El Kheir v R

Court of Criminal Appeal (NSW)|2019-11-13|Before: Hoeben CJ, Leeming JA, Lonergan J

Judgment

HOEBEN CJ at CL: I agree with Leeming JA and the orders which he proposes.
LEEMING JA: The applicant, Mr Fredi El Kheir, seeks leave to appeal against the sentence imposed upon him following his conviction by a jury on one count of manufacturing a prohibited drug (methylamphetamine) not less than a large commercial quantity contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and 3 counts of possessing precursors to be used in the manufacture of a prohibited drug contrary to s 24A of that Act.
Sentence was imposed by the District Court on 10 May 2018. The sentencing judge imposed a sentence of imprisonment of 10½ years, with a non-parole period of 7 years, for the manufacturing count. Fixed term sentences of imprisonment of 2 years were imposed in respect of the counts of possessing precursors. All four sentences commenced on 31 January 2018. Thus the three sentences for possession of precursors were not only wholly concurrent with each other, but also were wholly subsumed by the sentence for manufacturing a large commercial quantity.

The circumstances of the applicant's and the co-offender's offending

Mr James QC, who appeared for the applicant in this Court, but not in the Court below, acknowledged the accuracy of the summary of facts contained in the Crown's submissions. Insofar as they bear on the relative roles of the applicant and the co-offender, they are relevant to this appeal, and in the interests of transparency it is as well to reproduce parts in their entirety. "10. In August 2015 a police strike force was established to investigate the manufacture and supply of prohibited drugs at xxx John Street, Merrylands, premises occupied by the co-offender, Matthew James and other members of his family. Investigations identified the applicant as a person regularly attending the home. The applicant had grown up on John Street and had known Matthew James and the James family for a great deal of his life. 11. Throughout the investigation the applicant was identified as using a hired grey Toyota Kluger, which was registered A2B Car Rentals. The applicant hired this vehicle from 15 July 2015 until 19 November 2015 at a cost of around $11,500 paid in cash. 12. On 11 November 2015 at about 12.50pm the applicant attended A2B Car Rentals and hired another vehicle, a Toyota Corolla, for the period 11 to 19 November. Also present at the car rental was a female named Hela Yusofzai. Ms Yusofzai was employed as the store manager of the applicant's clothing store, Suburban Society. The car was rented in her name at a cost of $490 and paid for in cash. Also, on this day Ms Yusofzai made a cash purchase of a Davies condenser at a business called Lab Supply. A similar piece of apparatus was located at xxx John Street upon the execution of the search warrant on 18 November. 13. At about 11.14pm on 13 November 2015 the applicant attended xxx John Street, Merrylands and remained there until about 1.29am on 14 November 2015. He returned at around 2.42am before leaving 24 minutes later. 14. On 14 November at about 9.22am the applicant purchased nine bottles of demineralised water by cash from Bunnings in Blacktown and then travelled to xxx John Street, arriving at about 10am, remaining there for about 45 minutes. 15. Demineralised water is commonly used in the distillation phase of the manufacturer of methylamphetamine. At about 6.30pm that day the applicant again returned to xxx John Street and remained there for about an hour before against leaving in the hired Kluger. 16. On 15 November 2015 at about 1.39pm the applicant arrived at xxx John Street and then went to a nearby Woolworths store at Granville and purchased several items including a strainer, disposal gloves and freezer bags. Later that day at about 4pm the applicant returned to xxx John Street and remained for over an hour before leaving. The applicant returned at about 9.20pm that day but left after ten minutes. At about 9.45pm the applicant attended the Caltex Service Station on Woodville Road, Merrylands and purchased two pairs of pink washing up gloves and returned to xxx John Street and remained there until 10.19, then left for ten minutes before returning and staying until about 11.37pm. 17. On 16 November 2015 at about 11am the applicant again attended xxx John Street. About 40 minutes later he left and drove his hire car to a Caltex Service Station nearby when he purchased 75 kilograms of ice in cash. 18. After leaving the Caltex Service Station he returned to xxx John Street and unloaded the bags of ice with the assistance of Matthew James and another unknown male. After the ice was unloaded the applicant returned to his hire vehicle and drove away. 19. Ice is commonly used as a means of cooling during the manufacture of methylamphetamine. 20. On the same day the applicant drove the Kluger vehicle to Reynes Lane, Merrylands, close to his clothing store and parked the vehicle. The vehicle did not move again until 18 November 2015 at 10.49pm. 21. At about 3.50pm that day, 16 November, the applicant arrived in a silver Corolla and entered xxx John Street. 22. Her Honour was also satisfied beyond reasonable doubt that the car was rented by the applicant and that he had used Hela Yusofzai as a method of disguising the proper lessee of the car and distancing himself from any involvement with xxx John Street. 23. At about 5.30pm on 16 November the applicant repeatedly called local medical centres to seek an immediate medical appointment as he had injured his eye. He was ultimately seen by a medical practitioner at the Wentworthville Medical Centre where he claimed to have gotten caustic soda in his eye when washing a drain. 24. From all the surrounding circumstances, the timing, what he was doing beforehand, the video of the search conducted at his clothing store, the evidence concerning the state of the drain there, the use of caustic soda in the manufacturing process and the finding of caustic soda, her Honour was satisfied beyond reasonable doubt that the applicant injured his eye when he was at xxx John Street and when he was involved in the actual manufacturing process of methylamphetamine. This fact was conceded by counsel for the applicant in the sentencing proceedings. 25. On 17 November 2015 at about 8.58am the applicant was seen driving the hired Toyota Corolla. The applicant used this vehicle at about 11.16am to attend A2B Car Rental and pay some money towards the hire of both vehicles. When he attended the car rental the eye patch on his right eye was clearly visible. This vehicle was located by police later that day at about 1.14pm parked in the Caltex Service Station on Woodville Road, a short distance from John Street, Merrylands. 26. Her Honour was satisfied beyond reasonable doubt that it was the applicant who drove the Toyota Corolla at about 9.24am to xxx John Street and went inside for a short time before leaving. 27. At about 6pm that day the police executed a search warrant upon xxx John Street and arrested Matthew James, and two other men."
There followed a description of the two manufacturing processes found in the garage, at a level of detail which need not be reproduced or summarised. It suffices to say that what was found was consistent with the 12.84 kg of mixture to the manufacture of which the co-offender pleaded guilty. Police also found items of scientific equipment used in the manufacture of methylamphetamine, various commonly available chemicals such as acetone, caustic soda and distilled water, and the precursors (pseudoephedrine, hypophosphorous acid and iodine) giving rise to the three precursor offences with which the applicant and co-offender were charged.
The statement continued: "36. Police located and seized number of items which underwent forensic examination. A DNA profile matching the applicant was identified on an air purifying respirator or a mask, located hanging on a hook in area C of the premises. 37. Her Honour found the evidence proved beyond reasonable doubt that the mask was used by the applicant in the process of manufacturing methylamphetamine and relied upon the use of the item generally, the similarity of this mask was that found inside the laboratory, visits made by the applicant and the applicant's participation derived from the other circumstances proved beyond reasonable doubt. 38. At about 7pm on 18 November 2015 the intercepted phone service used by the applicant was no longer in use and the Kluger was returned to the rental company in the early hours of 19 November 2015. 39. On five separate occasions from 15 April 2015 to 11 November 2015 Hela Yusofzai attended a business called Lab Supply and purchased items including 10 and 20 litre flasks and condensers, spending over $17,000 in cash on these items. During the search of xxx John Street on 18 and 19 November 2015 police located similar of identical items as those purchased by Ms Yusofzai in 2015. There was also evidence of 375 intercepted phone calls and 199 intercepted text messages between the applicant and Ms Yusofzai. 40. On 19 January 2016 police spoke with Ms Yusofzai about these purchases at Lab Supply and she then travelled directly to the applicant's residential address in Greystanes and then both the applicant and Ms Yusofzai got into the applicant's registered vehicle and drove away. 41. Her Honour found the evidence overwhelmingly established that Ms Yusofzai was purchasing the items at the direction of the applicant. The established relationship between the two, the phone contact, the payments made in cash, their joint attendance at A2B on 11 November and her being the lessee for the Toyota Corolla (paid for by cash), the similarity between the items located and then seized at xxx John Street, the finding of the box, her attendance upon the applicant shortly after being spoken to by police, conclusively proved beyond reasonable doubt that she purchased those items for the applicant and they were to be used in the process of manufacture at xxx John Street, Merrylands."

Reasons of the sentencing judge

The sentencing judge observed that the laboratory revealed "considerable planning and organisation" and "was a sophisticated and large manufacturing operation". No issue was taken with her Honour's assessment that the applicant's role was an "active and important one". Her Honour described this as "considerably more than the purchaser and transporter of items or a gofer used in the manufacture and rather played an important role in the criminal enterprise". The factual findings upon which that assessment was based were as follows (again, no issue was taken with any of them): "i. he purchased items at a cost of over $17,000 for a considerable duration of time from April 2015 until 11 November 2015 from Lab Supply, using Ms Yusofzai as a cover to distance himself and/or to avoid suspicion from authorities; ii. he hired both vehicles, in cash and at a substantial cost of around $12,000 to distance himself and to avoid using his own vehicle in his role in the operation; iii. he purchased items including glassware, demineralised water, 75 kilograms of ice, gloves and other items for the manufacture process; iv. he attended xxx John Street regularly and at odd hours; v. he had access and did access the clandestine laboratory areas; vi. he was involved to some degree with the actual manufacture itself; and vii. the injury to his eye and the DNA on the mask both reveal his presence inside the laboratory and his involvement in the process itself."
The sentencing judge expressly had regard to the sentence imposed upon the co-offender, and did so in response to submissions made by counsel then appearing for Mr El Kheir based on parity. Her Honour addressed parity as follows: "In consideration of the principles of parity I have considered the sentence imposed upon the co-offender, Matthew James on 31 July 2017 and the decision of R v James [2017] NSWCCA 287. The co-offender, after earlier pleading to one count of manufacture of large commercial quantity of methylamphetamine of 12.84 kilograms contrary to 24(2) of the Drug (Misuse and Trafficking) Act with Form One offences of deal with proceeds of crime, three possess precursors and a supply of prohibited drug of 208 grams of methylamphetamine and three counts of serious firearm offences he was sentenced to a total effective sentence of ten years with a non-parole period of five years and nine months. The Crown appealed that sentence as being manifestly inadequate and the appeal was upheld and the co-offender was resentenced by the Court of Criminal Appeal. The Court of Criminal Appeal found that the sentencing judge was generous in his application of Bugmy principles as they held that the co-offender, although he had some difficulties as a child they were nothing like the circumstances described in Bugmy. That the sentencing judge observed that while the quantity of the drug particularised was 12.84 he accepted that the pure weight of methylamphetamine, the subject of the manufacture charge was 2.69 kilograms as is here. The sentencing judge found that the manufacturing was a serious undertaking, a serious criminal act and assessed the objective seriousness at just below midrange and the Crown did not challenge that assessment. The sentencing judge found that James had remorse and good prospects of rehabilitation and accepted the reason for entering into the manufacturing enterprise was to satisfy a debt that arose in context of his drug addiction. He was given 25% discount for his plea and made a finding of special circumstances with the ratio being 55%. This the Court of Criminal Appeal found was too low a percentage and it did not adhere to the principles enunciated in Power v The Queen. But the sentencing judge also made an arithmetical error when he applied the discount to his starting point of 14 years, which the Crown submitted was lenient as it should have been ten years and six months rather than nine years six months was which a patent error. That the principle of totality had not been observed by the sentencing judge when one had regard to the inadequate level of accumulation between the offences and that upon resentencing the co-offender, taking into account it was a Crown appeal and the relevant principles that apply to that fact, he ultimately received for the manufacturing charge an indicative sentence of ten years and six months imprisonment with a non-parole period of six years and ten months and an aggregate sentence of 12 years and three months with a non-parole period of eight years. As stated earlier I find the offender played a lesser role in the enterprise than his co-offender who lived in the premises which contained the laboratory and had in his possession the three firearms and the other amounts of methylamphetamine in his bedroom and elsewhere. The co-offender however, had a fairly similar subjective case with a deprived childhood and he also pleaded guilty, receiving a 25% discount for his plea."

Applicable principles relating to parity

I did not understand there to be any disagreement at the level of principle. The so-called "parity principle" requires that like offenders should be treated in a like manner, and allows for different sentences to be imposed to reflect different degrees of culpability and/or different circumstances: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65]. The principle is broader than cases where persons are charged with the same offences arising out of the same criminal conduct or enterprise, and in cases where, say, offenders have been charged with different crimes, there can be significant practical difficulties in applying the principle: Green at [30]. In the present case, those difficulties are lessened, insofar as both the applicant and the co-offender were charged with the same crimes of manufacturing a prohibited drug and possessing precursors.
The issue, as correctly formulated in the notice of appeal, is whether the sentence imposed on the co-offender gave rise to a "justifiable sense of grievance": Lowe v The Queen (1984) 154 CLR 606 at 610. In Green at [31], French CJ, Crennan and Kiefel JJ said: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise" (citations omitted).
It is necessary in order for this ground to be made out for there to be "marked disparity", and Mr James expressly accepted as much. Further, it is significant that the sentencing judge adverted to parity. In Lloyd v R [2017] NSWCCA 303 at [90], RA Hulme J collected authorities for the proposition that where a sentencing judge has recognised the importance of the parity principle and ostensibly given effect to it, this Court will be cautious to intervene and "any disparity must be gross, marked, or glaring in order to justify such intervention". Mr James did not cavil with this.
Mr James accepted that given the narrowness of the appeal in this Court, this Court's consideration was confined to a comparison of the two sentences imposed ("We're happy to have the proposition that the ground of appeal is to be considered only on the basis of a proper comparison between the two differing sentences and their circumstances").

The submissions in this Court

Mr James advanced the following submissions. First, he placed emphasis upon the different weights of drug manufactured as contained in the separate indictments. I understood him not to have disputed, and indeed in substance to have accepted, that both indictments were based on precisely the same drug found in the garage. However, the indictment to which the co-offender pleaded guilty had referred, in terms, to manufacturing 12.84kg of prohibited drug. The indictment on which the applicant went to trial did not refer to any particular weight of methylamphetamine manufactured by him, save it was not less than a large commercial quantity. Importantly, for this aspect of the applicant's case, at the proceedings on sentence, the prosecutor made it plain that there had been two processes of manufacture, with some which had been advanced but not completed, "so we got a mishmash of product on an admixture basis of about 12 kilograms. The Crown does not rely upon that". The prosecutor went on to say that by reference to the evidence that 2693.7 grams could have been achieved from what was cooking. Sentencing proceeded on that basis.
Mr James submitted that the "admixture" provision in s 4 of the Drug Misuse and Trafficking Act applied in all circumstances, including sentencing, with the effect that the applicant's sentence imposed for manufacturing 2693.7 grams of methylamphetamine was to be compared with the co-offender's sentence imposed for manufacturing some 12.84 kilograms of methylamphetamine. He said that it was irrelevant that the underlying offending conduct of both men was manufacturing the very same methylamphetamine: "LEEMING JA: ... I can see how for all purposes under the Act it's regarded as the same. What's the basis for saying that that then infects the sentencing discretion? JAMES: Because the penalties are the penalties prescribed by the Act and the matters to take into account proceed from the proscribing of the drugs by the Act and that it serves the purposes of the Act to treat the admixture as if it were the pure drug ..."
Indeed, Mr James went further and submitted that the Crown's attempt in the present case to advance the proposition that the 2693.7 grams was referable to the same 12.84 kilogram admixture to which the co-offender had pleaded guilty amounted to resiling from the way the trial and sentencing process had taken place: "My friend, as I understand it from his submissions, seeks to argue that the drugs were the same drugs, [that] may well be the case, but misses the point. In that, the Crown case against Matthew James, was a case involving 12.84 kilograms. The Crown case against my client, was a case that was proceeded on agreed facts and in particular, dealt with the case on the basis of the much lesser quantity. The Crown seeks to change, in effect, its case now, to suggest that my client should be dealt with as though he was equally culpable in respect of 12.84 kilograms, runs directly foul of the principle in Zreika, as it applies to an applicant, and indeed, as it applies to the Crown."
Mr James candidly acknowledged the consequences of his submission: "JAMES. ... The admixture is the drug for all purposes under the Act and that includes the imposition of penalty. LEEMING JA: That means that two people who were both charged with manufacturing 10 kilograms of the same drug, one of which was 100% pure, one of which was 1% pure, should be treated absolutely identically. JAMES: From the point of view of the imposition of the penalty under the Act, yes, your Honour. It's an uncongenial proposition. It leaves the matter in the hands of the Crown to exercise discretion as to how it goes about it and that's exactly what he did in this case, a matter of prosecutorial discretion."
This same distinction between the weight of product and the amount of pure drug which could have been obtained, was addressed in this Court's decision in R v James where Hoeben CJ at CL, with whom Bathurst CJ and Button J agreed, said at [33]: "As to the objective circumstances of the offences, his Honour observed that while the quantity of the drug particularised in Sequence 1 was 12.84kg, that quantity was assessed by reference to the admixture provision of the Drug Misuse and Trafficking Act. His Honour accepted that 'a substantial proportion of the 12.84kg … would have been waste and would not have had any commercial value'. His Honour also accepted that there was no evidence that the laboratory had equipment available to complete the "salting out process" by which methylamphetamine is refined to powder or crystals to be sold to users".
Mr James submitted that it was a matter of prosecutorial discretion to choose the weight of the prohibited drug on which to proceed. Therefore, the first point of difference between the applicant and the co-offender was that the co-offender was sentenced on the basis of manufacturing more than 12 kilograms of methylamphetamine while the applicant was sentenced on the basis of manufacturing some 2 kilograms of the same drug. While accepting that the quantity manufactured is not determinative when assessing the objective seriousness of an offence, Mr James emphasised that it remained a very material consideration: Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 at [132]. He submitted that the "significant difference" in the amounts manufactured ought to have resulted in the imposition of a sentence which was "significantly below" that of his co-offender.
The Crown submitted that that was not one of the distinctions which had been advanced to the sentencing judge, to which Mr James' response was that it was unnecessary to do so, having regard to what the Crown had indicated at the commencement of the sentencing proceedings.
Secondly, Mr James relied upon the fact that the co-offender had had the same three precursor offences taken into account in imposing sentence. The point was that the indicative sentence of 10½ years with a non-parole period of 6 years and 10 months must have been to some unknown extent inflated by reference to the "Form 1" offences: "Undoubtedly, this Court would have increased [the co-offender's] otherwise appropriate sentence substantially, to reflect the criminality of the Form 1 offences". Of course, there were no Form 1 offences for the possession of precursors taken into account in sentencing the applicant, because he was separately charged with and sentenced for those offences. The sentencing structure imposed by the District Court has the result that those separate sentences were wholly concurrent with the sentence for the manufacturing count. Understandably, no complaint was made about that.
Thirdly, Mr James acknowledged that there were some differences in the subjective cases between the two men. He acknowledged that it had been accepted that the co-offender was remorseful and had good prospects of rehabilitation, which findings were absent from the applicant's case. Further, the applicant was on conditional liberty at the time of committing the offence. Save for those things, he relied upon the sentencing judge's finding that the co-offender had a "fairly similar subjective case" compared to that of the applicant. He pointed to a statement concerning the applicant's mental health made by the sentencing judge: "The offender has, however, some significant mental health issues from around 1996 … and whilst I do not find them to be causally connected to the charges he has been found guilty of I do accept that it may make the offender's time in custody more onerous and I take the offender's mental health into account in the sentence itself."
That, in Mr James' submission, was a point of distinction operating in the applicant's favour.
The Crown provided a helpful summary table comparing the objective and subjective aspects of the offending by the applicant and the co-offender. The Crown emphasised that both men were sentenced for manufacturing precisely the same drug, but did not otherwise engage with the (admittedly relatively brief) submissions based on the admixture provisions on which Mr James relied. The Crown's essential submission was that, based on the indicative sentence imposed by the Court of Criminal Appeal on the co-offender for the manufacturing charge, the undiscounted starting point for that sentence was 14 years with a non-parole period of some 9 years and 1 month. Given that significant disparity, there was no substance to the sole ground of appeal.

Consideration

I start with Mr James' first point, based on s 4 of the Act relating to "admixtures". Nothing is found in the passage of her Honour's reasons concerning the different amount on which the co-offender had been sentenced for the good reason that no such point was taken before the sentencing judge. It is not surprising in those circumstances that the sentencing judge proceeded to observe, when dealing with parity, that the 12.84 kilograms to which the co-offender pleaded guilty reflected a pure weight of methylamphetamine of "2.69 kilograms as is here".
There was no challenge to the sentencing judge's finding that the quantity of 2.69kg of pure methylamphetamine relied upon by the Crown was derived from the 12.84kg of admixture found on the premises. Her Honour referred to Delaney ADCJ's finding when sentencing the co-offender that although the quantity of the prohibited drug particularised in the co-offender's case was 12.84kg, the pure weight of methylamphetamine being manufactured was 2.69kg - the exact same quantity and purity of the prohibited drug relied upon by the Crown in the applicant's case.
There was no error in her Honour proceeding on that basis, because for the reasons which follow I have concluded that Mr James' principal submission, based on s 4 of the Drug Misuse and Trafficking Act, is bad in law. Although the point was not taken before the sentencing judge, it is best dealt with on its merits. It is as well, given the nature of the submission, to return to first principles.
The offence created by s 24(2) of the Drug Misuse and Trafficking Act refers only to taking part in the manufacturing of a commercial quantity of a prohibited drug. Section 33(2)(a) provides that the maximum penalty for the offence created by s 24(2) is a fine of 3,500 penalty units or imprisonment for 20 years. However, in the event that the court is satisfied that the offence involved not less than a large commercial quantity, then s 33(3)(a) provides that the maximum penalty is a fine of 5,000 penalty units or imprisonment for life. The large commercial quantity for the prohibited drug methylamphetamine is 0.5 kg, the commercial quantity is 0.25 kg and smaller weights are specified for each of the "traffickable quantity", "small quantity" and "indictable quantity" of the drug (see s 33(4) and the row in Schedule 1 for "Methylamphetamine").
A "prohibited drug" is defined in s 3 to mean "any substance, other than a prohibited plant, specified in Schedule 1". "Substance" is defined inclusively in the same section to include "preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers."
Section 4, on which Mr James' submission is based, provides: "4 Admixtures In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug."
"Admixture" is not a word in common usage. It derives from much earlier cognate legislation. A similar definition of "substance" (to include "preparation or admixture of any substance") was found in s 3 of the Poisons Act 1952 (NSW); see now s 4 of the Poisons and Therapeutic Goods Act 1966 (NSW). The word was also found in s 18(2) of the Police Offences Amendment (Drugs) Act 1927 (NSW). That legislation directly criminalised, inter alia, the manufacture of opium (s 19(1)(a)) and authorised the making of regulations to prohibit the manufacture of "any drug to which this Part of this Act applies" (s 20(1)(a)). That Part applied to four drugs in addition to opium: morphine, cocaine, eegonine, and heroin "and any preparation, admixture, extract or other substance containing not less than one-fifth percentum of morphine or one-tenth per centum of eegonine, cocaine or [heroin]": s 18(2).
It is clear from the prohibited drugs to which "admixture" applies (and has for many years applied) that it extends to mixtures of powders, mixtures of liquids and cases where a solid is dissolved in a liquid. English in this respect lacks the precision of Latin, where Roman law distinguished between confusio and commixtio: see R Hickey, "Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title" (2003) 66 Modern Law Review 368 at 369-372. For present purposes, I regard "admixture" and "mixture" as synonymous, and will refer to the former only when dealing with the legislation.
There may be an element of overlap or duplication in the provisions concerning admixtures. It will be seen that there may be two ways in which provisions relating to an "admixture" apply: (a) directly through s 4, by requiring references in the statute to "prohibited drug" to be read as references to admixtures containing a prohibited drug, and (b) indirectly, because the definition of "prohibited drug" turns on "substance" which itself includes an admixture. The precise effect of the provisions need not be analysed in any detail. Indeed the definitions in s 3 were not analysed in the parties' submissions in this Court - the applicant's written submissions did not mention any of these provisions, while his oral submissions were confined to s 4 (contrast for example the concession recorded in Woods v R [2017] NSWCCA 5 at [21(e)], which was based exclusively on the definitions in s 3). For present purposes, the consequence is simple enough. The Act requires identifying the weight of a prohibited drug, so as to determine whether the amount in issue is, inter alia, a commercial quantity, a large commercial quantity or an amount which is less than a commercial quantity. In determining the weight, what matters is not the weight of the pure drug which might be derived from a quantity of powder which has been "cut down" with some other substance, or from a volume of liquid in which the crystalline form of a prohibited drug has been dissolved and from which it might be precipitated. What matters is the weight of the impure mixture containing the prohibited drug.
Section 4 of the Drug Misuse and Trafficking Act is an interpretation provision. It applies to references to "prohibited drugs" elsewhere in the Act. No other sense can be given to its opening words "In this Act, a reference to a prohibited drug includes ...". Section 4 is not a deeming provision which applies in all circumstances. Its effect is limited.
Confined as it is to references to "prohibited drugs" in the Drug Misuse and Trafficking Act, s 4 has real work to do. In particular, it will have a powerful effect on the availability of more serious charges available when a "commercial quantity" or a "large commercial quantity" of a prohibited drug is manufactured or supplied. A dilute mixture, which if purified might fall well short of a commercial quantity, might nonetheless sustain a conviction of a commercial quantity or even a large commercial quantity. What matters for the purpose of the elements of the offences created by the Drug Misuse and Trafficking Act, by reason of s 4, is the weight of the mixture, not the weight of the prohibited drug contained within the mixture. Similar consequences may apply in including the weight of cardboard intended to be ingested which has been impregnated with LSD should contribute to the weight of the prohibited drug: see Finch v R [2016] NSWCCA 133 at [117]-[144]. In that way, s 4 alters the elements of the offences created by the Drug Misuse and Trafficking Act. To that extent, I accept Mr James' submission.
But it does not follow that for the purpose of sentencing, the court is to shut its eyes to the facts giving rise to the offences of which the offender has been found guilty or to which he or she has pleaded. On that point, I do not accept Mr James' submissions made orally and in writing after the hearing.
As the Crown submitted in supplementary written submissions supplied on 29 November 2019 in accordance with the Court's leave, the purity of a mixture manufactured by an offender is an objective factor that affects the seriousness of the offence within the meaning of s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999. How could it be otherwise? There is a material distinction between the objective seriousness in manufacturing, say 5 litres of a liquid from which 4 kilograms of methylamphetamine can readily be extracted, and manufacturing 5 litres of a liquid from which 1 gram of methylamphetamine can be extracted. Both instances amount to manufacturing a large commercial quantity of a prohibited drug. However, the criminality of the former exceeds that of the latter. The harm to the community, and the financial gain potentially available to the offender, are many times greater in the case of the former as opposed to the latter. But the Drug Misuse and Trafficking Act merely specifies the elements of the offences created by it, and the maximum penalties and standard non-parole periods applicable to those offences. That Act does not otherwise speak to the sentencing discretion, which falls to be exercised according to the Crimes (Sentencing Procedure) Act 1999 (NSW) and judge-made law.
In particular, the interpretation provision in s 4 of the Drug Misuse and Trafficking Act 1985 does not diminish the obligation imposed by s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999, which provides that: "In determining the appropriate sentence for an offence, the court is to take into account the following matters - ... (c) any other objective or subjective factor that affects the relative seriousness of the offence."
Section 4 of the Drug Misuse and Trafficking Act is merely an interpretation provision applicable to that statute. Section 4 is not expressed to circumscribe the matters to which regard may be had when imposing sentence including as regulated by the Crimes (Sentencing Procedure) Act. Still less is it expressed to circumscribe the matters to which the sentencing court must have regard, such as those in s 21A(1)(c). The purity of an "admixture" which is taken to be a large commercial quantity of a prohibited drug is one such matter.
It may also be noted, for completeness, that acceptance of Mr James' construction would lead to the conclusion that the prosecutor had been wrong not to rely on the 12.84 kilograms mixture, and the sentencing judge had been wrong to accede to that course. It would also lead to the conclusion that this Court had erred when allowing the Crown's appeal against the sentence imposed on the co-offender in having regard to the pure quantity of methylamphetamine which could be obtained from the mixture. And it would lead to the conclusion that many other decisions of this Court disclose error. It would mean that whenever consideration is given to the purity of drugs in a supply or manufacture case, regard is being had to an irrelevant consideration. Thus ground 1 of the appeal in Yacoub v R [2019] NSWCCA 47 at [31]-[36], complaining that the sentencing judge had an erroneous understanding of the purity of the methylamphetamine supplied, would have been decided per incuriam. It would have been irrelevant for there to have been reference to the purity of close to 50% of the 706.8 grams of mixture which contained methylamphetamine, when Mr Nguyen had pleaded guilty to manufacturing a large commercial quantity, namely 706.8 grams, of that prohibited drug, in Nguyen v R [2019] NSWCCA 213. Examples could very readily be multiplied.
I would accept Mr James' submission that the co-offender was sentenced for the manufacture of 12.84kg of methylamphetamine in an admixture whereas the applicant was sentenced on the basis that he had manufactured 2.69kg of pure methylamphetamine yet to be extracted from the admixture. But it does not follow that there would on this basis be a justified sense of grievance.
Contrary to Mr James' submissions, the sentencing judge was not required to proceed on the basis only that the co-offender had pleaded guilty to manufacturing an amount of prohibited drug some five times as large as the amount on which sentence was to be imposed on the applicant. Had her Honour taken that course, she would have fallen into error. Her Honour was entitled and in fact required to have regard to the fact that sentence was imposed on the co-offender for a larger quantity of a more dilute admixture, from which precisely the same quantity of pure methylamphetamine could have been obtained as that on which the applicant was to be sentenced.
The foregoing is a complete answer to Mr James' first point based on s 4. However, there are further matters which detract from that point. Both the applicant and the co-offender were charged with the same offence of manufacturing a large commercial quantity of methylamphetamine contrary to s 24 of the Drug Misuse and Trafficking Act. This is not a case where the quantity of prohibited drug manufactured was border-line as between a "large commercial quantity" and the lesser offence of manufacturing a prohibited drug not less than a "commercial quantity".
The quantity of a prohibited drug, although material, is not a determinative factor: see for example Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [33]; Roberts (a Pseudonym) v R [2019] NSWCCA 102 at [51]. So much is trite; after all, the maximum sentence applicable to both the applicant and the co-offender was life imprisonment, and the same would have been true if the applicant had manufactured only a fifth of the quantity. The sentencing judge correctly proceeded on the basis that quantity was not the only relevant factor in assessing the objective seriousness of the offending conduct: "Numerous factors are relevant to the considering the objective seriousness of offence pursuant to s 24(2) of the Drug (Misuse and Trafficking) Act none of which alone is determinative, but each of which informs the objective gravity of the offence [the applicant] committed."
In particular, a highly relevant factor is the offender's role and level of participation in the offence. In Melikian v R [2008] NSWCCA 156, Price J said (Spigelman CJ and Hidden J agreeing) at [42]: "It is well established that the quantity of the drugs is not the sole or even the principal determinant for sentencing in relation to drug offences. As was pointed out by Wood CJ at CL in Regina v MacDonnell (2002) 128 A Crim R 44 at [33]: "What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity."
That proposition was accepted in Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; 247 A Crim R 272 at [51]-[52] (RA Hulme J, Basten JA and Button J agreeing). In Lam v R; Lam v R [2015] NSWCCA 87, Schmidt J said (Meagher JA and Bellew J agreeing) at [72]: "It is well settled that an offender's role and the level of criminality involved in a particular drug offence is more important in determining a sentence, than the quantity of drugs involved, which is not the sole or even principal determinant of a sentence, but an important one (see Melikian v R [2008] NSWCCA 156 at [42] and R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at [33]). The sentence imposed on an offender must reflect what he did."
There was no challenge to the sentencing judge's findings that the applicant had engaged in a sophisticated and large manufacturing operation that required considerable planning and organisation or that the offender played "an important role in the criminal enterprise" albeit a lesser role than the co-offender.
All those matters further discount the force of Mr James' submission that the applicant's sentence should have been "significantly below" that of the co-offender.
Mr James' second and third points fall in a different category. In determining whether the applicant entertains a justified sense of grievance, it is correct to acknowledge that the indicative sentence imposed on the co-offender for manufacturing took into account five other offences, all of which were serious. There is, however, no reason to doubt that the sentencing judge was conscious of the difference in the sentence structures imposed in relation to the three precursor counts, which reflected the different ways in which guilt had been determined - a plea incorporating a Form 1 on the part of the co-offender, as opposed to the applicant standing trial on the precursor offences. It is to be borne in mind that the sentences imposed on the applicant for the precursor counts did not of themselves make any separate contribution to his total overall sentence. That cannot be said of the co-offender. Of course no complaint based on parity has been made, nor could it be, in relation to the sentences imposed for the precursor offences. But those sentences cannot be entirely put to one side for the purposes of parity. They operate to heighten the difficulty faced by the applicant in establishing the requisite marked disparity.
It is also relevant to have regard to what was said about the applicant's mental health. But this aspect of the appeal also has limitations, and Mr James very properly acknowledged the limited nature of the finding, which fell short of a finding that the applicant's sentence would be more onerous than that experienced by the co-offender ("I do not apprehend by that that she is saying more onerous than that experienced by Matthew James. It's simply more onerous than the general run of prisoners").
The difficulty confronting Mr James' submission is that it is necessary to look at all of the relevant facts when assessing whether the applicant suffers from a justified sense of grievance. When that is done, it is clear that there are signal differences between the applicant's circumstances and those of his co-offender, especially: 1. The comparison is between the sentence imposed on the applicant of 10½ years imprisonment with a non-parole period of 7 years, with an indicative undiscounted sentence of 14 years with a non-parole period of just over 9 years. 2. The applicant was on conditional liberty at the time of committing the offence. 3. The co-offender's sentence incorporated favourable findings of contrition and remorse, which were not made in relation to the applicant. 4. The co-offender was found to have good prospects of rehabilitation, while the applicant was found only to have moderate prospects of rehabilitation.
When all those matters are borne in mind, I would not conclude that there could be any justified sense of grievance on the part of the applicant. In order to compare like with like, the comparison must be with the undiscounted indicative sentence of 14 years. That is 133% of the sentence imposed upon the applicant - an additional 3½ years. The non-parole period is more than an additional 2 years. Of course, that longer sentence incorporates a finding that the co-offender's offending was objectively more serious than that of the applicant, and it also takes into account five serious offences. But when it is borne in mind that the co-offender's subjective case was considerably better than that of the applicant, the requisite marked disparity is not made out.

Orders

Accordingly, I propose the following orders:
To the extent necessary, extend the time within which to file a notice of appeal until 31 July 2019.
Grant leave to appeal.
Appeal dismissed.
LONERGAN J: I agree with Leeming JA and the orders which he proposes.

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Poisons Act 1952(NSW)

Police Offences Amendment (Drugs) Act 1927(NSW)

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