Diesing & Ors v Regina

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:

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