Z v R

[2022] NSWCCA 286

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Z v R [2022] NSWCCA 286

Hearing dates:

11 July 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Before:

Bell CJ at [1];
Mitchelmore JA at [2];
Yehia J at [76].

Decision:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Quash the sentence imposed in the District Court on 2 December 2020.

(4) In lieu thereof, sentence the applicant to a term of imprisonment comprising a non-parole period of 3 years, backdated to commence from 2 December 2020, with a balance of term of 3 years.

(5) The effect is that the earliest date on which the applicant will be eligible for release to parole is 1 December 2023, with the balance of term to expire on 1 December 2026.

Catchwords:

CRIME – appeals – appeal against sentence – parity – criminal drug syndicate – manufacture large commercial quantity of prohibited drug, 3,4-Methylenedioxyamphetamine, contrary to Drug Misuse and Trafficking Act (NSW), s 24(2) – participate in criminal ground contrary to Crimes Act 1900 (NSW), s 93T(1) – where cystic fibrosis “fundamental to subjective case” – whether justifiable sense of grievance in light of the sentence imposed on co-offenders

Legislation Cited:

Crimes Act 1900 (NSW), s 93T(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 54A, 54D

Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 33(3)(a)

Cases Cited:

Awraham v R (Cth) [2021] NSWCCA 241

C v R [2022] NSWCCA 285

DS v R [2014] NSWCCA 267

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

Huckstadt v R [2016] NSWCCA 22

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lewis v R [2021] NSWCCA 108

Lloyd v R [2017] NSWCCA 303

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Miles v R [2017] NSWCCA 266

Postiglione v The Queen (1997) 189 CLR 295

R v Edwards (1996) 90 A Crim R 510

Rodriego (a Pseudonym) v R [2021] NSWCCA 237

SF v R [2022] NSWCCA 216

Young (pseudonym) v R [2021] NSWCCA 163

Category:

Principal judgment

Parties:

Z (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr A Chhabra and Ms C Brain (Applicant)
Ms M Kumar and Mr M Clark (Crown)

Solicitors
Toomey Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2018/91702

Publication restriction:

(1) Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”), there be no publication of the reasons for judgment on or before 20 February 2023, other than to:

(a) the parties and their legal representatives; and

(b) the Commissioner of the NSW Police Force and her legal representatives.

This order is to apply throughout the Commonwealth of Australia.

(2) On or before 10 February 2023, the parties and the Commissioner of Police are to notify the Court of any redactions sought to be made to the reasons for judgment for the purpose of compliance with the non-publication orders made by the Court pursuant to the Act on 11 July 2022, noting that on 16 December 2022 the parties have been provided with a copy highlighted to show proposed redactions (the “Highlighted Reasons”).

(3) For the purposes of Order 2, the Crown is to provide a copy of the Highlighted Reasons to the legal representatives of the Commissioner of Police.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

02 December 2020

Before:

Turnbull SC DCJ

File Number(s):

2018/91702

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Z (a pseudonym), sought leave to appeal against his sentence imposed for one count of manufacturing not less than a commercial quantity of 3,4-Methylenedioxyamphetamine (“MDA”) (in an amount not less than 24 kilograms), contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”); and one count of participate in a criminal group where he was reckless as to whether his participation in that group contributed to the occurrence of any criminal activity, contrary to s 93T(1) of the Crimes Act 1900 (NSW).

Z was sentenced in accordance with a Statement of Agreed Facts which detailed his participation in a criminal drug syndicate, operating across several properties, between September 2017 and March 2018. The purpose of the syndicate was to manufacture MDA which Z was involved in on “multiple occasions” in addition to being involved in organisation and transport.

Z pleaded guilty to the charges specified above and was sentenced in the District Court to a period of imprisonment of 7 years and 4 months, with a non-parole period of 3 years and 8 months, the sentencing judge having found special circumstances.

In addition to Z and two directors, there were five other offenders involved in the syndicate. The sentences imposed on “C”, “H”, and “P” who also pleaded guilty to charges under s 24(2) of the DMT Act (and other charges) were relevant to the parity aspect of Z’s appeal. C was “directly involved in the manufacture of MDA” and in transporting items to the properties. H was involved in the diversion of chemicals and was also directly involved in the manufacture of MDA on multiple occasions. P was also directly involved in the manufacture of MDA.

Z and C each had physical and mental health conditions. Z suffered from cystic fibrosis, which required ongoing treatment and which the sentencing judge found was “life shortening”. C suffered from coronary heart disease that required specialised treatment.

Z appealed on two grounds: that he had a justifiable sense of grievance in light of the sentences imposed on C, H, and P (“Ground 1”); and that the sentence imposed for the offence contrary to s 24(2) of the DMT Act was manifestly excessive (“Ground 2”).

The Court (Mitchelmore JA, Bell CJ and Yehia J agreeing), granting leave to appeal, upholding Ground 1, and resentencing Z to imprisonment comprising a non-parole period of 3 years with a balance of 3 years, held:

On Ground 1:

1. Both C and Z were entitled to leniency on the basis of their respective criminal histories, both men were remorseful, and neither presented any real risk of reoffending. They also had medical conditions which were of note and which would have an adverse effect on their time in prison. The “fundamental” impact of Z’s cystic fibrosis on his subjective case was reflected in two ways: the lower starting point and the significant adjustment made to the non-parole period on the basis of special circumstance. Z does not have a justifiable sense of grievance by comparison with the sentence imposed on C: [1], [48], [76].

2. Although the sentencing judge sought to reflect the differences between the offenders, the starting point for Z’s sentence was significantly greater than the starting point for P, who had a substantial criminal record and guarded prospects of rehabilitation. The difference was more marked with H, whose culpability was assessed as sitting higher than P’s but whose subjective case was similar to that of Z (apart from Z’s significant health condition). In circumstances where the objective seriousness of the conduct of each offender was assessed as being at the bottom of the mid-range, neither the need to tangibly reflect Z’s role, nor his subjective circumstances, reasonably explained the difference: [1], [62], [76].

   Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Awraham v R (Cth) [2021] NSWCCA 241; Miles v R [2017] NSWCCA 266; Lloyd v R [2017] NSWCCA 303; Lewis v R [2021] NSWCCA 108; DS v R [2014] NSWCCA 267 applied.

On Ground 2:

1. Given the conclusion on Ground 1 called for resentence, it was unnecessary to consider Ground 2: [1], [5], [76].

Judgment

1. BELL CJ: I agree with the reasons of Mitchelmore JA and agree with her Honour’s resentence of the offender.

2. MITCHELMORE JA: The applicant, to whom I will refer using the pseudonym “Z”, seeks leave to appeal against the sentence imposed on him in the District Court for:

1. one count of manufacturing not less than a commercial quantity of 3,4-Methylenedioxyamphetamine (commonly known as “MDA”) (in an amount not less than 24 kilograms), contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”); and

2. one count of participate in a criminal group where he was reckless as to whether his participation in that group contributed to the occurrence of any criminal activity, contrary to s 93T(1) of the Crimes Act 1900 (NSW).

3. Z pleaded guilty and was sentenced to a period of imprisonment of 7 years and 4 months, with a non-parole period of 3 years and 8 months, the sentencing judge having found special circumstances. He received a 25 per cent discount for the utilitarian benefit of entering a plea at the first reasonable opportunity. [Redacted].

4. Z appeals on two grounds. First, he contends that he has a justifiable sense of grievance in light of the sentence imposed on three of his co-offenders. Secondly, he contends that the sentence imposed for the offence contrary to s 24(2) of the DMT Act was manifestly excessive.

5. For the reasons outlined below, I would grant leave to appeal and uphold Ground 1 of the Notice of Appeal. Given my conclusion on Ground 1 calls for resentence, it is unnecessary to consider Ground 2.

6. Z’s application for leave to appeal was heard by the Court on the same day as it heard an application by one of his co-offenders, known by the pseudonym “C”. C’s application has been separately determined: C v R [2022] NSWCCA 285. There is an inevitable degree of repetition of material between the two matters, although they can and should be read independently.

The syndicate

7. Z was sentenced in accordance with a Statement of Agreed Facts. The Crown tendered the same set of Agreed Facts against C and three of his co-offenders; and the same judge sentenced those four offenders.

8. According to the Agreed Facts, in 2017, investigators attached to the North-West Region Enforcement Squad of the NSW Police Force identified that “R” was directing a criminal syndicate, along with “CC”, for the purpose of manufacturing illicit drugs. R owned a warehouse at Wetherill Park, which was used for the storage and diversion of precursors to the manufacture of MDA. Another property that R owned at Mount Rankin was used for the same purpose. The MDA was manufactured at a rural premises in Neville.

9. From September 2017, Police conducted covert surveillance of the properties, including through audio- and visual-recording devices; and they obtained telephone intercept warrants for the mobile phones used by a number of participants in the syndicate. On 22 March 2018, Police executed a search warrant at the Neville property. Z was arrested on the same day. One shed on the Neville property was found to contain a laboratory with multiple reaction flasks, heating mantles, water baths, and other items associated with the manufacture of MDA. Another shed on the property was used for storage and also contained a tablet press.

10. The precise quantity of MDA manufactured by the syndicate was unknown. However, the opinion of a forensic chemist included in the Agreed Facts was that it was not less than a commercial quantity based on two factors: the amounts of the drug found at the Neville premises, and the duration of the offending (between September 2017 and March 2018).

11. In addition to R and CC, Z’s co-offenders in the enterprise were (using their respective pseudonyms) “C”, “H”, “P”, “Y”, and “W”. Like Z, each of C, H and P pleaded guilty to a charge under s 24(2) of the DMT Act. Y pleaded guilty to a variation of that charge, namely, that he knowingly took part in the manufacture of a commercial quantity of MDA (not less than 500g and substantially exceeding that amount). W was sentenced on that varied charge following a trial by judge alone. Each of H, P, and Y also pleaded guilty to a charge under s 93T of the Crimes Act; and W was convicted on that charge. C was charged with the same offence but in his case it was permanently stayed.

12. I will address Z’s offending in more detail below, but for present purposes it is sufficient to note that he was described in the Agreed Facts as being “involved in the manufacture” of MDA at the Neville premises on “multiple occasions”, “organising with other group members to attend the premises” and transporting items to the Neville and Mount Rankin properties. The roles of Z’s co-offenders and the sentences imposed were as follows:

1. C was “directly involved in the manufacture of MDA at the Neville premises”, and was involved in transporting items to the properties. He was sentenced the day before Z (with a correction on 2 December 2022) to a term of imprisonment of 6 years and 10 months, comprising a non-parole period of 4 years and 5 months with a balance of term of 2 years and 5 months. His Honour took into account on a Form 1 a count of reckless dealing with proceeds of crime, namely, $19,450.

2. H was involved in the diversion of chemicals and was also directly involved in the manufacture of MDA at the Neville premises on multiple occasions. He was sentenced on 19 October 2020 to a head sentence of 7 years, with a non-parole period of 4 years and 6 months. An application for leave to appeal against that sentence (in which he was known as “SF”) was heard by this Court on 8 April 2022. The Court allowed the appeal and resentenced him to the same head sentence but reduced the non-parole period to 4 years and 2 months: SF v R [2022] NSWCCA 216.

3. P was also directly involved in the manufacture of MDA at the Neville premises. The sentencing judge also took into account, on a Form 1 attaching to the s 24(2) charge, charges of deemed supply of a prohibited drug (41.43 grams of cocaine) and recklessly deal with the proceeds of crime ($24,195). P was sentenced at the same time as H to a head sentence of 7 years and 6 months, comprising a non-parole period of 5 years and a balance of 2 years and 6 months.

4. Y was sentenced on the basis that he was also directly involved in the manufacture of MDA at the Neville premises and transporting chemicals to Neville. He was sentenced to an aggregate term of 2 years and 10 months, to be served by way of an intensive correction order.

5. W was an employee of R and CC. W was found to have been involved in the manufacture of MDA at the Neville premises on multiple occasions and to have organised other group members to attend the various premises and transport items to the Neville and Mount Rankin properties. He was sentenced to a head sentence of 4 years and 3 months, comprising a non-parole period of 2 years with a balance of 2 years and 3 months.

The sentencing of Z

13. The Agreed Facts set out in significant detail the various activities that Z and his co-offenders undertook as part of the enterprise. It commenced with reference to activities at the Wetherill Park premises and delivery of chemicals from Wetherill Park to Mount Rankin and Neville, before moving to activity associated with MDA manufacture.

14. The Agreed Facts indicate that Z was at Wetherill Park on 6 September 2017, 13 September 2017 and 19 October 2017 with various individuals. He was also picked up in a telephone intercept on 13 September 2017, instructing C to “wet the cement” that evening at the Neville property.

15. Z was involved in the manufacture of the drug at Neville on various dates recorded the Agreed Facts:

1. On 25 October 2017, Z and C were at Neville exiting the drug laboratory carrying buckets.

2. On 1 November 2017, Z entered the chemical storage shed at Mount Rankin and handled chemical drums believed to contain methanol; he also checked the level of formic acid.

3. On 11 November 2017, Z was picked up on an intercept speaking to H about the need to get all of the work done using the excavator at Neville because it needed to be returned soon (the excavator was used to dispose of waste from the manufacturing process).

4. Between 1 and 2 December 2017, Z, H and C were recorded entering and exiting the drug laboratory carrying items including 20 litre containers.

5. On 10 and 11 February 2018, Z and C were in the drug laboratory, mixing chemicals with solids in measuring cylinders moving buckets and measuring cylinders containing chemicals around the laboratory. They are also recorded setting up equipment used in the manufacture of MDA; and are recorded discussing the manufacturing process.

6. On 27 and 28 February 2018, Z and H were recorded in the drug laboratory mixing chemicals with solids, carrying 20 litre containers and measuring cylinders containing chemicals around the laboratory, and setting up flasks that were then filled with chemicals used in the manufacture of MDA. They were recorded discussing the manufacturing process as they were physically completing the act. Also on 28 February 2018, Z was recorded appearing to direct C about the process in which to separate solids and chemicals into batch sizes.

7. On 1 March 2018, Z was recorded arriving at the drug laboratory (C and H were already present) and decanting chemicals into a 20-litre flask before transferring them into another flask while discussing the process. Z was also present at the laboratory on 2 March 2018.

8. On 4 March 2018, Z, H and C were recorded inside the laboratory at Neville, placing what was believed to be MDA in oil form, ethanol and formic acid in a number of 20-litre buckets, and were later recorded emptying the contents from the buckets into a large open container.

16. His Honour found that Z was involved in the manufacturing of MDA at Neville on a number of occasions:

“He had an ongoing role in the logistics; he directed others, he organised others. He directed C on 13 September 2017, displayed knowledge of the process and he was concerned that it was done properly to ensure success. He was, as accepted by his counsel, a participant in the cook; that is, the chemical process. He had free access to the Mt Rankin property; and he attended to the important tasks at Neville.

He was seen in the company of [R] and others loading relevant chemicals on a number of occasions at the early stages of the offending. On occasions, in October and November, he was in the centre of the manufacturing, inter alia handling chemicals, checking levels and organising for the disposal of identifiable waste.

In February the offender was again mixing and measuring. At that stage it was alongside Mr C, attending to and setting up the mantles, glassware, retort stands and the like. He is actively manufacturing. He is involved in the chemical manufacture. He is not a mere labourer; he is alongside C on many occasions when the cooking was going on. In his discussions with C and H he is evidently confident about the process and its consequences. His activities are hands-on and directive.”

17. His Honour described Z’s role as “central”, but also “dispensable”, as he was not always being present and C and P were capable of many things that were “seemingly within the purview of the offender at earlier times”. His Honour observed that there was “an inevitable and evident sharing of information and ongoing practical education flowing to others as the process of manufacture was undertaken”. His Honour considered that Z “clearly understood the chemistry” and that both he and C were trusted, and trusted themselves, “to undertake the role of chemist or reaction overseer”. In this respect his Honour considered that Z’s role equated to C’s for practical purposes. Although Z was absent from the final cook, “everything seemed to have been established in advance in previous cooks”, when Z’s “expertise and foreman-like role” were on display. Ultimately, his Honour found that C’s role was “somewhat less in terms of role than this offender, in terms of involvement, although the equivalent role from time to time in certain technical respects”. P’s role was somewhat lower than H, while H was somewhat lower than C and Z.

18. His Honour stated that there were nuances as between the offenders, which would be respected and given due weight. However:

“… when you are looking at an adept, organised, well-financed, productive drug manufacturing enterprise, when you are looking at something with logistical support, that was considered and tightly-run and noting as I have that this offender played an important role in that, the relevant significant distinctions really remain as between [R], [CC] and the two low-level participants, [Y] and [W].

…

Ultimately, the sentences which I have previously imposed and now this final sentence reflect my conclusion that the sentence for this offender and C must sit tangibly above H and P as a starting point reflective of their role and overall involvement, i.e. on the basis of objective seriousness. What I intend to indicate is that they do not sit so far apart between themselves as I consider sentences for those accepted as above or below these four in terms of role or involvement. Nonetheless, inevitably, the starting points for this offender and C must be, and I confirm are higher. That is before consideration of the relevant mitigating factors.” [Emphasis added.]

19. His Honour returned to this subject after finding that the facts indicated that this was “a serious example of a serious crime”, noting the level of organisation, its scale, and the potential for significant financial return. His Honour stated:

“Ultimately there is an equivalence of purpose amongst all four. They are mature men. They were considered, they knew what they were getting into and they propped each other up and advanced the common interest in this enterprise”.

To that extent they are all aligned and, as a general proposition, they all played a significant role over months. That is the nub of why I say the consequences of the sentences, reflecting as I must, instinctively, the offender’s role is not, by operation of that observation, going to have as significant consequences as between the offenders in terms of penalties as was suggested.”

20. As to the objective seriousness of Z’s conduct, his Honour found that Z was not a principal, although he was well-entrenched with the principals and was trusted by them. His Honour found that Z’s culpability placed him “towards the lower part of that midrange, in terms of his offending”, subsequently stating that what Z did was “below the midpoint of the midrange” and “towards the bottom of that range”. Only fulltime custody was appropriate, with his Honour accepting the Crown’s submission that this was a matter “where specific and general deterrence loom large, as does denunciation”.

21. Turning to subjective matters, his Honour noted that Z had no criminal record. His Honour accepted most of the history that Z provided, but could not give any real weight to matters concerning his childhood experience in Lebanon; although it must have been traumatic for him at the time, his Honour did not see that it had any real weight in relation to its bearing on the offending.

22. Z was 54 at the time of sentencing. His Honour noted that his custody would have an adverse effect on his family: his mother, three sisters and a brother all living in New South Wales, his second wife, with whom he shared two children with a third on the way, and three children from a previous relationship. His Honour took this hardship into the “general mix”, noting that the adverse effect was not exceptional. His Honour also took into account that Z had longstanding financial issues, although (by contrast with C) his financial position was not “the unanticipated result of others’ misconduct and poor choices”.

23. His Honour then turned to what was “fundamental to the subjective case”, which was Z’s diagnosis, in 1989, with cystic fibrosis. His cystic fibrosis was the primary reason that Z was granted pre-sentence bail on 16 May 2018 (the bail judgment was tended as Exhibit 2). His Honour noted that the cystic fibrosis did not impair Z’s commission of the offence “save at the end of the period, when he was, on 16 March 2018, in the Westmead Hospital, his condition exacerbated as the facts disclose by an admission that he was ‘boxing chemicals’”.

24. His Honour referred to the medical reports before him which indicated that the diagnosis was sound, that there was an ongoing need for treatment, and that the condition was recognised as “life-shortening”. It was a significant matter, which had exacerbated a diagnosed depressive illness. Consistently with the medical reports, his Honour accepted that survival was “evidently better with access and regular attendance on a multi-disciplinary clinic”, such as Z had been attending at Westmead Hospital. The medical evidence before his Honour was that with attendance at and access to such a clinic, Z should survive at least another ten years from the age of 55.

25. His Honour considered that Z’s health condition engaged the principle that, while “the state of health of an offender is always relevant to consideration of the appropriate sentence for an offender”, the courts “must be cautious as to the influence which they allow this factor to have on the sentencing process”. His Honour stated that ill health would “be a factor tending to mitigate punishment only when it appears that imprisonment would be a greater burden on the offender by reason of his state of health, or when there is a risk of imprisonment having gravely adverse effects on an offender’s health”. An appropriate balance had to be struck between the criminality in question and any health or shortening of life. His Honour noted that courts were “urged to conclude, if gaol is significantly harder for the person who has difficulties due to health and age, this would be a relevant matter to take into account”.

26. His Honour received reports from Corrective Services on the basis of which he accepted that there seemed to be “adequate notice of this incoming patient”, to which he gave some weight. His Honour noted with disquiet Z’s uncontradicted evidence about his experience on remand, and stated that he had to have regard to the aspirations of Corrective Services alongside Z’s experience.

27. After considering Z’s medical care while in custody in detail, his Honour referred again to the competing considerations attending parity. There were differences as between the four co-offenders, which his Honour had endeavoured to address as best he could. Ultimately, his Honour considered that Z must face a substantial term of imprisonment, even though he was “remorseful, effectively rehabilitated through his own resolution, but also inevitably, as a result of his age and infirmity, and that means that the need for personal deterrence have [sic] reduced”.

28. Given the timing of Z’s plea of guilty, he was given the full utilitarian discount. Accepting that the sentencing discretion must reflect all relevant factors, his Honour observed that Z had a terminal illness and required a host of specific treatments, and that his time in custody was clearly going to be more difficult and onerous. After referring to the treatments Z required, and the difficulties he had faced on remand, his Honour stated that notwithstanding the treatment plan and the good graces and commitment of Corrective Services, his custody would damage his already failing health and would likely shorten his life. His Honour stated that he was compelled to reflect these findings in the terms of any sentence, and had “resolved to reflect these unique considerations, unique to this offender in the finding of special circumstances”.

29. [Redacted].

Ground 1: The applicant has a justifiable sense of grievance in light of the sentences imposed on the co-offenders C, H, and P

30. A court “may reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender”: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] per French CJ, Crennan and Kiefel JJ, quoting Lowe v The Queen (1984) 154 CLR 606 at 609-610; [1984] HCA 46 per Gibbs CJ. The principle is an aspect of equal justice, which requires that there be consistency in punishment; unequal treatment under the law is likely to lead to an erosion of public confidence in the administration of justice: Green at [28], [30]; see also Lowe at 610-611 per Mason J; Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ.

31. The application of the parity principle is governed by considerations of substance rather than form: Green at [30]. As Wilson J stated in Awraham v R (Cth) [2021] NSWCCA 241 at [78] (Davies J agreeing; Hamill J dissenting), while compliance with established principles of sentencing law cannot vary between judicial officers, there can be variation in relation to the attribution of weight given to particular features in an individual case. That approach “allows for some difference in sentences which is not indicative of error”. In Miles v R [2017] NSWCCA 266 at [9], Leeming JA said that the question “is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge”. See also at [39]-[40] per Rothman J; [67] per Hamill J.

32. In Lloyd v R [2017] NSWCCA 303, R A Hulme J (Payne JA and Garling J agreeing) put the stated the question more bluntly at [97]: “was the differentiation made by the judge one that was open to her in the exercise of her discretion?” The Court will refuse to intervene when disparity is justified by differences between co‐offenders: Lewis v R [2021] NSWCCA 108 at [62] per Bellew J (Hoeben CJ at CL and N Adams J agreeing). Conversely, the Court will intervene “where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending”: DS v R [2014] NSWCCA 267 at [39] per the Court (Bathurst CJ, Fullerton, and Davies JJ).

33. In order to determine this ground, it is necessary to canvass in some detail his Honour’s remarks on sentences for C, P, and H. By the time his Honour came to sentence Z, on 2 December 2020, his Honour had already sentenced P and H; and his Honour sentenced C on 1 December 2020 (making a correction on 2 December 2020). As his Honour noted in his remarks on sentence, by that point he had read the Agreed Facts that applied to all of these offenders on multiple occasions.

34. It is apparent from his Honour’s remarks on sentence for each co-offender that his Honour was conscious of the need for parity, and that his Honour sought to give effect to that principle in circumstances where the Agreed Facts raised a vast number of considerations to balance. Common to the remarks for each co-offender was his Honour’s finding that this was a serious example of a serious crime, which was well organised. His Honour found that each co-offender was well aware of what he was doing, as a trusted member of the syndicate, and that each trusted the others to perform their respective roles, with the ultimate expectation of a financial reward, directly or indirectly. As I noted above, his Honour assessed the offence as in the “mid-range of objective seriousness when considered as an enterprise”, with the amount of drug not determinative but “nonetheless a material consideration”.

Sentencing of C – 1 December 2020

35. C was described in the Agreed Facts as being “directly involved in the manufacture of MDA at the Neville premises”. He was also involved in transporting items to the Neville and Mount Rankin properties. The Agreed Facts detailed C’s activities on numerous dates between early September 2017 and 22 March 2018 including conversations he had with his co-offenders in relation to the enterprise, his movements to and from the three properties, and his direct involvement in the manufacturing process at the Neville premises. His Honour considered it significant that C was at Neville for a “good part of March 2018” and was there when the 24 kg of MDA was being finalised. Z was not at Neville at that time, H and P were.

36. The sentencing judge described C as “hands on” and as “clearly” understanding the chemistry. He found that C was “trusted and he trusted himself to undertake the role of chemist or reaction overseer, directing and supervising [P] and [H], for example, at Neville”. His Honour acknowledged that Z may have had “a greater knowledge of the detail of the chemical and logistical processes”, but concluded that C’s role approximated, if not equated to, Z’s for practical purposes. Nonetheless, Z was “seemingly quite closely involved from time to time and associated with [CC] and [R]”, which led his Honour to conclude that Z’s role was “somewhat but not substantially greater in terms of objective culpability” than that of C. C played “an important, but not indispensable, role” which placed his culpability “towards the lower part of [the] mid-range”, his Honour describing it further as “the very low point of the midrange, the bottom of that midrange”. His Honour accepted the Crown’s submission that specific and general deterrence loomed large.

37. In relation to C’s Form 1 offence, his Honour noted that his possession of the significant amount of money was unexplained. It was a crime of consequence and his Honour dealt with it as a matter “demonstrating an additional need for personal deterrence and retribution”.

38. In relation to C’s subjective case, his Honour noted that C was 46 years old, married with two children, and had a “limited criminal record” which afforded him some leniency. His Honour was “inclined to see C’s position as a man of previous good character who has turned to this crime motivated by financial reward”, so as “to return to some financial stability given his age, responsibilities and history of being defrauded and bankrupted”. In summary, C and his brother had been defrauded by the accountant they had engaged to manage their financial affairs with respect to several businesses, leaving them with a significant debt to the Australian Taxation Office. One of their businesses was also destroyed by fire and was underinsured. Calls were made on business and home loans, leading to a collapse in C’s mental health, his hospitalisation following an attempted suicide, and ongoing subsequent treatment for depression. Additionally, C was threatened by a barrister in relation to the non-payment of his fees; the barrister was ultimately found by the Civil and Administrative Tribunal to have engaged in professional misconduct in this regard.

39. His Honour accepted that “C’s likely motivation was financial in order to repair the damage done to his financial position over many preceding years likely through no fault of his own”, and that he had an apparent vulnerability which may have impaired his judgment. Nonetheless, it was clear to his Honour that C was more than capable of performing his role in the enterprise, which was certainly not a passive role. The surrounding circumstances “temper[ed] his moral culpability, to an extent, but cannot excuse his choice”.

40. Although the sentencing judge did not accept that C was an inappropriate vehicle for general deterrence, his Honour did accept that C would have “more than the usual difficulty in custody”. In addition to his depressive disorder, C had a cardiac condition which had led to his hospitalisation on three occasions while he was on remand. His Honour noted the circumstances in which C grew up, his history of “hard work”, and the absence of drug or alcohol abuse. His Honour accepted that C had expressed “considerable remorse” for his offending, as evidenced by the plea and his post-offence conduct, although his Honour did not fully accept that C was “frankly and fully taking responsibility for his offending behaviour”. His Honour also accepted that C was a low risk of reoffending and that this lesson had led him well on the way to rehabilitation.

41. In finding special circumstances, his Honour noted C’s age, it being his first time in custody, his psychological vulnerabilities and his heart disease, which required specialised treatment. His Honour considered that C would need a longer than usual period of parole and support in returning to the community, and thus made a “marginal variation”.

42. In relation to parity, his Honour found evident differences relating to role, but described them as “marginal”. As to other matters, his Honour stated:

“… there are medical issues, there is a significant issue in relation to one of these offenders [Z], [redacted], some criminal record of relevance in relation to other offenders. There is the presence or absence of a Form 1, and subjective circumstances. There is an additional offence, although that has no bearing, in my view, given the imposition of a stay and my acceptance of the persuasive reasoning of Judge Priestley SC. Those differences are best left to speak for themselves in the various judgments but as a blunt summary of the matters that have been prominent, that list serves an immediate purpose.”

43. Finally, his Honour took into account the years between the offending conduct and sentence due to the pandemic. His Honour also acknowledged the significant period of time that C spent on remand before bail was ultimately granted, with it being well known that remand prisoners did not have access to the same kind of conditions and opportunities that are available to sentenced prisoners.

44. [Redacted].

Parity as between C and Z

45. The notional starting point for Z’s sentence was less than C’s starting point, by some 10 months. Counsel for Z submitted that this demonstrated a “marked disparity” in the way his client and C were sentenced having regard to C’s Form 1 offence, Z’s compelling subjective case (in particular his cystic fibrosis), and the sentencing judge’s finding that the roles of Z and C were “near equivalents”. In light of the material equivalence, Z should have benefited from an ever lower starting point than C. This was particularly the case given Z’s cystic fibrosis. Counsel submitted that Z’s subjective case, which was relevant to the fixing of the non-parole period, remained relevant in determining the notional head sentence.

46. The Crown submitted that the nominal stating points for Z’s and C’s sentences were readily explicable by references to the differences to which the sentencing judge referred and that his Honour recognised the importance of the parity principle on a number of occasions. It submitted that the sentencing judge clearly distinguished between C and Z, finding that Z’s role was higher than that of C. In this respect the Crown pointed to the finding that Z was “in the centre of the manufacturing”. The Crown submitted that the lower starting point for Z’s sentence showed that his Honour took into account Z’s subjective case. The reduced starting point for his sentence reflected, in the Crown’s submission, the significant weight given to his cystic fibrosis, including that his time in prison would be more onerous.

47. I do not consider that the difference between the respective starting points for Z and C gives rise to a justifiable sense of grievance on the part of Z. The sentencing judge found that Z was the most criminally culpable of the four co-offenders who came before him for sentence. His Honour found that Z was “involved in the manufacture of a substantial quantity of drugs over a period of time and had a moderate level of responsibility, but had evident expertise in the enterprise”. True it is that his Honour did not consider that the differences in culpability between the four men should be overstated, but his Honour nonetheless described Z’s culpability as “somewhat higher” than C’s. The Form 1 that attached to C’s s 24(2) offence was at the low end of objective seriousness (with no link established between the possession of the money and the s 24(2) offending), such that it did not provide any point of material difference giving rise to any need on the part of the sentencing judge further to reduce Z’s starting point. His Honour also had to give weight to C’s subjective factors, including, by contrast with Z, that his financial position was “the unanticipated result of others’ misconduct and poor choices”.

45. In hearing the sentence matters of both C and Z (and P and H), the judge was in a position to consider the interrelationship between the objective and subjective features of the offenders “in an overarching way”: Huckstadt v R [2016] NSWCCA 22 at [90] per Button J (Johnson J and Fagan J agreeing). Both C and Z were entitled to leniency on the basis of their respective criminal histories, both men were remorseful, and neither presented any real risk of reoffending. They also had medical conditions which were of note and which would have an adverse effect on their time in prison. The “fundamental” impact of Z’s cystic fibrosis on his subjective case was reflected in two ways: the lower starting point and the significant adjustment made to the non-parole period on the basis of special circumstance. Z does not have a justifiable sense of grievance by comparison with the sentence imposed on C.

Sentencing of P and H

49. [Redacted]. On any view, there is a significant difference between the starting points for P and H and the starting point for Z.

50. The sentencing judge sentenced P and H on the same day, just under two weeks before he sentenced Z. Commencing with P, his Honour noted that it was common ground that P had a lesser role than Z, C, and H. Nevertheless, P was “a skilled and trusted labourer” and “an active participant throughout”. It was clear to his Honour, for example, that P was “involved in loading chemicals at Wetherill Park from a relatively early stage”, and was “present and participating in the manufacture”. In particular, P was present at Neville when the pills were being pressed. Although there was no evidence of his actual role there, it was the case that from 12 March 2018, P was alongside “more experienced ‘chemists’” decanting and moving chemicals.

51. The tasks P was performing did not involve a great deal of complexity, but he was “obviously committed to and trusted by his criminal cohorts”. Although P was “subordinate to C, Z and H” his Honour bore in mind that “they were all in it together”. P appeared “throughout the latter part of the narrative”; his role was described as “one which may well have been capable of being done by another so to that extent he was not crucial, but that does not mean the role was not important”. Ultimately, his Honour assessed the objective gravity of P’s conduct, “bearing in mind the significant difference between that and the conduct of the principals and the more egregious conduct of [Z] and [C], and the less egregious conduct of [Y] and [W]”, as “towards the bottom, if not at the very bottom, of that mid-range”. His Honour accepted that specific and general deterrence, and denunciation, all loomed large.

52. As to P’s subjective factors, he was 46 years old at the time of sentence. His Honour noted his claims to have suffered physical and sexual abuse as a child. Following a traumatic event in which he attended on a dying friend following a plane crash, P developed post-traumatic stress disorder (“PTSD”). His Honour accepted that P’s PTSD was “complex and severe” in the lead up to and during the offending period, and that he had self-medicated with cocaine. His Honour found no causal link between the PTSD and P’s offending conduct. Although he accepted that P’s judgment was impaired by reason of his drug use and psychological ailments, his Honour could not conclude that P “was anything but a willing participant who stood to gain, alongside access to drugs, financially”. His Honour also accepted that P was remorseful but could only give that limited weight.

53. P had a “not insubstantial” criminal history, including a short time in jail for cannabis cultivation. His Honour found that P’s criminal history disentitled him to an aspect of leniency.

54. P was responsible for the care of his wife, who was “very ill” and “principally bed bound and only moves around in a wheelchair”, but hardship to her from his imprisonment did not meet the “truly exceptional threshold” in R v Edwards (1996) 90 A Crim R 510. [Redacted]. Finally, in relation to parity, his Honour noted that P was “an older man” with a criminal record. However, P did have “some salient conditions which assist in understanding the commission of the offence, if not mitigating it”.

55. After making his remarks on P but before passing sentence, the sentencing judge addressed H’s case. His Honour noted that H was 53 years old. His Honour adopted the reasoning and analysis that applied to P in terms of the objective seriousness of the offence, and concluded that H “played not an indispensable role, but an important and significant role”. Specifically, H was at the clandestine laboratory in Neville from 1 November 2017 and he was there on a regular basis up to 20 March 2018. His Honour accepted the Crown’s submission that H was “actively involved in the process of manufacture”, although it seemed to his Honour that “to no small degree he was learning on the job”. His Honour also accepted that H “was involved in some logistical arrangements, for example the use of [an] excavator to dispose of waste from the manufacturing process”.

56. H was described by his Honour as “an important associate” alongside Z and C. His Honour accepted that H’s role was slightly higher than P’s, and that H’s role “lay between the co-offenders, as submitted by the Crown”. His Honour rejected H’s submission that his criminality was at the bottom or close to the bottom of the range. Rather, his Honour considered that H “must be seen at the level within the operation of the crime”, as opposed to being a mere courier, labourer, warehouseman, or front man “who signed a lease and then disappeared”. In terms of objective seriousness, his Honour considered that H sat at about the same level, “for the purpose of the guidepost of the standard non-parole period, at or at about the same level as [P]”.

57. In terms of H’s subjective case, the sentencing judge accepted that H was remorseful and contrite in his letter of apology to the Court. He also accepted that H saw “horrific and traumatic incidents in the civil war” in Lebanon during his childhood. His Honour noted that H’s parents were both aged and unwell, and that he had “played a tremendous role” in supporting them, although this did not rise to the exceptional level. His Honour also noted that H alleged “some aspects of a psychiatric condition” and that he suffered from a gambling addiction, although these were not matters to which his Honour gave significant weight. Ultimately, his Honour could only accept on the balance of probabilities that aspects of H’s judgment “had been likely affected by exposure to war as a child, a gambling disorder and depression”. The extent to which any of those issues reduced his culpability for his “committed involvement” in the criminal enterprise could only “be slight”.

58. His Honour did accept that H was, at the time of sentence, working well and had seemingly turned his life around, and his Honour was satisfied that he was unlikely to reoffend. His “minor criminal record” did not disentitle him to leniency. [Redacted]. His Honour also found special circumstances, based on the time that H had spent waiting to be sentenced, noting that he was without the same access to programs as sentenced offenders.

Appeal and resentencing of H

59. As noted above, on 7 October 2022, this Court found that the sentencing judge had failed to take into account the “future impact” that the Covid-19 pandemic would have on H’s conditions of imprisonment. Ground 2 was that he had a justifiable sense of grievance with the sentence imposed on W. Ierace J, with whom the other members of the Court agreed, concluded that a comparison of the objective and subjective features did not bear out H’s complaint of relative disparity: at [110]-[111]. Most importantly, there was no evidence that W was directly involved in the manufacturing process of the MDA; his role was to move chemicals and was restricted to the Wetherill Park premises, where he had been lawfully employed by R as a labourer “over many years”. By contrast, H was directly involved in the manufacture of the MDA. Ierace J concluded that those differences were reflected in the respective findings as to objective seriousness (at [113]) and the subjective cases (at [114]) and did not warrant appellate intervention.

Parity as between Z and P and H

60. Although Z was granted leave to amend his Notice of Appeal to allege disparity as between his sentence and that of P and H, he advanced minimal separate submissions in relation to this issue. In the oral hearing, Counsel for Z submitted that what he had submitted in relation to C would also apply to H and P. Counsel emphasised, in particular, that the respective culpability between the co-offenders was a matter of gradation, and that his Honour’s findings of objective seriousness in relation to H and P was described in not dissimilar terms to the objective seriousness of Z’s conduct. In those circumstances, there was a marked disparity that gave rise to a legitimate sense of grievance. The Crown supported the lower starting points for P and H on the basis of their different roles and the differences shown in the facts.

61. As the Crown emphasised, the sentencing judge in this case had the advantage of sentencing each of the four co-offenders. The Agreed Facts bear out his Honour’s finding, which is not challenged, that P and H were lower in the organisational hierarchy than C and Z. That finding explains some of the disparity between Z’s sentence and that imposed on H and P, as does his Honour’s finding that Z was (along with C) more criminally involved than H and P “and accordingly more culpable”. His Honour also expressed the view, in sentencing Z, that Z’s sentence, and that imposed for C, needed to sit “tangibly above” the sentences for P and H. Z’s sentence was consistent with that aim, sitting lower than C’s having regard to his cystic fibrosis, and with a significant adjustment to his non-parole period by reason thereof.

62. Each of Z, C, P, and H received discounts for their early pleas [redacted]. The final sentences that his Honour imposed, and the adjustments that his Honour made to the non-parole periods, demonstrate that his Honour sought to reflect those differences between the offenders. The difficulty is that without the discounts, the starting point for Z’s sentence was significantly greater than the starting point for P, who had a substantial criminal record and guarded prospects of rehabilitation. The difference was even more marked with H, whose culpability was assessed as sitting higher than P’s but whose subjective case was similar to that of Z (apart from Z’s significant health condition). In circumstances where the objective seriousness of the conduct of each offender was assessed as being at the bottom of the mid-range, neither the need to tangibly reflect Z’s role, nor his subjective circumstances, which I have detailed above, reasonably explain the difference.

63. Accordingly, I would uphold Ground 1 of the Notice of Appeal. Error having been established on this ground, it is necessary to resentence Z unless, in the separate and independent exercise of my discretion, I conclude that no different sentence should be passed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] per French CJ, Hayne, Bell, and Keane JJ; Young (pseudonym) v R [2021] NSWCCA 163 at [88]-[95].

Ground 2: The sentence imposed for the offence contrary to s 24(2) of the DMT Act is manifestly excessive

64. In addition to alleging error on the part of the sentencing judge on the basis of parity, Z also contended that the sentence imposed was manifestly excessive. As I have decided to uphold Ground 1, which calls for the resentencing exercise to which I have just referred, it is not necessary to deal with Ground 2.

Resentence

65. I note that no submissions were advanced on the appeal in relation to the sentence imposed on Z in respect of Count 2 (the s 93T charge), which has now expired and thus does not need to be taken into account in resentencing on Count 1.

66. Two affidavits from Z, affirmed on 15 December 2021 and 23 June 2022, were read on the usual basis. In those affidavits, which were not challenged, Z has described his considerable difficulties in custody in relation to his medical conditions. The difficulties he has experienced include accessing physical therapy and the correct amounts of insulin to manage his diabetes mellitus (which is secondary to his cystic fibrosis), and lack of access to exercise equipment. According to Z, at the time of his June affidavit, it had been approximately 14 months since he saw a respiratory physician or attended a specialist appointment, due to concerns he has had about contracting Covid-19 and being placed in isolation. As it happens, Z contracted the virus in January of this year; he was transferred to another correctional facility where, on his evidence, he did not have access to the medication he takes for his cystic fibrosis for over a month.

67. In addition to the affidavits which were tendered to this Court, I have reviewed the material that was before the sentencing judge, which included reports from practitioners in various medical disciplines in relation to Z’s cystic fibrosis and the treatment he requires; psychiatric reports diagnosing Z with a depressive disorder; and the affidavits of Z which addressed, inter alia, his experience in custody before he was released on bail and detailed other subjective matters. [Redacted].

68. For the purpose of resentence I adopt the factual findings of the sentencing judge, which I have set out above and to which no challenge was made. This was a serious example of a serious crime (noting the maximum penalty for an offence under s 24(2) of the DMT Act, involving not less than the large commercial quantity of the prohibited drug concerned, is life: DMT Act, s 33(3)(a); and the standard non-parole period is 15 years: Sentencing Procedure Act, ss 54A and 54D). Although Z was not a principal in the enterprise, he was involved to a significant degree, including in the manufacture of the MDA and directing the activities of C, H and P. A large commercial quantity of a prohibited drug was the result their collective and coordinated efforts. I assess the objective seriousness of his offending as at the bottom of the mid-range, noting there was no challenge to the finding that the sentencing judge made in that regard, nor to his Honour’s finding that the objective seriousness of the offending was in the mid-range as an enterprise.

69. Z is now 57 years old. He is married and has three children with his current wife, and three children from a previous marriage. Although he was born in Australia, he spent most of his childhood in Lebanon (completing school up to Year 10), returning to Australia when he was 18 years old. He detailed some traumatic experiences during his childhood in the affidavit before the sentencing judge, including as a result of the war in Lebanon, which was not tested. I place more weight on Z having no criminal record before the offending for which he is now being resentenced. According to the reports before the sentencing judge, Z had a consistent work history before declaring bankruptcy in 2008; unlike C there was no suggestion that his financial misfortune was attributable to the misconduct of others. There is no evidence as to his work history after 2008; one of the reports refers to his being unemployed since that time.

70. Z has been diagnosed with a depressive disorder. According to his June 2022 affidavit, he has commenced seeing a psychologist a few times a month, following the death of his mother. I have detailed above his significant health condition and note that it has been the source of substantial difficulty in custody, bearing out the sentencing judge’s prediction that custody would be more onerous for Z than for almost any other prisoner. Notwithstanding those difficulties, he has given evidence of continuing to work in the prison environment, in the hope that he will achieve a C3 classification.

71. In the reports prepared for sentence, and in the affidavit before the sentencing judge, Z expressed significant remorse for his actions. That remorse is reflected in his entering a plea of guilty at the first reasonable opportunity (for which he is entitled to the full utilitarian discount) [redacted]. I consider that he has good prospects of rehabilitation. It is apparent from Z’s affidavits that the pandemic has had an appreciable impact on Z’s conditions of imprisonment. The pandemic is likely to continue to have an impact on those conditions, which I have considered and weighed in the sentencing process.

72. [Redacted].

73. Having regard to the purposes of sentencing that are identified in s 3A of the Sentencing Procedure Act and pursuant to s 5(1) of that Act, I am satisfied that only a sentence of imprisonment is appropriate. In considering the appropriate sentence it is necessary to consider the parity principle, and I have had regard to the respective roles and subjective circumstances of C, P, and H. Although there is a need to reflect in the respective sentences of Z, C, P, and H the relative culpability that the sentencing judge identified as between them, it is also necessary to reflect the differences in their subjective circumstances of the offenders.

74. In my view, a lesser sentence is warranted. I would set a head sentence of 6 years, which should be backdated to commence from 2 December 2020, expiring on 1 December 2026. [Redacted]. The sentencing judge’s finding of special circumstances in respect of Z was appropriate and not challenged. I would set a non-parole period of 3 years, with a balance of the same period. Z will be eligible for release to parole on 1 December 2023.

Conclusion

75. I propose the following orders:

1. Grant leave to appeal.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court on 2 December 2020.

4. In lieu thereof, sentence the applicant to a term of imprisonment comprising a non-parole period of 3 years, backdated to commence from 2 December 2020, with a balance of term of 3 years.

5. The effect is that the earliest date on which the applicant will be eligible for release to parole is 1 December 2023, with the balance of term to expire on 1 December 2026.

76. YEHIA J: I agree with the reasons of Mitchelmore JA and agree with her Honour's resentence of the offender.

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Decision last updated: 10 March 2023