R v Klein

[2020] NSWDC 165

District Court

New South Wales

Medium Neutral Citation:	R v Klein [2020] NSWDC 165
Hearing dates:	13, 17 & 20 February 2020
Date of orders:	20 February 2020
Decision date:	20 February 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 10 years with a non-parole period of 6 years: at [38].
Catchwords:	CRIME — Drug offences — Manufacture prohibited drug — Commercial quantity — Supply prohibited drug — Commercial quantity CRIME — Firearms offences — Unauthorised use/possession of firearm — Use/Possess prohibited pistol/firearm — Firearms prohibition orders SENTENCING — Penalties — Imprisonment SENTENCING — Aggravating factors — Breach of conditional liberty — Planned or organised criminal activity SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Multiple offences — Purposes of sentencing SENTENCING — Sentencing procedure — Use of statistics SENTENCING — Subjective considerations on sentence — Hardship — Protective custody — Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Firearms Act 1996
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Bell v R [2019] NSWCCA 271 El Kheir v R [2019] NSWCCA 288 Greentree v R [2018] NSWCCA 227 R v Astill (No 2) (1992) 64 A Crim R 289 R v Irwin [2019] NSWCCA 133
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Martin Klein (Offender)
Representation:	Ms Keay (Crown Prosecutor)   Mr Strickland SC (Counsel for the offender)
File Number(s):	2018/83025; 2018/204202

Judgment

1. Martin Klein, aged 38, had no serious criminal record before appearing for sentence today. He had a conviction for consorting in 2014 which led to him being on a section 10 bond for two years at the time of the offending in this case. He was also on a section 10 bond for possessing a prohibited drug. He appears for sentence today in relation to the manufacture and possession, for the purposes of supply, of a significant quantity of prohibited drugs, and also a number of related firearm offences.

2. It is agreed that a period of full-time custody is the only outcome of these proceedings and that a term of imprisonment should commence from the time he was arrested on 14 March 2018 when he was taken into custody.

3. Mr Klein pleaded guilty, at an early stage attracting a discount of 25% for the utilitarian value of the plea, to the following offences:

1. H68972279/001, knowingly take part in the manufacture of a large commercial quantity of MDA contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of life imprisonment, with a standard non-parole period of 15 years;

2. H68035474/001, of supply a large commercial quantity of MDA, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years. A Form 1 matter is to be taken into account on this sequence, namely H68035474/017, supply prohibited drug being 331 grams of cocaine which carries a maximum penalty of 15 years imprisonment.

3. Sequence 003, possess an unregistered .22 calibre rifle contrary to s 36(1) of the Firearms Act 1996 which carries a maximum penalty of five years. To be taken into account on a Form 1 (018), is an offence of acquiring a firearm (.22 calibre rifle) while subject to a firearms prohibition order, contrary to s 74(1) of the Firearms Act 1996, which carries a maximum penalty of five years imprisonment.

4. Sequence 007, possess an unregistered firearm, being an air rifle, contrary to s 36(1) of the Firearms Act 1996, which carries maximum penalty of 5 years imprisonment. To be taken into account on a Form 1 (006) is an offence of acquiring a firearm (air rifle) while subject to a firearms prohibition order, contrary to s 74(1) of the Firearms Act 1996, which carries a maximum penalty of five years imprisonment.

5. Sequence 012, possess an unauthorised pistol, contrary to s 7(1) of the Firearms Act 1996, which carries a maximum penalty of 14 years imprisonment, with a standard non-parole period of four years. To be taken into account of a Form 1 on the sequence are:

1. Sequence 010, acquiring a pistol while subject to a firearms prohibition order contrary to s 74(1) of the Firearms Act 1996 which carries a maximum penalty of 14 years.

2. Sequence 014, possessing as silencer, being a prohibited weapon contrary to s 7(1) of the Firearms Act 1996 with carries a maximum penalty of 14 years.

3. Sequence 015, acquiring ammunition while subject to a firearms prohibition order contrary to s 74(3) of the Firearms Act 1996, which carries a maximum penalty of five years imprisonment.

4. The Form 1 offences referred to will all be dealt with in the way suggested by the Chief Justice in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. in

Facts

5. The offences arise out of investigations carried out by a police strike force which was established to investigate the criminal activities of the offender, specifically the supply of MDA following the discovery of several importations of unscheduled precursor chemicals delivered to a tyre business at Drummoyne.

6. Klein lived in Beaumont Hills, with his partner. He was observed to use storage cage 29 in the basement of premises at Kellyville Ridge. Cage 29 was owned by his mother. He was also monitored accessing a blue Aldi cooler bag that was stored in the storage cage. A search of the storage cage located precursors to the manufacture of MDA, prohibited drugs, firearms and ammunition.

7. There was a further search warrant executed at a remote property in Oallen, NSW to which he was connected. This property was found to be the site where the manufacture of the MDA occurred.

8. He had been served with a Firearm Prohibition Order (FPO) on 20 May 2016 and that was still in force at the time of the offences.

9. A number of alleged co-offenders are named: Osama Tawfik, whose matter is listed for trial; Adib “Eddie” Faraj; Benjamin Bonnett who has apparently left the jurisdiction; and Jamie Huniakoff, who were all, according to the agreed facts, identified to be active participants within a criminal group that manufactured a large quantity of MDA.

10. The Crown accurately summarises the facts in relation to the manufacturing as being that the property at Oallen was owned by a close family friend of the offender. In September 2017 he received four cylinders of recently imported HCI at his residence, which he stored in his garage. On October 2017 he purchased four induction cooktops. In November he transported a full-bore multipurpose mixer box, later found at the Oallen property, and he also towed a box trailer from Kennards Hire. He also hired a heavy‑duty generator which was at the Oallen property between 21 November and 19 December. This operated for extended hours during that period and was necessary for the manufacturing process as the property had limited power. During this period the offender’s phone was near his home address and his vehicle travelled to and from the direction of the property.

11. On 13 March 2018 police searched the storage unit used by him and found 17.35 kilograms of MDA in pills. They also located powders that could be used as caking agents, chemicals used in the manufacture of MDA, a press drill stamp and documents relating to the purchase of chemicals from China.

12. On 15 March 2018, a police search of the Oallen property revealed a clandestine laboratory where the MDA had been manufactured. Police found, in an intermediate state of manufacture, a large commercial quantity of MDA. Police also located an empty HCI cylinder previously stored by the offender and the serialised induction tops purchased by the offender. The agreed facts go into significant detail, which it is unnecessary to recount here, as to the matters unearthed by the surveillance operation.

13. The total weight of the grey tablets located was 17.35 kilograms of MDA, as I have said, and MDA weighing 154 grams in powder form was also located with a purity of 4.5% for the pills. Police calculated there were about 63,625 tablets with an estimated street value of between $318,125 and $636, 250 if sold by the kilogram, but if sold as single tablets the value would have been between $954,375 and $2,863,000 at a rate of $15 to $45 per tablet.

14. Police also found three heat‑sealed bags containing 333 grams of cocaine which is the subject of the Form 1 charge and a bag containing the Winchester shortened .22 calibre rifle and a .177 single shot air rifle, both wrapped in towels. The .22 had been reported stolen by its lawful owner. They were both test fired and found to be in working order and the bag also contained 205 rounds of ammunition and a silencer, also subjects of the Form 1 counts.

15. At about 5.20 on 14 March, Klein arrived at the unit complex at Kellyville Ridge and accessed cage 29. He commenced to search frantically through the items inside the caged area and said, “This is no good fuck I got robbed. Fuck everything is gone.” He appeared distressed and searched the cage for a while before investigators approached him and arrested him. He had the keys to the cage in his possession. He declined to participate in an interview. Later that day, police executed a search warrant for cage 29 and found a mobile phone with multiple emails to China commencing in 2016 seeking quotes and making orders for the purchase of substances, but there is no evidence that the offender was the user of that phone or the author of those emails. A colt 38 revolver with 27 rounds of ammunition was also found at that stage and it was in working order.

16. The property at Oallen was searched the next day, and a large clandestine laboratory was found with equipment consistent with the large commercial manufacture of MDA. He was not charged with the manufacturing count until July 2018 while he was in custody. Tawfik was arrested in October 2018.

Subjective Material on Sentence

17. There is a significant quantity of subjective material provided by Mr Strickland SC, on behalf of the offender. There are two references from his father, who also gave evidence before me today. He and others described the difficult circumstances of the offender’s divorce when he was 16 years of age. His father also gave evidence that that he was not in good health, but does hope to be able to live to see his son regain his freedom. He was unchallenged when he recounted expressions of sincere remorse and how sorry his son is that he has been involved in this type of activity.

18. I also have detailed testimonials from his brother, and from his teenage daughter who speaks in heartfelt terms of how difficult it is knowing that the has made a big mistake, but how close she is to him while he is in custody and the love that he professes for her and how he hopes to make things up to her on his release. His former wife also speaks of the difficult circumstances that have followed the offender’s arrest.

19. The difficulty with these references, as is frequently the case, is that people describe an offender as a good person who is caring and willing to put the needs of others above and beyond their needs, but they have to be taken into account in conjunction with the agreed facts as to the seriousness of the criminal offending. That does not by any means discount the sincerity of the support that is provided by the authors of the references. His second cousin, also speaks in favourable terms of him and the salutary experience that his time in custody has been.

20. His father also spoke of the threats that had been made to the offender while in custody which has led to him being in segregation for some significant time before being moved to another correctional facility. He says he did not believe that Martin lived a very expensive lifestyle before he went to prison, and there is no evidence of such a lifestyle. He describes the continued attempts of him and his ex-wife to maintain some family connection.

21. His mother provided a lengthy affidavit setting out the background and also the threats that had been made against him. She says that she was aware before his arrest of his association with the Finks Motorcycle Club. She describes his education, which was unremarkable, and his regular employment throughout his life. She spoke of the support that was provided by Martin when she was diagnosed with cancer in 2017.

22. His former employer, Mr Hanna speaks favourably of him as an employee and confirms his willingness to provide him employment upon his release.

23. Mr Strickland SC took me to a number of entries in the Corrective Services records which support the proposition that he was held in segregation for some significant time and the evidence by way of a letter from his solicitor shows a request to be moved from Goulburn in July 2018 on the basis that he decided to withdraw his association and affiliation with the Finks motorcycle group notwithstanding that his safety was compromised. Corrective Services acted quickly on that request and transferred him. The 28 pages of case notes speak favourably of Mr Klein’s conduct while in custody. There are no adverse entries and there are a number of references to remand addiction programs and other improvement programs that he has attended. There are a number of summaries of histories given to a psychologist while he has been in custody since July 2018 which suggest some symptoms of mental illness, but there’s been no consultation or recommendation for treatment as far as any mental health practitioner is concerned. Mr Strickland says that these entries in the Corrective Services records also speak well of his prospects of rehabilitation, a submission which is clearly well-founded. He has been employed for some significant period in the print shop and only lost that employment relatively recently due to a decision by the Department of Corrective Services to only employ sentenced inmates, but he is considered an asset to the business and when sentenced can recommence employment in the print shop.

Submissions

24. There is not a great deal in issue between the very helpful written submissions prepared by the Crown and by Mr Strickland. It is noted that he was on a section 10 bond, being on conditional liberty at the time of the offending which is a matter to be taken into account.

25. The Crown and Mr Strickland SC have both dealt in writing with three relatively recent cases, Bell v R [2019] NSWCCA 271, El Kheir v R [2019] NSWCCA 288 and Greentreev R [2018] NSWCCA 227 and I have had careful regard to the sentences imposed in those cases and the matters that have been put in writing about them.

26. Having referred to the alleged comparatives, the Crown accurately says that this was a sophisticated and organised operation to manufacture a large commercial quantity of MDMA on a rural property. The offender played a significant role in the operation; providing premises for a clandestine laboratory, storing and transporting chemicals and equipment. While the amount of the drug is not the only significant factor in the assessment of objective seriousness, it does reflect the scale of the operation. There is no challenge to the assertion that the offender participated in the manufacture of MDMA for profit which is the conventional inference in the absence of evidence to the contrary.

27. Mr Strickland SC points to a number of factors to be born in mind in assessing objective seriousness of the manufacturing count, namely it was at an intermediate stage. The final potential yield was not known other than that it would have exceeded the large commercial quantity. His role was to purchase equipment and deliver it to the premises as well as other responsibilities to which I have referred. Even though the offender’s fingerprints or DNA were not found on any tested items from the location, it is an inescapable inference, as the Crown says, that he was present during the period of operation. I assess the objective seriousness of the manufacturing count as below the mid-range.

28. Turning to the supply count, that obviously arises from the possession of the large amount of MDA found in the garage and the surveillance clearly shows that he was accessing the cooler bag containing some of the drug on multiple occasions in the time leading up to the seizure. There is no evidence of anyone else accessing the storage unit and his reaction to the covert seizure reflects his possession of the drug and its value to him.

29. Mr Strickland, says contrary to the Crown’s submissions, there is evidence of joint possession of the MDMA, and points to there being no evidence that the offender used the phone to send the emails to which I have referred and that the DNA of Michael Izod was found on the plastic bucket, but that is not sufficient to reduce in any meaningful way the significant level of possession demonstrated by the agreed facts. The period of possession is pointed to as being a period of about two weeks. There is no evidence of actual supply and the purity was fairly low. I take account of what Leeming JA said in El Kheir v R [2019] NSWCCA 288 at [40],

As the Crown submitted in supplementary written submissions supplied on 29 November 2019 in accordance with the Court’s leave, the purity of a mixture manufactured by an offender is an objective factor that affects the seriousness of the offence within the meaning of s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999. How could it be otherwise? There is a material distinction between the objective seriousness in manufacturing, say 5 litres of a liquid from which 4 kilograms of methylamphetamine can readily be extracted, and manufacturing 5 litres of a liquid from which 1 gram of methylamphetamine can be extracted. Both instances amount to manufacturing a large commercial quantity of a prohibited drug. However, the criminality of the former exceeds that of the latter. The harm to the community, and the financial gain potentially available to the offender, are many times greater in the case of the former as opposed to the latter.

30. As to the firearms offences, the firearms were in working order. The possession of firearms is a serious offence attracting a significant measure of general deterrence. Deterrence, of course, being one of the purposes of sentencing that must be taken into account under s 3A of the Crimes (Sentencing Procedure) Act 1999.

As the Court said in R v Irwin [2019] NSWCCA 133 at [134], The possession of firearms in association with other criminal activity gives rise to a risk of lethal use and it is a relevant factor in sentencing, as is the fact that the firearms were acquired contrary to a firearms prohibition order.

31. The Court also said in R v Irwin [2019] NSWCCA 133, that

Shortened firearms have no legitimate purpose. They are particularly dangerous because of their capacity for concealment. This makes them suited for serious criminal activity; a consideration which calls for condign punishment

32. I assess the objective seriousness of the firearms offences as slightly below mid-range.

33. I have regard to the statistics provided by the Crown. In relation to the manufacturing and the supply counts they are a very blunt tool, as the authorities suggest, but they are of some assistance in indicating the range of sentences that have been imposed in other matters, without, of course, knowing anything about subjective or objective circumstances of the case.

34. In summary, Mr Strickland SC says the offences were committed between August 2017 and March 2018 when the offender was 35. He has a daughter Ava who is now 12, who visits him regularly in custody. The evidence demonstrates that he is a devoted father and son, particularly to his mother. Although the offences were committed in breach of a section 10 bond he has never received a term of imprisonment before. He has pleaded guilty and I accept his expressions of remorse and contrition to other family members, even though he has not given evidence himself. He certainly has a very solid family support base, which is fortunate, and he has taken positive steps at significant personal cost to distance himself from his former criminal associates and to rehabilitate himself. I accept that he is most unlikely to reoffend given the salutary lesson that he has learnt.

32. Submissions have been put as to the conditions under which his custody has been served, including a lengthy period of about nine months in segregation. The conditions of custody are no doubt more onerous, involving significant periods of each day in lockdown and isolation from much human contact, so that his ability to engage in educational courses or any other meaningful activity was impaired, for the period at least until he went to Shortland.

33. The Crown does not challenge the proposition coming from R v Astill(No 2) (1992) 64 A Crim R 289 that the onerous conditions of custody for some time should lead to a discount on the sentence that would otherwise be imposed, either by reducing the head sentence or by finding special circumstances. I will address that submission by a significant finding of special circumstances. There is no doubt that an aggregate sentence is the appropriate ultimate disposition of this matter, given there is an underlying unity for all of the crimes to which he has pleaded guilty, namely, engaging in serious drug offences. I accept in the light all the evidence that he was involved with an outlaw motorcycle gang, such comes from his own admissions to his family before his arrest and from other sources. He has paid a heavy price for disassociating himself from that gang.

34. There is an unchallenged history of a long-standing drug addiction, which is a matter that will lead to a need for rehabilitation and treatment and an extended period of supervision, and the fact that his conditions of custody have been and may well be, at some future time, more onerous than normal are further matters to be taken into account in finding special circumstances.

35. The orders that I will make are:

1. The offender is convicted of each offence.

2. The indicative sentences are:

1. H68972279/001 – 7 years; NPP 4 years, 6 months

2. H68035474/001, taking into account the Form 1 matter (017): 7 years, 6 months; NPP 4 years, 10 months

3. 003, taking into account the Form 1 matter (018): 22 months

4. 007, taking into account the Form 1 matter (006): 22 months

5. 012, taking into account the Form 1 matters (010, 014, 015): 3 years; NPP 2 years

3. I impose an aggregate sentence of imprisonment of 10 years, to commence on 14 March 2018.

4. I impose a non-parole period of 6 years, expiring on 13 March 2024.

5. I find special circumstances.

CONFISCATION ORDERS:

1. I make confiscation orders pursuant to the Short Minutes of Forfeiture Order dated 20 February 2020, namely that cash in the sum of $1298.80 found on the person of the respondent on 14 March 2018 be forfeited to the State.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 04 May 2020