2014] NSWCCA 141.

37. Further, the Crown in the written submissions, in relation to the pills, says at [14]:

“In relation to the defence submission in respect of the purity of the prohibited drug Nexus in this matter, Crown refer to the case of Wu v R [2010] NSWCCA 286 at [30], in which the Court stated:

‘There is no doubt that in some cases purity is important but that is particularly so when the drugs are of a nature such that the purity can be reduced so as to provide more doses and commonly greater profit. Drugs in powder form such as heroin and cocaine commonly fall into this category. However, when the drug is of a nature that it is commonly sold in tablet form, of sufficient strength to be of merchantable quality, and with a view to being consumed without further dilution the purity does not seem to me to be of such great significance. It is by no means unlikely that when Parliament enacted Schedule 1 of the Drug Misuse and Trafficking Act, it was aware of the forms in which various drugs were commonly sold and that the specification of quantities reflected to some extent these sorts of considerations. It is clear from the extent of the Applicant’s activities that what he was selling was regarded by his customers as of merchantable quality, and in those circumstances, I do not regard the purity of the drugs in this case of significant materiality.’”

See also Ayshow v R [2011] NSWCCA 240 at [43] and Aoun v R [2011] NSWCCA 284 at [63]. The Court in those cases held prohibited drugs in tablet form are ordinarily designed for supply in that form to end users without further processing so that the issue of purity is of less importance in such a case.

38. I turn now to the emphasis placed in the written and oral submissions by the defence on R v DW [2012] NSWCCA 66; 221 A Crim R 63. The relevance of this case is greatly diminished and indeed misplaced if it is relevant at all, as the case did not consider an offence with a standard non-parole period in respect of the drug offence (see oral defence submissions, transcript 19/12/14, page 8 lines 14 to 17). The offence charged is conspiracy to manufacture a prohibited drug (amphetamine) in an amount not less than the large commercial quantity. Conspiracy does not attract a standard non-parole period: Li at [2]:

“The sentencing judge mistakenly assumed that the conspiracy count also attracted a standard non-parole period of 15 years (R v DW [2012] NSWCCA 66; 221 A Crim R 64 at [38]).”

39. The standard non-parole period does apply to the offence of knowingly take part: Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444 at [53]:

“For the foregoing reasons, in my opinion, the standard non-parole period provisions apply to an offence of knowingly take part in the manufacture of the large commercial quantity of 3,4-methylenedioxymethylamphetamine contrary to s 24(2) of the Drug Misuse and Trafficking Act. The standard non-parole period prescribed is fifteen years: Part 4 Division 1A of the Crimes (Sentencing Procedure) Act and Table item 17.”

See also Diesing v R [2007] NSWCCA 326 at [53].

40. The case of R v El-Azzi [2004] NSWCCA 455 also did not consider an offence with a standard non-parole period. The offending took place between 1995 and 1996, well before 1 February 2003. Standard non-parole periods, when first enacted, applied and still apply to offences committed after 1 February 2003: Act 90 of 2002, being the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) (compare increase in penalty in relation to s 61M(2) offences, 1 January 2008).

41. The case of Hill v R [2012] NSWCCA 265 did consider a standard non-parole period offence of supplying not less than the large commercial quantity of a prohibited drug. The case was recently considered in Briouzguine v R [2014] NSWCCA 264.

42. In Hill, there was only one offence and nothing on a Form. There were very favourable subjective features. A reduction of 50 percent for the utilitarian value of the plea and past and future assistance was applied. A finding was made favourable to him as to why he participated in the offending.

43. In Briouzguine, the following is found at [76]:

“Most recently in MLP v R [2014] NSWCCA 183 at [41] to [44], Bellew J (Macfarlan JA and Adamson J agreeing) commented upon the difficulties which are prone to arise from comparative exercises based on a limited number of cases presented to the Court as demonstrating some established sentencing range for particular offences. His Honour’s observations bear repeating.

’41   Firstly, consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R at [48] to [49].

42   Secondly, in seeking consistency, other cases may establish a range of sentences which have been imposed. But the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2, 305 ALR 323 at [41].

43   Thirdly, the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were.

44   Consistent with such statements of principle, this Court has emphasised the need to adopt a careful approach when asked to utilise statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another.’”

44. Accepting the law is the amount involved is not determinative however it remains a relevant consideration, here the manufacture concerned in excess of seven kilograms, 70 times the large commercial quantity. The MDMA was in excess of three times the commercial quantity.

45. There was no evidence of any dissemination of these drugs into the community. The defence, at [25] of the written submissions, rely on the judgment of R S Hulme J in DW in support of the proposition this feature lessens the criminality. This was not a case though involving an undercover operative. Further, in the case of R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [172], a different view of this matter was taken. Also R v Chan [1999] NSWCCA 103, R v Gao; R v Lim [2007] NSWCCA 343, R v Achurch [2011] NSWCCA 186 at [88]-[97], and Aoun at [65]. These cases speak of the limited relevance of non-dissemination of drugs into the community. I only give little weight to this consideration in the circumstances of this case.

46. I have taken into account all of the material tendered in the defence case.

47. The prisoner was born on 11 July 1970. He is now aged 44 and about nine months. He was aged 42 when the offences were committed.

48. He is a person with no prior convictions. He is previously a person of good character. I consider his prospects for rehabilitation are only reasonable given my findings concerning his honesty and his failure to take responsibility for the potential damage to others as a result of his offending behaviour.

49. It is to his credit that he has been working hard whilst in custody.

50. It is extremely difficult to assess whether a person will or will not offend again. I make no finding one way or another.

51. I have read and taken into account the content of the psychological report. He had a difficult background. He has worked hard. He has abused drugs and gambled to excess.

52. I take into account the testimonials. Each speak highly of him. He is supported by his wife and his in-laws.

53. He has health issues. I am of the view though, the two reports from Justice Health, dated 26 August 2014 and 1 December 2014, disclose his concerns are being investigated and he is receiving treatment whilst in custody. These two reports form part of the material tendered by the Crown.

54. His wife has health concerns. In the psychological report of Dr Mark Milic, dated 11 December 2014, about the prisoner’s wife, item 21 in the defence sentence material, there is reference to reports of Dr Andrew Pesce, not tendered, being 1 August 2013 and a medical certificate dated 7 November 2014 saying major surgery was planned for 15 December 2014 regarding severe endometriosis and she would be unfit for work until the end of January 2015. In the report at p 4, it says the surgery was postponed to 5 January 2015 from 15 December 2014.

55. There is no evidence as to whether this surgery took place or not. What is clear though is she has been able to maintain, at least as at 11 December 2014, full-time employment in a responsible position for nearly five years and she runs a part-time business.

56. In my view, this case is far removed from being exceptional. In Mokhaiber v R [2011] NSWCCA 10, Price J said at [30]:

“It is settled principle that hardship to members of an offender’s family is generally irrelevant as it can be assumed that imprisonment will cause hardship to others in the offender’s family. Hardship to family members caused by a prison term can only be taken into account in ‘highly exceptional circumstances’: R v Edwards (1996) 90 A Crim R 510 at 516-517 per Gleeson CJ.”

57. It is a subjective circumstance: R v X [2004] NSWCCA 93, R v Girard; R v Girard [2004] NSWCCA 170 at [21] and [22]. One though, in the circumstances of this case, I give minimal weight to. Unfortunately, the wives and children of prisoners are almost inevitably affected by the incarceration of the husband and/or father. See also Winter v R [2011] NSWCCA 59.

58. I do accept the prisoner is concerned about his wife.

CROWN SUBMISSIONS

59. I have taken into account the Crown written submissions, in particular the submissions concerning hardship to family.

60. The Crown noted at [20]:

“In the case of R v Reardon (1996) 89 A Crim R 180 at 194, the Court stated that ‘the manufacture of drugs is a serious offence, involving a high degree of criminality which calls for condign punishment.’”

At [25]:

“Crown submits that the need for personal and general deterrence remains of paramount importance in this type of matters.”

61. Clearly, general deterrence must be a significant feature of this sentencing exercise. Also, some weight needs to be given to specific deterrence.

62. The defence submitted the sentences should be served concurrently. The Crown submitted there should be partial accumulation. I accept the Crown submission. The partial accumulation should be very modest.

63. In relation to special circumstances, Mr Martin submitted at transcript 19/12/14, p 8 line 36 ff there were a number of features giving rise to special circumstances. There has recently been an amount of authority in the Court of Criminal Appeal as to what special circumstances are not. I am of the view the following in combination are special circumstances: this is his first custodial sentence, a need for assistance to integrate back into the community after a lengthy period in custody, and his reasonable prospects of rehabilitation. Also, his background of depression and excessive gambling can be better treated in the community. In relation to count one, the partial accumulation.

64. The effective non-parole period imposed in this case is the one which in my view appropriately reflects the objective seriousness of the offending, the requirement for general deterrence and the subjective matters.

65. I have given careful consideration to the principle of totality.

SENTENCES

66. Count two: The sentence I would have imposed prior to reduction for utilitarian considerations of 25 percent is 5 years. That reduced by 25 percent is 3 years, 9 months. The non-parole period I impose is one of 2 years, 3 months, commencing on 19 April 2013 and expiring on 18 July 2015. The total term is 3 years and 9 months, commencing on 19 April 2013 and expiring on 18 January 2017.

67. Count one and the offence on the Form: Taking into account the offence on the Form, the sentence I would have imposed prior to reduction for utilitarian considerations of 25 percent is 10 years and 3 months. That reduced by 25 percent is 7 years, 8 months, 1 week, rounded to 7 years and 8 months. The non-parole period I impose is one of 4 years and 10 months, commencing on 19 June 2013 and expiring on 18 April 2018. The total term is 7 years and 8 months, commencing on 19 June 2013 and expiring on 18 February 2021.

68. Accordingly, the total effective sentence is 7 years and 10 months, and the total effective custodial component is 5 years.

69. The allowance for special circumstances in relation to the total sentence is 10.5 months. If released on parole on the consideration date, the prisoner will still be supervised in the community for 2 years and 10 months. This is ample, in my view, in the circumstances of this case.

70. The special circumstances are those noted in my remarks on sentence.

71. You will be eligible for consideration for consideration for release to parole on 18 April 2018.

72. I make an order that the drugs be destroyed and any equipment, including the pill press, be forfeited to the State.

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Decision last updated: 21 August 2015