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[2007] NSWCCA 326
Court of Criminal Appeal (NSW)
2007-11-27
Hoeben J, Latham J, Harrison J, Ms J, Mr P
Original judgment source is linked above.
188 The applicant submitted that he had a justifiable sense of grievance at the disparity of the sentence imposed on Murphy Snr, Eyre, Fumberger and O'Grady because their criminality was considerably greater than his and their antecedents were either similar or more serious. The applicant submitted that although Murphy Jnr and Varehov had lesser roles than the applicant, Varehov's antecedents were considerably more serious than those of the applicant. These sentences require examination. 189 Donovan DCJ sentenced Murphy Snr on 2 March 2006 in respect of a s 24A offence and a s 25(2) offence. He was an interstate truck driver. On 19 May 2003 he had transported methylamphetamine from Hamilton's property to South Australia. After his arrival there, Murphy Snr was involved in discussions about the cutting of the drug. He received some money and drugs in payment. These facts founded the s 25(2) charge. 190 On 28 March 2004, Murphy Snr and his son drove to Hamilton's farmhouse. There they collected the ten litres of hypophosphorous acid and drove it to South Australia where it was given to Eyre. During the drive, a telephone conversation was intercepted between Murphy Jnr and Hamilton in which Murphy Jnr asked whether the "thing" should be transported in the toolbox or in the truck. After Hamilton said the "thing" should not sit on the ground or cement, Murphy Jnr said he would wrap it. These facts founded the s 24A charge. 191 Murphy Snr pleaded guilty to both charges after the matters had been listed for trial. He had some prior convictions although they were not detailed in his Honour's remarks on sentence. His honour noted that Murphy Snr "has apparently been without any prior record now for many years". His Honour also noted that Murphy Snr had used methylamphetamine for some ten years to help him stay awake during his long haul drives. Murphy Snr had received only $100 for his participation but said he had also been given methylamphetamine as payment. In a psychiatric report tendered on sentence, it was asserted that Murphy Snr's judgment would have been affected by his long-term use of "[a] psychoactive substance" which may have caused some cognitive impairment. 192 There was some evidence that Murphy Snr was providing assistance to the authorities although, in his remarks on sentence, Donovan DCJ did not expand upon the nature or extent of that assistance, and there did not appear to be a letter of comfort in evidence. His did not make specific reference to s23 of the Crimes (Sentencing Procedure) Act 1999. 193 Donovan DCJ imposed a total sentence of 3 years imprisonment with a non-parole period of 2 years. Although a separate sentence of 3 years imprisonment, with a non-parole period of 2 years, was imposed in respect of the s 24A offence, the two sentences were effectively to be served wholly concurrently. His Honour found special circumstances by reason of the assistance given by Murphy Snr, his plea of guilty and his prospects of rehabilitation. 194 Donovan DCJ also sentenced Murphy Jnr on 2 March 2006. He was sentenced in respect of one s 24A offence. The facts of this offence were the same as the facts for his father. 195 Murphy Jnr pleaded guilty to the charge after it had been listed for trial. He did not have any prior criminal convictions "for all practical purposes". He was 29 years old and also employed as a truck driver, although he did not travel the same distances as his father. He had used amphetamines in the past but (at some unspecified) stage had stopped doing so. He was married and his wife was expecting a child. It seems that he too may have provided some assistance to the authorities although, again, the nature and extent of that assistance is not clear from the remarks on sentence. 196 Donovan DCJ imposed a sentence of 2 years imprisonment with a non-parole period of 1 year. It is apparent from the sentence imposed (a ratio of fifty percent) that his Honour found special circumstances. Although the reasons for this finding are not specifically stated in the remarks on sentence, his Honour referred to the same factors as those referred to when dealing with his father, namely, assistance to the authorities, his guilty plea and his prospects of rehabilitation. 197 Walmsley DCJ sentenced Varehov on 8 November 2005 on one count pursuant to s 24A. The facts of the offence were that on 9 March 2004, Varehov drove a hire car to a McDonald's restaurant on the M4 freeway. He met Fumberger in the restaurant car park and they spoke briefly before both men were seen to drive separately out of the car park. Varehov followed Fumberger to his home where Varehov was given 10.7 kg of hypophosphorous acid. Varehov then left the premises and drove to Liverpool. From there, Varehov drove to the Capitol car park in George Street, Sydney. He was seen to park the car and leave the car park. He did not return. The police obtained a warrant to search the car and removed the hypophosphorous acid. Two days later, Hamilton obtained the car keys from Varehov. Hamilton went to the car and discovered that the hypophosphorous acid was missing. Three days later the car was stopped in South Australia. Varehov later provided a statement to the police falsely saying that he had lost the car keys. 198 Varehov entered a plea of guilty in the Local Court. A charge of making a false statement was put onto a Form 1 in the course of the District Court proceedings. 199 Varehov had a significant criminal history, having served lengthy prison sentences in South Australia and Victoria for the possession of a controlled substance and trafficking in heroin. He said he had ceased using heroin and amphetamines since being imprisoned in Victoria in 1998 but occasionally continued to use cannabis. Although he said he had only driven the hypophosphorous acid into Sydney as a favour for a friend, Walmsley DCJ did not accept that he was not to receive anything for his help. His Honour noted that the potential market value of the precursor was somewhere between $8 million and $13 million. His Honour was of the view that the offence was below the mid range of seriousness for an offence of this type. 200 Walmsley DCJ imposed a sentence of 1 year 10 months imprisonment, with a non-parole period of 1 year 4 months. His Honour did not find special circumstances. 201 Ainslie-Wallace DCJ sentenced Eyre on 5 September 2006 in respect of a s 25(2) offence and a s24A offence. The facts in relation to the former were that Eyre participated with Hamilton and Fumberger to supply a commercial quantity of amphetamine between January 2003 and May 2004. Ainslie-Wallace DCJ said that she was unable to form a view as to the value of the methamphetamine but that, because of its quantity, it must have had "a considerable value". In the hierarchy of offenders, Ainslie-Wallace DCJ found that Eyre "occupied a position equal to that of Fumberger and Hamilton". 202 The facts in relation to the s 24A offence were that Eyre was involved in the ongoing sourcing and supply of hypophosphorous acid between at least 24 December 2003 and 25 April 2004. From the remarks on sentence, it appears that Eyre supplied hypophosphorous acid to Czerwinski in December 2003 and to Diesing in January 2004, and received ten litres from the Murphies on 28 March 2004. In addition, telephone intercepts indicated that Eyre was told by Hamilton to make arrangements for the payment of the person who was to take over Varehov's role. Eyre was also recorded quoting prices for hypophosphorous acid. In one telephone conversation with Hamilton, Eyre said, "he charges fifteen and eighteen" and told Hamilton he could not get it any cheaper than that. When Hamilton said he would use some of it, Eyre replied that he could get "heaps". 203 Ainslie-Wallace DCJ found that Eyre was aware of the extent of the operation because he knew that ten litres of hypophosphorous acid had been lost and because he was present during telephone conversations between Hamilton and "the boss". Her Honour found that the actions of Eyre were pivotal to the manufacturing process. His role was an important one. It was clear from the telephone calls that he was not in charge of the arrangements for the manufacture but whatever his role in South Australia was, he was subordinate to others. His role was as a supplier of an essential ingredient. He was in contact with, and was given instructions by, Hamilton to pay money and he had sufficient contact with the process to know that the first ten litres of precursor had been lost. This level of involvement and his ability to provide as much precursor as Hamilton wanted, reflected what he and the others knew could only be a commercial venture. 204 Eyre entered pleas of guilty to both charges after the matters had been listed for trial. Her Honour discounted Eyre's sentence in respect of the s25(2) offence by twenty percent and his sentence in respect of the s24A offence by fifteen percent in recognition of the utilitarian value of his pleas. 205 Eyre had previous criminal convictions in New South Wales and South Australia, and had previously served terms of imprisonment. At the time of these offences, he had been on some form of conditional liberty. He started using drugs eight years previously and had been introduced to methylamphetamine by friends. His use became heavy, to the point where he said he was using one gram a day and could not get out of bed without using drugs. While in prison on remand, he had undergone a drug and alcohol course. In a psychological report tendered on sentence, it was noted that he said he would not take drugs again. He was in a relationship at the time of the commission of the offences and had five children, some of them apparently very young. 206 Although the applicant was sentenced the day before Eyre, and although both the applicant and Eyre were charged with the same offence arising out of the same police strike force, Ainslie-Wallace DCJ made no reference to the sentence she had imposed on the applicant in her remarks on sentencing Eyre. Her Honour imposed a total sentence of 9 years imprisonment, with a non-parole period of 6 years on Eyre. A sentence of 4 years and 9 months imprisonment, with a non-parole period of 1 year and 9 months was imposed in respect of the s 24A offence. 207 It is apparent from the non-parole period imposed that her Honour found special circumstances. However, this is not specifically stated by her Honour in her remarks on sentence. The reasons for a finding of special circumstances would appear to be the need partially to accumulate the sentences to reflect the totality of their criminality and Eyre's need for extended supervision on his release. 208 Ainslie-Wallace DCJ sentenced Fumberger on 5 September 2006 in respect of a s24A offence and a s25(2) offence. In respect of the former the facts were that Fumberger obtained ten litres of hypophosphorous acid at some time before 9 March 2004. He kept it at his home until he gave it to Varehov on 9 March 2004. After Varehov had taken the hypophosphorous acid, Fumberger telephoned Hamilton asking for payment. After the police removed the hypophosphorous acid from Varehov's hire car, Fumberger and Hamilton discussed whether the police could have intercepted it. Despite the hypophosphorous acid having gone missing, Fumberger was paid on 11 March 2004 for its supply. Then, on 19 March 2004, Fumberger and Hamilton had another telephone conversation in which Fumberger said there would be "no dramas" in getting more, and asked Hamilton when he wanted it. Fumberger obtained another ten litres of hypophosphorous acid on about 24 March 2004 and three days later Hamilton told another co-offender that he had the "water". Fumberger was again paid. It was this hypophosphorous acid that the Murphies collected from Hamilton's farmhouse near Dubbo on 28 March 2004 and transported to South Australia. 209 It was an agreed fact that twenty litres of hypophosphorous acid could produce between 176 and 266 kg of methylamphetamine. Her Honour said that the role played by Fumberger in being able to obtain and supply the precursor to Hamilton was an important one in the manufacture of methylamphetamine. Her Honour said that it was undisputed that the precursor was vital to the ultimate production of methylamphetamine. It appeared from the telephone calls that Fumberger could obtain it and provide it to Hamilton whenever it was needed. Her Honour said that it involved a sustained course of criminal conduct and that his involvement in it was clearly for financial gain. 210 In respect of the s25(2) offence, the facts were that Fumberger participated in the supply of 468 g of methylamphetamine valued at $48,600. Fumberger delivered the drug to Eyre. Eyre became concerned that the weight of the drug should have been 484 g. In subsequent telephone conversations between Fumberger and Hamilton, Fumberger assured Hamilton that the weight was right because he had packed it himself. Fumberger said he had checked the weight because of the "last mistake". In the hierarchy of offenders, her Honour did not accept that Fumberger was a principal in this supply but that his criminality was on a par with that of Eyre and Hamilton. 211 Fumberger entered guilty pleas to both charges after the matters were listed for trial. Her Honour discounted Fumberger's sentence for the s24A offence by twenty percent and his sentence for the s25(2) offence by twenty five percent in recognition of the utilitarian value of his pleas. 212 Fumberger had prior convictions for assault and no prior drug convictions. There was evidence on sentencing that he first began drinking alcohol to excess while serving in the Navy and that he had thereafter used "speed". He had three children and was said to have been a good provider to his family. He had obtained some trade qualifications in gaol, and had attended a drug and alcohol course. 213 Ainslie-Wallace DCJ considered the question of parity of Fumberger's sentence, but only in relation to the sentence imposed on Varehov. Her Honour distinguished the sentence imposed on Varehov by noting that although his criminal record was more serious than Fumberger's, his role was "limited to a small compass both in terms of what he was called on to do in furtherance of the manufacture process but also in terms of time". Her Honour imposed a total sentence of 9 years imprisonment with a non-parole period of 6 years. A sentence of 4 years and 4 months imprisonment, with a non-parole period of 1 year and 4 months, was imposed in respect of the s24A offence. Her Honour found special circumstances to permit a longer period of supervision after what was to be Fumberger's first custodial sentence. 214 O'Grady was convicted of conspiracy to manufacture an indictable quantity of methylamphetamine contrary to s24(1). He pleaded not guilty. The Crown case at trial was that O'Grady obtained a quantity of what he believed to be pseudoephedrine from a woman whose husband was in prison. O'Grady gave a 200 g sample of the substance to Hamilton to see whether it could be manufactured into methylamphetamine. In the course of intercepted telephone conversations with Hamilton, O'Grady indicated that he was able to provide more of the substance than the initial 200 g. When it later became apparent that the substance was not producing methylamphetamine, O'Grady urged Hamilton to continue trying. 215 O'Grady's defence was that he knew all along that the substance he gave Hamilton was not pseudoephedrine but that, nonetheless, he had hoped to obtain money from Hamilton for the substance. He gave evidence that he had serious financial problems caused by his gambling and addiction to amphetamines. 216 O'Grady was found guilty by a jury on 21 February 2006. He had only one prior conviction for offensive behaviour in 2001, for which he had received a good behaviour bond. He was in a long-term relationship from which there were three children, and referees spoke of the voluntary work he had done in his local community. He had "taken steps" since his arrest to address his drug and alcohol addiction. 217 Ainslie-Wallace DCJ imposed a sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years. Her Honour found special circumstances because of O'Grady's need for assistance with his rehabilitation upon release from custody. Consideration 218 The principles governing this aspect of sentencing have been examined by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1996-97) 189 CLR 295. These principles are well known and it is unnecessary to repeat them. They have been recently summarised by Johnson J in R v Kelly (2005) 155 A Crim R 499 at par [9] ff. 219 Ainslie-Wallace DCJ presided over the proceedings of eight of the fourteen co-offenders and was aware of the extent of the manufacturing operation and the nature of the criminal charges against each of the co-accused. The evidence established a relatively clear hierarchy of the six co-offenders who were charged with the s24A offence. O'Grady's position in that hierarchy was also apparent. By the time the applicant was sentenced, the Murphies, Varehov and O'Grady had already been sentenced and submissions had been made to her Honour in respect of Fumberger and Eyre, who were each sentenced the day after her Honour sentenced the applicant. 220 It was submitted in this Court on behalf of the applicant that her Honour failed to give proper consideration to the principle of parity in sentencing him by failing to ascertain where his objective and subjective criminality lay in relation to that of the Murphies, Varehov, Eyre, Fumberger and O'Grady. According to this submission, the applicant's place in the hierarchy falls to be considered by reference to the following matters:
221 In respect of the s24A offence with which he was charged, there was no evidence that the applicant did anything other than tell Hamilton he possessed medications known to contain pseudoephedrine. Given the extensive surveillance then being undertaken by the police, an assumption should be made that if the applicant had given the medications to a co-offender, this act would have come to the attention of the authorities. The applicant therefore had to be sentenced upon the basis that he had done nothing with the medications. By contrast, the Murphies, Eyre, Fumberger and O'Grady not only possessed either hypophosphorous acid or pseudoephedrine (more refined forms of precursor than medications), but they also knowingly did something with the chemicals to facilitate the manufacture of the methylamphetamine. 222 There was no evidence that the applicant received any payment for the medications he possessed. Murphy Snr and Fumberger received money for the hypophosphorous acid they possessed. It also appears that that Eyre was paid. 223 Although Ainslie-Wallace DCJ found that the quantity of the medications possessed by the applicant was large, her Honour was unable to assess the value of any pseudoephedrine that may have been extracted from it. The Crown did not ascribe a value to any methylamphetamine that may have been manufactured from the pseudoephedrine because the medications were never located. By contrast, the Crown asserted, and her Honour accepted, that the ultimate value of the methylamphetamine that could have been manufactured from the hypophosphorous acid possessed by the Murphies, Varehov and Fumberger was in the millions of dollars. 224 Ainslie-Wallace DCJ found that the applicant's role was important but not essential to the manufacturing operation. By contrast, her Honour found that the roles of Fumberger and Eyre were on a par with Hamilton, who was a mid- to high-level organiser of the whole operation. Her Honour characterised Eyre's role as "pivotal". 225 Unlike O'Grady, the applicant pleaded guilty. O'Grady was also convicted of an offence carrying a maximum penalty of 15 years imprisonment, compared to the maximum penalty of 10 years imprisonment for a s24A fence. 226 The applicant had a minor criminal record for drug use offences ten years earlier. He had been fined a total of $250. By contrast, Varehov and Eyre had previously served terms of imprisonment for drug related and other matters. Murphy Jnr was the only one of the co-offenders who had no prior criminal record. 227 It was submitted on behalf of the applicant that his objective and subjective criminality fell somewhere between that of Murphy Jnr and Varehov on the one part and Murphy Snr, Eyre, Fumberger and O'Grady on the other. The applicant's total sentence and non-parole period exceeded that of Murphy Snr. The applicant's sentence was identical to that imposed on O'Grady. 228 We agree in particular that the applicant is entitled to have a justifiable sense of grievance at the disparity between the sentence imposed on him and the sentence imposed on Murphy Snr. Although Murphy Jnr and Varehov had lesser roles than the applicant, Varehov's antecedents were considerably more serious than his. The sentences imposed on the Murphies and possibly also Varehov were inadequate having regard to their respective roles and antecedents. However, no Crown appeals were lodged in respect of those sentences. 229 However, we do not consider that the sentence imposed upon the applicant is manifestly excessive. The matters taken into account by her Honour bespeak the seriousness of the offence. He was a participant in a commercial enterprise to manufacture drugs. Her Honour was entitled to approach the matter on the basis that the applicant's role was to facilitate that enterprise even if he was not irreplaceable. In the circumstances we consider that a sentence of 3 years with a non-parole period of 2 years is appropriate. The applicant is accordingly entitled to be released forthwith. 230 The orders of the Court are as follows:- 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence imposed on 4 September 2006 is quashed. 4. In lieu, the applicant is sentenced to 2 years imprisonment to date from 13 March 2005, expiring on 12 March 2007 with a balance of term of 1 year expiring on 12 March 2008. 5. The applicant is to be released from custody forthwith.
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Diesing & Ors
Regina
CITATION: Diesing & Ors v Regina [2007] NSWCCA 326
Baxter v Regina [2007] NSWCCA 237 DAC v Regina [2206] NSWCCA 265 at [9]-[10] Elyard v Regina [2006] NSWCCA 43 Ibbs v The Queen; Baumer v The Queen (1988) 166 CLR 51 R v AJP (2004) 150 A Crim R 575 at 585 R v Burgess [2006] NSWCCA 319 R v Chalmers [2007] NSWCCA 247 CASES CITED: R v Kane [1975] VR 658 R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [10] R v Moon (2000) 117 A Crim R 497 at 510 R v Ohar (2004) 59 NSWLR 596 at [84] R v Reicher [2003] NSWCCA 300 R v So [2004] NSWCCA 362 R v Way (2004) 60 NSWLR 168 R v Wilkinson [2004] NSWCCA 468 Savvas v The Queen (1995) 183 CLR 1 at 7
57 The determination of the sentence range appropriate to the offence and the offender allows for many and varied factors to be taken into account, such that either alone or in combination, the sentence ultimately imposed for a mid-range offence may fall below, and sometimes well below, half the maximum penalty. Frequently, the presence of a compelling subjective factor such as youth or the absence of a criminal history for example, will ameliorate an otherwise appropriate penalty in the order of half the maximum penalty. Where such circumstances exist in the course of sentencing for an offence to which a standard non parole period applies, they may also provide a basis for departing from that standard non parole period. 58 However, this Court has recognised that, for offences to which standard non parole periods apply, the notional range of the sentence for a mid range offence will generally be higher than for offences in respect of which there is no standard non parole period, even where factors exist justifying a departure from it. That is because the sentencing judge must nonetheless have regard to the standard non parole period when fixing the appropriate sentence. This result is most starkly demonstrated where a standard non parole period in excess of half the maximum penalty has been prescribed by the legislation, such as for s66A offences; R v AJP (2004) 150 A Crim R 575 at 585; see also R v Burgess [2006] NSWCCA 319 at [52]. 59 To acknowledge that there must be an upward trend in the sentences imposed for offences carrying a standard non parole period says nothing about whether a particular sentence, imposed for a mid range offence in the mistaken belief that it was necessary to have regard to a standard non parole period, is manifestly excessive. There may be, as there were in this case, factors that disentitle the offender to leniency. There will always be scope for sentences to exceed the range hitherto established by the courts, precisely because sentencing is tailored to the particular circumstances of the individual offender: R v So [2004] NSWCCA 362; Des Rosiers v Regina [2006] NSWCCA 16. 60 That said, it must be acknowledged that where a sentencing exercise proceeds on the erroneous basis that a standard non parole period applies, and the relevant standard non parole period for the allied offence is in the order of 60% of the maximum penalty (see s 54D of the Crimes (Sentencing Procedure) Act 1999 and ss61M(1), 66A of the Crimes Act 1900), a sentence that is manifestly outside the range is more likely to occur. The converse of that proposition is that a manifestly excessive sentence is unlikely to result from sentencing an offender on the erroneous basis that a standard non parole period applies, where the allied offence carries a standard non parole period in the order of 30% or less of the maximum penalty (see s 54D of the Crimes (Sentencing Procedure) Act 1999 and ss33, 98, 112(2) and (3), 154C(1) and (2), 203E of the Crimes Act 1900 and s 7 of the Firearms Act 1996). 61 In the instant case, the applicant's counsel conceded that the offence could properly be characterised "in vacuo" as one falling within the mid-range of objective gravity for offences of this type. In the light of that concession, which was correctly made, it falls to this Court to re-sentence this applicant.
Ground of Appeal 3 3(a) The sentencing judge erred by failing to make proper findings of fact in respect of the applicant's subjective case. (b) The sentencing judge erred by entirely rejecting the evidence before her that the applicant was remorseful. 66 In relation to ground 3(a) the applicant submitted that it was not clear what findings her Honour had made in relation to the applicant's subjective case because of the way in which she had qualified her acceptance of the report of Mr Watson-Munroe. In that regard her Honour had said: "He was interviewed for the preparation of a psychological report which contained some outline of his personal circumstances and family background. It should not be assumed that by repeating these matters they are necessarily accepted by me as being accurate or even true …" (ROS 18.9) 67 The applicant submitted that her Honour had not made findings as to important matters in the applicant's subjective case such as his poly-drug addiction with its paranoid and depressive effect upon him and his drug-free state while in custody. It was submitted that these were important matters in enabling the sentencing judge to achieve the appropriate balance between the circumstances of the offences and prospects of rehabilitation on the one hand and the principles of retribution and deterrence on the other. 68 In relation to Ground 3(b), the applicant submitted that her Honour had not followed Elyard v Regina [2006] NSWCCA 43 where Hall J (with whom Howie J and Basten JA agreed) said: "… It is not, in my opinion, appropriate for a sentencing judge to reject out of hand expressions of remorse unless there is an evidentiary basis for determining that they are either not genuine or are motivated by some extraneous or self interested factor."
Re-sentencing 77 The applicant has to be re-sentenced in respect of offence 4. The principles applicable to sentencing for a conspiracy have recently been re-visited by this Court in R v Chalmers [2007] NSWCCA 247. Simpson J (with whom the Chief Justice and Harrison J agreed) emphasised the importance of reflecting the organisational nature of a conspiracy in sentencing, rather than confining the sentencing discretion to the identification of the role of an offender by reference solely to the physical acts undertaken by that offender. Simpson J said at [83]:- Identifying the "role" of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the "role" of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy - the agreement to participate in an organised criminal activity. That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see 2 R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [10].
78 Thus, the criminality of the applicant extended beyond mere recognition of his role in the enterprise. He was essential to its success and stood to share in the considerable profits generated by the manufacturing process. 79 Whilst it is true that there was no evidence of the quantity of methylamphetamine actually produced, the quantity of hypo phosphorous acid sought by the co-conspirators on two occasions (10 litres each time) was clearly capable of producing considerably more than 0.25 kilos of that prohibited drug. Czerwinski, Ackland and Diesing were the South Australian members of the conspiracy, whose centre was the applicant. Some methylamphetamine was produced as part of the conspiracy, since the agreed facts in the applicant's case referred to 214g of the drug being found at the applicant's residence. The agreed facts also referred to Czerwinski's complaint on 4 May 2004 to a co-conspirator that he had sent almost "$150,000 worth over and [he hadn't] got a … dollar back for it". Coupled with Diesing's statement to Ackland on 13 April 2004 (two weeks before the applicant's arrest) that Diesing would finish "the order" in the morning, it is inescapable that an indeterminate, albeit significant, amount of methylamphetamine had been produced in the course of the conspiracy. 80 These findings do not seek to punish the applicant for offences with which he was not charged. They merely recognise the overt acts of the conspiracy, or "the content and duration and reality of the conspiracy" : R v Kane [1975] VR 658 at 661 cited with approval in Savvas v The Queen (1995) 183 CLR 1 at 7. They reflect upon the degree of the criminality involved in the applicant's participation as a principal in a conspiracy, extending over five months and constituting a large-scale commercial operation spanning two states. 81 This assessment of the applicant's criminality and the importance of general deterrence call for an appropriately stern sentence. The applicant's subjective circumstances do very little, if anything, to qualify that approach. The fact remains that the applicant made a calculated decision to contribute in a significant respect to the manufacture of an illicit drug, knowing the risks and the potential rewards. There is a strong element of personal deterrence to be factored into the sentencing exercise given the applicant's criminal history. 82 Taking into account the discount of 20% her Honour must have started at a sentence of 15 years and 6 months in order to arrive at the sentence imposed. In our view that sentence exceeds the range within which such an offence falling within the mid-range of objective gravity should be placed. It follows that a lesser sentence is warranted in law. 83 A sentence of 13 years and 6 months but for the plea of guilty is in our opinion appropriate to the objective and subjective circumstances of this offence. Following application of a 20% discount the sentence to be imposed is one of 10 years and 9 months. We see no compelling reason to justify a finding of special circumstances and would impose a non-parole period of 8 years. The fact that this sentence is longer than any previously imposed upon the applicant does not constitute special circumstances and there is no other feature of the applicant's case that suggests a longer period of supervision than 2 years and 9 months is required. 84 In order to have regard to the principle of totality and the overall structure of the sentences passed by her Honour, it is also necessary to change the sentence imposed in respect of offence 1. The only change, however, is to alter the commencement and finishing dates in that sentence. The effect of the new sentences is an overall sentence of 15 years with a non-parole period of 11 years. 85 The orders of the Court are:
Appeal Ground of Appeal 1 - the sentencing Judge erred in referring to a standard non-parole period for the offence of conspiracy to manufacture not less than a commercial quantity of methylamphetamine. 108 It was common ground that a standard non-parole period did not apply to this offence. The applicant submitted that because her Honour referred to the existence of a standard non-parole period in relation to this offence on three occasions, she must have been influenced by that consideration. It was submitted that it followed that her Honour must have taken into account an irrelevant consideration when passing sentence in respect of that offence. Reference was made to R v Ohar (2004) 59 NSWLR 596 and R v Wilkinson [2004] NSWCCA 468 at [24] - [26]. 109 We accept that her Honour was influenced by an irrelevancy to the extent that her reasoning process was infected. Accordingly, the proviso in s 6(3) of the Criminal Appeal Act 1912 has been activated. The question whether this Court, after re-exercising the sentencing discretion, "taking into account all relevant statutory requirements and sentencing principles", is of the view that some lesser sentence is warranted in law, should be answered in the affirmative, for the same reasons as were advanced in relation to Hamilton (paras [56] - [61] hereof) and Baxter v Regina [2007] NSWCCA 237 per Spigelman CJ at [19].
Ground of Appeal 2 - The sentencing judge erred in failing to give effect to her finding of special circumstances. 110 The applicant submitted that the sentence which her Honour passed did not reflect her stated intention (ROS 23). The effective non-parole period was 10 ½ years as opposed to 10 years and the ratio between the total non-parole period and the total head sentence was approximately 81%. This had the effect of producing a parole period of 2 ½ years which was significantly shorter than the 3 ½ years proposed by her Honour as "an ample time" to properly support the applicant on parole. The Court was invited at the very least to adjust the sentences so as to achieve her Honour's stated intention. 111 The applicant also submitted that such a high ratio between the non-parole period and the parole period was indicative of error in that it failed to have adequate regard to the applicant's age, antecedents, background and alcohol problems. The Court was invited to infer that her Honour overlooked those matters when accumulating the sentences. Reference was made to what Hulme J said in R v Reicher [2003] NSWCCA 300 at [19]: "I think the inference urged is the appropriate one to draw. It is very unusual for the custodial portion of the sentence or a number of cumulative sentences to be in excess of 75% of the total period referred to in s 44 of the Crimes (Sentencing Procedure) Act as that section was in force at the relevant time. This is not to say that that percentage may not, in appropriate cases, be exceeded but where the excess is as high as it is in this case one would have expected any judge to have referred to the reasons for that. A fortiori is that so when one has regard to the applicant's age, the fact that he has not been in prison for the last 30 years and to the fact that one would anticipate the usefulness of supervision over a not insignificant period on release from custody. This ground of appeal is made out." 112 The specific matters to which the Court was referred were that the applicant was aged 62 at the time of sentence, he had no prior criminal convictions in New South Wales and only minor matters in South Australia. This sentence would be the applicant's first time in custody and it was a sentence of significant length. Her Honour had accepted the evidence of Ms Pullen as to the applicant's post traumatic stress disorder and his long standing depression. Her Honour had accepted that the applicant had not had any assistance in dealing with these matters before going into custody. It was submitted that although her Honour had regard to these matters in finding special circumstances, this finding had not been reflected in the sentences ultimately passed. 113 The applicant's subjective case was a very strong one. It more than justified her Honour's finding of special circumstances. This is particularly so when regard is had to the applicant's exceptional employment record and to the absence of any significant prior offending. Such considerations are regrettably rarely encountered when a court considers offences of this kind. 114 The Court is of the opinion that having made her intentions clear, her Honour did not properly give effect to her findings so that this Court ought intervene in order to do so.
(1988) 166 CLR 51
(2004) 59 NSWLR 596
(2004) 60 NSWLR 168
(1995) 183 CLR 1
(1984) 154 CLR 606