R v Snounou (No 3) - [2024] NSWDC 636

District Court

New South Wales

Medium Neutral Citation: R v Snounou (No 3) [2024] NSWDC 636
Hearing dates: 28 March 2024
Date of orders: 12 July 2024
Decision date: 12 July 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Aggregate sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months, at [253] to [256].

Catchwords:
CRIME — Drug offences — Possess precursor intending that it be used in the manufacture of a prohibited drug — Offender possessed over 1 tonne of iodine intending it be used in the manufacture of methylamphetamine — Buckets used to store iodine found in clandestine laboratories linked to offender’s company.
SENTENCING — Aggravating factors — Financial gain — Objective seriousness “extremely high” — Quantities of precursors capable of producing “massive” amounts of methylamphetamine on any description and with reference to comparative cases.
SENTENCING — Relevant factors on sentence — Delay — Offender was arrested and charged in 2018 — Offender received further discount for disclosure of evidence that saved court time — Relevance of general and specific deterrence.

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Crimes Legislation Further Amendment Act 2000 (NSW)p
Drug Misuse and Trafficking Act 1985 (NSW)
Drug Misuse and Trafficking Regulation 2011 (NSW)
Cases Cited: DG v R (No 1) [2023] NSWCCA 320
El Kheir v R [2019] NSWCCA 288
Imbornone v R [2017] NSWCCA 144
Mori v R [2021] NSWCCA 32
R v Campbell; R v Smith [2019] NSWCCA 1
R v Cousins & Anor (2002) 132 A Crim R 444; [2002] NSWCCA 340
R v James [2017] NSWCCA 287
R v Le Serf (1975) 13 SASR 237; (1975) 8 ALR 349
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Shi [2004] NSWCCA 135
R v Snounou (No 1) [2023] NSWDC 583
R v Snounou (No 2) [2023] NSWDC 584
R v Walker [2023] NSWCCA 219
Salama v R [2023] NSWCCA 141
Takiari & Anor v R [2009] NSWCCA 84
The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Texts Cited:
Nil

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions (Crown)
Michael Snounou (Offender)
Representation:
Counsel:

D Jordan (Crown)
T Hammond (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Jamieson Criminal Law (Offender)

File Number(s): 2018/00058199
Publication restriction: Nil

JUDGMENT

Michael Snounou appears for sentence following his entering pleas of guilty with respect to 2 offences of possessing a precursor, iodine, intending that it be used in the manufacture of a prohibited drug, namely methylamphetamine.
These offences arise pursuant to section 24A (1)(a) of the Drug Misuse and Trafficking Act 1985 and each carries a maximum penalty of 10 years imprisonment and/or a pecuniary penalty of $220,000.
Count 1 relates to a possession of the precursor in 2013 and Count 2 relates to a similar offence in 2017.
The offender was initially charged on 22 February 2018. The circumstances of the delay between the date of his arrest and the date on which he now appears for sentence will be addressed later in these Remarks.

FACTUAL BACKGROUND

In April 2009, the offender became a Director of a company, Cyndan Manufacturing Pty Ltd. Cyndan was involved in the sale and manufacture of commercial and industrial chemical, cleaning and associated products. Included in the legitimate activities of the company was the use of iodine in a “teat sanitiser” product which was produced and sold by Cyndan.
Iodine is not itself a prohibited substance. However, when used in combination with pseudoephedrine and 50% hypophosphorous acid in equal quantities the resultant chemical process produces methylamphetamine. As such, it is defined as a precursor in the manufacture of a prohibited drug, and when possessed with such an intention as to its future use, its possession becomes a criminal offence under section 24A(1)(a) of the Drug Misuse and Trafficking Act. Iodine is listed as a precursor in Schedule 2 of the NSW Drug Misuse and Trafficking Regulation 2011.

Count 1

On 13 September 2013 Cyndan purchased 800 kg of iodine from another company in Sydney, Ruakura Pty Ltd, at a cost of $70,400.
Later that same day the Cyndan warehouse manager, a Mr Phillips, phoned the offender and advised him that the delivery of iodine would not reach the Cyndan warehouse before they closed at 3pm. Accordingly, the delivery of 400 kg of the order of iodine would be taken by the courier to the offender’s residential address at Bellevue Hill.
The iodine was in the form of prills or pellets contained in cylindrical containers each weighing 20 kg. Each container had an identifying serial or batch number.
The 20 cylindrical containers were delivered to the offender’s residence and then placed by him into a Toyota RAV 4 motor vehicle. He then drove the vehicle to an auto-electrical business in Marrickville where the containers were unloaded from the Toyota and placed into a white van.
On 16 September 2013 Cyndan purchased a further 400 kg of iodine from Ruakura Pty Ltd for $35,200. This consignment was delivered directly from Ruakura to the auto-electrical business in Marrickville.
Police had the auto-electrical business under surveillance and shortly after the consignment was delivered, they observed a Toyota HiAce van reverse into the premises. It was then observed to depart a short time later.
The agreed facts imply, but do not state, that some or all of the consignment of the iodine was taken away in the Toyota HiAce.
Subsequent police operations involving the search and seizure of drugs, chemicals and manufacturing items, at a number of clandestine drug laboratories led to evidence linking the iodine which had been delivered to Cyndan from Ruakura Pty Ltd with the manufacture and production of quantities of methylamphetamine at those clandestine laboratories.
On 23 December 2013 police searched a clandestine drug laboratory on Dog Trap Road at Ourimbah, inland from the Central Coast near Gosford. There were substantial quantities of chemicals and other material indicating that the laboratory had been used in the manufacture of a large commercial quantity of methylamphetamine and the quantity of chemicals remaining could be used for the future manufacture of a large commercial quantity.
The detail of the expert opinion supporting these conclusions is contained in the expert certificate and report from the forensic chemist, Dr Daniel Coghlan (at Tab 5 in the Crown tender bundle). Calculations undertaken by the expert with respect to some of the waste material left over from the manufacturing process and located at the premises led to his opinion that the amount of pure methylamphetamine which had been manufactured by reference to one of the quantities of liquid waste was in excess of 16.3 kg of methylamphetamine. With respect to a separate amount of liquid waste approximately 2.4 kg of methylamphetamine could be calculated as having been manufactured.
A cylindrical container of iodine prills was located which contained a batch number corresponding to the Cyndan order which had been delivered on 13 September 2013.
On 9 January 2014 police searched a clandestine drug laboratory located at Jerrys Plains in the Hunter Valley. It was being used for the manufacture of methylamphetamine.
16 cylindrical containers were located at the laboratory with batch numbers corresponding the Cyndan order for iodine on 13 September 2013. 15 containers were still full of iodine prills and one was empty.
On 20 May 2014 police executed a further search warrant at a clandestine drug laboratory on Wiseman’s Ferry Road at Cattai. A white bucket was located in the clandestine laboratory. It had a handwritten label on the lid which read: “Iodine prills, toxic, corrosive, 20 kilograms”. Paul Flavell, an employee of Cyndan Manufacturing Pty Ltd subsequently identified the handwriting on this bucket as his own.
On 2 December 2014 another search warrant was executed at a clandestine drug laboratory in Kenthurst. Police located a number of iodine prill containers which had their serial numbers blacked out.
On 8 January 2015 police seized an unopened 20 kg container of iodine prills from a motor vehicle. This container matched the serial number of one of the containers supplied in the consignment ordered by Cyndan on 16 September 2013. The vehicle also contained apparatus which contained methylamphetamine residue, methylamphetamine in both liquid and tablet form, and 40 kilograms of ephedrine which can also be used as a precursor in the manufacture of methylamphetamine.
On 13 January 2015 police searched yet a further clandestine laboratory located at 4097 Old Northern Road, Maroota, a rural area north-west of Sydney. The Agreed Facts describe in general terms only some of what was located at those premises. Relevantly, there were nine iodine containers which had serial or batch numbers as well as 10 containers, described as “drums” of iodine, with the serial numbers removed or obliterated. Some of the iodine was attributable to quantities of iodine supplied to Cyndan.
No detail regarding the actual quantity of iodine remaining in the containers has been provided.
The Agreed Facts do not reveal when the police investigation linked the serial numbers on the iodine containers to the orders placed by Cyndan Manufacturing Pty Ltd in September 2013. However, it is clear that the offender was not charged at that time.

Count 2

In March 2017 the offender ordered a tonne of iodine from a chemical supply company in New South Wales. He paid $19,000 as a deposit for the total cost of the order of $58,575.
He subsequently followed up on enquiries regarding the delivery date with the supply company as well as liaising with the transport company, TNT, regarding the delivery.
The one tonne of iodine was delivered to Cyndan’s premises on 23 March 2017. The offender was observed pouring the iodine out of its factory-labelled serial numbered packaging into plain, unmarked, white buckets. Each of the white buckets was 20 kg capacity, the same capacity as the factory-labelled containers. 400 kg of the iodine was decanted into the white buckets.
The offender then loaded the buckets into his Range Rover and drove to the vicinity of his home in Wolseley Road, Point Piper. The Agreed Facts state that several white buckets could be seen inside the vehicle and that the following day it was confirmed that at least 15 white buckets were contained within the vehicle.
The following day the offender drove the vehicle to a property in Rhodes where he met an unknown male. He drove the Range Rover into a garage and subsequently drove out without the buckets.
The unknown male left the property in a Toyota HiAce van and drove to South Granville where the buckets were loaded into a Hino truck driven by one Brian Farrugia.
On 24 March 2017 the offender called Caan Phillips, an employee at Cyndan, and requested that he ask a person called Michael Horton if he was available to assist in the repackaging of the iodine which had been delivered.
The following day, Saturday, 25 March 2017, Horton was observed decanting the iodine from its original factory-labelled serial numbered containers into unmarked white buckets. Horton advised the offender in a telephone call when the task was completed.
On Thursday, 30 March 2017 an unknown person attended the premises of Cyndan Manufacturing and, with the assistance of Horton, removed the 600 kg of iodine remaining from the delivery to the outside of the warehouse on a forklift.
The Agreed Facts do not reveal the subsequent movement or disposition of that quantity of 600 kilograms, other than the inference that it was subsequently collected by someone.
On 19 July 2017 police executed a search warrant at premises in Glenwood in the western suburbs of Sydney. Apparatus consistent with the production of methylamphetamine was located at those premises. A variety of chemicals including waste products from the manufacture of methylamphetamine and various precursors were also located.
Two plain white buckets identical to those used in the decanting and repackaging at the Cyndan premises in March 2017 were also seized. The remaining iodine prills were approximately 10.3 kg which the forensic chemist opined could be used to manufacture an achievable amount of 6.3 kg of methylamphetamine. In Dr Coghlan’s opinion the iodine missing from the buckets could have previously manufactured 4.9 kg of methylamphetamine.
On 4 September 2017 police stopped a vehicle being driven by Brian Farrugia after he had left a property in Towrang, near Goulburn. A quantity of 11 kg of methylamphetamine was found in the vehicle.
The property at Towrang was searched and police located a very large clandestine drug laboratory.
Equipment and material located in the laboratory indicated its capability of producing methylamphetamine. Two white buckets, identical to those into which the iodine had been decanted in March 2017 and subsequently provided to the unknown male at Rhodes, were located. The buckets still contained 35 kg of iodine.
On 14 September 2017, police executed a search warrant at premises in George Downes Drive at Kulnura, a remote rural area west of Ourimbah on the Central Coast. These premises had similarly been used for the manufacture of methylamphetamine. Items located included residue or waste product from the manufacture and numerous containers and apparatus used in manufacturing which were ascertained to contain indications of having contained methylamphetamine, or precursors having been contained in them. Approximately five white 20 litre plastic buckets, identical to those which had been used to repackage the iodine at Cyndan in March 2017, were also located. (see Tab 10 Appendix 3 in the Crown Tender Bundle)
Calculations derived from the opinion of the Forensic Chemist, Dr Coughlan, are set out in the various certificates tendered as part of the Crown material. Those certificates clearly specify the calculated amount of methylamphetamine which could have been already produced in various of the clandestine laboratories by reference to the amount of iodine which was missing from containers at those particular laboratories.
In all but one of the clandestine laboratories, the amount of methylamphetamine calculated as having been produced, recognising that such calculated amount would depend on the availability of the other precursors and the skill and ability of the operator or “cook”, was in excess of a large commercial quantity. Calculated amounts ranged broadly from approximately 3 kg of methylamphetamine up to approximately 25 kg. In one instance, the calculated quantity of methylamphetamine able to be produced from 303 kg of iodine located at the clandestine laboratory at Dog Trap Road, Ourimbah, was approximately 186 kg of methylamphetamine.
Utilising the conversion ratio that the amount of methylamphetamine able to be produced represents approximately 0.6 by reference to the quantity of iodine, and applying that ratio to the quantities of iodine possessed and supplied with intent that it be so used in 2013, namely 800 kg, and 1000 kg in 2017, results in a theoretical production capability of 480 kg of methylamphetamine with respect to the iodine in Count 1, and 600 kg of methylamphetamine with respect to the iodine supplied in Count 2.
This represents 960 times the large commercial quantity of methylamphetamine with respect to Count 1 and 1,200 times the large commercial quantity with respect to Count 2. I should indicate that that refers to the current large commercial quantity of methylamphetamine. The previous large commercial quantity was 1 kg, and obviously the ratio would be different.
No evidence of the monetary value of such quantities, either wholesale or retail, has been provided to the Court.

CHARGING AND SUBSEQUENT DELAY

As indicated earlier, the offender was arrested and charged on 22 February 2018. He was initially charged with 33 counts, some 28 of which alleged possession of iodine as a precursor. Various of the other charges related to allegations with respect to the alleged importation of prohibited imports and also to the alleged possession of a different precursor.
Following a 5-day committal in October 2019, the offender was committed for trial to the District Court. The original indictment on which he was arraigned contained 31 counts of which 28 alleged possession of iodine as a precursor intended for use in the manufacture of methylamphetamine, one count alleged possession of a precursor, namely, hypophosphorous acid, and two counts related to the importation of alleged border-controlled drugs. On arraignment on 15 November 2019, pleas of Not Guilty to all counts were recorded and the matter was listed for trial due to commence on 1 February 2021.
The accused had been bail refused from the date of his arrest on 22 February 2018, until granted bail in the Supreme Court by Campbell J on 10 September 2020. It would appear that he was not released to bail until 12 October 2020. On 18 December 2020, an application for the trial date to be vacated was successfully brought by the offender and a new trial date was allocated of 23 August 2021.
On 28 July 2021, the Court was advised of a possible funding issue and that an application had been made for Legal Aid which had not been processed. The trial date of 23 August 2021 was accordingly vacated on the offender’s application.
Submissions on behalf of the offender and negotiations with the Crown led to a number of subsequent adjournments. In due course, all bar four counts on the original indictment were discontinued.
An indictment containing four counts was then preferred. On 26 November 2021, the offender was re-arraigned on the fresh indictment. Counts 1 and 2 related to the possession of iodine as a precursor which are the subject of these current proceedings, and pleas of Guilty were entered at that time with respect to those counts. Counts 3 and 4 related to one count of importing a border-controlled precursor and a second count of importing a border-controlled drug, and pleas of Not Guilty were entered with respect to those counts.
The Crown did not accept the pleas in full discharge of the indictment and proposed to go to trial with all four counts and rely upon counts 1 and 2 as tendency evidence.
The estimate for the length a proposed trial following presentation of the fresh indictment was reduced from 6 – 8 weeks to an estimate of 2 – 3 weeks. The matter was listed for trial to commence on 14 November 2022.
On 19 October 2022, the then representatives of the offender sought leave to cease to act for him. Leave was granted and the court was advised regarding new legal representation.
On 2 November 2022, the trial date fixed for 14 November 2022 was vacated on the basis of new representation. Judge Hunt fixed the matter for mention for the Court to be advised regarding a possible traversal of the Guilty pleas.
On 16 November 2022, the matters were listed for 16 February 2023 for either a sentence hearing on Counts 1 and 2 or for an application for leave to withdraw the pleas of guilty. On 16 February 2023, Counts 3 and 4, that is the importation offences, were listed for trial to 6 November 2023. Counts 1 and 2 were listed for the same date for mention.
On 7 November 2023, the matter was allocated to me to deal with a number of pre-trial arguments. The accused was arraigned on a fresh indictment dated 31 October 2023, again containing the four counts described earlier. The offender entered pleas of Guilty on Counts 1 and 2, and pleas of Not Guilty on Counts 3 and 4.
The first application related to the Crown endeavouring to establish the identity of the chemical identified as a border-controlled precursor which was the subject of Count 3.

Submissions and evidence were heard over a number of days in November 2023. The evidence sought to be relied upon by the Crown was rejected: see R v Snounou (No 1) [2023] NSWDC 583. Following the rejection of that evidence, the Crown filed a no-bill discontinuing that particular count.
The second pre-trial application was an objection on behalf of the offender to tendency evidence which the Crown sought to rely upon. A strong argument in favour of tendency fell away following the removal of Count 3. What had been Count 4 became Count 3 on a further fresh indictment. Following submissions and argument, the evidence of tendency derived from the factual circumstances relating to Counts 1 and 2, that is, the possession of the precursor iodine, was rejected. The reasons for such rejection are to be found in the earlier judgment: R v Snounou (No 2) [2023] NSWDC 584.
On 18 November 2023, the matter was adjourned for trial to commence on 20 November 2023. On 21 November 2023, the Crown advised that Count 3 in the fresh indictment (which had originally been Count 4), would not proceed and that the sentence proceedings for Counts 1 and 2 would proceed.
In due course, submissions on sentence were received and heard on 28 March 2024. The matter was thereafter reserved and subsequently adjourned due to circuit commitments.

OBJECTIVE SERIOUSNESS

While strictly only necessary to be determined in offences involving a standard non-parole period, transparency in sentencing militates in favour of a determination by a sentencing judge of where on a spectrum ranging from the least serious to the “worst category”, a particular offence may be assessed as falling.
In describing the extent of the spectrum, I use the term for high end of the spectrum only in the sense that the High Court described it as “properly so-called” in The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 at [19]. Having made it clear that a case falling within the description of being in the “worst category”, should be a case deserving of the maximum penalty, the plurality said:

“It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being ‘within the worst category’. It is a practice which should be avoided.”

The plurality, Bell, Gageler, Keane, Nettle and Gordon JJ said at [20]:

“Sentencing judges should avoid using the expression ‘worst category’ and instead, in those cases where it is relevant to do so, state in full whether the offence is or is not so grave as to warrant the maximum prescribed penalty.”

The offence created by s 24A of the Drug Misuse and Trafficking Act 1985 was introduced pursuant to the Crimes Legislation Further Amendment Act which commenced on 1 January 2001.
While the possession of apparatus or chemicals able to be used in a proposed manufacture of a prohibited drug might have, in some circumstances, been able to have been prosecuted pursuant to principles of accessorial liability, the amending Act created a specific new offence of the possession of precursors where the person in possession intended them to be used for the manufacture or production of a prohibited drug.
The offence applied whether the person in possession intended to do the manufacturing or another person was going to do the manufacturing. In the course of the Second Reading Speech, the Parliamentary Secretary, Mr Gaudry, introducing the Bill on behalf of the Attorney-General, Mr Debus, said:

“New section 24A makes it an offence for a person to be in possession of a precursor which he or she intends to use for the manufacture or production of a prohibited drug. The new section also makes it an offence if the person has precursors in his or her possession intending that another person manufacture or produce a prohibited drug—for example, if the person has bought the precursor for someone else to make a prohibited drug. Obviously, the person must intend that the third party make the drug; it is not intended that the offence be made out if the person did not know what the third party intended to do with the precursor. The naive or innocent will not be caught by this part of the section.”

The widespread acquisition of drugs such as Sudafed, a cold and flu medication which contained pseudoephedrine, had been increasingly perceived as a problem in the illegal manufacture of methylamphetamine and other amphetamine-derivative prohibited drugs. The government was concerned to introduce restrictions on many otherwise legal substances which could be used as precursors in such manufacturing processes.
Steps taken included significant restrictions in the availability of cold and flu medications containing pseudoephedrine; the prohibition of cash sales of many identified chemicals and a requirement that chemical supply companies only supply chemicals identified as precursors to persons who held accounts established with that supplier.
While the manufacture of methylamphetamine would attract a maximum penalty of 20 years for some quantities and more for a commercial quantity, and a maximum penalty of life for a large commercial quantity, the stand-alone substantive offence of possessing a precursor intending that it be used in the manufacture of a prohibited drug, carried a maximum penalty of 10 years imprisonment.
Shortly after the introduction of the amending legislation, Giles JA, in R v Cousins & Anor (2002) 132 A Crim R 444; [2002] NSWCCA 340, at [34], said: “In making specific provision for the offence in question, the legislature showed by the maximum sentence that a serious view is to be taken of the commission of the offence.”
While I will refer to the detail of Cousins later in these Remarks, it is appropriate to observe that in contrast with offences of supplying a prohibited drug, Giles JA said at [35]:

“…the offence is very different, in that for s 24A(1) there is no graded scale of quantities (although quantity is relevant), and the element of intended use in the manufacture of a prohibited drug brings particular regard to what would become from the intended use and the ultimate release of the prohibited drug into the community.”

It is clear in the present matter that the quantities of iodine which were made available for use by unknown third parties in the manufacture of the prohibited drug methylamphetamine, were supplies of a precursor on what the Crown accurately described as an “industrial scale.”
Whilst avoiding the terminology specifically discouraged by the High Court in Kilic, and while recognising that more substantial quantities in numerical terms of kilograms would be capable of being obtained and supplied, each of the present matters exceeds previously reported instances of offending under s 24A by a very substantial amount.
While in many cases, evidence has been presented to the Court of the value of the quantity of methylamphetamine which might be produced, for example the street value in excess of $75,000 in Cousins, no evidence of the ultimate value of the methylamphetamine capable of being produced has been tendered in the current proceedings.
In the absence of any nominated monetary quantum, or range of possible values, the Court must simply act on the undoubted proposition that what was capable of being manufactured was an extremely valuable commodity.
The cost of the acquisition of the iodine to the offender’s company is able to be ascertained. The 800 kg which was supplied in September 2013 cost $70,400. The cost of the tonne of iodine in March 2017 was $58,575.
There is no evidence as to the quantum of the financial return to the offender other than his description to the psychologist of obtaining “quick money”.
The role of the offender in actually executing the intention that the iodine be used in the manufacture of prohibited drugs is evidenced in his company purchasing the iodine on both occasions, in his physically taking possession of the first 400 kg, loading it into his vehicle and in due course physically delivering it; and in respect of the second offence, dealing with the first 400 kg of the 1 tonne delivered by removing it from its factory-labelled, serial-numbered containers and decanting it into plain, unmarked, white buckets.
Whilst acknowledging that there was evidence led at the committal proceedings that Cyndan would itself decant iodine from difficult to manually handle 50 kg tubs into smaller 20 or 25 kg tubs, the decanting into unlabelled white buckets of the same capacity by the offender in 2017 for the purpose of supply to unknown third parties was clearly, in my view, an intention to disguise the source of the iodine. The decanted buckets of the first portion of the 1000 kg delivered in March 2017 was also physically on-delivered by the offender himself.
Focusing specifically on the objective seriousness of the offending charged under s 24A, the offending substantially exceeds any perceived mid-range. Its level of seriousness on a perceived “spectrum” is of a gravity which makes it relevant to give consideration to how close it approaches an offence warranting the maximum prescribed penalty.

SUBJECTIVE CIRCUMSTANCES

The offender did not give evidence in the sentence proceedings. Information with respect to his subjective background is to be gleaned from a Psychological Assessment Report from a Forensic Psychologist, Ms Megan Godbee, dated 19 January 2024; from a number of character references; from an unsworn letter of apology from the offender himself; and by reference to his recorded Criminal History.
In the absence of any testimony from the offender, I bear in mind the reserve that this jurisdiction is repeatedly reminded to be conscious of in the assessment of the weight to be given to mitigatory factors advanced through the medium of a third party. I do bear in mind the relevant expertise of the psychologist but note the observations in R vQutami [2001] NSWCCA 353; (2001) 127 A Crim R 369, Imbornone v R [2017] NSWCCA 144, and the cases following.
I am constrained to observe that the Psychological Assessment Report is consistently general in an overview description of the offender’s personal circumstances and is lacking in specific detail. The psychologist noted in her preliminary observations in the report that: “Mr Snounou was polite and attentive, but his responses to questions tended to be brief, vague, and carefully considered.” She further noted that the offender’s response style “made it difficult to gather a clear understanding of the issues that Mr Snounou has experienced.”
The manner in which the offender has described his background to the psychologist, combined with the absence of objective material with respect to his and his company’s financial circumstances, renders it more difficult to assess the motive which he has advanced for the commission of the offences, namely his claimed straitened financial position in both 2013 and again in 2017.
The offender was born in November 1976 (although I do note that the psychological report records his date of birth as November 1975). He described to the psychologist being of Palestinian descent. He said that his family were Palestinian refugees and that his extended family had been impacted by the war. While this may have been a reference to the 1973 Yom Kippur War, it is not clear.
While no dates were provided about when his parents moved to Abu Dhabi, nor from where, nor any location given of Mr Snounou’s place of birth, he described growing up in Abu Dhabi with his parents and two younger brothers. The offender told the psychologist that the family’s financial needs were not consistently met until his father was able to find a stable job when Mr Snounou was approximately 6 years old.
The offender recounted that his family migrated to Australia when he was approximately 8 years old. He told the psychologist that it was difficult to settle into a new country and he experienced some racism that made him feel he had to prove he was not a stereotype.
The offender described his father having obtained stable employment shortly after the family arrived in Sydney but then he wanted to start his own business. He told the psychologist that his father took the family’s gold and other valuables out of the bank to sell in order to start the business. However, he said that the family was robbed.
Mr Snounou said that this had had an impact on the family’s financial status and made him feel less safe in Australia. No detail of the nature of his father’s business was described.
However, somewhat conversely, he went on to describe to the psychologist that his early life had been “privileged” noting that the family never “needed anything” that they did not get.
Mr Snounou told the psychologist that he began Year 3 when he arrived in Australia. He said that he was already fluent in English because he had attended an international school in Abu Dhabi. He stated that he enjoyed his early schooling as he had good friends, achieved good grades and did not engage in any significant misbehaviour. However, he did say that he had trouble fitting in with his peers.
He told the psychologist that he had sustained head injuries from being bullied at school. The psychologist noted: “He provided very few details about these incidents.”
He described having completed year 12 and then having undertaken undergraduate and then postgraduate degrees in civil engineering.
However, apart from describing his school as a “private school”, and his upbringing as “privileged”, no details as to which school he attended, where the family lived, or which University he attended was provided to the psychologist.
In providing details of his medical history to the psychologist, the offender described having sustained a fractured hip following a motor vehicle collision when he was aged 18.
He said that his first employment after leaving high school was working in the mailing room at Australia Post. He said that he had to leave this job after being injured in the motor vehicle collision.
It is uncertain as to whether this was casual employment before going to university. No detail has been provided as to the years of his attendance at university or the date of his graduation.
The psychologist’s report records that he was next employed towards the end of his degree, working as a civil engineer for a construction company before running his own construction company “for a few years”. No material has been provided with respect to either that employment or the circumstances of him running his own construction company.
Reference to his criminal history indicates that he was charged in June 1995 at the age of 18 with an offence of larceny. The offence was found proved but was dismissed pursuant to the provisions of the then s 556A of the Crimes Act 1900.
The following year he was charged in March 1996, by that time aged 19, with a number of offences including one count of intending to obtain a financial advantage; one count of dishonestly obtaining by deception; one count of making a false or misleading statement; one count of receiving; one count of goods in custody; two counts of causing public mischief; and one count of possession of a prescribed substance.
He was sentenced in the Local Court to a total of 500 hours community service work and was placed on a recognisance to be of good behaviour for a period of 2 years.
With respect to his social and relationship history Mr Snounou described himself to the psychologist as “a little bit shy” but “way above average” in terms of social skills.
He said that he had entered into his first serious relationship at the age of 22 and that it had lasted for three or four years. That would appear to correlate with a period between approximately 1996 and about 2000.
He told the psychologist that he had met his wife when he was in his mid-20s and that they had married shortly after. He indicated that the relationship was initially positive, but over time he realised that he was unhappy. Ms Godbee noted in her report that “it was difficult to gather details about the specific issues in the relationship.”
In due course there were three children born of the marriage. They are described in the January 2024 report as being daughters aged 18 and 13 and a son aged 11. This would presumably put their dates of birth respectively as approximately in 2005, 2010, and 2012.
In 2009 he said that he purchased the business described as Cyndan Chemicals. Whether that name, used by the offender in his letter of apology and also in the statements tendered on his behalf relating to the supply of quantities of iodine, was a business name used by the company described in the Agreed Facts as Cyndan Manufacturing Pty Ltd, in respect of which he is said to have become a Director, is not clear.
At all events, in his letter of apology, he states that when he bought the business in 2009, it was difficult “and we were struggling to make ends meet. We also owed the bank money for loans we had taken out for the business.” No objective material such as bank statements or loan documents have been tendered in support of these assertions. Similarly, there is no evidence as to the purchase price of the business.
I note in passing that the offender would have been approximately 32 years of age at the time he says he purchased the business.
The significance of his age arises from his statement to the psychologist that he first consumed cocaine in his late 30s stating that he began taking this drug because he was under business pressure.
However, as noted by the psychologist, some years prior to that described age, he was apprehended at Sydney Airport on 11 April 2010 when he was 33 years of age, and when he was said to be returning from an international business trip. Australian Border Force officers found a quantity of cocaine which, according to the offender, was found in his pocket.
The records which have been tendered do not reveal the quantity of the drug but the offence is described as “Import Border Controlled Drug, No Commercial Intent”. The offender was convicted in the Local Court and fined $750.
On appeal to the District Court, the late Judge Solomon found the offence proved but dismissed the matter, without conviction, pursuant to the provisions of section 19B of the Crimes Act 1914 (Cth).
The offender was directed to enter into a recognisance for 3 years and to accept the supervision of the NSW Probation Service including obeying all reasonable directions, including undertaking urinalysis.
Notwithstanding those conditions, including undertaking urinalysis, such conditions customarily being consistent with a submission that the drug was all for personal use, the offender maintained to the psychologist that he had not commenced to use cocaine at that time but that he had been spending time whilst overseas with people who did use the drug.
In the Defence Tender Bundle on sentence, there was an affidavit from Ms Amanda Moores, the Senior Business Manager at Redox Pty Ltd, the chemical supply company that had supplied Cyndan Chemicals with the iodine which was the subject of Count 2 in 2017.
That affidavit (Tab 6 in Exhibit #2) sets out the detail of the supply of iodine to Cyndan Chemicals prior to the first impugned acquisition of iodine in September 2013. Quantities and dates of delivery were as follows: 50 kg on 6 September 2011; 100 kg on 15 November 2011; 200 kg on 9 December 2011; 100 kg on 21 March 2012; 100 kg on 15 June 2012; 100 kg on 21 June 2012; 100 kg on 27 June 2012; 50 kg on 11 June 2013; 50 kg on 18 June 2013; 50 kg on 24 June 2013; 50 kg on 10 July 2013; and 150 kg on 11 September 2013.
I note in passing that the purpose of the tender of the affidavit of Ms Moores, which affidavit was extracted from the Crown brief, was to support a submission that the amounts of iodine in the offender’s possession, namely the two lots of 400kg in September 2013, whilst significant, was “not an exceptional amount” in the context of the business operated by Cyndan.

In the course of his oral submissions, Mr Hammond of counsel, on behalf of the offender, submitted that “these were amounts that were dealt with on a regular basis to make a whole range of products by Cyndan.” Mr Hammond said:

“It follows, in my submission, that the offender didn’t take any special steps to possess this chemical on either of these occasions. The company kept, or the company possessed the iodine in the regular course of its business.”

Just what quantity of “teat sanitiser” was being produced by Cyndan, the only product identified in the Agreed Facts, or quantities of disinfectants or other cleaning products requiring iodine in their composition, is not the subject of any evidence before the court.
I should make it clear that I do not draw any adverse inference from the acquisition of the quantities of iodine set out in the affidavit and I will only have regard to the quantities identified with respect to the charged conduct.
However, the mere fact that such quantities were supplied to Cyndan Chemicals neither proves, nor disproves, the use of the iodine for legitimate purposes.
Following the delivery of 150kg from Redox on 11 September 2013, an order was placed by Cyndan Chemicals on 13 September 2013 for 800kg of iodine from a different company, Ruakura Pty Ltd.
As indicated earlier with respect to Count 1, 400kg was delivered on that day and in turn delivered by the offender to the auto-electrical business at Marrickville. Three days later, on 16 September 2013, a further 400kg ordered by Cyndan from Ruakura Pty Ltd, was delivered directly to the auto-electrical business.
I should note that despite the description in paragraphs 10 and 11 of the Agreed Facts, of two separate purchase orders, one for 800kg and one for 400kg, the narrative in the Agreed Facts is, in my view, unclear as to whether there was one order for 800kg with it being delivered in two separate batches of 400kg, or whether the total quantity ordered was 1.2 tonnes.
The only relevant quantity is the 800kg which went to the auto-electrical business with the intention that it be used in the manufacture of methylamphetamine.
In his letter of apology, the offender said that the cost of wages for the company was about $25,000 per week and that they were struggling. He said that they had about 15 employees and a number of sub-contractors who relied upon their business. He said that selling the iodine “gave me a quick injection of cash that I used for the business to keep it going.”
With respect to the account he gave to the psychologist, he described two periods of high stress in his life, one shortly after he purchased the business in 2009 and a second beginning in 2015. He indicated to the psychologist that he had engaged in excessive worry about money and the business.
In his letter of apology, he said that between 2012 and 2014, “the business was doing better. We sold a range of products, including products that used iodine. We imported chemicals from overseas as well as from Australian suppliers.”
On 1 January 2015 the offender was charged with offences under the Firearms and Dangerous Weapons Act of possessing or using a prohibited weapon without a permit and possession of ammunition without holding a relevant licence or permit. He was convicted and fined at Manly Local Court in April 2015 and the weapon and ammunition were forfeited to the Crown.
Returning to his letter of apology, the offender went on, chronologically, to describe a business partner who he reached an agreement with “to buy him out of the business.” The earlier narrative, both in his letter of apology and in the account to the psychologist, had not made any mention of an original purchase of only part of the business.
However, in the letter of apology, the offender described, after buying out his apparent co-owner, that “he left behind hundreds of thousands of dollars of damage and debt and for several years, I struggled to make ends meet.” He described that by 2017, he was “facing serious financial difficulties.”
In his account to the psychologist, he reported depressive symptoms in 2015, triggered by his excessive worry. He said that the use of cocaine helped to alleviate his stress and low mood. He said that he was using up to 2 grams of cocaine daily from 2015 up to the time of his arrest in 2018. He said that he was funding his cocaine use through the business.
Returning to the affidavit of Ms Amanda Moores, she sets out the detail of orders placed with Redox by Cyndan for iodine and the quantities delivered between December 2013 and March 2017.
The Defence also tendered an affidavit from Ms Jill Olbrechts who was the sales coordinator for a company referred to as SQM, which also supplied iodine to Cyndan.
However, I note in passing that there is no affidavit or statement from the company identified as the supplier of iodine with respect to the first count, namely, Ruakura Pty Ltd.
The supplies to Cyndan are identified in the affidavits which have been tendered as follows: 300kg on 2 December 2013; 50kg on 13 December 2013 (both from Redox); and 1 tonne on 20 December 2013 (from SQM); 50kg on 28 January 2014; 50kg on 7 February 2014; 50kg on 11 February 2014 (these all from Redox); 1 tonne on 8 September 2014; 1 tonne on 25 November 2014 (both from SQM); 1 tonne on 14 July 2015; 1 tonne on 24 September 2015; 1 tonne on 24 December 2015; 1 tonne on 18 July 2016 and 1 tonne on 23 March 2017 (all from Redox).
The delivery on 23 March 2017 relates to the second count to which the offender has pleaded Guilty.
The offender told the psychologist, Ms Godbee, that his thinking had been impaired by his substance use. To the extent that this explanation implicitly applied to both episodes of offending, the psychologist recorded: “Although I note that his account suggests he was not using cocaine at the time of the 2013 offence.”
The offender recounted that his marriage broke up in around 2015 and in July 2016 his family moved to Dubai.
The offender was arrested with respect to the present matters in February 2018. As I have outlined earlier, he was also charged with other matters which have been subsequently discontinued. He was released to bail on 12 October 2020.
Despite the fact that he and his wife had separated in 2015, he told the psychologist that they were not formally divorced until after he was released from custody in 2020.
Mr Snounou told the psychologist that he had entered into another relationship after his release. However, Ms Godbee noted in her report that “he was reluctant to provide details about this.”
That reluctance might be explained by reference to his criminal history. In April 2022 he was charged with a number of domestic violence offences. These included common assault on 13 June 2021; common assault on 26 January 2022; assault occasioning actual bodily harm on 27 January 2022; and stalking or intimidating with intent to cause fear and also a contravention of a prohibition and restriction in an Apprehended Domestic Violence Order.
In July 2023 he was convicted in the Local Court of those five offences and placed on a Community Correction Order for 16 months which is still current but is due to conclude on 2 November 2024.
Also in 2023, but prior to the imposition of the Community Correction Order, the offender was convicted, fined and disqualified with respect to an offence of driving a motor vehicle while his licence was suspended.
In addition to the extensive narrative of his personal background which I have set out above, a number of references were also tendered on his behalf.
A character reference from Elias Sleiman, a Director of a company called es.au Pty Ltd, was tendered. Mr Sleiman indicates that he met the offender at Sydney University studying civil engineering in 1996. He said they have maintained a close friendship ever since. He described the offender as being a selfless person and said there was no limit to his generosity. He set out that in 1998, he started his own business drawing plans and the offender knew that he could not afford a computer, and so lent him his laptop for 6 months to help him get the business on its feet.
Mr Sleiman described witnessing the offender working countless hours building his own business. He described the two families getting along and the two wives in particular, getting along well. He said the families had flown to Tasmania together in June 2014 for a holiday. He described his witnessing bouts of depression with the offender over the last six years. I note that that would date back to the approximate time of the offender’s arrest and charging. Mr Sleiman described the deep regret and guilt from the offender’s actions “are clear to everyone in his social network.” In Mr Sleiman’s opinion, the offender just needs to continue spending quality time with his parents and children. He said: “Michael is highly intelligent and spending time in prison without mental stimulation will just be counterproductive for his rehabilitation.”
A second reference was provided from Mr Peter Miller, who says that he is an Assessor with Aura Tree Services. Mr Miller states that he has known the offender for approximately 14 years. He said they first met in a business context but over the years had become close friends. Their mutual congruence, as he described it, was an interest in sustainable “green” technologies. He said that the two of them were working to bring to market, two “green” technologies at the time of his arrest.
Mr Miller said that he was aware of the charges to which the offender had pleaded Guilty, but he expressed the view that the offender was “a man of integrity.” In his opinion, “Michael is one of the finest people I’ve known in my life.” Based on conversations with the offender, he said “I am certain Michael regrets the events that have resulted in these charges.”
A third reference was provided under the hand of Rene Ferris. He is a partner at a corporate and financial advisory firm in Sydney. The offender’s brother, Nader Snounou, has been Mr Ferris’ business partner since 2014. Mr Ferris indicated positive prospects for the offender in light of him having taken steps to stop using cocaine and to get professional help.
The Defence Tender Bundle also included a letter from Joanne Haldane, a treating psychologist from Kensho Psychology where the offender apparently had an appointment on 13 February 2024. The email confirming the psychology appointment is tab 5 in Exhibit #2. While one might presume that Mr Snounou went to that appointment, and perchance to others, no evidence of the number of appointments, nor any report from the treating psychologist has been tendered.

COMPARATIVE CASES

The court was referred to a number of cases in which the possession of precursors intended to be used in the manufacture of a prohibited drug was charged as a substantive offence.
Salama v R [2023] NSWCCA 141 was an appeal against the severity of an aggregate sentence of 4 years with a non-parole period of 2 years and 4 months imposed with respect to 2 counts of possessing a precursor intending it to be used in the manufacture of a prohibited drug.
The factual background involved three co-offenders who shared a house at Wakeley, in the western suburbs of Sydney. The premises were being used as a clandestine laboratory which was capable of manufacturing methylamphetamine.
Each of the three necessary precursors for the manufacture of methylamphetamine was present in the premises – namely ephedrine, iodine, and hypophosphorous acid. The amounts of ephedrine and hypophosphorous acid were sufficient, if combined with a similar quantity of iodine, to manufacture a large commercial quality of methylamphetamine, that is more than 500 grams.
However, the amount of iodine on the premises at the time would have limited the capacity of the laboratory to the manufacture of the “small” quantity of methylamphetamine specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985, namely 1 gram.
Each of the quantities of ephedrine (971.6 grams) and hypophosphorous acid (876 grams) respectively gave rise to the 2 substantive counts of possessing a precursor to which pleas of Guilty were entered.
Offences listed on Form 1 documents attaching to each of the substantive counts included possession of a quantity of iodine. The quantity is not specified in the judgment but was presumably a small amount given the conclusion regarding the capacity of the laboratory based on the chemicals present to be only able to manufacture a “small” quantity of methylamphetamine.
The sentencing judge, Judge Craigie SC, had given indicative sentences of 3 years and 10 months with respect to the possession of the ephedrine and 3 years and 6 months with respect to the hypophosphorous acid. An aggregate sentence of 4 years with a non-parole period of 2 years and 4 months was imposed.
Despite error being found in his Honour’s application of the facts, the Court of Criminal Appeal declined to interfere with the sentence which had been imposed in the District Court. Wilson J, with whom Wright and Fagan JJ agreed, said that the sentence at first instance was less than she would impose were she to proceed to re-sentence. The appeal against severity was, accordingly, dismissed.
In R v Cousins & Anor (2002) 132 A Crim R 444; [2002] NSWCCA 340 the court dealt with an appeal against the severity of sentences imposed by Judge Ducker in the District Court sitting at Grafton. The appellants, a husband and wife, had been travelling from Brisbane to Melbourne and purchasing boxes of Sudafed at chemist shops in every town along their route. By the time of their apprehension in Grafton they had purchased 39 boxes of Sudafed. Their planned route would have taken them to Melbourne. It had been their intention to continue buying boxes of Sudafed at pharmacies all the way to Melbourne and on their return to Brisbane.
Each of the appellants had no prior criminal convictions and they had been recruited for financial gain to purchase the Sudafed and to provide it to criminal connections on the Gold Coast. The extracted pseudoephedrine would then be used in the manufacture of methylamphetamine.
The total quantity of pseudoephedrine able to be extracted from the tablets that they had purchased, namely 71.28 grams, was enough to produce a theoretical 64.15 grams and a practical amount of 38.4 grams of methylamphetamine. It could also be used alternatively to manufacture 769 street doses of amphetamine sold as “speed”. Assuming it was cut to 5% purity it would have had a total street value in excess of $75,000.
Judge Ducker had passed sentence with a starting point of 4 years for Mr Cousins and 3 years 8 months for Mrs Cousins. After allowing a 20% discount the sentences imposed were 3 years 2 months with a non-parole period of 1 year 8 months with respect to Mr Cousins and 2 years 8 months with a non-parole period of 1 year 4 months with respect to Mrs Cousins.
Giles JA, Sperling and Greg James JJ agreeing, found no error in the sentencing judge placing the objective seriousness of the offending “towards the middle of a scale of criminality for the particular offence.”
Giles JA noted that the offence under section 24A(1) did not have a graded scale of quantities such as is found in supply charges, but the quantity was still relevant because the element of the intended use of the precursor in the manufacture of a prohibited drug “brings particular regard to what would come from the intended use and the ultimate release of the prohibited drug into the community.”
The appeal against severity was dismissed.
In addition to the cases provided to the court, regard has also been given to several other cases.
In R v Walker [2023] NSWCCA 219 the Crown appealed against the inadequacy of an aggregate sentence imposed by Judge Flannery at the Port Macquarie sittings of the District Court.
Walker pleaded guilty to four offences in connection with the manufacture and supply of drugs:

one offence of manufacture a large commercial quantity of MDMA contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) (sequence 1);

an offence of supplying a large commercial quantity of methylamphetamine contrary to s 29 of the DMTA (sequence 7);

an offence of possession of an unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (NSW) (sequence 8);

and an offence of possessing a precursor contrary to s 24A(1)(a) of the DMTA (sequence 9).

A police investigation ascertained that Mr Walker was the “cook” in a clandestine laboratory in which substantial quantities of methylamphetamine and also MDMA or “ecstasy”, were being manufactured. The manufacturing was taking place on a property owned by Walker which was located in remote bushland terrain on the mid-north coast of New South Wales.
The manufactured prohibited drugs were then being sold interstate by others with whom Walker was associated.
A police raid on the property in June 2021 revealed substantial quantities of the manufactured drugs, an unregistered pistol, and a quantity, approximately 2.7 kilograms, of 3,4 methylenedioxy-phenyl-2-propanone (MDP2P) which is a precursor in the manufacture of MDMA, or “ecstasy”.
The offender was 61 years of age at the time of sentence, pleaded Guilty, and had a powerful subjective case.
Indicative sentences, allowing for a 25% discount, were as follows:

Count 1, manufacture of a large commercial quantity of MDMA, approximately 35 kg, the pure quantity of which was approximately 6.4 kg, taking into account a proceeds of crime offence relating to the possession of $16,500 cash which was placed on a Form 1 – 7 years 6 months, with an indicative non-parole period of 4 years 6 months;

Count 2, deemed supply of a large commercial quantity, 4.31 kg of methylamphetamine, estimated value $750,000 – 5 years 6 months, with an indicative non-parole period of 3 years 6 months;

Count 3, possession of an unauthorised pistol – 3 years, with an indicative non-parole period of 1 year 10 months;

Count 4, possess precursor – 2 years 6 months.

An aggregate sentence was imposed of 9 years with a non-parole period of 6 years.
The Crown appeal against inadequacy focused on the sentencing judge’s assessment of the objective gravity of Counts 1 and 2 and the asserted manifest inadequacy of the aggregate sentence. No submissions were made with respect to the indicative sentence for Count 4.
The Court of Criminal Appeal, per Weinstein J, with Leeming JA and Yehia J agreeing, held that the sentence was lenient, but not unduly so. Accordingly, the Crown appeal was dismissed.
Another matter involving a precursor other than iodine is found in Takiari & Anor v R [2009] NSWCCA 84. The offences derived from an undercover operative organising with the offender and his brother the purchase of 30 cartons of cold and flu tablets which contained pseudoephedrine. Various charges were laid including a count relating to the theft of some of the tablets, possession of stolen property and two counts of possessing a precursor, namely pseudoephedrine. One count related to a quantity in excess of 106,000 tablets of pseudoephedrine which was capable of yielding 3.2 kg of extracted pseudoephedrine. This was capable of conversion into 19 kg of methylamphetamine hydrochloride with a potential street value of $1.9 million if sold in 1 gram packages and sold at $100 per gram. Of course, it is to be observed that methylamphetamine hydrochloride would need to be further refined in order to produce crystal methylamphetamine. The likely amount of crystal methylamphetamine would be closer to 2 kg.
Following a plea of Guilty, a term of imprisonment of 5 years with a non-parole period of 3 years was imposed. An appeal against severity was dismissed.
For a lesser quantity of possession of the precursor, Takiari’s brother, received a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months. An appeal against the severity of that sentence was similarly dismissed.

Button J, with whom McClellan CJ at CL and Rothman J agreed, said at [57]:

“that the offences were properly characterised by the sentencing judge as being higher than the mid-range… The sheer volume of the material in his possession indicates the scale of the operation and the size of the reward which he expected to reap. The evidence revealed that as a result of this enterprise in which the applicant played a significant role, a very large quantity of methylamphetamine was potentially going to be made available for end users.”

In Mori v R [2021] NSWCCA 32, a 29-year-old Canadian National was sentenced with respect to his role with respect to the manufacture of a very substantial large commercial quantity of methylamphetamine, some 33.43 kg in total, the possession of approximately 20 grams of cocaine, and his possession of 4.577kg of phenylpropanolamine, a precursor in the production of methylamphetamine, being an analogue of ephedrine.
The first count, relating to the 33.43 kilograms of methylamphetamine carried a maximum penalty of life imprisonment.
Judge Ellis had imposed a sentence of 12 years imprisonment with a non-parole period of 8 years for the first count, after allowing a 20% discount.
With respect to the deemed supply of the cocaine, his Honour had imposed a sentence of 2 years and 8 months with a non-parole period of 18 months.
With respect to the possession of the precursor, Ellis DCJ started at a head sentence of 6 years. A discount of 25% led to the imposition of a head sentence of 4 years and 6 months.
Slight accumulation led to an effective head sentence of 12 years and 6 months with a non-parole period of 8 years and 6 months.
The appeal against severity was dismissed.
El Kheir v R [2019] NSWCCA 288 involved the possession of precursors which were charged alongside a separate substantive offence involving the manufacture of a large commercial quantity of methylamphetamine.
A co-offender, James, (R v James [2017] NSWCCA 287) had been charged with relation to the manufacture of the same large commercial quantity, but the separate charges of possessing precursors had been placed on Form 1 documents.
In El Kheir the sentencing judge, her Honour Judge O'Rourke SC, had imposed a head sentence of 10 years and 6 months with respect to the manufacturing of the large commercial quantity of methylamphetamine with a non-parole period of 7 years.
The three separate substantive offences relating to possession of the precursors necessary for the manufacturing of methylamphetamine, namely pseudoephedrine, hypophosphorous acid and iodine, were each the subject of a fixed sentence of 2 years, each of which was to be served concurrently with each other and also with the sentence for the manufacturing.
Her Honour’s sentence of El Kheir was influenced, appropriately, by considerations of parity. Co-offenders, with respect to identical objective facts, had received the benefit of the three charges relating to the possession of the precursors being placed on a Form 1 and taking into account the principal offence.
The quantities of the precursors are not specified in the judgment.
The circumstance that possession of precursors are often discovered in the course of investigation at premises which have been used for manufacturing the prohibited drugs often, as in El Kheir, resulted in the charge relating to the precursors not being the principal substantive offence but being viewed as part of the overall criminal conduct, and on occasion, placed on a Form 1.
In R v Campbell; R v Smith [2019] NSWCCA 1, the Court of Criminal Appeal upheld a Crown appeal against the inadequacy of an aggregate sentence where some of the substantive offences had included not insubstantial quantities of precursors which had been located at various premises connected with the offenders including a rural property on which there was an active clandestine laboratory, a rented self-storage facility, and at their respective homes.
Both of the offenders were members of different motorcycle gangs. Campbell was the Sergeant-at-Arms of the Mt Druitt Chapter of the Lone Wolf Outlaw Motorcycle Gang while Smith was the Sergeant-at-Arms of the Penrith and the City Chapters of the Nomads Outlaw Motorcycle Gang.
Both men were under surveillance at the rural property when they were arrested whilst actively involved together in the laboratory in the course of manufacturing methylamphetamine. Subsequent charges included manufacture of a commercial quantity (641 g pure) of methylamphetamine; and possession of a number of precursors located in the laboratory.
Various quantities of each of the three precursors necessary to produce methylamphetamine, namely hypophosphorous acid, iodine, and ephedrine, were located at the laboratory. Other quantities of the necessary precursors were located at the respective offender’s homes and in the self-storage facility.
In addition to the drug charges, there were a number of serious firearm offences preferred against each offender.
Each offender pleaded guilty to a principal substantive offence of manufacturing a commercial quantity of methylamphetamine with a maximum of 20 years. The offending had been assessed as “just above the middle of the range” and at first instance they were respectively sentenced to indicative terms of 6 years imprisonment with a non-parole of 4 years (Smith) and 5 years and 7 months with a non-parole period of 3 years and 9 months (Campbell).
With respect to a substantive charge of possessing a precursor, namely 18.5 kg of hypophosphorous acid, with intent to manufacture a prohibited drug, despite the sentencing judge, Bright DCJ, finding that the offence was “well above the mid-range”, each offender received an indicative sentence of 2 years and 3 months. Those indicative sentences also took into account the possession of an additional precursor, 6.966 kg of iodine, on a Form 1.
A further substantive offence in relation to the offender Campbell was an additional possession of a precursor with intent to manufacture a prohibited drug, namely 20 kg of iodine. Her Honour found that the objective seriousness of possession of such a quantity was “well above the mid-range” and gave an indicative sentence of 2 years and 3 months. That indicative sentence also took into account matters on a Form 1.
In the ultimate, taking into account the serious firearms offences and differences in the roles played by the offenders in the manufacturing process, aggregate sentences were imposed of 8 years and 6 months with a non-parole period of 5 years and 7 months with respect to Campbell and 11 years with a non-parole period of 7 years and 4 months with respect to Smith.
All of the indicative sentences were after a 25% discount following pleas of Guilty.
On appeal, the Crown submitted with regard to the first possession of a precursor charge, namely the 18.5 kg of hypophosphorous acid, that an indicative sentence of 2 years 3 months, which was consistent with a starting point of 3 years, for an offence assessed as “well above the mid-range” was inconsistent with the yardstick of the maximum penalty of 10 years.
The evidence on sentence was that the quantity of hypophosphorous acid, together with the 6.9 kilograms of iodine on the Form 1 for that offence, was capable of yielding 4.2 kg of methylamphetamine. Such an amount was in excess of four times the then prevailing large commercial quantity, namely 1 kilogram. R A Hulme J, Beazley P and Rothman J agreeing, said at [169]:

“The Crown’s contention that the indicative sentences are inadequate when seen in light of the maximum penalty guidepost and the judge’s findings as to the objective seriousness of the offences should largely be accepted.”

With respect to the first of the counts relating to possession of a precursor, his Honour said at [171]:

“A finding of ‘well above the mid-range’ of objective seriousness in relation to the possession of 18.5 kg of the precursor hypophosphorous acid with intent to manufacture (charge 2 for both respondents) is clearly not reflected in a starting point of 3 years and an actual sentence of 2 years 3 months when there is a guidepost maximum penalty of 10 years. One is left to wonder what sentence would be assessed for a mid-range offence committed by an offender with a reasonable subjective case. The same question is valid when the Form 1 offence(s) are taken into account.”

The Court of Criminal Appeal was satisfied that the aggregate sentence in each case was manifestly inadequate. R A Hulme J said at [193]:

“This derives in part from the inadequacy of a number of the indicative sentences. Some of them do not reflect the objective seriousness of the offences. Many of them do not also reflect the need to take into account additional offences on the Form 1 documents.”

In the event the Court of Criminal Appeal proceeded to resentence. The relevant indicative sentences for the possess precursor being the hypophosphorous acid, which together with the iodine on the Form 1 was capable of manufacturing 4.2 kg of methylamphetamine, was increased from 2 years and 3 months to 4 years. The possess precursor count relating to 20 kg of iodine was doubled from 2 years and 3 months to 4 years and 6 months.
This equates to a starting point of 6 years before the discount of 25%.
The ultimate determination in the Court of Criminal Appeal increased the aggregate sentence for Campbell from 8 years 6 months with a non-parole period of 5 years 7 months to 11 years with a non-parole period of 7 years.
The aggregate sentence in respect of Smith was increased from 11 years with a non-parole period of 7 years 4 months, to 16 years with a non-parole period of 10 years and 6 months.

DEFENCE SUBMISSIONS

Mr Hammond of counsel provided a written outline of submissions in addition to his oral submissions on sentence. The defence submissions focused on steps taken towards rehabilitation in the substantial period in which the offender has been on bail after serving more than 2 years in custody. It was submitted on his behalf that he is entitled to a substantial discount on the basis that some 27 charges were withdrawn after Mr Snounou had disclosed evidence to substantiate his claim that the vast majority of iodine purchased by the company was being used for legitimate manufacturing purposes. It was submitted that this disclosure was substantial and led to a significant saving of court time. It was submitted on behalf of the offender that he should receive a significant discount on sentence. The letter of apology by the offender was pointed to as providing evidence of genuine remorse and contrition.
In the circumstances of the significant period of time already spent in custody, Mr Hammond did not concede that the s 5 threshold was crossed. He submitted that the Court could appropriately consider a Community Correction Order. In his submission, it would not be in the best interests of the community to return Mr Snounou to custody. Mr Hammond submitted, in the alternative, that if the Court considered that the s 5 threshold was crossed, “an Intensive Correction Order would be available to allow Mr Snounou’s continued rehabilitation in the community.”
Of course, the decision of the Court of Criminal Appeal in DG v R (No 1) [2023] NSWCCA 320 would preclude the passing of a sentence which was then reduced by the period of time in custody so as to bring the sentence below 3 years.
Mr Hammond submitted that in addition to the period of time already served in custody, the Court should make some allowance for the fact that Mr Snounou has been on conditional liberty with various conditions including initially, daily reporting and a curfew, for a period of more than 3 and a half years. Some of those conditions were subsequently lessened, but the Court is asked to take the restrictions on his liberty into account.
In Mr Hammond’s submission, the offending conduct would fall towards the lower end of the mid-range given what he described as the opportunistic nature of the offending which arose because he “happened to be in the position” where he could abuse his position with his own chemical company.

CROWN SUBMISSIONS

The Crown submitted that general deterrence and punishment are significant considerations which in matters of this kind would generally outweigh subjective considerations.
Giving particular regard to the repeated offending in 2013 and then again in 2017, the Crown submitted that specific deterrence also played a significant role.
In the Crown’s submission: “The offender, as the Director of his commercial business, would have been acutely aware of the illegality of his conduct and nevertheless utilised his commercial business to provide a shield of legitimacy.” In the Crown submission the offender’s conduct should be assessed as falling towards the upper end of the range for such offending.
The Crown submitted that the level of planning and organisation would be found to be an aggravating factor pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999. By reference to the timing of the entry of the plea of Guilty the Crown submitted that the offender was entitled to a 10% discount for the utilitarian value of his plea. With respect to the circumstance of the offending being two discrete episodes some three and a half years apart, the Crown submitted that some degree of accumulation was warranted in order to reflect the total criminality.
In the Crown’s submission, the possession by the offender in each case was with an intent that someone else was going to manufacture “on an industrial scale.”
In the Crown’s submission, a term of imprisonment is warranted, and an appropriate sentence would preclude consideration of a sentence being served by means of an Intensive Corrections Order.

CONSIDERATION

As I have already indicated, the objective seriousness of the offending is extremely high. The motivation for the commission of the offences was clearly for financial gain. Whilst the quantum of that financial advantage is not able to be discerned, the fact is that in each case there was a respective “investment” and payment upfront by the offender’s company, in excess of $70,000 in 2013 and a little less than $60,000 in 2017. The handing over of goods in the form of a precursor for the manufacture of prohibited drugs which were worth such amounts bespeaks of an anticipated substantial financial return.
There is no doubt that general deterrence has an important role to play in the determination of an appropriate sentence.
In R v Shi [2004] NSWCCA 135, the Court of Criminal Appeal, per Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, said (at [34]), in upholding a Crown appeal against inadequacy, that:

“insufficient consideration was given to the weight and purity of the drug involved in this instance; or to the well recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse.”

Justice Wood made reference to the oft-quoted judgment of Wells J in R v Le Serf in the South Australian Supreme Court (1975 13 SASR 237; 8 ALR 349), in which Wells J had said (at 351 in 8 ALR): “there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive.”
Such observations regarding an assessment of role are significant in cases where there needs to be a distinction between the level of criminality involved by the principal or other person in the upper echelons in the organisation and couriers or other functionaries who are further down an identified hierarchy. Of course, it needs to be borne in mind that general descriptions of the level or type of participation must not obscure an assessment of what an offender actually did: see The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270.
In the present matter, it is appropriate to observe that the offender is not charged in relation to being knowingly concerned in the manufacture of methylamphetamine, nor, obviously, with being a courier, warehouseman or other menial participant in an importation or a supply or distribution network. He appears for sentence with respect to the stand-alone substantive offence of possession of a precursor with the intention that it be used for the manufacture of prohibited drugs. That possession extended to actual supply to unknown persons effectively in the nefarious and criminal “ether”.
The repeated offending at such a serious level, despite the passage of time since the offending, requires focus on the need for both general and specific deterrence.
I do not accept the submission on behalf of the offender that such offending was “opportunistic”. The receipt and immediate distribution in some instances, and on one occasion, the direct delivery organised from the supplier direct to the third party, strongly bespeak against such offending being “opportunistic”.
However, the planning and organisation is an inherent part of what he did and is taken into account in assessing the objective seriousness of the offending. It is not to be double-counted. I do not treat it as a separate or specific aggravating factor under the provisions of the Crimes (Sentencing Procedure) Act 1999.
That having been said, the offender clearly used the cover of his own company’s ordinary processes to camouflage or disguise the intent behind the acquisition of such quantities of iodine as were intended to be passed on for nefarious and illegal purposes. In that sense, he used his company as a “Trojan horse”.
The Court is asked to take into account in mitigation what is described as the offender’s genuine remorse and contrition.
There is no doubt that the offender is sorry for what has happened. The distinction between being sorry for the predicament in which one finds oneself, and genuine remorse and contrition, is, in some instances, difficult to discern. Untested and unsworn statements in both letters of apology and expressions of remorse to, or inferred by, third parties, generally carry less weight than overt expressions of remorse and contrition able to be assessed and/or tested by cross-examination.
I have given the expressions of remorse and contrition in the material before me such weight as I think they deserve. That is, I give them some recognition in the overall synthesis which is required in the sentencing process.
I take into account the lengthy delay between the offending in 2013 on the one hand, and the subsequent delays relating to both sequences of offences after the arrest and charging of the offender. I have earlier set out in detail the reasons for the extensive delay once the matter came to this jurisdiction.
The recognition by the Crown of an inability to establish proof beyond reasonable doubt of substantial numbers of the original charges followed discussion and negotiations between the parties. The outcome of those discussions was beneficial to both parties in the sense that there was utilitarian value in the substantial abbreviation of the length of a trial and there was a benefit to the then accused in the withdrawal of allegations and charges.
The effect of the subsequent delay in finalisation of the matters in respect of which he has ultimately pleaded Guilty, warrants a degree of leniency being taken into account. These various factors including such levels of remorse and the other matters to which I have referred including the delay, contribute to an increase of approximately an additional 2.5% to the 10% discount appropriate for the late pleas.
I propose to proceed by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.

In determining an appropriate aggregate sentence, I have given consideration to the principle of totality. However, the separation of the two offences by a period of three and a half years militates in favour of some degree of accumulation for what is completely discrete offending.
As indicated earlier in my assessment of objective seriousness, whilst one is always able to find a numerical quantity greater than that involved in an individual case, the quantities of the precursor possessed with the relevant intent and the quantities of methylamphetamine capable of being produced are, on any descriptive approach, massive.
The location of iodine traced back to the iodine possessed by the offender at multiple clandestine laboratories scattered around different parts of rural or semi-rural areas of New South Wales is a clear indication of the danger to the community by the dissemination of such substantial quantities.
With respect to Count 1, in the interests of transparency I indicate a starting point of 8 years, which allowing for a 12.5% discount, leads to an indicative sentence of 7 years.
With respect to Count 2, which reflects 200 kg more than the quantity involved in Count 1, a starting point of 8 years and 10 months results in an indicative sentence, with some rounding down, of 7 years and 8 months.
Mr Snounou, you are convicted.
There will be an aggregate sentence of 10 years imprisonment. There will be a non-parole period of 7 years and 6 months.
The sentence will be backdated to take into account the period of pre-sentence custody, namely, 2 years, 7 months and 21 days (965 days).
I also take into account a period which I approximate at 3 months with respect to the period of conditional bail and restricted liberty within.
Accordingly, the commencement date of the aggregate sentence will be 22 August 2021.
The non-parole period of 7 years and 6 months will expire on 21 February 2029 and the additional term of 2 years and 6 months will expire on 21 August 2031.

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Decision last updated: 05 February 2025

Medium Neutral Citation:	R v Snounou (No 3) [2024] NSWDC 636
Hearing dates:	28 March 2024
Date of orders:	12 July 2024
Decision date:	12 July 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Aggregate sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months, at [253] to [256].
Catchwords:	CRIME — Drug offences — Possess precursor intending that it be used in the manufacture of a prohibited drug — Offender possessed over 1 tonne of iodine intending it be used in the manufacture of methylamphetamine — Buckets used to store iodine found in clandestine laboratories linked to offender’s company. SENTENCING — Aggravating factors — Financial gain — Objective seriousness “extremely high” — Quantities of precursors capable of producing “massive” amounts of methylamphetamine on any description and with reference to comparative cases. SENTENCING — Relevant factors on sentence — Delay — Offender was arrested and charged in 2018 — Offender received further discount for disclosure of evidence that saved court time — Relevance of general and specific deterrence.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1914 (Cth) Crimes Legislation Further Amendment Act 2000 (NSW)p Drug Misuse and Trafficking Act 1985 (NSW) Drug Misuse and Trafficking Regulation 2011 (NSW)
Cases Cited:	DG v R (No 1) [2023] NSWCCA 320 El Kheir v R [2019] NSWCCA 288 Imbornone v R [2017] NSWCCA 144 Mori v R [2021] NSWCCA 32 R v Campbell; R v Smith [2019] NSWCCA 1 R v Cousins & Anor (2002) 132 A Crim R 444; [2002] NSWCCA 340 R v James [2017] NSWCCA 287 R v Le Serf (1975) 13 SASR 237; (1975) 8 ALR 349 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Shi [2004] NSWCCA 135 R v Snounou (No 1) [2023] NSWDC 583 R v Snounou (No 2) [2023] NSWDC 584 R v Walker [2023] NSWCCA 219 Salama v R [2023] NSWCCA 141 Takiari & Anor v R [2009] NSWCCA 84 The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Texts Cited:	Nil
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions (Crown) Michael Snounou (Offender)
Representation:	Counsel: D Jordan (Crown) T Hammond (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Jamieson Criminal Law (Offender)
File Number(s):	2018/00058199
Publication restriction:	Nil