The facts found for sentencing purposes and the challenge to them
43The sentencing judge regarded the applicants' moral culpability as of "a very high order". She described their conduct as suppliers of large commercial quantities of pseudoephedrine in the following way:
"... sourcing large quantities of cold and flu tablets containing pseudoephedrine; liaising with the ultimate purchasers in Queensland; agreeing on price; organising couriers; packaging the drugs and arranging for their delivery."
44Her Honour regarded those arrangements as well planned and orchestrated, and that the applicants were motivated solely by financial reward. She declined to make a finding that Brian Grover's gambling debt operated in mitigation.
45When considering the sentences imposed on co-offenders (including William Soames and others) and their roles in the criminal arrangement, her Honour described the applicants as being:
"... well up that chain ... capable of accessing significant quantities of bulk pseudoephedrine, arranging for its collection, warehousing by others albeit only overnight, negotiating price, the place of delivery, the courier and receiving or anticipating receiving significant sums of money upon the successful completion of the deals ...".
46After dealing with the offending the subject of the possession count (which may be disregarded for present purposes) her Honour noted that both applicants were charged and released to bail in respect of that offending on 3 February 2011 and that within a very short time they reoffended by supplying a large commercial quantity of pseudoephedrine as a prohibited drug, conduct which was repeated over successive months despite the fact that the tablets the subject of the first supply count in May 2011 attracted police interest, a matter which was well known to the applicants given the arrest of a co-offender.
47The fact that all three supply counts were committed while the applicants were on bail rendered the offending on each count more serious. One of the questions raised by the appeal was whether that factor, together with the fact that the applicants pleaded guilty to multiple counts of supply of a large commercial quantity of pseudoephedrine (with Daniel Grover having a prior conviction for dealing in pseudoephedrine), distinguished the authorities to which her Honour referred in her sentencing remarks for comparative purposes.
48In considering the impact of the evidence of the police expert directed to ascertaining the potential for the pseudoephedrine to be exploited in the manufacture of methamphetamine, her Honour held that the community would be exposed to "potentially disastrous consequences" by the distribution of the methylamphetamine (the product of the manufacturing process) and that the profits to "criminals" as "considerable". (It was no part of the Crown case on sentence that the applicants would derive a share of the profit from the manufacture of the methylamphetamine and its supply at either a wholesale or street level.)
49In her Honour's assessment, the extent of harm to the community resulting from each of the supply counts was informed by the potential yield of 728 grams of methylamphetamine per consignment of 24 kilograms of impure pseudoephedrine, which she referred to as exceeding a large commercial quantity of that drug. On appeal, the Crown conceded that was an error, a large commercial quantity of methamphetamine being 1 kilogram not 0.5 kilograms under the Drug Misuse and Trafficking Act.
50The applicants submitted that this error (which may have been transposed from Pham v The Queen [2010] NSWCCA 208 where at [43] Simpson J referred to 0.5 kilograms of methylamphetamine as constituting a large commercial quantity of that drug - the Schedule to the Drug Misuse and Trafficking Act specifies 1 kilogram as a large commercial quantity) contributed to her Honour's erroneous finding that each of the supply counts were positioned above the mid-range of objective seriousness. They also submitted that the sentencing judge failed to appreciate that the actual quantity of pure pseudoephedrine in the tablets the subject of each count was substantially below the 1.25 kilograms threshold for a commercial quantity of that drug. Counsel submitted that, although the charge of supply of a large commercial quantity was properly laid in reliance on the admixture provisions in the Drug Misuse and Trafficking Act, the purity of the individual tablets remains a critical consideration for sentencing purposes since, unlike other prohibited drugs under Schedule 1 to the Act, the tablets are not susceptible to being cut and on-sold to end users. Their only value as a prohibited drug is the pure pseudoephedrine that may be extracted from them.
51The Crown submitted that her Honour's error in the appointment of a large commercial quantity of methamphetamine at 0.5 kilograms has not been shown to have erroneously influenced her assessment of the objective seriousness of the supply counts. What was relevant was the potential yield of a significant quantity of methylamphetamine, and the potential for harm that is generated from that quantity of drug being disseminated to end-users. In the Crown's submission, that fact, coupled with the role each of the applicants performed as principals in the supply of the large commercial quantities of pseudoephedrine over a three month period, properly attracted a finding of offending above the mid range.
52The applicants submitted that there were other errors in the sentencing judge's approach to the question of the extent of harm which, taken together with the error in appointment of a large commercial quantity of methylamphetamine, had a compounding effect ultimately leading to the imposition of manifestly excessive sentences.
53These errors included what was said to be her Honour's undue emphasis on the potential yield of methylamphetamine when the applicants were not charged with manufacturing that drug or taking any step in the process of its manufacture. Insofar as the extent of harm is a material enquiry into the objective seriousness of the applicants' offending as suppliers of pseudoephedrine as a prohibited drug, in accordance with the approach in R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 (a case which was concerned with the possession of pseudoephedrine as a precursor contrary to s 24A(1)(a) of the Drug Misuse and Trafficking Act where an element of the offence is that the pseudoephedrine was intended for use in the manufacture of a prohibited drug), it was submitted that her Honour failed to take sufficient account of the range of variables in the process by which methylamphetamine is manufactured which impacts on yield. In addition to the grossly inferior quality of the tablets the subject of each count, it was submitted what was also likely to be an unsophisticated manufacturing process added to the likelihood that the actual yield of pure pseudoephedrine would likely be considerably less than the optimum yield identified by the expert. It was submitted that because the gravamen of the applicants' offending must be gauged referable to the actual extent of harm, it was an error to regard the objective seriousness of their offending as above mid range, even accepting their role in acquiring the tablets and arranging for their on-supply.
54The applicants emphasised that the inferior quality of the tablets also operated to distinguish their offending from the three cases to which the judge referred in her sentencing remarks: R v El Helou [2010] NSWCCA 111; R v Phan & Ors [2009] NSWDC 181; and Pham v R [2010] NSWCCA 208.
55The applicants submitted that, were her Honour to have made an assessment of the extent of harm in each of the cases to which she referred, each of which involved purity levels of between 20 and 30 per cent, rather than disregarding them as being of limited assistance for comparative purposes, she would necessarily have concluded that the offending in each was objectively more serious than the applicants' offending although less severe sentences were imposed. This is said to be exemplified by the following summary:
(1)El Helou [2010] NSWCCA 111
259.22kg @ 20% purity = 52.34kg pure pseudoephedrine (part of a consignment of 800kg).
Following a plea of guilty he was sentenced to 10 years and 6 months with a non-parole period of 6 years and 6 months.
After a successful Crown appeal, the sentence was increased to 12 years with a non-parole period of 8 years.
(2)Pham [2010] NSWCCA 208
10.124kg @ 30% purity = 3.0372kg pure pseudoephedrine.
Following a plea of guilty he was sentenced to 10 years with a non-parole period of 6 years.
(3)Tran [2014] NSWCCA 32
10.124kg @ 30% purity = 3.0372kg pure pseudoephedrine.
Following a plea of guilty he was sentenced to 10 years with a non-parole period of 6 years.
(4)Phan, Nguyen, Phan and Olivieri [2009] NSWDC 181
43.9kg @ 21.33% purity = 9.365kg pure pseudoephedrine.
For their involvement in the supply of a large commercial quantity of pseudoephedrine the following sentences were imposed on Dinh Phan, Nguyen and Olivieri. (Duc Phan was sentenced following a plea of guilty as a principal both in the importation of the drug supplied together with the importation of another consignment of pseudoephedrine in which none of the offenders was involved.) Nguyen was found to have played a secondary role to Duc Phan and was sentenced to 10 years and 6 months with a non-parole period of 8 years. Duc Phan was sentencded to 8 years with a non-parole period of 6 years and Olivieri was sentenced to 8 years with a non-parole period of 6 years.
56The applicants' counsel referred the Court to two additional cases involving the supply of a large commercial quantity of pseudoephedrine: R v Standen [2011] NSWSC 1422 and R v Jalalaty [2010] NSWSC 1561.
57The objective seriousness of the offending in Standen and Jalalaty was substantially more serious than the present case. The offenders conspired to import approximately 300 kilograms of pseudoephedrine through an elaborate scheme of concealing the pseudoephedrine in shipments of rice. Both offenders were convicted of conspiring to import a border controlled substance pursuant to s 307.11 of the Commonwealth Criminal Code. Standen was also convicted of conspiracy to pervert the course of justice and supply of a large commercial quantity contrary to s 25(2) of the Drugs Misuse and Trafficking Act (NSW).
58The sentencing judge held that Standen was a principal and senior to Jalalaty. His criminality was aggravated by his misuse of knowledge and contacts acquired through his position as Assistant Director of Investigations at the New South Wales Crime Commission. The objective seriousness of the supply offence was held to be above the middle of the range. The offender was sentenced to a head sentence of 22 years (with a non-parole period of 16 years) for the supply offence after a five-month trial. It should be noted that the sentencing judge took into account Standen's onerous custodial conditions, namely his being held in a Special Purpose Prison, in determining the length of his sentences.
59Jalalaty's role was to receive the shipment of rice in which the pseudoephedrine was concealed under the guise of his food importation and distribution business; to arrange for the clearance of the container with the rice and pseudoephedrine; and to sell the rice so as to give the importation the appearance of legitimacy. The conspiracy involved a high degree of planning and the offender was regarded by the Court as a principal. His plea of guilty and assistance afforded him a discount in the vicinity of 40 per cent. He was sentenced to 10 years imprisonment (with a non-parole period of 6 years), equating to an undiscounted sentence of 16 years and 8 months.
60The applicants' counsel submitted that Standen and Jalalaty provide significant support for the proposition that the undiscounted head sentence of 17 years and 6 months for each of the supply offences imposed on the applicants was manifestly excessive.
61Since hearing the appeal, the related cases of Wilson v R [2014] NSWCCA 266; DS v R [2014] NSWCCA 267; Ibrahim Jidah v R [2014] NSWCCA 269; and Yousef Jidah [2014] NSWCCA 270 have been determined. In each case the applications for leave to appeal were against the severity of a sentence imposed for the supply (or, in the case of Wilson, his knowing concern in the supply) of 603 kilograms of impure pseudoephedrine (in the form of 2,600,000 tablets), equating to 125 kilograms of pure pseudoephedrine. Each of the applicants was convicted after trial. Wilson's sentence appeal was dismissed. He was sentenced as a principal to a total term of 16 years and 2 months with a non-parole period of 10 years and 6 months. The sentences imposed on re-sentence of DS, Ibrahim Jidah and Yousef Jidah on parity grounds were as follows:
(1)DS was sentenced to imprisonment for 14 years and 6 months with a non-parole period of 9 years and 6 months. His involvement in the supply extended over some months in advance of the shipment of drugs arriving from Thailand. He coordinated the release of the drugs for supply and supervised others in that process.
(2)Ibrahim Jidah was sentenced to imprisonment for 12 years and 6 months with a non-parole period of 8 years and 6 months. Together with his brother, Yousef, he was involved over a period of days in providing transportation of the drugs after they were unpacked in the expectation they would be distributed to a third party or parties for exploitation in the manufacture of methamphetamine.
(3)Yousef Jidah was sentenced to imprisonment for 10 years with a non-parole period of 6 years.
62Finally, it was submitted that, contrary to her Honour dismissing the three authorities cited in her sentencing reasons as being of limited or no utility for comparative purposes, an appropriate sentencing range can in fact be gauged by reference to them, and the other cases to which the applicants referred on the appeal, thereby providing a measure against which to examine the sentences imposed by his Honour with a view to demonstrating that they are each manifestly excessive (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54] and Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 at [28] and [41]).