R v MacGregor

[2017] NSWDC 249

District Court

New South Wales

Medium Neutral Citation:	R v MacGregor [2017] NSWDC 249
Hearing dates:	3 August 2017
Date of orders:	03 August 2017
Decision date:	03 August 2017
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	For the offences in relation to the charges of knowingly take part in the manufacture or production of methylamphetamine and knowingly take part in the supply of methlyamphetamine, I set a NPP of 2 years, 6 months, commencing 25/5/15 and expiring 24/11/17. I impose a further period of imprisonment of 2 years to commence upon the expiration of the NPP and expiring 24/11/19. The total sentence is, therefore, 4 years and 6 months comprising the NPP and the balance of the sentence. Form 1 matters taken into account.  For the offence in relation to the charge of resisting a police officer in the execution of his or her duty, I set a period of full-time imprisonment for 1 month, commencing 25/5/15 and expiring 24/6/15.
Catchwords:	CRIME – SENTENCE – offences of knowingly take part in manufacture or production of a prohibited drug, knowingly take part in supply of a prohibited drug, and resisting police officer in the execution of his or her duty – history of offending – risk of institutionalisation – effect of positive conduct whilst incarcerated
Legislation Cited:	Crimes Act 1900 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v MacGregor [2000] NSWCCA 552
Category:	Sentence
Parties:	Regina (Crown) Craig Andrew MacGregor (Offender)
Representation:	Counsel: Mr R Graham (Crown) Mr D.C. McCallum (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Catherine Hunter Solicitor (Offender)
File Number(s):	2015/155478
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Craig Andrew MacGregor stands for sentence as a consequence of having pleaded guilty to three charges. The first is a charge contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 that carries a maximum penalty of 15 years imprisonment and or a fine of 2,000 penalty units. The formal charge is that on 25 May 2015 at Camperdown he did manufacture or knowingly take part in the manufacture of a prohibited drug, namely, methylamphetamine. There is a further charge pursuant to s 25(1) of the same Act which also attracts the same penalty, that is, 15 years imprisonment and or 2,000 penalty units. The offence there is the possession of an indictable quantity of methylamphetamine, the same amount as is alleged in the manufacturing process, 25 grams of the substance. The third offence is one contrary to s 58 of the Crimes Act 1900, resisting a police officer in the execution of his or her duty, which carries a maximum penalty of five years imprisonment. After the offender was arrested for his drug offences he sought to escape from lawful custody that lead to a short pursuit by police officers and a struggle before he was subdued and handcuffed. There is no suggestion that any member of the constabulary suffered any wound, injury or hurt. There is no charge of assaulting a police officer in the execution of his or her duty. The facts of that offence are at the bottom for the range of objective seriousness for offences of this nature.

2. To understand the nature of the current offences it is necessary to review the offender’s history. The offender was born on 19 December 1974. He is currently aged 42 years old. He is the elder of two boys. He grew up on the North Shore of Sydney. His parents separated when he was approximately 13 years old. Prior to the separation of his parents their relationship had been strained for several years. There were proceedings in the Family Court concerning who ought to have custody of the offender’s younger brother. That added to the tension between the offender’s parents. The offender believes that the divorce of his parents was a “big change” in his life causing him to “go off the rails”.

3. Throughout his high school years the offender told a psychologist, who interviewed him for the purposes of this sentencing hearing, Ms Megan Godbee, that he had difficulties concentrating throughout high school and he did not use sufficient effort to obtain good marks in his school examinations. According to the same history his friends began to exclude him or tease him and on one occasion he retaliated to what he considered to be bullying by punching one of his tormentors. That appeared to take away some of the tension. There were other outbursts of adolescent misbehaviour at school, including the smoking of cigarettes which led to a suspension from school on one occasion.

4. He completed the Higher School Certificate and despite the fact that he believed he could have done better in his schooling he obtained good marks in the HSC. He then began a building course at TAFE while working part-time as a landscaper. He then decided he would join the advertising industry and subsequently earned diplomas in both Business and Multimedia through TAFE. From that time onwards the offender was normally working in the advertising industry, other than during periods of imprisonment, but not since his last discharge from custody.

5. The offender’s criminal record indicates four different offences alleged to have been committed on 21 October 1999, although I have doubts as to whether the exact offences have been noted up in the offender’s criminal record. Suffice it to say that the offender stood for sentence before Judge Morgan on 16 June 2000. Her Honour’s primary sentence was nine years with a non-parole period of six years. The offender appealed to the Court of Criminal Appeal: R v MacGregor [2000] NSWCCA 552. Hidden J, with whom Mason P and Carruthers AJ agreed, reduced the primary sentence to eight years with a non-parole period of five years. The primary facts behind those offences are that on 21 October 1999 a German national flew into Sydney from Bali. He was carrying on his person 8,000 tablets of ecstasy amounting in total to 2,306.9 grams which was the equivalent of 657.3 grams of the pure drug. Having been detained by the Australian Federal Police he agreed to turn Queen’s evidence and proceeded with the planned criminal venture with substituted ecstasy. At about 6.55pm on the day that the German national arrived in Australia the offender attended upon his hotel room in central Sydney and collected a black bag containing the substituted ecstasy. The offender gave the German national $1,000 in exchange for the ecstasy and said that he would arrange for additional monies to be paid to the German national on the following day. The offender left the hotel and entered a motor vehicle and travelled towards Mosman. When he was travelling towards Mosman the police noticed that he was opening the bag to inspect the contents to see what was actually within the black bag. It was then that the police intervened and arrested the offender. Two days later the Australian Federal Police executed a search warrant at the offender’s premises which were then in Coogee. They found 32 ecstasy tablets in a red drink container in his flat. The total weight of the ecstasy was 2.16 grams.

6. Her Honour Judge Morgan described the offender as being motivated by financial gain and appears to have accepted that he was not a user of the drug. However, subsequent histories all indicate that the offender had been a user of ecstasy some time prior to his arrest on 21 October 1999.

7. The offender’s five year minimum gaol sentence commenced on the day of his arrest, 21 October 1999.

8. At the age of 14 the offender had commenced drinking alcohol and described to the psychologist, Ms Godbee, a pattern of weekend binge drinking throughout high school. At about the same time he started smoking cannabis with his “mates”. The offender estimated that he used 1 gram per day until he was approximately 20 years old. He realised that the use of cannabis was causing some paranoia: he thought people were trying to hurt him. He then stopped using cannabis. However, at the age of 17 he started using ecstasy as part of a “weekend party lifestyle”. It would appear that his use of ecstasy increased when he gave up using cannabis.

9. After the offender’s release from his first lengthy prison sentence he started using crystal methylamphetamine, commonly known as ice. According to Ms Godbee’s history he started using that substance at the age of 31.

10. According to the offender’s criminal record he appeared before this Court sitting at Goulburn on 23 May 2008 having supplied a commercial quantity of a prohibited substance on 2 December 2006. At that time the offender was aged 31. Despite the nature of the charge the criminal record indicates that the offender was sentenced to imprisonment until the rising of the Court.

11. However, on 29 April 2009 the offender was arrested and charged with two significant offences, one of which was a conspiracy to manufacture the prohibited drug methylamphetamine. He stood for trial by a judge‑alone before his Honour Judge Cogswell at Newcastle in December 2011 when his Honour found the offender not guilty of conspiracy to manufacture a commercial quantity of that drug but later sentenced the offender for conspiring to manufacture the indictable quantity of that drug, an offence to which he had belatedly pleaded guilty before the judge‑alone trial. In his remarks on sentence Judge Cogswell said this:

“[8]. He was engaged with two other people in a process of manufacturing methylamphetamine. This process occurred in Mr MacGregor’s unit. He was not only manufacturing methylamphetamine, a prohibited drug, but was engaged also in manufacturing other kinds of substances which were not legal. When police came to his unit and arrested him they found a large amount of chemical, equipment and solutions, and in fact one chemical process was underway when the police arrived. In itself it was not an illegal process. It was a very chaotic scene and was like an amateur laboratory.”

His Honour for that offence started with a head sentence of six years imprisonment which he discounted by 20% because of a “slightly belated” plea of guilty giving a head sentence of four years and nine months. His Honour fixed a non-parole period of three years. For the other offence for which the offender then stood for sentence, his Honour sentenced the offender to a fixed term of 18 months but commenced the sentence for the drug offence to commence one year after the commencement of the fixed term sentence. Accordingly, the offender became eligible for parole on 28 April 2013 pursuant to his Honour’s orders.

12. When the offender was released on parole, the offender’s response to supervision by Community Corrections was considered satisfactory. The presentence report indicates that case management focussed on addressing alcohol and drug use, and mental health. The offender did not re-enter the advertising industry but obtained work in a factory, I assume, somewhere in the inner western suburbs. However, he injured his shoulder or arm about two months prior to being arrested for the current offences and relapsed into the use of ice. Initially he was consuming less than a point of the drug a few times per week. However, the dosage that he self-administered increased in the month prior to his being arrested so that he was using up to a full point of the drug every second day.

13. On 21 May 2015 the offender was assaulted and stabbed three times in the back. He was treated at the Royal Prince Alfred Hospital for a left sided haemopneumothorax. His left lung was full of blood. A chest drain was inserted but X-ray performed on the following day did not show any reaccumulation of blood within the lung. However, it was found that the offender was psychiatrically disturbed. The diagnosis made at the Royal Prince Alfred Hospital was a “delusional disorder” and the offender was “scheduled” by a member of that Hospital’s psychiatric team. He was then transferred to the Concord Repatriation General Hospital Psychiatry Unit. At that Hospital he was found, as he had been at Royal Prince Alfred Hospital, to be psychotic and his urine tested positive for methylamphetamine. He was discharged once the drug induced psychosis was resolved. This discharge was on 25 May 2015. However, that was the same day that the offender was arrested.

14. On 25 May 2015 police received information that the offender had set up some form of clandestine laboratory at his then residence at Unit Q, 18 Gilpin Street, Camperdown. Over an hour later the police attended the offender’s premises at 1.30pm. His unit comprised a single bedroom about 4 metres by 4 metres in size with a bathroom attached. I understand these units are called bedsit units. Police knocked on the front door of the unit which was opened by the offender. At that point police could smell a strong stench of chemicals coming from within the unit. Police saw numerous beakers and bottles on the bedside table containing a brown liquid substance. Police suspected on reasonable grounds that the premise was being used for the manufacture of a prohibited drug. The police identified themselves to the offender, complying with LEPRA, and advised him that his unit was declared a crime scene. He was removed from his unit, arrested and cautioned. The offender protested that what the police saw was not what it seemed to be. He claimed that he is trying to make an isotonic drink from amino acids. Having obtained the necessary search warrant, the police entered the premises and carried out certain investigations. They found 25.4 grams of methylamphetamine with a purity of 78%.

15. The material before me contains a copy of police photographs 1 and 3 which represent the view from the entrance to the offender’s bedroom from a short corridor and clearly show a chaotic collection of some chemical apparatus and many vessels of glass or Pyrex and some vessels of plastic used to contain various substances. Included in the vessels are ordinary wine glasses and beer glasses, as well as what appear to be jam jars, sauce bottles and baking dishes and containers for liquid that one would put inside a refrigerator. However, there is interspersed with such domestic material, some chemical apparatus and chemical stands, and plastic Coca‑Cola bottles which may or may not have contained chemical substances other than the substance provided by the manufacturer of that soft drink.

16. According to the agreed facts the clandestine laboratory had produced a minimum amount of 25.4 grams of methylamphetamine. There was evidence at the site of university level chemistry knowledge and of the application of effective procedures to purify methylamphetamine. It must be remembered that the definition of “manufacture” contained in the Drug Misuse and Trafficking Act 1985 “includes the process of extracting or refining the prohibited drug” in question. Purifying methylamphetamine is the same as “refining the prohibited drug”. The agreed facts tell me that the amounts of solvents, acids and bases found at the scene were more than would be needed to produce 25.4 grams of methylamphetamine. The glassware and other equipment found in the offender’s unit was more than large enough and more than sufficient in quantity to have produced 25.4 grams of methylamphetamine. Chemical analysis indicated that other chemicals used in the manufacture of methylamphetamine were present or had at some stage been present. They included acetone, diethyl ether, hydrochloric acid, hydrogen peroxide, isopropyl alcohol, methylated spirits, sodium hydroxide, sulphuric acid, tetrahydrofuran and xylene.

17. When interviewed by the psychologist, Ms Godbee, the offender agreed with the police facts but provided additional comment. The following paragraphs occur in Ms Godbee’s report:

“[28] Mr MacGregor agreed with these facts but provided additional context. He said that his ‘dealer’ was complaining that some of his methamphetamine ‘burned black’, and as Mr MacGregor was “off his head” at the time, he said he could fix it. According to Mr MacGregor, the dealer’s supplier asked to meet with him and asked him to fix a supply of methamphetamine. During this meeting, the supplier reportedly placed a large bag on the table which Mr MacGregor believed contained a shotgun and verbally threatened Mr MacGregor, and Mr MacGregor described feeling ‘threatened and terrified’.

[29] Mr MacGregor stated that he stayed awake for 24 hours trying to solve the problem with the methylamphetamine, because he was worried about what the supplier would do if he was not successful. He said that he then went to visit the supplier to explain that he needed more time but the supplier reportedly believed that Mr MacGregor was stalling because he had gone to the police. Mr MacGregor was beaten, stabbed and robbed by the supplier before he was able to run away and go to the hospital. The police searched his property shortly after he returned home.

[30] Mr MacGregor indicated that he should not have associated with substance using peers. His use of methamphetamine and his delusional thinking likely impaired his decision-making about meeting the supplier and accepting the job.”

That history is consistent with the agreed facts that the offender was purifying methylamphetamine for his “dealer”. That history also indicates why the offender was assaulted on 21 May 2015. However, it is clear that the offender had dealt with this dealer to obtain methylamphetamine and therefore became involved in the proposal to refine perhaps defective methylamphetamine in his home, having an impromptu and chaotic laboratory in his residence, as had happened in April 2009.

18. A matter of major concern to me is that the offender asked me to take into account on a Form 1 two additional matters. They are:

1. possessing a precursor intended to be used in the manufacture and or production of a prohibited drug contrary to s 24A(1)(a) of the Drug Misuse and Trafficking Act 1985; that substance was 6.131 kilograms of piperonal.

2. the same charge, but the precursor substance was 3.197 kilos of safrole.

The maximum penalty for each of those offences is, in fact, ten years imprisonment when dealt with on indictment or two years imprisonment when dealt with summarily. Both piperonal and safrole can be used to manufacture 3,4‑methylenedioxymethylamphetamine, commonly known as ecstasy. Those substances can also be used to produce other substances which have properties similar to ecstasy.

19. Police also seized material of a documentary nature which might indicate plans to acquire detailed chemical laboratory equipment and utensils, and plans and formulae which may have been used or intended to be used to produce other substances and a publication called “Psychotropic Drug Handbook”, seventh edition. The offender may have had plans to try to manufacture ecstasy or some other substance but it is clear that for at the time of his arrest and for some time immediately before that the offender was delusional, and had been delusional prior to his arrest in 2009, and one of the delusions was of an ability to produce a lifesaving tonic which would make him famous and legitimately earn a lot of money. It may be that in acting on that delusion the offender was preparing this chemical equipment to be purchased, making formulae as to what he would manufacture and acquiring precursor chemicals which he thought he might use in the manufacture of this isotonic drug. The fact is that the offender’s delusions result from his drug habit of using ice and of previously using ecstasy, and, before that, using cannabis.

20. This is the opinion of Ms Godbee:

“[39] ...It appears that Mr MacGregor’s experiences of early childhood were largely prosocial and stable. However, his parents modelled avoidant emotion coping strategies such as working long hours, alcohol consumption and maintaining emotional distance from people close to them. In this way, Mr MacGregor may have internalised these strategies as normal and appropriate, so developed few adaptive skills to regulate his own emotions. In the context of his parents’ separation, Mr MacGregor began experiencing distress that he was unable to manage, and this took the form of worrying thoughts that impacted his sleep and mood. At this time, he was also spending time with peers who were engaging in substance use and found that drugs alleviated some of his distress. Mr MacGregor entered into a pattern of managing mental health symptoms through substance abuse, which likely exacerbated his difficulties as well as limiting his social circle to other substance users.

[40] Throughout his adult life, Mr MacGregor has cycled through periods of low mood and mania accompanied by delusional thinking. His index offending was precipitated by a period of regular methamphetamine use that exacerbated his delusional beliefs. His delusional thinking led him to develop an obsession with chemistry (to create the [isotonic] drink) and prompted him to volunteer to help his dealer. After being threatened, Mr MacGregor felt unable to remove himself from the situation and engaged in the index offending.”

21. The exact nature of the offender’s psychiatric illness has not been diagnosed on the material before me but one could definitely point to substance abuse disorder leading to some form of psychosis. It would appear to me that in his delusional state the offender thought that he could help out his “dealer” by purifying drugs for him using the offender’s acquired chemical “knowledge” or what he considered to be his acquired chemical knowledge, based on his previous “experience” when involved in the manufacture of methylamphetamine. It may be that initially he volunteered to assist his “dealer” on the promise of cheaper or even gratuitous supply of the drug for his own use. However, it appears that relationship between him and his dealer broke down leading to the serious assault upon him and, perhaps, a tipoff by somebody who was adverse to the offender because he had a clandestine laboratory in his home. Merely looking at the photographs one can easily realise that the “clandestine laboratory” was not only chaotic but poorly organised and one can readily accept that in such a small living unit that chemical fumes produced would lead to the offender’s apprehension because of complaints by neighbours of the chemical smell and perhaps the intuition of neighbours of what the offender may have been doing to produce such chemical smells. In short, this was hardly any sophisticated, well organised clandestine laboratory.

22. It would appear on the agreed facts and the other history given in the material before me that the offender had been given the crystal methamphetamine to refine and was in the process of trying to do so when the police knocked at his door. The charges are of drug manufacture and drug supply based on the same amount of methylamphetamine, 25.4 grams, and therefore should receive wholly concurrent sentences. As I mentioned towards the beginning of these remarks the charge of resisting police is at the very bottom of the range for offences of that nature.

23. The offender pleaded guilty at the earliest available opportunity in the Local Court. For that he is entitled a discount on 25% of his sentence for the utilitarian value of his plea. He has also assisted the authorities. The material contained in exhibit 2 tells me how and the Crown accepts that the offender is entitled to a further discount for that assistance which the Crown suggested might be a further 10% discount and such was readily accepted by learned counsel for the offender. Accordingly, the offender is entitled to a 35% discount on the sentence properly to be passed upon him for his criminal activity.

24. The offender has now spent lengthy periods in custody. He is now 42 years old. He has no wife and no children. He has no dependants. Those closest to him are his brother who continues to support him and his mother, although she is suffering from a terminal illness but, fortunately, the prognosis that is given for that terminal illness in the psychologist’s report has not come to pass. In my view the offender is at risk of becoming institutionalised, of only learning how to live by living in custody.

25. The presentence report tells me that the offender’s response to supervision by Community Corrections after his release from custody for the offences committed on 21 October 1999 was not satisfactory, that was because he failed to remain in contact with Community Corrections. Eventually it was recommended that his parole be revoked prior to his arrest for the offences of April 2009. If anyone was entitled to cynical about the offender’s prospects of rehabilitation it would be Community Corrections which has had lengthy dealings with the offender. However, as I have earlier pointed out it was considered that the offender’s response to supervision was considered satisfactory after he was released from his second lengthy period of imprisonment. Since his incarceration on 25 May 2015 the offender was placed in some form of protective custody in July 2015 after he was assaulted by another prisoner. He has been in a form of protective custody ever since.

26. A perusal of the Corrective Services records indicates that the offender has attended 11 of 13 possible voluntary Remand Addictions sessions made available to him at the Parklea and Kariong Correctional Centres between December 2016 and July 2017. Feedback from those courses indicated that the offender participated well in those sessions. The presentence report continues thus:

“He has also participated in periods of correctional based employment within the Kitchen and Print Shop. Perusal of CS NSW records indicate he was dismissed from the Kitchen after ‘pilfering’ products on a number of occasions whilst at Kariong Correctional Centre. However, since returning to Parklea Correctional Centre [he] has been progressing well in the Print shop, moving from Print Unit General Hand to his current position as the Print Unit Lead Machinist. Recent contact with his Work Supervisor indicated he could not make a negative comment about the inmate. Describing him as one of his top workers, who plays a vital role in the unit and is always willing to assist in training others. The offender’s positive behaviour was also relayed by a Correctional Officer in his residential unit, who confirms he is always polite to staff and compliant with centre routine.”

There have been some institutional infractions but none for the last 18 months, in round terms.

27. It appears that in recent times the offender is behaving well in custody playing a valuable role in the Print shop at Parklea Correctional Centre and is on his way to becoming a model prisoner. I should point out that “pilfering” from the kitchen at the Kariong Correctional Centre may well be supplementing his gaol diet with extra food which, if that be the case, would of little, if any, moment. The presentence report advises that the offender is considered as having a low medium risk of reoffending and identifies a number of criminogenic needs. The presentence report considers that the offender would benefit from a period of supervision by Community Corrections and that case management strategies would include referral to alcohol and other drug and psychological interventions.

28. In my view there is a need for a lengthy period on parole. The offender will need the assistance of Community Corrections to find accommodation. He will need to have positive reinforcement for what he has learnt in custody about avoiding addiction to drugs and alcohol. He will need treatment for his psychiatric condition and he will need to have his associates monitored closely to ensure that he does not fall in with bad company again, as appears to have occurred on the last occasion when he was released from the supervision of Community Corrections. A lengthy period on parole will also give the offender the best opportunity to avoid becoming institutionalised. There are more than sufficient grounds or special circumstances to warrant the breaking of the statutory nexus between the head sentence and the non-parole period.

29. I have come to the view that the appropriate head sentence in respect of the two drug offences, which attract, in my view, wholly concurrent sentences, is a sentence of seven years imprisonment. I discount that by 35% as I have earlier stated which gives me a head sentence of four years and six months. Applying the statutory formula, the non-parole period should be three years and four months but in light of the special circumstances I have determined that the non-parole period should be two years and six months. If I backdate that sentence to the time of the offender’s arrest, that means he will be eligible for release on parole, if my mathematics be correct, on 24 November 2017. As for the offence of resisting arrest I intend to impose a one month sentence of imprisonment to be wholly concurrent with the other sentences.

30. I should also indicate that I take into account in passing the sentence which I am about to announce the fact that the offender was committed for sentence in this Court on 5 April 2016. He was first listed for sentence on 19 August 2016 but that sentence date was vacated because of the absence of a presentence which had been ordered. The matter was then listed for sentence on 3 February 2017 but that sentence date was vacated because the presentence report was still outstanding. The matter was then listed for sentence today, more than two years after the offender had been arrested and nearly 16 months after he had been initially committed for sentence, and therefore suffered the anxiety of being unsentenced for a substantial period of time without his neglect or default.

31. Craig Andrew MacGregor, on the charge that on 25 May 2015 at Camperdown you did knowingly take part in the manufacture or production of a prohibited drug, namely, methylamphetamine you are convicted. On the charge that on 25 May 2015 at Camperdown in this State you did knowingly take part in the supply of prohibited drug, namely, 25 grams of methylamphetamine you are convicted. I sentence you to imprisonment. I set a non-parole period of two years and six months commencing on 25 May 2015 and expiring on 24 November 2017. I impose a further period of imprisonment of two years to commence upon the expiration of the non-parole period and expiring on 24 November 2019. The total sentence is therefore four years and six months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing those sentences I have taken into account the two matters on the Form 1.

32. On the charge that on 25 May 2015 at Camperdown you did resist Adam Royds being a Detective Senior Constable executing his duty you are convicted. I sentence you to imprisonment for a fixed term of one month commencing on 25 May 2015 and expiring on 24 June 2015.

33. Sequence 6 is withdrawn and dismissed.

34. Any other orders sought?

MCCALLUM: No, your Honour.

HIS HONOUR: Exhibit 2 is to be sealed up and not to be opened except by the Court of Criminal Appeal or other order of this Court.

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Decision last updated: 12 September 2017