R v Preston

[2017] NSWDC 438

District Court

New South Wales

Medium Neutral Citation:	R v Preston [2017] NSWDC 438
Hearing dates:	26 May 2017
Date of orders:	26 May 2017
Decision date:	26 May 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is ordered to perform 500 hours of community service.
Catchwords:	CRIMINAL LAW – Sentence – Knowingly take part in the manufacture of a prohibited drug – Provide premises for drug manufacture - Parity
Category:	Sentence
Parties:	The Crown Andrew Lloyd Preston
Representation:	Counsel: Mr F Scragg - Offender   Solicitors: Director of Public Prosecutions - Crown
File Number(s):	2014/4850

SENTENCE

1. HIS HONOUR: Anyone who looks at the sentence I am about to impose on the offender, and the offence to which he has pleaded guilty, will be surprised. If that was the only information that an onlooker had he or she would be entitled to think that something has gone wrong in the sentencing process, but this is a most unusual offence, of knowingly taking part in the manufacture of a prohibited drug. On top of that the principles of parity operate in a very significant way in the offender’s favour.

2. The offender conducted an air conditioning repair business in a shipping container yard at Tempe. He knew a man by the name of Bassim Karim. Mr Karim was a drug manufacturer. He had initially manufactured the drug methylamphetamine at his home, but needed to continue his activities elsewhere because of the smell that drug manufacture produces. The offender allowed Mr Karim to manufacture drugs at the shipping container premises in Tempe. In other words, Mr Preston, the offender, provided the place for Mr Karim to manufacture drugs in full knowledge of the circumstance that Mr Karim was, in fact, doing that. He permitted Mr Karim to continue his activities. Although perhaps Mr Preston was not terribly happy with what was going on, he allowed Mr Karim to do what he was doing.

3. Somewhat remarkably, the offender has no history of drug use at all. That he would allow someone to manufacture drugs when he is not a drug user himself is difficult to understand.

4. The offence occurred sometime ago. The delay is due to the circumstance that the matter was listed for trial, with the offender only pleading guilty to an alternative count on the indictment at a very late stage indeed. That plea of guilty has a utilitarian benefit, limited though it is, which must be recognised. I am not going to quantify it, it is one of a number of circumstances which have led me to impose a different form of sentence than I would otherwise have imposed. Were I to quantify it, it would have been in the order of 10%.

5. The evidence would suggest that this was very much an isolated involvement in drugs and crime. That is not to say the offender does not have a criminal history, he does have an offence of malicious injury committed as a child and then a low-range PCA matter committed as an adult but they can effectively be ignored, for obvious reasons. He, so the evidence would suggest, has been a hard worker, running his business for many years until publicity about him being charged with this matter led to downturn in business and he is now employed by another person. Nevertheless he continues to work hard.

6. He also has the support of his family. Mr Preston was in a relationship when at the age of only 16 and a half his partner fell pregnant. He and his partner had another child before separating. Those children are now adults and one of them is present in court today to support her father. Mr Preston has formed another relationship and has had two other children, much younger, who have not been told about their father’s troubles. His wife and his parents and his sister-in-law also are in court today to support him.

7. The Crown accepts that the offender’s involvement places this at very much at the lower end of the scale of offences of knowingly taking part in the manufacture of a prohibited drug. There is no submission by the Crown that the offender was in any way involved in the actual process of manufacture, or delivered equipment or chemicals, or monitored the manufacturing process, his role was, as I have said earlier, simply to provide the place at which the manufacture would take place. This, of course, is a very significant matter in assessing the criminality of the offender’s misconduct.

8. I should mention another matter, which is of significant assistance to the offender as far as the selection of an appropriate sentence to impose upon him is concerned. Mr Karim was dealt with for an offence of manufacture with another offence of manufacture on a Form 1. The manufacture for which he was substantively sentenced was not the manufacture that Mr Preston knowingly took part in, that was attached to the Form 1. But for the other manufacture Mr Karim received a sentence of imprisonment of only two years and nine months. Presumably the Crown put the less serious manufacture on the Form 1 and the more serious manufacture on an indictment so far as Mr Karim is concerned.

9. The sentence imposed upon Mr Karim was a very light one for an offence of manufacture. I mean no criticism of her Honour there, I do not have before anything other than her Honour’s remarks on sentence. What I have to do is to ensure that Mr Preston not have a justifiable sense of grievance when he compares his sentence with that imposed on the manufacturer of the drugs Mr Karim. Given their respective roles, Mr Karim being the manufacturer and Mr Preston merely allowing it to happen, I am satisfied that the offender would have a justifiable sense of grievance were a sentence of imprisonment of any kind imposed upon him.

10. The offender clearly has good prospects of rehabilitation. A number of references were tendered today which speak very highly of Mr Preston. They also speak of the significant affect that arrest and charging have had on Mr Preston himself and his work. For obvious reasons he was concerned for many years that his offence would lead to him going to gaol, which would cause obvious difficulties for his wife and his two younger children. I am sure that the last three and a half years have not been easy for Mr Preston. Many of the references refer to the offender having learnt a lesson. I have no difficulty accepting that that is the case. On the other hand, of course, he must be punished for his crime. Perhaps the lack of Mr Preston’s involvement in drugs made it harder for him to appreciate just how serious Mr Karim’s drug manufacturing activities were, but Mr Preston must have realised that what he was doing was allowing Mr Karim to commit a serious offence and in doing that he himself was committing a serious offence as well.

11. The offender has been assessed as suitable to have a Community Service Order imposed upon him. I, therefore, sentence the offender as follows:

12. He is to perform 500 hours of Community Service. He is to report, therefore, to the Sutherland Community Corrections office within seven days.

13. Any other order required, Mr Scragg or Madam Crown?

14. SCRAGG: No, your Honour.

15. NARAYAN: No, your Honour.

16. HIS HONOUR: Mr Preston, if you don’t do your Community Service you might find yourself back before me and I might be asked to impose a different form of sentence upon you. Now, if you come back before me I might realise that I was wrong about you, and so it’s important, do you understand, that you should do your 500 hours. It is a fair bit of time, you can work that out for yourself when you are required to do it and if you fail to do it the consequences for you are not going to be pleasant. Do you understand that? You have got, Mr Scragg will tell you, a good outcome from today don’t ruin it.

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Decision last updated: 15 August 2018