R v Veronese

[2007] NSWDC 241

CITATION:	R v Veronese [2007] NSWDC 241
HEARING DATE(S):	12/12/06 15/02/07
JUDGMENT DATE:	15 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Conlon SC DCJ
DECISION:	CONVICTED: Sentenced to non-parole period of 2 years 6 months with addiitonal term of 2 years 6 months. Special Circumstances. Recommendation for classification.
CATCHWORDS:	Knowingly take part manufacture drug - Methylamphetamine - Not less than commercial quantity
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED:	R v Way (2004) 60 NSWLR 53 & 122 R v Bassam Turkmani [2002] NSWCCA 338 R v Wirth (1976) 14 SASR 291 R v Sharma (2002) 54 NSWLR 300 R v Dibb [2003] NSWCCA 117
PARTIES:	Crown Allan Veronese (Accused)
FILE NUMBER(S):	05/41/0106
COUNSEL:	Mr M Fox (Crown) Mr C Bolger (Accused)
SOLICITORS:	Ms Pawliw (Crown) Ms Stuart (Accused)

JUDGMENT

1 HIS HONOUR: The offender, Allan Veronese, appears for sentence, consequent upon his pleading guilty to a charge that on 18 December 2004, at Corrimal, in the state of New South Wales, he did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the commercial quantity of that drug.

2 This charge is under s 24(2) of the Drug Misuse and Trafficking Act, and the maximum penalty for this offence is one of twenty years imprisonment.

3 The Crown tendered a bundle of documents, exhibit A, which included the agreed statement of facts. It reads as follows:

“Located at 10 Albert Street, Corrimal, is a large workshop containing an internal room and bathroom on a mezzanine level. This building is located at the rear of residential premises, occupied by the accused, Allan Veronese, who has resided at the premises since the late 1980’s. The premises are owned by the accused’s brother.

The co-accused, Milan Milovanovic, first met Mr Allan Veronese, the offender, about sixteen years ago, when Milovanovic’s father and Mr Veronese were involved in a business together. In 2004, Milovanovic approached Mr Veronese and advised him he was in debt to a criminal associate and needed premises to manufacture drugs to pay off the debt. The offender inquired what he would get in return and was advised he would receive $2000. The offender agreed with this arrangement and permitted the internal office, inside the workshop, to be used by Milovanovic for the manufacture of prohibited drugs. As a result of information supplied to police, Operation McGruer was established in late November 2004, to investigate the manufacture and supply of methylamphetamine, by Milovanovic, from the workshop at 12 Albert Street, Corrimal.

During the investigation, evidence was gathered from lawfully installed electronic devices. These devices comprised of internal and external video cameras and an internal listening device. From 9 to 18 December 2004, the investigation established that the co-accused, Justin Cram, and Milovanovic, were regularly attending the workshop. The offender, who lived close by in the attached residence, was also observed entering and leaving the workshop.

Owing to the poor placement of the electronic devices, the quality of the video and LD recordings was very poor. The internal video camera did not cover the location of the drug production, as it was not positioned in the correct location. Nevertheless, on the LD recordings, it can be established that a “cook” was taking place in the premises. Listening devices inside the workshop recorded conversations between Milovanovic and Veronese (the offender) and Cram.

During a conversation on 15 December 2004, Veronese is heard discussing weights of the drugs. By way of example, on 15 December 2004, the following comments, by the offender, were recorded on the internal, listening device. On CD 6, track 38, “You can see it. What’s there? There is at least 400 grams there. I can see that and I don’t know what the fuck I’m doing”. On CD 6, track 39, “There’s fucking 400 easy, I can see, I can see by looking at it, if it were me, there’s about 450”. On CD 6, track 40, “But you’ve got more in there, now you’re going to have more than what you expected...you might have close to what you want”. On CD, track 48, “You’ve made the numbers and you’ve made extra, 200 out of that and 250. He’s made his money and you’ve made extra on top...he’s made 250 out of that. He’s made his money and you’ve made a bonus, haven’t you, are you going to tell him about the bonus? For the times you get 750. You’ve got 750 and you’ve got 740”.

At about 7.30am on Thursday, 16 December 2004, the co-accused, Milovanovic, was observed leaving the workshop at 10 Albert Street, whilst carrying a backpack. At this time he was stopped by police and his backpack searched. Located in the backpack was a three litre and one litre bottle of methylated spirits. At the time, Milovanovic stated that it was used by his wife to clean their child’s bottles. Methylated spirits is commonly used as part of the extraction process to separate pseudoephedrine from waste product during the manufacture of methylamphetamine. Milovanovic was permitted to leave. Police continued the surveillance of the workshop.

At about 7.30pm on Friday, 17 December 2004, Milovanovic and Cram were seen entering the workshop. The offender was also seen entering the workshop.

Upon application by investigating police, search warrants were granted by a justice from the Parramatta Local Court, for the premises of 12 Albert Street, Corrimal, including both the accused’s residence and the workshop and also for the residence of Milovanovic at 12 Forestview Way, Woonona.

On the evening of 18 December 2004, Milovanovic was arrested by police, leaving the property at 10 Albert Street, with a total of 1.0158 kilos of methylamphetamine in three plastic containers. The weights of the contents of the three containers was 123.0 grams, 446.4 grams and 446.4 grams respectively.

The contents of the containers that were found in the possession of Milovanovic were subsequently forwarded for analysis. The purity of the drug in each was determined to be 16.5 per cent, 16 per cent and 20 per cent respectively. Detective Senior Constable Jameson, an officer attached to the professional standards command, with extensive experience in drug investigation, has confirmed the street level purity of methylamphetamine is between 2 and 5 per cent.

Whilst the crime scene was being established, the offender returned to the property where he was arrested and transported to Wollongong Police Station. The co-offender, Cram, was arrested nearby a short time later and was found to be in possession of a small amount of methylamphetamine, consistent with his own use. A search of the offender’s residence did not locate any evidence implicating him in the actual manufacture or supply of the prohibited drugs.

Specialist police from the chemical operations unit of the state crime command drug squad, then executed the search warrant at 10 Albert Street, Corrimal. In the internal office, in the workshop, was located a clandestine laboratory and a quantity of chemicals and precursors and chemical extraction equipment, consistent with the commercial manufacture of methylamphetamine.

Over the next four days, the site was examined by the chemical operations branch of the state crime command. Examination of the workshop and laboratory took place with protective clothing and equipment, as it was determined to be a hazardous material site. Amounts of toxic waste products included 20 litre drums of chemicals and solvents, consistent with commercial scale manufacture of methylamphetamine were present. The material located and seized by the police included a 5 litre container of hypo-phosphorous acid, 21 kilos of iodine and a 500 millilitre container of sassafras oil. These chemicals are all used in the manufacture of methylamphetamine. A number of photographs and a video of the scene were prepared by the police. During the search conducted at the residence of Milovanovic in Woonona, chemicals and equipment consistent with the manufacture of methylamphetamine were also located.

In the offender’s ERISP, conducted on 18 December 2004, he stated he had no knowledge that the manufacture was taking place. He said that he had leased the room on the mezzanine level to Milovanovic for $150 a week, however, denied any knowledge of the manufacture of prohibited drugs.

The co-offender, Cram, declined to answer any questions. The co-offender, Milovanovic, initially denied the drug manufacture, however, subsequently, admitted his involvement in a second ERISP interview conducted a few months after his arrest.

On 29 March 2006, Milovanovic provided a formal statement to police, stating that he was using the room in the workshop to manufacture methylamphetamine, with the express agreement of the offender. He stated that between 15 December 2004 and 18 December 2004, the offender attended the laboratory and asked questions about the process. Milovanovic was provided with transcripts of the recorded conversations of 15 December 2004 and confirmed the voices captured on the internal listening device were his and that of this offender.

Fingerprint analysis of the workshop and contents and equipment, located numerous prints belonging to co-offender Milovanovic and two prints belonging to co-offender Cram. No fingerprints of this offender were located in the workshop.”

4 With regard to the objective seriousness of this offence, I regard the element of deterrence, both specific and general, to be a significant factor on sentence.

5 The co-offender Milovanovic, pleaded guilty to a charge of manufacturing a large commercial quantity of methylamphetamine (maximum penalty life). That offence also had a standard non parole period of fifteen years. He was dealt with by his Honour Judge Goldring, on 1 September 2006, and I have read his Honour’s remarks on sentence. Milovanovic was sentenced to a non parole period of four years, with an additional term of two years and nine months (making a total term of six years and nine months).

6 On p 1 of Judge Goldring’s remarks on sentence, he said this:

“The offender not only admitted his involvement in these offences shortly after his arrest, he has also provided considerable assistance to the police. He has undertaken to give evidence against a co-accused, Allan Veronese. He has given evidence to the New South Wales Crime Commission and he has also provided evidence about a person who, as yet unnamed, appears to have been the principal driving force behind the manufacturing operation”.

7 His Honour Judge Goldring, continued:

“Because of my involvement in other proceedings involving Mr Veronese and a co-offender, Justin Cram, I would say that without this offender’s evidence, the Crown case against Veronese is extremely weak and would probably lead to a directed verdict. The assistance provided by this offender is significant and, in my view, entitles him to the maximum possible discount, for his assistance to the authorities”.

8 On p 4 of those remarks on sentence, his Honour Judge Goldring, commented:

“The drug found in the offender’s backpack was estimated as having the street value of slightly over $400,000 and the precursor materials could be used to manufacture methylamphetamine, valued at a far higher figure, possibly over $20,000,000. This was a very sophisticated and potentially profitable operation”.

9 His Honour also took the view that the offence for which he was sentencing Milovanovic fell at or above the middle range of seriousness, for offences of that kind.

10 Co-offender Cram pleaded guilty to a charge of possessing a precursor and, on 20 May 2006, was sentenced to a term of three years, to date from 18 December 2004 and to expire on 17 December 2007. A non parole period was specified to date from 18 December 2004 and to expire on 25 May 2006 (a non parole period of 525 days).

11 In sentencing Milovanovic, his Honour Judge Goldring referred to Cram’s involvement in the drug manufacturing as being significantly less than Milovanovic, “So there is no real question of parity”.

12 There is a standard non parole period of ten years for this offence. Although there has been a plea of guilty, the standard non parole period remains a reference point for the assessment of the appropriate sentence (R v Way 2004 60 NSWLR at [53] and [122]). Consequently, I have considered where this particular offence stands in relation to the mid range of seriousness for an offence of its class.

13 The Crown submitted the co-accused Milovanovic (one count of manufacture large commercial quantity) was sentenced against the background of his admissions that he had manufactured this prohibited drug on at least eight previous occasions.

14 The Crown conceded that the basis of the criminality of this offender, Mr Veronese, is that he provided the premises within which Milovanovic was able to secretly manufacture methylamphetamine on one occasion, in a quantity, not less than the commercial quantity.

15 The agreed facts clearly indicate the offender was approached by Milovanovic to lease his workshop, so he could manufacture the drug to pay off a debt to a criminal associate. The offender would receive $2000 as rent. There was no suggestion that he would otherwise gain financially from the manufacture of the drugs. The agreed facts also indicate that none of this offender’s fingerprints were located in the workshop. Further, a search of the offender’s residence, did not locate any evidence implicating him in the actual manufacture or supply of prohibited drugs.

16 An aggravating factor, under s 21A(2) of the Crimes (Sentencing Procedure) Act, was that the amount of laboratory equipment, chemicals and drugs located by the police, was indicative of a planned/organised criminal activity. It is recognised that methylamphetamine is a harmful and dangerous drug, that destroys lives and causes havoc in the community.

17 Mitigating factors under s 21(3) include:

(e) the offender does not have any significant record

(f) the offender was a person of good character

(g) the offender is unlikely to reoffend and

(h) he has good prospects of rehabilitation

18 Consequently, my assessment of these factors, places the objective seriousness below the midrange. I am aware that the matter of R v Bassam Turkmani (2002 NSWCCA 338 at 17) is authority for the proposition that salutary penalties should be imposed, even for what might be described as “minor participants”. However, having made the above assessment, his plea of guilty and other matters of mitigation to be found in the offender’s background (which I will come to shortly), will cause a reduction in what would otherwise be an appropriate sentence for an offence falling below the midrange of objective seriousness.

19 There is only one entry on the offender’s criminal history. In 1998, he was dealt with at the Liverpool Local Court on four charges of make false instrument to obtain money. In respect of two of those charges, he was dealt with by way of a fine of $1000. In respect to the remaining two counts, he was placed on a s 558 Recognizance, to be of good behaviour for a period of three years.

20 I turn now to the subjective matters in respect to the offender. He is now forty-nine years of age. Apart from that one entry on his criminal record, in 1998, he comes to the court as a person with an otherwise excellent character. Exhibits 1 and 2 contain a number of testimonials, to which I will later refer. The offender is the third eldest of five children, having two older brothers, one younger brother and sister. He was born in Wollongong of Italian parents. He attended a Catholic primary school and later Kirra Boys High School. He obtained his school certificate in 1974, with average grades, and left school to enter a four year carpentry and joinery apprenticeship. He apparently struggled with the academic component of the course but not the practical element of the trade. He found employment with several companies, before eventually deciding to develop his own carpentry business. His business was successful and expanded. The offender was self employed for about fifteen years, until he had a work accident in 1997. He had fallen through a roof whilst at work, sustaining three broken ribs, as well as broken discs in his back. He developed significant physical and psychological problems, following the accident, and was unable to return to full-time employment. The offender’s father also died later in that year, 1997, and the offender took on significant responsibility for his aging mother’s welfare. Following his work accident, he fell into considerable financial difficulty and was required to sell his property and business workshop to pay creditors. His brother, Dennis, then purchased the property with the intention that the offender would return to employment at some stage and pay his brother back. Subsequent to this arrangement, it seems that the offender paid rent to his brother to reside on the property. The offender received two compensation payments of $77,000 and $120,000, related to a motor vehicle accident in 1991 and his work accident in 1997, respectively. That money went to his brother as payment towards the interest on the property and it was submitted that, accordingly, the offender has no financial investment of his own.

21 In report of Dr Jaclyn Barrett, clinical psychologist (dated 20 November 2006, being part of exhibit “2”), she stated that:

“Since 1999, Mr Veronese has attempted to work part-time, 5 years in a friend’s furniture store, selling and repairing furniture, as well as continuing to undertake part-time carpentry work when able. Mr Veronese denied ever having been on the unemployment benefit but since his accident in 1997, has been supported by a disability support pension. He stated that he obtained a lot of fulfilment and pride from his work as a carpenter and although it was unhelpful to his pain condition to undertake such work, he felt it invaluable, in terms of giving him a sense of worth. He stated that he had struggled to come to terms with the fact that he could not physically work full-time again and the implications of this for his life plans of being secure and independent”.

22 Dr Barrett commented, at para 38, that:

“Mr Veronese’s identity is strongly linked to his ability to be independent and work full-time in order to have financial security. His work accident and subsequent chronic pain condition have challenged his pre-existing views of himself and his life and he continues to struggle to adjust to this significant stressor and ongoing physical and psychological consequences of loss of physical functioning”.

23 Paragraph 39:

“Mr Veronese has a chronic adjustment disorder with anxiety and depressed mood, currently, he is reporting severe symptoms of depressed mood and significant anxiety over and above that related to symptoms associated with medication or his pain condition. Mr Veronese’s brief experience in custody, has left him with a strong sense of vulnerability, in part due to his pain condition but also, psychologically, whether he would be able to cope and adapt to a custodial environment”.

24 Dr Barrett also commented that:

“Mr Veronese does not associate with anti-social peers and has only one prior non custodial conviction. Mr Veronese does not abuse illicit substances, nor alcohol, so has minimal risk of deregulated behaviour. Mr Veronese is a low recidivism risk...Mr Veronese is maintained on an anti-depressant but continues to experience severe disturbances of mood. Medical review by a psychiatrist is likely to be helpful and, in particular, reviewed with medication”.

25 Dr Newman Harris is a specialist in pain medicine and also a consultant psychiatrist. His report dated 9 November 2006, is part of exhibit 1. Dr Harris’ principal diagnosis was that of an adjustment order with depressed and anxious mood (chronic) and pain disorder.

26 Under the heading "prognosis", on p 7 of the report, the doctor states:

“In that Mr Veronese has already undergone a psycho-behavioural intervention to optimise his self-management techniques of his pain, it is unlikely that his management strategies will improve and that he will remain dependant on large doses of medication and passive coping strategies. His pain will continue to be a substantial adversity, which pushes him toward mood disorder. There is a very real potential for greater adversity of this kind (be it increased pain, more adverse circumstances or something else of significance), to push him into a more severe negative mood state and, particularly, bearing in mind his prior suicidal ideation, I would recommend that he remain under close review by mental health services”.

27 Asked to comment on the offender’s suitability for full-time custodial sentence, the doctor stated, at p 8 of his report (being the final page):

“A custodial sentence is invariably an unpleasant and aversive experience for any person. Given Mr Veronese’s physical difficulties and psychiatric status, it is fair to say that the experience will be substantially more averse for him, than it would be for others. As indicated above, I would consider it important that he be reviewed by mental health services, within the prison system, should he be detained in custodial circumstances, as his pain and mood are both likely to deteriorate substantially”.

28 In response to the concerns raised by Dr Harris, a letter was provided by Justice Health administration, under the hand of Dr Virginia Noel (dated 4 December 2006 and now part of exhibit 2). The doctor stated:

“The Justice Health Service cares for a significant number of patients with chronic pain syndromes. Although it is not always possible to provide physical support, such as special mattresses and hot water bottles, we can provide the following services:

· on request or regular review by primary health nurses;

· regular review by general practitioners;

· access to addiction medicine specialists;

· access to psychiatrists and mental health nurses;

· access to specialist pain clinic;

· provision of appropriate chronic pain medication, including long acting opiates, if these are considered necessary;

· access to physiotherapy at the Long Bay campus;

· access to a full range of medical specialists, via the Prince of Wales Hospital Outpatients Department;

In summary, it is my opinion that Mr Veronese’s health needs, can be met in a custodial setting”.

29 The testimonial/reference material contained in exhibits 1 and 2, affirm that all who knew him closely, regarded him as an honest, trustworthy and responsible member of the community. Many expressed shock and disbelief that the offender could have allowed himself to be involved in this criminal activity. Indeed, the wealth of subjective material tendered on his behalf, leaves the court in a similar state of perplexion. Over the years, the offender has volunteered his carpentry services to a number of community projects.

30 Mr Paul Smart (part of exhibit 2), speaks of his “considerable contribution during the construction of the Bellambi Surf Lifesaving Club”.

31 Mr Joe Pilati, in his letter of 26 November 2006 (exhibit 1), stated that:

“Over the past three years, Allan has assisted with volunteer carpentry work at the Woonona Pony Club and has volunteered to assist with the manufacture and installation of the new kitchen. During this time, Allan assisted with some repairs and has prepared the frame for the new kitchen in the clubhouse, which his over thirty years old”.

32 Mr Russell Verdon, event manager, Future World (17 November 2006, exhibit 1), stated that in February 2006, the offender offered his services as a volunteer at the Coniston Centre as a tour guide and carpenter. Mr Verdon stated:

“Allan, through his industry contacts, was able to source and produce a glass display cabinet, for the centre, which has enabled the setting up of a small shop, which has been an asset to the centre”.

33 Having considered all of the material, I am satisfied that the offender’s involvement in this most serious offence was but an aberration, for which there simply seems no apparent explanation.

34 In the course of submissions on sentence, Mr Bolger of counsel, stated that the subjective material presented on behalf of the offender would satisfy the court that the risk of re-offending is extremely low. He also submitted that I would accept the offender’s remorse and contrition. I have no difficulty accepting each of those propositions, nor do I have difficulty accepting that the offender’s ongoing medical needs, may well result in his time in custody being more onerous than would otherwise be the case. That is a fact that I will take into account, in balancing the offender’s subjective material, against the objective seriousness of the crime.

35 It was also submitted that his elderly mother will suffer as a result of losing the support of the offender. In the statement of his mother, Maria Veronese (part of exhibit 1), she indicates that she is now seventy-nine years of age; that since 2000, the offender has always taken her to doctor’s appointments; that following a fall in 2004, she was hospitalised for two weeks and her thrombosis worsened. Following this, the offender would attend her home daily to feed the animals, care for the garden and do general duties around the home. Following further hospitalisation in 2005, apparently the offender continues to attend her house daily and organises, amongst other things, her correct medication. He continues to take her to medical and hospital appointments, as required. Mrs Veronese is fearful that should the offender receive a custodial sentence, she would have to move to a nursing home and to access care on a regular basis. However, in my assessment, her other children will simply have to organise to take responsibility to ensure that their mother’s welfare is appropriately catered for in the offender’s absence. These particular circumstances could not be said to amount to “a very exceptional case” (see R v Wirth 1976 14 SASR 291) and I will not take them into account in mitigation of sentence.

36 The offender is entitled to have his plea of guilty reflected in mitigation of penalty. This is done on two bases, to reflect the utilitarian benefit to the criminal justice system and to reflect contrition (s 22 Crimes (Sentencing Procedure) Act and R v Sharma 2002 54 NSWLR at 300).

37 The offender was committed for trial from the Local Court on 15 June 2005. Apparently, the charge upon which he was committed for trial was manufacturing or knowingly take part in the manufacture of a large commercial quantity.

38 On 27 March 2006, at Wollongong District Court, two voir dires were held over a period of three days in respect of the admissibility of evidence. His Honour Judge Goldring determined those matters and ultimately it was listed for trial for 16 October 2006.

39 On 13 October 2006, the trial date was vacated as it was indicated that the accused was going to plead guilty. On 16 October 2006, the accused indeed pleaded guilty before me, to the charge that is on the present indictment (ie a lesser charge than on which he was originally committed).

40 Consequently, it was not a plea at the earliest opportunity and therefore, the advantages to the administration of justice are less (see R v Dibb 2003 NSWCCA 117). Nevertheless, there remains a utilitarian benefit and in my view, it is appropriate to reflect this by a discount of about fifteen percent (the Crown conceded “a reasonable degree of utilitarian benefit" in the plea, in that a large number of police and chemical analysis witnesses were needed for a trial which would have taken about two weeks).

41 I have taken into account the purposes of the sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of the Act and, having considered all possible alternatives, I am satisfied that there is no alternative, other than a full-time custodial sentence.

42 I do find special circumstances, being that at forty-nine years of age, this will be his first time in custody and his excellent prospects for rehabilitation.

43 Mr Veronese, I convict you of the offence and I sentence you to a non parole period of two and a half years, to date from 11 February 2007 and to expire on 10 August 2009. I order that you be released to parole on 10 August 2009. I sentence you to an additional term of two and a half years, to expire on 10 February 2012.

44 I recommend to the Corrective Services Authorities, that his classification be expedited. I will also order that a copy of my remarks on sentence be taken out and forwarded to the Corrective Services Authorities, hopefully to assist in his urgent classification.

45 It will be noted that in the course of my comments, I made reference to his present physical condition and I am advised that he has medication with him at court today and would also recommend to the Corrective Services Authorities that there be consideration given to making sure that he has access to that medication.

46 In relation to the matter on the 166 certificate, I order that that charge be withdrawn and dismissed.

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