R v QL

[2023] NSWDC 456

District Court

New South Wales

Medium Neutral Citation:

R v QL [2023] NSWDC 456

Hearing dates:

5 October 2023

Date of orders:

26 October 2023

Decision date:

26 October 2023

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Fulltime custody. For orders please see [181].

Catchwords:

CRIME – manufacture prohibited drug large commercial quantity – supply prohibited drug large commercial quantity – offences on Forms 1 – possess prohibited drug – possess drug manufacture apparatus – manufacture prohibited drug commercial quantity – possess drug precursor with intent to use for manufacture – deal with property suspected proceeds of crime – manufacture prohibited drug – s 166 related offences – possess prohibited drug – possess ammunition without licence – deal with property suspected proceeds of crime.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Firearms Act 1996

Mental Health Act 2007

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DS v R, DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Elmir v R [2023] NSWCCA 260

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

R v Van Ryn [2016] NSWCCA 1

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
QL (offender)

Representation:

Counsel:
Ms E Blizzard (Crown)
Mr P Boulten SC (offender)

Solicitors:
Mr J Anderson (Crown)
Mr M Ricci (offender)

File Number(s):

2018/327809 & 2020/262554

Publication restriction:

Order made pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 to anonymise the name of the offender for a period of 10 years.
Paragraph 160 of these reasons has been redacted.

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of two series of offences for which he has entered pleas of guilty. The first series, hereinafter referred to as the 2018 offences, are as follows:-

1. Sequence 1 – manufacture prohibited drug, large commercial quantity (3,047g pure 3,4-methylenedioxyamphetamine (“MDA”) and 10,082.77g where the purity has not been determined).

This is an offence pursuant to s 24(2) of the Drug Misuse and Trafficking Act 1985 (“DMTA”). The maximum penalty proscribed is life imprisonment and/or 5,000 penalty units and there is a standard non-parole period proscribed of 15 years imprisonment.

On Form 1A attached to Sequence 1 are the following offences:-

• Sequence 3 – possess prohibited drug (0.06g cocaine), an offence pursuant to s 10(1) of the DMTA. The maximum penalty is 2 years imprisonment and/or a fine of 20 penalty units.

• Sequence 4 – possess drug manufacture apparatus with intention to manufacture prohibited drug. This is an offence pursuant to s 24A(1)(b) of the DMTA. The maximum penalty proscribed is 10 years imprisonment and/or a fine of 2,000 penalty units.

• Sequence 9 – possess drug manufacture apparatus with intention to manufacture prohibited drug. This is an offence pursuant to s 24A(1)(b) of the DMTA. The maximum penalty proscribed is 10 years imprisonment and/or a fine of 2,000 penalty units.

• Sequence 11 – manufacture prohibited drug, commercial quantity (217g pure methylamphetamine and 165.04g where the purity has not been determined). This an offence pursuant to s 24(2) of the DMTA. The maximum penalty proscribed is 20 years imprisonment and/or a fine of 3,500 penalty units. There is a standard non-parole period of 10 years imprisonment.

• Sequence 12 – manufacture prohibited drug, commercial quantity (171g pure methylenedioxymethamphetamine). This an offence pursuant to s 24(2) of the DMTA. The maximum penalty proscribed is 20 years imprisonment and/or a fine of 3,500 penalty units. There is a standard non-parole period of 10 years imprisonment.

• Sequence 18 – possess drug precursor (44,144g of formamide) with intention to manufacture prohibited drug, namely 3,4-methylenedioxyamphetamine). This is an offence pursuant to s 24A(1)(a) of the DMTA. The maximum penalty proscribed is 10 years imprisonment and/or a fine of 2,000 penalty units.

The offender has admitted his guilt in respect of each of these six offences and has asked that they be taken into account on sentence.

2. Sequence 7 – supply prohibited drug, large commercial quantity (21,966g gamma butyrolactone (“GBL”)).

This is an offence pursuant to s 25(2) of the DMTA. The maximum penalty proscribed is life imprisonment and/or a fine of 5,000 penalty units. There is a standard non-parole period proscribed of 15 years imprisonment.

3. Sequence 10 – manufacture prohibited drug, large commercial quantity (2,676.8g pure 3,4-methylenedioxyphenyl-2-propanone (“MDP2P”) and 19,695g where the purity has not been determined).

This is an offence pursuant to s 24(2) of the DMTA. The maximum penalty proscribed is life imprisonment and/or a fine of 5,000 penalty units. There is a standard non-parole period proscribed of 15 years imprisonment.

Annexed on Form 1B attached to Sequence 10 are the following offences:-

• Sequence 13 – possess drug precursor (1,884g iodine) with intention to manufacture prohibited drug, namely methylamphetamine.

• Sequence 14 – possess drug precursor (150g pure pseudoephedrine) with intention to manufacture prohibited drug, namely methylamphetamine.

• Sequence 15 – possess drug precursor (7.1L hypophosphorous acid) with intention to manufacture prohibited drug, namely methylamphetamine.

• Sequence 16 – possess drug precursor (96.8g ephedrine) with intention to manufacture prohibited drug, namely methylamphetamine.

• Sequence 17 – possess drug precursor (21.191g pure safrole and 940g safrole where the purity has not been determined) with intention to manufacture prohibited drug, namely MDP2P.

Each of the above five offences are offences pursuant to s 24A(1)(a) of the DMTA. The maximum penalty proscribed for each offence is 10 years imprisonment and/or a fine of 2,000 penalty units. The offender has admitted his guilt in respect of each of these five offences and has asked that they be taken into account on sentence.

2. In addition, there are two back up and related offences subject to a certificate pursuant to s 166 of the Criminal Procedure Act 1986. They are:-

• H70152469/3 – possess prohibited drug (0.06g cocaine). This is an offence pursuant to s 10(1) of the DMTA and is to be taken into account on the Form 1A as outlined above.

• H70152469/6 – possess ammunition without a licence (303 x .22 calibre rounds). This is a related offence pursuant to s 65(3) of the Firearms Act 1996. The maximum penalty proscribed is 50 penalty units.

3. The 2018 offences occurred between 22 September and 25 October 2018. The offender was arrested on 25 October 2018 and spent 225 days in custody until released to bail on 6 June 2019.

4. The second series of offences, hereinafter referred to as the 2020 offences to which the offender has entered early pleas of guilty are as follows:-

1. Sequence 2 – manufacture large commercial quantity prohibited drug (16.2kg pure MDP2P). This is an offence pursuant to s 24(2) of the DMTA. The maximum penalty proscribed is life imprisonment and/or a fine of 5,000 penalty units. There is a standard non-parole period proscribed of 15 years imprisonment.

Attached to Sequence 2 is the following offence on Form 1C:-

• Sequence 3 – possess precursor with intent to use for manufacture (43.8kg pure MDP2P and 8.4kg where purity has not been determined). This is an offence pursuant to s 24A(1)(a) of the DMTA. The maximum penalty proscribed is 10 years imprisonment and/or a fine of 2,000 penalty units.

The offender has admitted his guilt in respect of this offence and has asked that it be taken into account on sentence.

2. Sequence 5 – manufacture large commercial quantity prohibited drug (2.021kg pure methylamphetamine, 0.06kg where the purity has not been determined). This is an offence pursuant to s 24(2) of the DMTA. The maximum penalty proscribed is life imprisonment and/or a fine of 5,000 penalty units. There is a standard non-parole period proscribed of 15 years imprisonment.

Attached to Sequence 5 on Form 1D are the following offences:-

• Sequence 8 – deal with property suspected proceeds of crime. This is an offence pursuant to s 193C(2) of the Crimes Act. The maximum penalty proscribed is 3 years imprisonment.

• Sequence 10 – manufacture prohibited drug (109g pure methylamphetamine). This is an offence pursuant to s 24(1) of the DMTA. The maximum penalty proscribed is 15 years imprisonment.

On a certificate pursuant to s 166 of the Criminal Procedure Act 1986 is a related offence, being Sequence 8, deal with property suspected proceeds of crime, being an offence on Form 1D as a related offence.

5. The 2020 offending occurred between 29 June and 9 September 2020. The offender was arrested on 9 September 2020 and at the date of the sentence hearing on 5 September 2023 had spent 3 years and 27 days (1,122 days) in custody.

6. The 2020 offences were committed whilst the offender was on bail for the 2018 offences. In respect of the 2020 offences there was a co-offender Bilal El Badar who was sentenced by Judge T Smith SC on 13 June 2023.

The sentence hearing

7. The sentence hearing took place on 5 October 2023. The Crown sentence bundle became Exhibit A and it contained detailed agreed facts in respect of both series of offending. The two sets of agreed facts set out in detail the evidence relied on by the Crown in what constitute, in both series of offending, sophisticated operations for the manufacture of large commercial quantities of prohibited drugs. I do not propose to repeat all of that detail for the purpose of sentence but rather will provide the following summary of the salient features of each series of offences.

Agreed facts in relation to the 2018 offences

8. Police investigations identified that the offender lived with his family at a rural property at Mount Hunter and that he was owed in excess of $160,000 by “the Club”, which the Crown alleged described an outlawed motorcycle gang.

9. On 24 October 2018 a search warrant was executed at the offender’s property which comprised a main house, a large shed and two small sheds. The offender was not present and the offender’s wife confirmed that only she and the offender and their children resided at the property. She confirmed that no other person had access to the property, including the sheds.

10. A search revealed a large scale clandestine laboratory inside the main shed on the property. It housed 4 x 20L flasks on heating mantels all set up in the “reflux stage”. One of the heating mantels was on and heat was being applied to the flask.

11. A variety of prohibited drugs were seized as well precursors and drug manufacturing apparatus. The agreed facts then set out the narrative outlining the evidence supporting each of the separate charges depending on which process of drug manufacture was involved. The first concerned the manufacture of MDP2P in a large commercial quantity which concerned Sequence 10 together with Sequence 17 on the Form 1B.

12. The narrative in the agreed facts stated that there were two different methods utilised for the manufacture of MDP2P at the Mount Hunter laboratory. One method involved the use of what is known as “glycidate” and hydrochloric acid, both of which were found on the premises.

13. The other method of manufacturing MDP2P being utilised at the premises involved the use of chemicals including potassium hydroxide, safrole, formic acid, dichloromethane, hydrogen peroxide, methanol and sulfuric acid. Each of those chemicals were located in the premises.

14. The total amount of MDP2P manufactured was 2,676.8g of pure MDP2P and 19,695g of MDP2P where the purity could not be determined. The large commercial quantity for MDP2P is 500g.

15. The agreed facts in relation to the manufacture of MDA concerned Sequence 1 together with Sequences 12 and 18 on Form 1A attached to Sequence 1. The agreed facts set out in great detail the process by which MDA can be manufactured from MDP2P. The drug manufacture apparatus at the property contained MDA and MDP2P in a way that indicated that that process was being conducted at those premises. Other chemicals including formamide and hydrochloric acid were found on the premises. The agreed facts referred to numerous containers within the premises containing MDA, MDP2P, methamphetamine and safrole at various stages of the production process. MDA was also discovered during the execution of the search warrant in the main bedroom of the house (6.2g), and in various quantities in the large shed.

16. The agreed facts also outlined the process in which MDA in powder form can be compressed to manufacture tablets when mixed with other components. Upon execution of the search warrant numerous tableting agents were located in various locations in the large shed on the property.

17. In the smaller shed on the property, MDA was found in no less than 9 containers in various locations together with a multistage pill press which had power running to it and was operational.

18. MDA was also found in powder form in four locations in the large shed and in tablet form in two locations in the main house on the property.

19. In total, the offender manufactured 3,047g of pure MDA and 10,082.77g where the purity has not been determined. The large commercial quantity of MDA is 500g.

20. The agreed facts also set out the amount of MDP2P that could be manufactured from glycidate and safrole, together with the amount of MDA oil that could be derived from that quantity of MDP2P, and the amount of chemicals that were required to produce such a result.

21. The agreed facts then set out, in detail, the steps required to manufacture a commercial quantity of methylamphetamine which related to Sequence 11 (on the Form 1A), and Sequences 13, 14, 15 and 16 (on the Form 1B attached to Sequence 10).

22. The agreed facts detailed the manufacture of methylamphetamine which involved the use of chemicals including pseudoephedrine, ephedrine, hypophosphorous acid and iodine which were all present in the large shed in various quantities.

23. Methylamphetamine was also identified as a dark solid inside the large shed in three separate containers and inside the main house in three separate locations.

24. It is an agreed fact that the offender manufactured 217g of pure methylamphetamine and 165.04g where the purity has not been determined. The commercial quantity of methylamphetamine is 250g.

25. The agreed facts also detailed that during the search in the large shed GBL was found in two separate containers, totalling 21,966g. The large commercial quantity of GBL is 4,000g. This constituted the offending in Sequence 7.

26. Also located in the large shed was a resealable plastic bag containing 0.06g of cocaine which constituted the offence in Sequence 3 on the Form 1A attached to Sequence 1. Also attached on the Form 1A to Sequence 1 was Sequence 4, an offence of possess drug manufacture apparatus with intention to manufacture a prohibited drug. Located during the search were eleven 20L round bottom flasks, one 5L round bottom flask, one 1L round bottom flask, one coil condenser and splash head, one closed coil condenser, one splash head, five glass condensers, ten glass double surface condensers and one rotary evaporator, which related to this offence.

27. Also on the Form 1A attached to Sequence 1 was Sequence 9, possess drug manufacture apparatus with intention to manufacture prohibited drug. Located during the search to constitute this offence was a tablet press, various pill punchers and dies which constituted tablet press parts found in both the small and large sheds on the property.

28. Sequence 6, the offence of possess ammunition without a license concerned a total of 303 rounds of 0.22 calibre ammunition located during the search in the main bedroom of the house.

29. Forensic examination of two vehicles on the property revealed traces of both MDA and methylamphetamine on various items and various locations within the interior of the vehicles. Similarly, the offender’s DNA was located on a number of items in both the small and large sheds and his fingerprints were also located on items in both sheds and in the house.

30. The offender was arrested on 25 October 2018 upon his discharge from Campbelltown Hospital, where he had been admitted as a mental health patient. He declined to participate in an ERISP, however consented to a forensic procedure conducted by way of a buccal swab.

31. Exhibit A also included a site plan of the Mount Hunter property, and 10 photographs of the two sheds and their contents as well as one of the vehicles on the property.

Agreed facts in relation to the 2020 offences

32. The agreed facts in relation to the 2020 offences also set out in minute detail the evidence in relation to the two principal offences, and the offences that are subject to Forms 1C and 1D.

33. As set out above the 2020 offending occurred between 29 June and 9 September 2020 when the offender was on bail for the 2018 offences. Whilst he was on bail police commenced an investigation in relation to the suspected manufacture of prohibited drugs by the offender and obtained a surveillance device warrant and telephone intercept warrant.

34. In July 2020 the offender’s vehicle was observed parked within the rear of an industrial unit complex at Moorebank. Those premises had been leased on 18 May 2020 under the name of Steven Chichester. The offender and co-offender El Badar were observed on numerous occasions throughout August and September 2020 to be attending the premises for various periods of time. Individually and together, they were observed to enter and exit the premises carrying various types of materials and apparatus used in the manufacture of prohibited drugs. A manufactured ducting system was installed inside the entrance to the premises leading up to the roof for the purpose of ventilation during the manufacture process.

35. Between 10 August 2020 and 9 September 2020 no one but the offender and co-offender entered or exited the industrial unit.

36. On 9 September 2020 the offender was arrested. When his vehicle was searched police located numerous items relating to the manufacture of prohibited drugs, together with documents relating to the hire or purchase of various items relating to the manufacture process.

37. The offender was taken to Liverpool Police Station and declined to participate in an ERISP. Whilst in custody he had the following conversation with DSC K Jackson:-

“DSC Jackson: You don’t need the money, why would you keep doing it?

Offender: I didn’t have a choice. It was either do this or … (the offender made the shape of a gun with his hand and moved his index finger in a trigger pulling motion).

DSC Jackson: Someone got something over you?

Offender: Yep

DSC Jackson: You wanna tell me anything about it? Who?

Offender: No… I can’t do that

DSC Jackson: All right, I understand”

38. Co-offender El Badar was also arrested on the same day.

39. The agreed facts included a schematic diagram of the premises at Moorebank. Inside, police discovered a clandestine drug manufacturing laboratory occupying the main floor of the factory unit as well as the upstairs mezzanine level. A large number of different prohibited drugs were seized as well as precursors and drug manufacturing apparatus, both in the main factory floor and on the mezzanine level.

40. In relation to the offence in Sequence 10, on Form 1D, the offender manufactured 109g of pure methylamphetamine by refinement, calculated by the addition of the weights of three separate exhibits, using the truncated weight rounded to the nearest gram.

41. The offending in Sequence 5, manufacture a large commercial quantity of amphetamine (2.021kg pure amphetamine and 0.06kg where purity was not determined) was manufactured by refinement and calculated by the addition of weights in five separate exhibits utilising the truncated weight rounded to the nearest gram.

38. The agreed facts set out general information about the process of amphetamine manufacture and the manufacture of amphetamine by refinement or extraction, which is unnecessary to rehearse for the purpose of sentencing.

39. With respect to the offence in Sequence 3, on Form 1C attached to Sequence 2, the offender and co-offender jointly possessed the precursor MDP2P with the intent to use it in manufacturing MDA and MDMA. The volume of 43.8kg pure MDP2P and 8.4kg where the purity has not been determined was calculated by the addition of weights in eleven separate exhibits located within the premises containing various coloured liquids.

40. The principal index offence in Sequence 2, manufacture large commercial quantity of MDP2P by refinement concerned 16.2kg of pure MDP2P calculated by the addition of the weights, utilising the truncated weight rounded to the nearest gram of four separate exhibits located in the premises containing liquids of various colours.

41. The agreed facts also set out general information regarding the process of MDA manufacture and manufacture of MDP2P by refinement which are unnecessary to rehearse for the purpose of sentencing. All of the exhibits containing MDP2P were identified in detail.

42. On 9 September 2020 police also executed a search warrant at premises at Minto Heights and in a bedroom occupied by the offender they located numerous identification documents in the name of Steven Chichester including a Drivers Licence, Medicare Card, Commonwealth Bank Mastercard, NIB Customer Card, Velocity Frequent Flyer Card, Etihad Guest Card and Singapore Airlines Kris Flyer Card. This was the subject of Sequence 8 on the Form 1D attached to Sequence 5.

43. The industrial premises at Moorebank had been leased in the name of Steven Chichester for a period of 6 months from 18 May 2020. The lease contained photocopies of the same identity documents found in the offender’s bedroom. Bank records showed that the co-offender El Badar transferred $2,385 into a real estate agent’s account on 9 September 2020 as payment on the lease.

44. Annexure A to the agreed facts for the 2020 offending contained a number of photographs of the inside of the premises at Moorebank.

45. Exhibit A also included the criminal history of the offender which included a number of minor traffic offences between 2001 and 2003. Also included was his custodial history which showed no infractions.

46. Exhibit A also included the agreed facts in respect of the 2020 offending by the co-offender El Badar, together with a report from Dr G Chew, psychiatrist, in respect of the co-offender, his criminal history and the remarks on sentence by Judge T Smith SC who sentenced the co-offender on 13 June 2023. I will refer to her Honour’s remarks below in the context of the application of principles of parity in sentencing.

Evidence on behalf of the offender

51. The offender relied on a bundle of documents which became Exhibit 1.2 to 1.15.

52. Exhibit 1.2 was a report of Dr R Furst dated 20 September 2020. Dr Furst is a psychiatrist who assessed the offender on 28 July 2020 via audio-visual link for approximately 60 minutes. This assessment therefore took place whilst the offender was on bail for the 2018 offences and prior to his arrest for the 2020 offences.

53. Dr Furst took a history of the offender’s family background and psychiatric history. He was diagnosed with Attention-Deficit/Hyperactivity Disorder (“ADHD”) when he was 13 years of age and was prescribed Ritalin. He had commenced an apprenticeship in plumbing at age 16 and qualified as a builder by trade and as a licenced plumber. He was self employed as a builder from the age of 28 years.

54. Dr Furst took a drug and alcohol history, noting that the offender commenced recreational illicit drug use from the age of 18 years onwards. He was using ecstasy (MDMA), cocaine, amphetamines and/or LSD on most weekends until he was 28 years of age. At that time his first son was born. The offender relapsed into recreational drug abuse in his mid-thirties and this use increased so that by 2017-2018 he was using cocaine on a daily basis and also abusing “G” (gamma-hydroxybutyrate) on a weekly basis.

55. The offender related his increased drug use to issues relating to sexual abuse he suffered between the age of 6 and 10 years, apparently at the hands of older children who lived in his suburb. He had never spoken about that abuse as a child and had not disclosed it to his family. However he ran into one of the persons who had abused him in the latter months of 2017 and thereafter his drug abuse spiralled.

56. The offender sought treatment between August and October 2018 from a psychiatrist who prescribed mood stabilising medication, Seroquel. He also saw a psychologist on two to three occasions in 2018. The offender gave a history thereafter of having a full breakdown and becoming very depressed prior to his admission to Waratah House at Campbelltown Hospital in October 2018 where he spent 12 days. He was arrested upon his discharge from the hospital on 24 October 2018 and spent the following 7 and a half months in custody before being granted bail to live with his parents on 6 June 2019.

57. Under the heading “Offence Related Issues” Dr Furst noted the offender stated he committed the 2018 offences in the context of his own drug use and what he described as “over-capitalising” and “stretching himself”. He regarded his role in manufacturing the drugs in question as “the easy option” at the time, claiming his judgment was “clouded”. The offender however accepted responsibility for his offending and expressed regret, particularly for what he did to his wife and children. He told Dr Furst that whilst incarcerated on remand he had become aware of the negative effects of drugs on people in the wider community and had made a conscious decision to never again use drugs.

58. Dr Furst was of the opinion that the offender met the criteria at that time of Substance Use Disorder (“SUD”) and ADHD. He also opined that the offender’s excessive and habitual use of cocaine and “G” during the period of his offending was likely precipitated and maintained by his childhood sexual abuse victimisation and apparent experience of being “retraumatised” when he came across one of the offenders who abused him, coupled with underlying vulnerability to drug addiction by virtue of his ADHD and general mood instability.

59. Dr Furst set out treatment options both in custody and in the community but stated that the offender did not require specific psychiatric treatment at the time.

60. On the basis that the offender stated that he was now committed to abstinence Dr Furst opined that he had good prospects of being successfully rehabilitated. The treatment outlined for him would therefore reduce his risk of reoffending.

61. Exhibit 1.3 was a letter of apology from the offender to the Court. He described his good upbringing by successful parents, a successful family business and the appearance of a perfect life with his wife and three children. He also described carrying around two dark secrets. The first was investing heavily in a couple of large projects in which he became substantially over capitalised and the second was being sexually abused as a child.

62. After running into one of the perpetrators of that abuse in 2017 he fell into a deep depression and began using drugs and alcohol on a daily basis. He described himself as self-sabotaging everything good in his life. His behaviour became so erratic that in October 2018 he was hospitalised under s 20 of the Mental Health Act 2007. It was whilst he was in hospital that his property was raided, and he was arrested following the discovery of the drug lab on his property.

63. The offender stated that he knew that his second arrest whilst on bail would appear to be a blatant disregard for the Court and justice system. He stated that as a result of choices he made in 2018 and circumstances stemming from his first arrest he found himself in a situation that he felt he had no way out of. He described his second arrest as the absolute best outcome to remove him from that situation.

64. The offender described being regularly assaulted within the first six weeks of his first arrest and on one occasion having his jaw broken. Following transfer to Macquarie Correctional Centre he has been able to work as the prison’s maintenance plumber, as well as on other projects and to complete multiple TAFE courses.

65. The offender stated that he has not touched drugs since his first arrest in September 2018 and that his physical and mental health have never been better. He has now completely changed his perspective on life and he intended to relocate out of Sydney to remove himself from the criminal element that he was associating with prior to his arrest. Despite his wife divorcing him they had agreed on a 50/50 shared parenting arrangement.

66. The offender also stated that having experienced firsthand the effects that drugs were having on the community he intended to start a 24-hour anonymous online forum for people to talk about their mental health issues with substance abuse. He stated that he was truly sorry and wanted to apologise for his participation in these crimes.

67. Exhibit 1.4 was a letter dated 1 June 2023 from the offender’s parents. They outlined their family history and stated that during his working life the offender had demonstrated a high work ethic. Whilst not condoning in any way what the offender has done, they had provided their support to him. They stated that he expressed regret and sorrow for his actions and the impacts that they have had on others and himself. The offender’s parents stated that they were fully aware of, and had to live with, the offender’s mental health problems throughout his life and they only recently became aware of a major violation that occurred whilst he was a child which had impacted on his life journey. They stated that they will support his transition from gaol and are confident that he will not reoffend.

68. Exhibit 1.5 was a letter from Mr C Cunnion dated 25 February 2022 who stated that he had known the offender and his family for over 25 years, they having first met in secondary school. After school he was aware that the offender had become a qualified builder. Throughout the years their families remained close and he was aware that the offender had volunteered as a coach and referee for junior football teams.

69. Mr Cunnion described being shocked when advised that the offender had been arrested in 2018 for drug offences. He described it as completely out of character and not consistent with the loyal, family-oriented man he had known for many years. The offender has expressed to him deep regret for his offending and he expressed confidence that the offender will be focused and dedicated to resettling with his family and becoming a valued member of the community upon his release from custody.

70. Exhibit 1.6 was a letter from Mr G Williams who had first employed the offender as a building construction contractor in 2015. Their working relationship continued until the arrest of the offender in September 2018. He described himself as being shocked when being advised of the offender’s arrest which he said was completely at odds with his performance and presentation as a highly regarded hardworking family man. The offender had expressed personally to him his regret and remorse for letting his family, friends and peers down. He also expressed confidence that the offender would not reoffend.

71. Exhibit 1.7 was a letter from Ms S Beattie who had known the offender since 2009. Their families became close, and they socialised often. She described the offender as a “kind and compassionate man who has always put his family and friends first”. She also stated that he had a strong sense of social justice and his offending was so out of character that it seemed to her to be a complete disconnect. The offender had expressed his deep regret for his conduct to her.

72. Exhibit 1.8 was a letter from Ms M Tonna who runs a course in public speaking at Macquarie Correctional Centre where she first met the offender in May 2022. She advised that the offender has been regularly attending meetings since May 2022 and has been an active participant. She stated her belief that the offender is aware of the impact that the offences have had in relation to himself, his family and the community and she sensed there was a strong feeling of remorse.

73. Exhibits 1.9 and 1.10 were certificates achieved by the offender whilst in custody on remand.

74. Exhibit 1.11 was an affidavit of a law clerk working for the offender’s solicitor affirmed on 28 September 2023. Mr Fleming referred to the documents produced on subpoena by Corrective Services NSW and has provided a summary of relevant documents which describe, in numerous ways, the offender in a positive way as a model prisoner. The affidavit also annexes medical records and Case Note Reports produced on subpoena by NSW Justice Health as well as records relating to his treatment as an inpatient at Waratah House from 18 October to 25 October 2018.

75. Also annexed to the affidavit are NSW Police Force records relating to a break-in to the offender’s residence at Mount Hunter between 9 April 2020 and 17 April 2020, which state that the perpetrators had rummaged through the property and caused substantial damage to it.

76. A further police document confirmed that on 18 February 2021 the offender’s house was set on fire and burned down in the early hours of the morning. No one was at the property at the time as the offender was in custody and his wife had relocated to a regional centre.

77. Exhibit 1.12 was an affidavit affirmed by the offender’s ex-wife on 18 September 2023 which set out the history of their relationship. In 2003 the offender had told her about the sexual abuse he suffered as a child from the ages of 6 through to 10. She deposed that in late 2017 this sexual abuse came to the forefront again when the offender ran into one of the perpetrators.

78. The offender’s ex-wife also deposed as to the impact of the offender’s criminal conduct on her and her family. She was unable to pay the mortgage on the house which meant that she and the children had to relocate. It had been difficult for the three children to come to terms with not being able to see their father and each had suffered negative psychological impacts which had begun to show in their schooling and daily lives.

79. Exhibit 1.13 was a supplementary affidavit from the offender’s ex-wife in which she set out the detail of what occurred on 18 October 2018 when the offender was taken by ambulance to Campbelltown Hospital and then transferred to Waratah House, a mental health facility for a week until he was discharged into the custody of police on 25 October 2018.

80. Exhibit 1.14 was an affidavit affirmed by the offender’s mother on 18 September 2023 in which she set out the impact of the offender’s diagnoses with ADD in 1993. She noticed that 6 months prior to his first arrest in 2018 his behaviour became erratic and unpredictable resulting in a physical altercation between the offender and his father which had a very distressing impact on the family. She described this as completely out of character and had a particularly scarring impact on the offender’s son who witnessed the incident.

81. The offender’s mother also deposed that the offender had only disclosed his sexual abuse as a child to his parents in 2019 when he was on bail. This had had a shattering impact upon herself and her husband. She deposed that the offender’s custodial sentence has had an enormous psychological impact on their family due to the emotional, physical and financial strain it has placed on them. They are now moving from their family home to a unit outside Sydney due to her husband’s health deteriorating. The offender had expressed to her the intense regret he feels for the impact his actions have had upon himself and his wider family.

82. Exhibit 1.15 was an affidavit affirmed by the offender’s sister. She had noticed through her interactions with the offender in 2018 that his drug use was unlike anything he had done before. After the offender had a physical altercation with his father she had given him an ultimatum and thereafter he had sought treatment from a psychiatrist in which he disclosed his childhood sexual abuse. When he was released on bail for the 2018 offences, he then disclosed that to her.

83. The offender’s sister outlined the enormous psychological impact the offender’s custodial sentence had on his three children who had now moved out of Sydney. Further, the impact of lockdowns and failed video links during COVID-19 had meant there had been periods of difficulty for the entire family when trying to contact the offender.

84. The offender also relied on a supplementary defence bundle which included Exhibit 1.1, a detailed written outline of submissions by learned Senior Counsel for the offender. Also included were signed copies of the affidavits affirmed by Mr Fleming and the offender’s ex-wife referred to above.

The Crown submissions

85. The Crown relied on a detailed written outlined of submissions setting out a chronology of the police investigations and the offender’s arrests in respect of both the 2018 and 2020 offences.

86. In relation to the 2018 offending the Crown submitted that the offending fell within the middle of the range of objective gravity for such offences, characterising it as a grave example of this type of offending, noting the quantity of drugs manufactured, the offender’s role and the sophistication of the operation.

87. Whilst the quantity of drugs is not decisive in assessing objective gravity, the Crown submitted it is a significant factor. Here, Sequence 1 involved the manufacture of a total of 13,129g of MDA, more than 26 times the large commercial quantity of 500g. Sequence 7 involved the deemed supply of 21,966g of GBL, more than 5 times the large commercial quantity of 4kg. Sequence 10 involved the manufacture of 19,371g of MDP2P, more than 38 times the large commercial quantity of 500g (which the Crown submitted was the combination of the pure product and purity unknown product).

88. The Crown submitted that whether the offender had a role within a larger criminal syndicate or was the principal of his own manufacturing operation for on-sale by others is unknown. What was known was that a large-scale clandestine laboratory was found at his home. The offender’s wife had told police at the time of the search warrant that to her knowledge nobody but the offender had access to the property, including the sheds.

89. It was unknown how long the laboratory had been operating but at the time of the police search warrant there was evidence of manufacture at multiple stages appearing to be occurring, namely MDA manufacture from chemicals and then the pressing into pill form.

90. The smaller shed on the property was also being used to store items relating to manufacture and multiple methods of the manufacture of MDP2P were being used. It was noted that the offender’s van had a secret compartment. The Crown submitted that in the freezer in the kitchen of the offender’s home police had found a plastic bottle containing 47g of bright yellow liquid which was later analysed and found to contain MDP2P. Also more than 300g of MDMA pills were found in bags in the main house where the offender was living with his wife and children. In respect of the offender’s motivation, the Crown referred to the explanation he gave to Dr Furst, namely that the offences were committed in the context of a mind clouded by drug use and that he was “over-capitalised” and “stretching himself”. There was no evidence provided as to any over-capitalisation. What was disclosed was sophisticated and planned offending which required the offender to source a large amount of glassware, a pill press, chemicals, to set up the laboratory and have the knowledge and acumen to manufacture the product from chemicals and then into pill form. The Crown submitted the offences were committed for financial gain.

85. The Crown submitted that the Form 1 offences were of themselves serious in that they provided the offender with the capability of the manufacture of even greater amounts of drugs than those found. The Crown submitted the Form 1 matters increased the need for personal deterrence and retribution. The offences on the Form 1A concerned the offender possessing, with intent to manufacture, 44,140g of formamide, a precursor (Sequence 18) together with substantial amounts of drug manufacture apparatus, significantly including a pill press, punches and a flywheel (Sequences 4 and 19). In addition, the offender also manufactured an additional 553g of MDA (split into Sequences 11 and 12).

86. The offences on the Form 1B involved the offender possessing with intent to manufacture 1,884g of iodine, 150g of pure pseudoephedrine, 7.1L of hypophosphorous acid and 22,131g of safrole, all being precursors to drug manufacture.

87. The Crown submitted the objective seriousness of the 2020 offending was within the mid-range of objective seriousness. Sequence 2 involved the manufacture of 16.2kg of MDP2P, 32 times the large commercial quantity of 500g. Sequence 5 involved the manufacture of 2,081g of amphetamine, 4 times the large commercial quantity of 500g. Further, the offender’s role from the outset involved him renting the premises at Moorebank on 18 May 2020 in the name of Steven Chichester, whose identification was found in various forms in the offender’s bedroom when police searched it. Between 13 August 2020 and 8 September 2020, the offender attended the Moorebank premises on 23 out of 25 days. On some days he attended on four different occasions and over that 25 day period he was at the premises for approximately 90 hours.

88. Following the offender’s arrest police searched his car and found evidence relating to drug manufacture. The Crown also noted that during the period 10 August to 9 September 2020, nobody but the offender and co-offender entered or exited the unit.

89. Counsel also noted the factual findings made by her Honour Judge T Smith SC when sentencing the co-offender, where her Honour noted that the Crown conceded that it could not be established beyond reasonable doubt that the reaction process in respect of the amphetamine occurred at the relevant industrial unit. Rather, as submitted by the co-offender it could only be established beyond reasonable doubt that the subsequent process of distillation and extraction of amphetamine occurred at the industrial unit and an alternative available inference was that the reaction process of “cooking” had occurred elsewhere at a prior different location.

90. In relation to parity with the co-offender, the Crown submitted there were very substantial differences which impact on the significance of the principle of parity. Most critically was that the co-offender was not involved in or sentenced for the 2018 offending. The Crown submitted that the 2018 offending involved a much larger quantity of prohibited drugs than the 2020 offending, in addition to the following differences. First the co-offender was not on bail at the time of his offending. Secondly, the sentencing Judge made favourable findings impacting on the ultimate outcome which were not available in favour of the offender. For example, her Honour found that the co-offender had a lesser role in the 2020 offending, that he had a powerful subjective case, that there was a causal connection between his childhood experiences, bi-polar disorder and the offending which acted to reduce his moral culpability and also to reduce the need for general deterrence and specific deterrence. In addition, the co-offender had good prospects of rehabilitation and was unlikely to reoffend.

91. Further, the offences for which the offender is to be sentenced are not identical for those to which the co-offender was sentenced. For example, the co-offender was sentenced for an offence of knowingly take part in the manufacture of a large commercial quantity of MDP2P, and also knowingly take part in the manufacture of a large commercial quantity of amphetamine whereas the offender was charged with manufacture a large commercial quantity of those two drugs. Also there were differences in the offences on the Form 1 to the same effect and this offender had an additional matter on the Form 1 of deal with proceeds of crime which related to the identification in the name of Steven Chichester.

92. Both offenders were of similar age (45 years for the co-offender and 44 years for the offender) and each had no relevant criminal history. Both were entitled to a 25% utilitarian discount in respect of their early pleas of guilty. The Crown conceded that the offences outlined above which were not identical were however largely similar.

93. In respect of the subjective case for the offender, the Crown noted that the report of Dr Furst was based on his assessment of the offender on 28 July 2020 which was two days prior to the police first observing the offender’s vehicle to be parked outside the industrial premises at Moorebank.

94. The Crown noted inconsistent reporting by the offender as to his history of drug abuse. The Crown submitted that the Court would entirely disregard Dr Furst’s opinion that the offender had good prospects of rehabilitation as that opinion was based on an incomplete picture with no consideration of the 2020 offending.

95. The Crown submitted that an aggravating factor to be taken into account was that the 2020 offences were committed whilst the offender was on bail for the 2018 offences. Further it was submitted that the offences were committed for financial gain pursuant to s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”).

96. The Crown conceded the s 21A mitigating factors, namely that the offender did not have any criminal record of significance and that he was entitled to a 25% utilitarian discount for his plea of guilty.

97. The Crown submitted that the Court would impose “not insubstantial” accumulation between the 2018 and 2020 offending to reflect discrete offending at different times and locations.

98. The Crown referred to the pre-sentence custody of the offender in two periods amounting to a total of 1,347 days at the sentence hearing and submitted that the appropriate start date for any sentence, taking into account that custody, is 27 January 2020.

99. In her oral submissions, the Crown rehearsed her submissions relating to the objective seriousness of the offending in relation to both the 2018 and 2020 offences as falling within the mid-range. Whilst the precise role of the offender in respect of the 2018 offending was unknown the agreed facts established that on his property there was a large, sophisticated laboratory manufacturing prohibited drugs, although it was unknown for how long the laboratory had been operating. The manufacture of MDA was at multiple points in the manufacturing process, including the ability to press it into pill form. At the time of the execution of the search warrant police found the pill presses in motion for the production of tablets. Further, the offender’s van had been modified with secret compartments for the transport of the prohibited drugs.

100. The Crown rehearsed her submissions regarding the safety aspects given the offender was living in the premises with his wife and young children whilst located in the freezer in the kitchen was a bottle containing 47g of MDP2P. The offender’s motivation was clearly for financial gain and given the quantity of drugs being manufactured, his role and the level of sophistication of the operation, it was submitted that the 2018 offending clearly fell within the middle range of objective seriousness. The offences on the Forms 1 were also very serious, increasing the need for general deterrence and retribution.

101. The Crown rehearsed her submissions regarding the 2020 offences which were committed whilst the offender was on bail. The premises had been rented on 18 May 2020 in the name of Steven Chichester whose identification was located in the offender’s bedroom. The Crown rehearsed her submissions regarding the amount of time the offender spent at the premises on 23 out of 25 days for approximately 90 hours. On occasions he had attended 2, 3 or 4 times each day.

102. The Crown noted that the quantity of drugs manufactured, the offender’s role and the sophistication of the operation were less than the 2018 offences. It was noted that the manufacturing concerning in the 2020 offences, was “by refinement”, which was one step further along the manufacturing process than using precursor products.

103. The Crown referred to the evidence relied on by the offender as to the break and enter into the Mount Hunter premises in April 2020. The Crown noted that this preceded him renting the industrial unit in May 2020 and submitted that there was no evidence that it had anything to do with the 2020 offending.

104. The Crown rehearsed her submissions relating to the issue of parity with the sentence imposed by Judge Smith on the co-offender. There were significant differences here which meant that the impact of the principle of parity was of less significance.

105. The Crown also rehearsed her submissions relating to the opinions expressed by Dr Furst, who had an incomplete picture. At the time of his assessment the offender had told Dr Furst that he had ceased offending and drug use as well as interaction with antisocial people. He also was remorseful and accepted responsibility for his offending. However, following the assessment on 28 July 2020 police observed the offender’s van at the Moorebank premises which had been rented two months earlier in the name of Chichester. Thus Dr Furst’s opinions were infected by those misrepresentations and had not been updated. The Court could therefore not accept his conclusions based on only half the story.

106. The Crown also submitted that there was no evidence relating the fire at the offender’s property on 18 February 2021 with the offending. The offender had been in custody at the time of the fire since 9 November 2020.

The submissions on behalf of the offender

113. Learned Senior Counsel for the offender also relied on a detailed written outline of submissions. The offender submitted that the objective seriousness of the 2018 offences, constituting Sequences 1 and 10, was below the mid-range of objective seriousness for offences pursuant to s 24(2) of the DMTA. So too was the offending in Sequence 7, the deemed supply of a large commercial quantity of GBL.

114. It was submitted in relation to the drug manufacturing offences (Sequences 1 and 10) that the offender provided the premises and performed some “cooking”. It was submitted that the manufacture of the MDP2P took place over a relatively short period of some weeks and that whilst MDP2P was a prohibited drug, it was not likely to have been manufactured as a final product for the purpose of supply. Rather it was probably manufactured as a step in the process of manufacturing MDA. The MDA was being manufactured over a period of weeks and was intended as the final product of the manufacturing process.

115. It was submitted on behalf of the offender that the following matters should be taken into account in the assessment of the objective gravity of the manufacture offences:-

“a. There is no evidence that the offender financed or purchased the apparatus required for the manufacture.

b. There is no evidence the offender funded the expensive chemicals required for the manufacture, such as safrole or that he had any proprietary interest in the drugs that were being manufactured.

c. The offender was undertaking a manufacture for the proprietors of the drugs who owed him according to the statement of facts $160,000 for the work that he was undertaking.

d. The offender was taking instructions from others.

e. The offender conducted the manufacture of the prohibited drugs at his residence, at considerable risk to him and his family of injury, and more importantly, of detection.

f. It is evident from the extraordinarily small percentage yields and the large amounts of chemicals consumed in the process, that the process was not particularly sophisticated.

g. It is evident that others must have had some role in the actual process of manufacture as the heating mantle was on and a reaction taking place when the police executed the search warrant at the offenders’ property in circumstances where he was not there and was, in fact, in hospital.

h. The offender played an important role in the process of manufacturing the prohibited drugs, MDA and MDP2P, most probably as someone involved with “cooking”.

i. The MDP2P was probably manufactured as a step in the process of manufacturing the MDA. It follows that the MDP2P was not, itself, manufactured with the intention that it be supplied or distributed for the purposes of human consumption as that drug.

j. Although the amount of drugs manufactured was significant, the offender’s criminal conduct was consistent with a person who is not in the mid to high level of the criminal hierarchy as he is demonstrated to be a person who was “hands-on” in the manufacturing process of the drugs at a clandestine laboratory situated at his own premises with all the attendant risks associated with that.”

116. It was submitted that the role of the offender and the level of criminality, for example his position within a hierarchy, is far more important in determining the sentence than the quantity of drugs manufactured. Further, the offender’s role is not to be determined by “short hand” labels but what the offender actually did to effect the manufacture of drugs.

117. It was submitted the role of the offender here, and the way he went about committing the offences was demonstrative of a lack of sophistication in the enterprise. Further, his criminal conduct was consistent with a person who was not in the mid to high level of the criminal hierarchy as he was the person who was “hands-on” in the manufacturing process of the drugs at a clandestine laboratory at his own premises with all of the attendant risk associated with such a laboratory.

118. It was submitted that Sequence 7 which was a deemed supply offence pursuant to s 25(2) of the DMTA arose out of the possession by the offender of 21,966g of GBL. The evidence did not suggest that he personally was going to supply that drug but rather that it was being stored at the premises. There was no evidence that he had taken part in manufacturing that drug, nor could it be concluded that he purchased it or had any financial interest or equity in it. It was submitted that this offence was objectively below the mid-range.

119. In relation to the 2020 offences, it was submitted that the offender also performed the role of chemist to assist in the manufacture by extraction or refinement as opposed to “cooking” or participating in any reaction process.

120. It was submitted there was no suggestion that a process of cooking occurred in the Moorebank premises. There was an available inference that “the cook” occurred elsewhere without the offender’s involvement. A further inference may be drawn that there was a partially successful extraction and distillation of prohibited drugs from the product during a separate and unrelated process that clearly did not take place in the Moorebank laboratory or by the offender. It was submitted that these two offences were at about the mid-range of objective seriousness for offences pursuant to s 24(2) of the DMTA.

121. Learned Senior Counsel referred to the offender’s mental health, relying on well established principles that a mental health condition can have the effect of reducing a person’s moral culpability for the offending, and matters such as general deterrence, retribution and denunciation have less weight in the sentencing process. Where the mental condition contributes to the commission of the offence in a material way the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] apply.

122. It was submitted that the offender suffered an upbringing impacted by sexual violence in the form of exposure to chronic trauma, namely his experience of sexual abuse or molestation as a child from the ages of 6 through to 10 when he suffered sexual abuse by older boys living on the same street as him. The offender was retraumatised when he encountered one of the perpetrators of this childhood abuse in late 2017, leading to a variety of mental health issues prior to his arrest and culminating in his admission to Waratah House.

123. It was submitted that this background of extreme chronic trauma in his childhood may qualify as profound deprivation which is relevant to the assessment of moral culpability, relying on Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44]. It was submitted that this was connected to and should not be artificially separated from his mental health, as per DS v R, DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [155].

124. It was submitted that the offender’s childhood trauma was a direct material contributor to his severe SUD.

125. It was also submitted that there is strong evidence of rehabilitation given that the offender has been completely abstinent from drugs for the last five years since his arrest for the Mount Hunter offences in 2018.

126. It was further submitted that the Court would take into account the fact that the offender has been incarcerated since his second arrest on 9 September 2020, during which the custodial conditions and restrictions resultant from the COVID-19 pandemic have rendered his time in custody significantly more onerous. He has been subject to lengthy lockdowns and has not been able to see his children physically for all those three years. He also suffered physical abuse whilst in prison, including having his jaw fractured and requiring surgery. These were mitigating factors to be taken into account.

127. It was submitted that the offender has good prospects of rehabilitation. He has the support of his family and is a qualified plumber and builder and has immediate employment following his release from custody. He is also better placed to manage his business, having completed a Certificate III in business studies and accounting administration.

128. Learned Senior Counsel submitted that in applying totality to the sentence, whilst the 2018 and 2020 offences were different, there was a sound basis to moderate the extent of any accumulation. It was further submitted that the Court would make an order for special circumstances, pursuant to s 44 of the CSPA.

129. In relation to the principle of parity, it was submitted that the co-offender El Badar pleaded guilty to two principal offences of knowingly take part in the manufacture of the same quantity of illegal drugs, namely MDP2P and amphetamine that are subject to the index charges here. The co-offender also had taken into account in relation to the first offence a further offence of possession of a precursor, namely 43.8kg of MDP2P with the intent to make MDA which is the same offence which is to be taken into account for the offender in relation to Sequence 2.

130. Counsel referred to the indicative sentences and aggregate sentence imposed by the sentencing Judge, and her finding that the objective seriousness of the two offences fell below the middle of the range but not considerably so. It was found that the co-offender was assisting the offender, but that he also made a contribution to the rent of the premises. Counsel further referred to the significant subjective matters taken into account in respect of the co-offender. His diagnosed Bi-polar Disorder reduced his moral culpability but he was otherwise a person of good character and had good prospects of rehabilitation and was unlikely to reoffend.

131. Learned Senior Counsel accepted that the offender played a more significant role than the co-offender in the Moorebank laboratory, “but not significantly so”. There is no evidence that the offender recruited the co-offender or that he directed him to do anything he would not otherwise have done. Significantly, the co-offender received a 25% discount on each of the indicative sentences.

116. In his oral submissions learned Senior Counsel for the offender rehearsed his submissions in respect of the objective seriousness of the 2018 offences. It was submitted that there was no doubt on the agreed facts that there was a process on foot and that that process had been in operation for some time. At the time of the police execution of the search warrant on 23 October 2018 the offender was at Waratah House and not present at the property, therefore an inference arose that somebody else was conducting the live reaction that was taking place. It was submitted that the fact that he lived on the property does not exclude the possibility that there was another person doing the “cooking”.

117. It was submitted that Sequence 7 was an offence of a different nature, being a deemed supply given his possession of the GBL on his property. There was no evidence that he was in the business of selling GBL. He should therefore be sentenced on the basis that he was keeping it there, to be supplied to someone else.

118. It was submitted that the manufacturing offence in Sequence 10 was part of the overall process to make MDA, for the purpose of distribution.

119. Whilst counsel conceded that a motivation of financial gain was obvious it may not be the only motivator here given that the evidence established that he owed money or was owed money by an outlaw motorcycle gang.

120. Counsel rehearsed his submissions that the offending in Sequences 1, 7 and 10 was not at the mid-range of objective seriousness but were serious enough examples of the relevant offences.

121. In relation to the 2020 offences, it was submitted that the offender clearly leased the premises and was on bail at the time and therefore on conditional liberty. It was submitted that this was the most substantial difference between the 2018 and 2020 offences.

122. The evidence established that both the offender and co-offender were at the premises with a whole range of vessels full of chemicals that were part of the manufacturing process. It was submitted that the contents of these containers were not made there and there was no evidence that the process involved adding ingredients together there. Rather a process of refinement or distillation was taking place, namely to get drugs from what was described as “the sludge” that was contained in the numerous containers.

123. It was submitted that it was important to characterise the role of the offender. It was submitted the 2020 offences were not as serious as the 2018 offences because in 2020 the offender had a limited role to play, consistent with someone else being responsible for “the cook” but not being able to achieve it and turning to the offender to help them out. It was accepted that it was a likely motivation that he did it for money, however it was submitted that the offender was exposed to serious criminals in the same milieu at the time.

124. Further, it was submitted that there was a temporal connection between the break and enter into his house in April 2020 and him renting the premises at Moorebank in May 2020. On that occasion his house had been trashed and when he was back in custody someone then torched his home.

125. Given the aggravating factors referred to above, it was submitted that the objective seriousness of the 2020 offending was “about mid-range”. It was not quite at mid-range for the 2018 offences.

126. It was submitted the court would take into account that prior to his arrest in 2018 the offender had been apparently psychotic, requiring scheduling at Campbelltown Hospital. His childhood trauma had been triggered in 2017 and he had an underlying profile of ADD. He was therefore not functioning as a sound human being and using prohibited drugs and therefore making bad decisions.

127. It was submitted the Court would take into account that the offender was previously of good character. He was a successful qualified tradesman running his own business and not running with criminals. He had not for example led a life of criminogenic activities. He now accepted full responsibility for his offending conduct.

128. Learned Senior Counsel conceded that general deterrence had a prominent role to play in sentencing, even if it was marked down and specific deterrence also had a role given his return to the Moorebank Laboratory in 2020. Given his history in custody it was submitted that he was now on the right path and the Court would be satisfied that he will not reoffend. He could not have had a better performance review of his time in custody. He is not only working but involved in pro-social activities and has had no infractions. He is well regarded by custodial officers and is completing courses. The Court should therefore find that he has real prospects of rehabilitation and is well down the track to achieving that. It was therefore submitted there was no need for heavy weight to be given to specific deterrence nor protection of the community upon his release from custody.

129. Learned Senior Counsel referred the Court to a number of comparative cases where offenders had been sentenced for manufacturing or refining large commercial quantities of prohibited drugs which are instructive for the sentencing principles to be derived therefrom. Most relevant however was the sentence imposed on the co-offender El Badar. Whilst it was accepted that the offender’s objective role was more important than that of the co-offender, it was submitted the co-offender was an active participant over a long period of time and had paid the rent on the Moorebank premises at least once.

130. It was acknowledged that El Badar had favourable subjective factors taken into account by the sentencing Judge however counsel submitted this offender had had a troubled childhood and had done an extraordinary job in rehabilitating himself in custody. Applying principles of parity, whilst there were differences in emphasis those differences should not make much difference. Most important here was the structure of the sentence and it was submitted that there should be a substantial degree of concurrency, particularly to ensure that any sentence did not make illusory the discount he was entitled to on the indicative sentences in any aggregate sentence.

Determination

147. S 3A of the CSPA sets out the purposes of sentencing as follows:-

"3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community".

148. In assessing the objective seriousness of offences involving the manufacture of large commercial quantities of prohibited drugs, the quantity of drugs involved must be a significant factor along with the role of the offender, taking into account all of his relevant criminal conduct.

149. Dealing first with the 2018 offences, Sequence 1 concerned the manufacture of 3,047g of pure MDA and 10,082.77g where the purity has not been determined. Even taking the second quantity as being of low purity, the total of over 13kg of MDA is more than 26 times the large commercial quantity for that drug. Even though the offender was not at the property when the police executed the search warrant, it was clear he had been operating a sophisticated, clandestine laboratory where there was evidence of manufacture of prohibited drugs at multiple stages of that process, including ultimately processing the drug into pill form. I accept the various matters put on behalf of the offender relating to the assessment of objective gravity. There was no evidence that the offender financed or purchased the apparatus required for the manufacturing process and no evidence that he funded the expensive chemicals required for that manufacture.

150. As with all sophisticated drug supply criminal enterprises, it is difficult to place the offender within the hierarchy of that enterprise. I accept that he was taking instructions and that others must have had some role in the actual process of manufacture given that it was proceeding whilst he was hospitalised. As “a cook” or producer of the end product he was an integral part of that enterprise. Whilst he may not have been in the high level of such criminal hierarchy, conducting a clandestine laboratory demonstrated a sophisticated enterprise and I reject the offender’s submission to the contrary. Having regard to all of the circumstances of the offending and the large quantity of MDA involved the objective seriousness of the offending in Sequence 1 was within the middle of the range for an offence pursuant to s 24(2) of the DMTA.

151. Attached to Sequence 1 on the Form 1A were six offences, three of which carried maximum penalties of 10 years imprisonment and two of which carried maximum penalties of 20 years imprisonment. Given the nature of the offending, the offender’s role and the particulars of each offence, each of those offences were objectively serious although below the mid-range for offences of their type.

152. Sequence 7 concerned the deemed supply of more than five times the large commercial quantity of GBL. That drug was stored on the property and there is no evidence to establish that the offender himself was to supply the drug. The objective seriousness of the offending involved was below the mid-range for an offence pursuant to s 25(2) of the DMTA and in the middle of the low range for such an offence.

153. The objective seriousness of the offending in Sequence 10 which concerned the manufacture of more than 38 times the large commercial quantity of MDP2P was, having regard to the role of the offender as set out above, also within the mid-range for an offence pursuant to s 24(2) of the DMTA although towards the bottom of the mid-range.

154. Annexed to that offence on Form 1B were five offences pursuant to s 24A(1)(a) of the DMTA of possess various amounts of drug precursors which offences carried a maximum penalty of 10 years imprisonment. The objective seriousness of each of those offences fell within the low range of objective seriousness for offences pursuant to s 24A(1)(a) of the DMTA.

155. In relation to the 2020 offences, Sequence 2 concerned the manufacture of a large commercial quantity of MDP2P. The amount of the drug involved was 32 times the prescribed large commercial quantity and the offender’s role involved him leasing the Moorebank premises and attending them on an almost daily basis to undertake the manufacturing process by way of extraction or refinement of the substances found in various containers at those premises. It may be inferred that those substances were initially manufactured elsewhere. Notwithstanding that, there was a sophisticated distillation process in place within the premises together with the machinery to enable that process, for example the presence of a forklift. I find the objective seriousness of the offending in Sequence 2 to be within the mid-range for an offence pursuant to s 24(2) of the DMTA.

156. Attached to Sequence 2 was an offence on the Form 1C of possess precursor which carried a maximum penalty of 10 years imprisonment. Given the amount of MDP2P involved this offence fell within the low range for an offence pursuant to s 24A(1)(a) of the DMTA.

157. The objective seriousness of the offending in Sequence 5, manufacture large commercial quantity of methylamphetamine involved a quantity of four times the prescribed large commercial quantity. It also involved the offender from the outset renting the premises and manufacturing the prohibited drug by a process of refinement. Given the quantity of drugs involved and his role I find that the objective seriousness of this offence fell just below the mid-range of objective seriousness for an offence pursuant to s 24(2) of the DMTA. It still constituted serious offending.

158. Attached to Sequence 5 on the Form 1D were two offences of deal with property suspected proceeds of crime and manufacture prohibited drug which both fell within the low range of objective seriousness for offences of their type.

159. It was an aggravating factor of all the offending that it was carried out for financial gain, so much is axiomatic for such offending involving the manufacture or deemed supply of large commercial quantities of prohibited drugs. In respect of the 2020 offences a further aggravating factor to be taken into account is that the offences were committed whilst the offender was on bail for the 2018 offences and was therefore on conditional liberty. As an aggravating factor, this demonstrated a complete disregard for the law and court orders.

160. [REDACTED].

161. General deterrence is significant in sentencing for offences involving the manufacture of large commercial quantities of drugs. The drug trade is insidious trade and causes widespread harm throughout the community and also gives rise to a great deal of other criminal activity. Parliament has proscribed heavy maximum penalties of life imprisonment for such offences, placing them at the top of the criminal calendar. A clear message must be sent to likeminded persons in the community who are involved or are contemplating being involved in such criminal enterprises for the purpose of making high profits therefrom, that the Courts will impose condign punishment for such activity. Specific deterrence is also important in that this offender, who reoffended whilst on bail for the 2018 offences thereby demonstrating a contempt for the law and court processes, and therefore must expect more severe penalties to be imposed on him by way of lengthy terms of imprisonment in the event that he was to reoffend.

162. In respect of the 2018 offences I have taken into account the maximum penalties of life imprisonment and/or 5,000 penalty units and the standard non-parole period proscribed of 15 years imprisonment in respect of Sequences 1, 7 and 10. In respect of the 2020 offences I have taken into account the maximum penalty proscribed of life imprisonment and/or a fine of 5,000 penalty units, and the standard non-parole period proscribed of 15 years imprisonment in respect of both Sequences 2 and 5. The maximum penalties and standard non-parole periods proscribed are taken into account as guideposts in the sentencing process.

163. I take into account the following subjective factors. First, the offender had no relevant criminal history and was otherwise a person of good character, although this carries little weight in respect of the offences of manufacturing large commercial quantities of prohibited drugs.

164. I accept that the offender suffered childhood trauma by way of sexual abuse between the ages of 6 and 10, that this was triggered in 2017 and that ultimately he was admitted to Campbelltown Hospital and scheduled pursuant to the Mental Health Act in 2018. I also accept that he was diagnosed as suffering ADD in 2013 and medicated as a teenager on Ritalin. I do not however find that he had a childhood marked by profound deprivation. To the contrary, he was raised in a loving and supportive family and attended a private school. After leaving school he completed an apprenticeship as a plumber and worked in his father’s building business, thereby qualifying by experience as a builder. From the age of 28 he conducted his own business as a builder. None of this attracts the principles in Bugmy v The Queen so as to lower the moral culpability for his offending.

165. Whilst the offender used illicit drugs recreationally he was drug free for a number of years after his first son was born until he relapsed into recreational drug abuse in his mid-thirties. This abuse spiralled following his triggering in late 2017 by seeing one of the perpetrators of his childhood sexual abuse. Whilst this gives context to his drug abuse and subsequent hospitalisation, it does not explain his involvement in a significant drug manufacturing and supply enterprise. I accept the Crown submission that Dr Furst’s optimistic opinions as to his prospects of rehabilitation and reduced risk of recidivism could not be accepted given that at the very time of his assessment by Dr Furst the offender had already commenced the criminal enterprise that led to the 2020 offences, namely by renting the premises at Moorebank in a false name.

166. I am unable to find on the balance of probabilities that the break in of the offender’s home in April of 2020 and the subsequent fire at those premises in 2021 were in any way related to the offending. There is just no evidence upon which such a finding could be made or upon which an inference to that effect could be based. Rather it would be merely speculative to so find.

167. Notwithstanding the difficulty in accepting Dr Furst’s opinion, which was not updated, the offender has made progress with his rehabilitation whilst in custody. First, he has been abstinent from taking illicit drugs for over three years. It is no small thing to overcome such an addiction and it is to his credit that he has done so. He has also made a positive contribution by his work in custody at the Macquarie Correctional Centre and I accept that he is motivated to make a productive return to the community so as to resume his relationship with his children. I therefore find that he has reasonable prospects of rehabilitation and, subject to him adhering to any relapse prevention strategies that are put in place for him, that he is at a low risk of recidivism for like offending.

168. In respect of the 2020 offences the principle of parity must be applied having regard to the co-offender’s sentence. Parity is a principle of equal justice which requires that like offenders should be treated in an alike manner but allowing for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances – Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 and Elmir v R [2023] NSWCCA 260.

169. The co-offender El Badar was sentenced in respect of two offences of knowingly take part in the manufacture of the same quantities of prohibited drugs particularised in Sequences 2 and 5 and each carried the same maximum penalty of life imprisonment and standard non-parole period of 15 years. Attached to the first offence was a Form 1 that contained one offence of possession of a precursor being 43.8kg of pure MDP2P which was the same offence in Sequence 3 attached to Sequence 2 of the index offending on the Form 1C.

170. Attached to the second offence on another Form 1 was one offence of knowingly take part in the manufacture of a prohibited drug, namely 109g of pure methylamphetamine which equated with Sequence 10 on the Form 1D attached to Sequence 5 on the index offending.

171. After taking into account a 25% utilitarian discount on sentence, together with significant subjective factors, the co-offender was sentenced to an aggregate sentence of 6 years and 2 months imprisonment with a non-parole period of 3 years and 2 months following a finding of special circumstances.

172. I find the following significant differences must be taken into account in sentencing the offender. First, the co-offender was not involved in or sentenced for the 2018 offending which did involve a much larger quantity of prohibited drugs and a more sophisticated operation than the 2020 offending. Secondly, the co-offender was not on bail at the time of the 2020 offending and consistent with the sentencing Judge I find that the co-offender had a lessor role in that offending.

173. In addition, the co-offender had a powerful subjective case and her Honour found a causal connection between his childhood experiences, bi-polar disorder and the offending which acted to reduce his moral culpability and the need for general and specific deterrence. Her Honour also found that the co-offender had good prospects of rehabilitation and was unlikely to reoffend.

148. Another difference was that the co-offender was not sentenced on identical offences. In relation to the manufacture of each prohibited drug the co-offender was charged with an offence of “knowingly take part in the manufacture of a large commercial quantity”. There were also differences in respect of the matters dealt with on the Forms 1. Counsel for the offender accepted that the offender played a more significant role in the 2020 offending than the co-offender however there was no evidence that the offender recruited the co-offender or that he directed him to do anything he would not otherwise have done.

149. I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. In doing so, I have taken into account the objective seriousness of the offending, the significant subjective factors to be taken into account on behalf of the offender, the discount to which he is entitled by virtue of his early plea of guilty and otherwise and I have also had regard to the indicative sentences behind the aggregate sentence imposed on the co-offender. In coming to the indicative sentences I have not imposed the standard non-parole period for any of the offences having regard to the accumulation involved in the sentencing process and the discount to which the offender is entitled. I have also taken into account the offences on the Forms 1A, 1B, 1C and 1D in respect of each of the offences to which they are attached as some accumulation in sentence.

150. The indicative sentences are provided to demonstrate transparency in the sentencing process. Having regard to all of the above matters, the indicative sentences are as follows:-

2018 offences

1. Sequence 1 - taking into account the Form 1A offences, 7 years imprisonment with a non-parole period of 3 years and 6 months imprisonment.

2. Sequence 7 – 2 years imprisonment with a non-parole period of 1 year imprisonment.

3. Sequence 10 – taking into account the offences on the Form 1B, 6 years imprisonment with a non-parole period of 3 years imprisonment.

2020 offences

1. Sequence 2 – taking into account the offence on the Form 1C, 7 years imprisonment with a non-parole period of 3 years and 6 months imprisonment. Fin

2. Sequence 5 – taking into account the offences on the Form 1D, 4 years imprisonment with a non-parole period of 2 years imprisonment.

177. In arriving at an aggregate sentence it is important to apply principles of totality and proportionality to arrive at an aggregation of those sentences which is a “just and appropriate” measure of the total criminality involved in their commission. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

178. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

179. Here, given the objective seriousness of the offending, the fact that there were two discrete sequences of criminal conduct and that the 2020 offences were committed whilst the offender was on bail in respect of the 2018 offences, warrant considerable accumulation in sentence. I intend to impose an aggregate sentence of 12 years imprisonment.

180. I find special circumstances pursuant to s 44(2B) of the CSPA given that the offender has been in custody on remand during the COVID pandemic when conditions for the prison population had been particularly onerous with the imposition of lockdowns, absence of visitation rights and lack of access to courses, which were all a result of measures imposed to ensure the safety of the whole of the prison population. Also relevant is the fact that the offender will require an extended period of supervision to ensure his productive return to the community. I therefore intend to impose a non-parole period of 7 years commencing on 27 January 2020 and expiring on 26 January 2027.

Orders

181. I hereby order as follows:-   

1. You are convicted of the following offences

1. Sequence 1 – manufacture prohibited drug, large commercial quantity (3,047g pure 3,4-methylenedioxyamphetamine (“MDA”) and 10,082.77g where the purity has not been determined), an offence pursuant to s 24(2) of the DMTA.

2. Sequence 7 – supply prohibited drug, large commercial quantity (21,966g gamma butyrolactone (“GBL”)), an offence pursuant to s 25(2) of the DMTA.

3. Sequence 10 – manufacture prohibited drug, large commercial quantity (2,676.8g pure 3,4-methylenedioxyphenyl-2-propanone (“MDP2P”) and 19,695g where the purity has not been determined), an offence pursuant to s 24(2) of the DMTA.

4. Sequence 2 – manufacture large commercial quantity prohibited drug (16.2kg pure MDP2P), an offence pursuant to s 24(2) of the DMTA.

5. Sequence 5 – manufacture large commercial quantity prohibited drug (2.021kg pure methylamphetamine, 0.06kg where the purity has not been determined), an offence pursuant to s 24(2) of the DMTA.

2. I sentence you by way of an aggregate sentence pursuant to s 53A of the CSPA to a sentence of 12 years imprisonment commencing on 27 January 2020.

3. There will be a non-parole period of 7 years commencing on 27 January 2020 and terminating on 26 January 2027.

4. The balance of the sentence will be a period of 5 years from 27 January 2027 until 26 January 2032.

5. I certify that I have taken into account on sentence the offences contained in Forms 1A, 1B, 1C and 1D. Of the related offences listed on the two s 166 certificates, I note that Sequences 3 and 8 have been taken into account on the Forms 1A and 1D respectively.

6. In respect of the related offence being Sequence 6 on a s 166 certificate, I find the offence proved and convict the offender without imposing any penalty pursuant to s 10A of the CSPA.

7. Your parole eligibility date will be 26 January 2027. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

Decision last updated: 26 October 2023