Hosseini v R

Crimes Act 1900 s 98, s 193C(1), s 203E, s 302 Criminal Procedure Act 1986 s 6(1)(c) Crimes (Sentencing Procedure) Act 1999 s 3A, LEGISLATION CITED: s 54A(1) Drug Misuse and Trafficking Act 1985 s 24(2), s 25(1), s 29, s 29(1) Firearms Act 1996 s 7A(1), s 39(1)(a)

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Postiglione v The Queen (1997) 189 CLR 295 Einfield v R [2008] NSWCCA 215 R v Colin [2000] NSWCCA 236 R v Deng (1996) 91 A Crim R 80 R v Halls [2008] NSWCCA 251 CASES CITED : R v Harmouche (2005) 158 A Crim R 357 R v M.A.K; M.S.K [2006] NSWCCA 381 R v Orcher [1999] NSWCCA 356 R v Sutton [2004] NSWCCA R v Thomson & Houlton (2000) 49 NSWLR 383 R v Wall [2002] NSWCCA 42 R v Wong (1988) 39 A Crim R 1

PARTIES: Mostafa Hosseini Regina

COUNSEL: L Babb SC (Applicant) H Dhanji (Respondent)

SOLICITORS: S Kavanagh Public Prosecutions (Applicant) S O'Connor Legal Aid (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Puckeridge QC DCJ

LOWER COURT DATE OF DECISION: 12 August 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Mostafa Hosseini

IN THE COURT OF CRIMINAL APPEAL 2007/12110

Hodgson JA James J Price J

1 HODGSON JA: I agree with Price J. 2 JAMES J: I agree with Price J. 3 PRICE J: There are two appeals. An appeal by Mostafa Hosseini against conviction which is confined to count 2 and an appeal by the Crown on the ground of manifest inadequacy of sentence. 4 Mr Hosseini pleaded guilty in the District Court on 11 February 2008 which was the first day set down for his trial to two counts on an indictment which were:

Count 1: Between 3 April and 29 September 2006 at Sydney did knowingly take part in the manufacture [of] a prohibited drug, namely, 1.0938 kilogrammes of 3, 4- methylenedioxymethylamphetamine, being an amount not less than the large commercial quantity applicable for that prohibited drug. This was an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985.

Count 2: On 28 September 2006 at Kurnell did possess the sum of $30,400.00 in money, in circumstances where there are reasonable grounds to suspect that the said money was the proceeds of crime. This was an offence contrary to s 193C(1) of the Crimes Act 1900. 5 Mr Hosseini asked the Judge to take into account on sentence six offences on a Form 1 being; (i) Possess precursor, 388.6 grams of 3, 4 methylenedioxy-phenyl-2-propanone, intended to be used in manufacture of a prohibited drug, namely 3, 4 -methylenedioxmethylamphetamine contrary to s 24A(1) of the Drug Misuse and Trafficking Act . (ii) Had in his possession for supply a prohibited drug, namely 42.70 grams of methylamphetamine contrary to s 25(1), s 29 of the Drug Misuse and Trafficking Act. (iii) Had in his possession for supply a prohibited drug, namely, 12.81 grams of 3, 4 - methylenedioxymethylamphetamine contrary to s 25(1), s 29 of the Drug Misuse and Trafficking Act .

(iv) Possess a firearm, namely an air rifle, without being authorised to do so by a licence or permit contrary to s 7A(1) of the Firearms Act 1996. (v) Not take all reasonable precautions to ensure that a firearm, namely, an air rifle, was safely kept contrary to s 39(1)(a) of the Firearms Act. ( vi) Custody of false instrument (driver licence) with intention to use to induce another person to accept it as genuine and do or not do some act to the prejudice of that or another person contrary to s 302 of the Crimes Act . 6 An offence contrary to s 24(2) of the Drug Misuse and Trafficking Act is punishable by life imprisonment. An offence contrary to s 193C(1) of the Crimes Act is punishable by imprisonment for 2 years. 7 The Judge found that the respondent was entitled to a utilitarian discount for the pleas of guilty of 25 per cent. His Honour found special circumstances. 8 The following sentences were imposed: Count 1: (including the six Form 1 matters) Imprisonment for a non-parole period of 4 years to commence on 29 September 2006 and expire on 28 September 2010, with an additional term of 3 years 6 months to commence on 29 September 2010 and expire on 28 March 2014. Count 2: Imprisonment for a fixed term of 6 months to commence 28 September 2010 and expire 27 March 2011. 9 The total effective sentence imposed by the Judge was 7 years 6 months with a non-parole period of 4 years 6 months and an additional term of 3 years.

The Conviction Appeal 10 Mr Hosseini seeks leave to appeal against his conviction on count 2 on the ground that a miscarriage of justice was occasioned as the District Court did not have jurisdiction to deal with that offence. The Crown concedes that the offence the subject of count 2 was a summary offence that ought not to have been included on the indictment and agrees that the District Court lacked jurisdiction. The Crown does not oppose the application for extension of time. 11 Count 2 was a summary offence contrary to s 193C(1) of the Crimes Act, the maximum penalty for the offence being 50 penalty units or imprisonment for 2 years, or both. The offence fell within s 6(1)(c) of the Criminal Procedure Act 1986 which required that it be dealt with summarily. The District Court had no jurisdiction to deal with the offence and the conviction was invalid. Both Mr Hosseini and the Crown submit that the appropriate order is that the conviction with respect to count 2 on the indictment be quashed. In my opinion that is the appropriate course to be taken. The orders I propose are as follows: 1. Grant leave to Mostafa Hosseini to appeal against his conviction on count 2 on the indictment being an offence contrary to s 193C(1) of the Crimes Act; 2. Allow the appeal; 3. Quash the conviction and sentence on count 2. Crown Appeal 12 Although there is one ground of appeal - that the sentence imposed on count 1 is manifestly inadequate - the Crown submits that there are a number of discrete errors by the Judge that may account for this fact which are: (i) The Judge erred by failing to have proper regard to the standard minimum non-parole period prescribed by Division 1A of Part 4A of the Crimes (Sentencing Procedure) Act 1999 as a guide to imposing a sentence in relation to count 1. (ii) The Judge erred in his findings of fact concerning the role played by the respondent, and thereby failed properly to assess the objective seriousness of the offence. (iii) The Judge erred by giving undue weight to the plea of guilty and the subjective features of the respondent. (iv) The Judge erred in his approach to the drug offences on the Form 1. (v) The Judge erred by not giving enough weight to specific and general deterrence. 13 The Court was referred to a number of authorities, including R v Wall [2002] NSWCCA 42 wherein consideration was given to the principles governing Crown appeals. Those principles were summarised by Wood CJ at CL in R v Wall at [70]:

"…it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle " for the governance and guidance of courts having the duty of sentencing convicted persons ": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62. Proceedings on Sentence 14 During the sentencing proceedings an agreed statement of facts was tendered which his Honour detailed during his remarks on sentence. The agreed facts were: "In late 2005 and early 2006, police became aware that a person named Branislav Kojic was buying large quantities of chemicals such as methanol, caustic soda, toluene, formic acid, sulphuric acid, benzaldehyde and sassafras oil, commonly used in manufacture methylamphetamine and methylenedioxymethlyamphetamine ("MDMA") commonly referred to as "ecstasy".

On 3 April 2006 Kojic collected chemicals from a Sydney supplier and delivered them to a factory at 23 Horning Street, Kurnell ("the offender's factory"). Police saw at least three 200 litre drums of methanol being delivered. The factory was rented by the offender. He lived with his elderly mother just up the road at 44 Horning Street, Kurnell ("the offender's home"). At the offender's factory, during the period between 3 April and 29 September 2006 ("the relevant period"), the offender knowingly participated in the manufacture of the drug MDMA. (Count 1 on indictment). On 20 April 2006 police and a forensic chemist went to the offender's factory where they covertly executed a search warrant. There they found chemicals and scientific apparatus capable of being used in the manufacture of prohibited drugs including MDMA.

Police began to intercept the offender's mobile phone. On 24 May 2006 the offender was seen at the home of a person named Joseph ARTHUR, at Terrey Hills. Over the following months, police monitored phone calls and SMS messages between the offender and Arthur in which the two men discussed, often in code, the manufacture of prohibited drugs. Arthur is the co-offender in these proceedings.

Police intercepted a number of SMS messages between the offender and Arthur in late June 2006, when they referred to quantities and the manufacture of drugs.

Police became aware of a relationship between the offender and Bikarmajeet SINGH. Singh had a property at Yanderra. On 21 June 2006 the offender (sic) police saw a pantechnicon truck at Singh's Yanderra property. The truck, registered in the offender's name, was being used by him to transport and store chemicals and equipment. Singh later told police that he allowed the offender to use his property because the offender owed him money. On 21 June 2006 police covertly executed a search warrant on the offender's pantechnicon truck, at Yanderra. They found chemicals that can be used in the manufacture of the prohibited drugs MDMA and methylamphetamine. Also seen in the truck were pressure vessels, a condenser and various other pieces of apparatus used in the manufacture of those drugs. Police did not remove or disturb any of the items they had observed that day, however, the forensic chemist took small samples of substances for analysis.

On 5 July police again covertly searched the Yanderra property and the truck and located chemicals and apparatus, including a pill press used to produce tablets. The pill press appeared to be in good order but had parts missing (including base plates). Without the missing parts the pill press was not able to be used to manufacture tablets. Police also located among the chemicals at Yanderra a drum which contained the chemical precursor 3, 4 methylenedioxy-phenyl-2-propane (sic) ("MDP2P"). Police did not remove any items other than small samples for analysis.

On 14 July 2006 police returned to Yanderra and seized the precursor chemical (the MDP2P) and substituted an inert chemical.

Analysis confirmed that the substance was MDP2P in a quantity of 388.6 grammes. (Form 1 number 1)

During the relevant period the offender and his co-offender Arthur arranged for the manufacture of missing parts, including pins and base-plates, for the pill press.

On 5 September 2006 Arthur told the offender that the parts for the pill press were ready. On 8 September the offender collected the pill press from the Yanderra property. They met each other several times over the next few days for the purpose of getting the pill press into working order. Their telephone discussions were monitored when they were heard to talk about "fixing the boat".

On 25 September police saw the offender walking from Franklin's supermarket at Cronulla carrying Franklin's shopping bags.

On 28 September 2006 police searched Arthur's home at Terrey Hills. There they found the pill press that they had earlier seen at Yanderra. The previously missing parts were installed and the machine was in working order. The pill press was capable of making pills embossed with a heart logo. Several pills were seen around the base of the press.

Also located at Arthur's home were several Franklin's Supermarket shopping bags, containing 1.0938 kilogrammes of MDMA in powder form. (Count 1 on indictment). One of the Franklin's bags had a receipt indicating a sale from the Cronulla store at the time and date when police had seen the offender at Cronulla on 25 September.

Police also located a vacuum sealer at Arthur's home. In June 2006, during an intercepted telephone call, police heard Arthur ask the offender to "bring the vac". Police also found about 200 kilogrammes of binding agent used in the pressing of pills.

The offender's home and factory were searched on 28 September 2006. The factory premises contained inter alia 500kg caustic soda, 30 drums of unknown liquids labelled toluene, methylene chloride, acetone and isopropyl alcohol. Two cylinders of nitrogen and hydrogen, a custom made fibreglass vessel with a bolt on lid, a number of custom made stainless steel vessels and various pieces of apparatus were found along with approximately 6 kilogrammes of a grey substance believed to be a binding agent in the manufacture of pills. Also located inside the factory was a disassembled air rifle. (Form 1 numbers 4 and 5).

Inside a stool in the offender's bedroom police found $30,400 in Australian currency. (Count 2 on indictment). They also found a fraudulent driver's licence depicting the offender in the name of David RADFORD. (Form 1 number 6).

Also located in the bedroom were approximately 60 white tablets which were later found to be 12.81 grammes of MDMA. The tablets had a 'yin-yang' logo. (Form 1 number 3).

Police also found in the bedroom a moist yellow substance which on analysis was found to be 42.70 grammes of methylamphetamine. (Form 1 number 2).

On 4 October 2006 police executed a search warrant at Yanderra and found chemicals and apparatus capable of being used to manufacture MDMA and methylamphetamine. Some of the apparatus had traces of MDP2P and MDMA on them."

Respondent's Subjective Case 15 The respondent gave evidence before the Judge and a pre-sentence report dated 4 April 2008 was tendered. 16 The respondent was born on 13 June 1966 and was 41 years old at the time of sentence. He has a 14 year-old son who has been in the care of his mother and from August 1999 they have resided in Queensland. In 1988 the respondent graduated with an Honours degree in mechanical engineering. He had a stable work history in information technology (IT) and was for some five years an IT tutor in the medical faculty of the university whilst pursuing a Masters degree which he partially completed. Since 2000 until his arrest, he was self employed running his own engineering metal fabrication business at the warehouse in Kurnell. The respondent at first rented and then purchased the warehouse. Following the respondent's arrest, the warehouse had been sold to repay his debts and to finance his legal expenses. 17 He reported a long standing history of using amphetamines (speed) and methamphetamines (ecstacy) that began when he was aged 24 years. His introduction to illicit substances was recreational, but increased as he used speed to assist him with the demands of his tutoring and university studies. There was a further escalation in his consumption of speed when he was self-employed. His use of speed, the respondent said, dominated his life and impaired his judgment. At the time of his arrest, he was using 3 grams of "pure speed" a week. 18 The author of the pre-sentence report was told by the respondent that the person for whom he purchased and stored the chemicals was someone who had secured him a loan and to whom he also owed money and that it was from feeling indebted to this person that he could not refuse his request. 19 Before the Judge the respondent testified that he had been approached by Bikarmajeet Singh to buy the chemicals for him. The respondent then approached Branislav Kojic, who owned a cleaning company and whom he had known for a few years, to buy the chemicals. Singh had not told him what the purchase was for, but he became aware over the course of time that it was for the manufacture of drugs. 20 Singh had also asked him to purchase "a few other bits and pieces of chemical apparatus" such as some glassware. The respondent said that his involvement was to store the chemicals at his factory and deliver them by truck which he provided to Singh at his property at Yanderra. He was also asked by Singh and his associate to fix the pill press so that it was in working order. He collected the pill press from Yanderra, took it to his factory and manufactured the parts that were missing utilising his skills as an engineer. He created the templates, machined them on a lathe, connected them to the press and gave them to Joe Arthur. At a later stage, he delivered tools to Arthur in plastic Franklins shopping bags for the continued use of the press. He did not deliver any drugs or ecstacy to Arthur nor did he know precisely where the ecstacy powder found at Arthur's home came from. He testified that the person who the pill press had belonged to had made some agreement to do the [pill] pressing at Arthur's place. His task was, he said, to get the press in working order. 21 The methylamphetamine and ecstacy found in his home when he was arrested, he said, had been bought from a friend of Arthur and a friend of Singh. 22 The respondent's prior criminal history revealed an offence of supply a prohibited drug (speed) for which he was sentenced in the District Court at Sydney on 15 April 1994 to a minimum term of imprisonment of 2 years with an additional term of 12 months imprisonment. On 6 July 1998 for an offence of possession of prohibited drug, he was convicted and fined in the Local Court. 23 During cross-examination, the respondent in response to the question: "Why do you say you got involved with Singh then?…" Replied: "Because he helped me purchase my property. He had the finances to help me purchase my property. He personally gave me $100,000 and plus he arranged a loan for $200,000 to which I was paying the loan off to the financial institution and the $100,000 was a personal thing that I was paying him off. And as a - in order to pay him off he asked me to purchase equipment for him and chemicals for him that he did not want to be involved with. I purchased some chemicals and some glassware from Mr Kojic. I drove the Pantec - and I put them in the truck. I drove the truck out to him, I think It was around about June, early June, May/June, and the truck was left there from that time since." (POS at 26 04/04/08). 24 The chemicals could be stored in his factory for a month or more. They were sealed in drums or bottles and the respondent said he did not recall ever opening them, looking inside or doing anything with them. 25 He denied the factory premises were used to manufacture MDMA or methylamphetamine. When cross-examined how pieces of equipment such as the ceiling fans installed in the factory came to have illicit substances detected upon them, the respondent said that he had cleaned the pill press with compressed air and "would have splattered the residue of the pill press throughout this back room." 26 The respondent's older sister gave evidence that the respondent had expressed his remorse for the commission of the offence to her "quite often" and she was absolutely confident that he would remain drug and crime free in the future.

Crown case in reply 27 To rebut the respondent's evidence that the factory had not been used to manufacture prohibited drugs, the Crown called Michelle Sewell, a forensic chemist, who had taken a number of swabs at the factory on 28 September 2006. Seventeen samples were sent for her analysis which included swabs of the extraction fans and an air purifying respirator. Upon analysis, traces of methylamphetamine, MDMA, MDP2P and caffeine were found. In her report (exhibit B) Ms Sewell opined that the results were consistent with the premises having been used to manufacture both MDMA and methylamphetamine. She stated that the manufacture of these drugs creates chemical fumes which also contain drugs and in her experience fans were often used to extract fumes from premises where the manufacture of illicit drugs was taking place. The presence of MDP2P on the swabs, Ms Sewell wrote, was consistent with the manufacture of MDMA from MDP2P having taken place at the factory premises. The presence of caffeine on a number of swabs was also consistent with the premise being used for manufacture of drugs as caffeine can be used as a cutting agent to dilute drugs. 28 In cross-examination, Ms Sewell testified that it was very unlikely the drugs were detected due to the cleaning of the pill press as the swabs were taken from around the entire room. A significant amount of dust would have had to have been created through the cleaning process, and the pill press held up against the ceiling.

Some findings of fact by the Judge 29 The Judge accepted that the factory premises were used to store chemicals but found that prohibited drugs were not manufactured there. His Honour considered that: (ROS at 9) "…the offender's role in storing the chemicals and obtaining the chemicals was a significant role. The offence was part of a planned activity and this also is a matter to be taken into account. The offender has a previous conviction for supply drug and whilst this is not taken into account in relation to the objective seriousness of the offence it does indicate that no leniency be shown to the offender." 30 His Honour said: (ROS at 10) "On the evidence before me, other than the assistance he gave in preparing the pill press, that was his involvement in knowingly take part in the manufacture of the prohibited drug." 31 And his Honour went on to say: (ROS at 11) "I still consider, taking all those matters into account, that the offence is in the mid-range of seriousness because his part was a significant part in arranging for the supply of chemicals, storing those chemical and for then such chemicals to be delivered to Mr Singh." Dealing with the Appeal 32 The first discrete error alleged by the Crown is that the Judge failed to have proper regard to the standard minimum non-parole period prescribed by Division 1A of Part 4A of the Crimes (Sentencing Procedure) Act when he sentenced the respondent for the offence contrary to s 24(2) of the Drug Misuse and Trafficking Act. 33 Mr Babb SC for the Crown submitted that the sentence fell so far below the standard non-parole period of 15 years as to suggest that it was not used as guidepost or benchmark in any way. The Judge noted but for the plea of guilty the appropriate sentence would have been 10 years. Even accepting the 25 per cent discount for the plea of guilty and the amendment to the statutory ratio for special circumstances, the Crown pointed out that his Honour's original starting point for the non-parole period was slightly less than 5 years 4 months which was approximately one third of the 15 year standard non-parole period. Taking into account the finding that the offence fell within the mid-range of objective seriousness, the Crown argued that the offence should have attracted a much higher overall sentence and non-parole period. 34 Mr Dhanji, counsel for the respondent, submitted that the Crown's contention was based on the assumption that a standard non-parole period applies to an offence of knowingly take part in the supply of a prohibited drug contrary to s 24 (2) of the Drug Misuse and Trafficking Act which the respondent did not accept. Mr Dhanji argued that the s 54A(1) of the Crimes (Sentencing Procedure) Act requires that, in order for a standard non-parole period to be prescribed, "the offence" be set out in the Table to Part 4 Division 1A with a corresponding non-parole period set out opposite. The offence of knowingly take part in the manufacture of a prohibited drug does not appear in the Table. Section 24(2) of the Drug Misuse and Trafficking Act creates an offence of manufacturing a commercial quantity of a prohibited drug, as well as an offence of knowingly take part in the manufacture of the drug which all other things being equal was a less serious offence. It could not be expected, it was contended, that Parliament intended to provide the same standard non-parole period for the knowingly concerned offence and that such an approach intended by the legislature was consistent with the legislature's intention not to include attempts to commit offences in the Table. The respondent's counsel further submitted that where the provisions of Division 1A do not mandate the sentence, they will constrain the sentencing discretion and there was a presumption against extending the scope of a penal statute.

35 The Crown's principal response on this issue was that the section number in the Table is the identifier of the offence and the words in brackets merely give some indication of the contents for ease of reference. The offence, it was argued, is listed next to the corresponding item by its section number.

36 The standard non-parole provisions are found in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act.

Section 54A(1) provides: "For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division." 37 The Table follows s 54D. Items 16 and 17 in the Table are as follows: Table Standard non-parole periods Item no Offence Standard Non- Parole Period

16 Section 24(2) of the Drug Misuse and Trafficking 10 years Act 1985 (manufacture or production of commercial quantity of prohibited drug) being an offence that:

(a) does not relate to cannabis leaf; and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug. 17 Section 24(2) of the Drug Misuse and Trafficking Act 15 years 1985 (manufacture or production of commercial quantity of prohibited drug),being an offence that:

(a) does not relate to cannabis leaf; and (b) if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug." 38 Section 24(2) of the Drug Misuse and Trafficking Act is as follows: "A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence." 39 The offences within s 24(2) of manufacture and knowingly take part in the manufacture of a prohibited drug are distinct: R v Deng (1996) 91 A Crim R 80. The large commercial quantity of 3,4 -methylenedioxymethlyamphetamine is 0.5kg: Schedule 1 to the Drug Misuse and Trafficking Act. 40 The question is whether item 17 in the Table includes knowingly take part in the manufacture of a large commercial quantity of the prohibited drug so that the standard non-parole period of 15 years applies. As the respondent contends, there is no reference to "knowingly take part in" in the bracketed words (manufacture or production of commercial quantity of prohibited drug). 41 The structure of the Table, it seems to me, provides support for the view that the offence for the purposes of s 54A is that specified by its section number in each item in the Table. 42 By way of illustration (without detailing all of the Table); · Item 3 in the Table is as follows: "Sections 27, 28, 29 or 30 of the Crimes Act 1900 (attempt murder) 10 years" 43 The general description of attempt murder is used to cover each of the manifestations of attempt murder in ss 27, 28, 29 or 30 of the Crimes Act. Each of these offences is neither set out verbatim nor individually described in the words in brackets attempt murder. · Item 11 in the Table is as follows: " Section 98 of the Crimes Act 1900 (robbery with arms etc and wounding) 7 years" 44 The bracketed words robbery with arms etc and wounding replicate the heading under which the offence appears in the Crimes Act. An offence contrary to s 98 may be committed when the robbery is accompanied by the infliction of grievous bodily harm of which there is no reference in the words in brackets. There is no basis for a conclusion that the legislature intended that robbery with wounding be a standard non-parole offence whereas robbery with the infliction of grievous bodily harm was not to be. · Item 15B in the Table appears as follows: " Section 203E of the Crimes Act 1900 (bushfires) 5 years" 45 A bushfire, it is trite to observe, is not a criminal offence, however, the intentional causing of a fire with recklessness as to its spread offends s 203E of the Crimes Act. The bracketed word bushfires adopts the heading in Subdivision 5 of the Crimes Act of which s 203E forms part. The offence of intentionally causing a fire contrary to s 203E is neither set out verbatim nor described in the words in brackets. 46 The lack of precision in the words in brackets suggests that their role is confined to providing an indication of the contents of the section rather than identifying the offence to which the standard non-parole period applies. Such a drafting technique is commonly used to give some indication for example of the contents of a Subdivision in a particular Act (such as "Bushfires" for Subdivision 5 of the Crimes Act or "Minors in Sex Clubs" in Part 3A of the Summary Offences Act 1988) or by further example the contents of a particular section. The offences within s 25 of the Drug Misuse and Trafficking Act appear under the heading "Supply of prohibited drugs." In those words there is no mention that the offences to which that section applies include knowingly take part in supply. Similarly, offences contrary to s 24 of the Drug Misuse and Trafficking Act appear under the heading "Manufacture and Production of prohibited drugs". No mention is made in those words to knowingly take part in the manufacture or production of a prohibited drug which is an offence within s 24. 47 It is not surprising that the words in brackets in item 17 in the Table do not include 'knowingly take part in'. An indication of the contents of s 24 is provided by the words manufacture or production in a way similar to the heading which is found in the Drug Misuse and Trafficking Act. Nothing turns on the word "and" in the heading and the word "or" in item 17. The word "or" merely reflects the actual wording of s 24(2). 48 In my opinion, the words within the brackets in the Table items do not identify or limit in any way the offence to which the standard non-parole period applies. The offence to which the standard non-parole provisions applies is identified by the section of the statute which is found opposite the standard non-parole period in the particular Table item. 49 I do not accept, as the respondent's counsel submitted, that Parliament could not have intended to provide the same standard non-parole period for the offences of manufacture and knowingly taking part in the manufacture as the offence of manufacture is the more serious offence. As Hunt CJ at CL (with whom Mahoney P and Barr J agreed) in Deng (1996) 91 A Crim R 80 at 96 pointed out so far as the offences of supply and knowingly taking part in supply of a prohibited drug were concerned: " It is not profitable to suggest which of those two offences is the more serious: each has the same maximum sentence, and the circumstances in which each offence may take place are varied indeed." 50 His Honour's observations are apposite, to my mind, to offences against s 24(2) of the Drug Misuse and Trafficking Act. 51 There is a deal of difference between an offence of attempt and an offence of knowingly take part [in an offence] and I do not accept the analogy which the respondent's counsel drew between them. When introducing the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill, the Attorney General in the Second Reading Speech made specific reference to not including '"attempt" offences, other than "attempt murder" offences, within the standard non-parole sentencing scheme': Hansard 23 October 2002 5818. No mention was made by the Attorney General of offences of knowingly take part in. The specific reference to attempt offences, it seems to me, does not support the argument mounted for the respondent. 52 The assumption against extending the scope of a penal statute only operates in the case of uncertainty or ambiguity: R v Orcher [1999] NSWCCA 356; Einfield v R [2008] NSWCCA 215. In my view, there is no uncertainty or ambiguity in the Table. As I have said, the offence to which the standard non-parole provision applies is identified by the section in the statute opposite to it in the particular Table item. 53 For the foregoing reasons, in my opinion, the standard non-parole period provisions apply to an offence of knowingly take part in the manufacture of the large commercial quantity of 3,4 - methylenedioxymethylamphetamine contrary to s 24(2) of the Drug Misuse and Trafficking Act. The standard non-parole period prescribed is 15 years imprisonment: Part 4 Division 1A of the Crimes (Sentencing Procedure) Act and Table item 17. 54 The Judge correctly identified the standard non-parole period as being 15 years imprisonment (ROS at 6).

Factual findings made by the Judge 55 In order to further consider the Crown's first complaint of discrete error, it is necessary to consider the Crown's criticism of the factual findings made by the Judge.

56 The Crown contended that the Judge erred in his findings of fact concerning the respondent's role and submitted that there was proof beyond reasonable doubt on which to find that the factory had been used to manufacture MDMA. His Honour, the Crown submitted, seems to have indicated that as the evidence was not in the agreed facts he would not accord it much, if any, weight. The Crown pointed out that the respondent had not expressed an opinion in relation to the presence of MDP2P nor was Ms Sewell cross-examined about the presence of MDP2P on the swabs. The Crown argued that the presence of MDP2P was damning, as it would not have been present in the final product (having already been converted to MDMA) and therefore would not have been on the pill press if and when it was cleaned. 57 The respondent's counsel submitted that the presence of MDP2P at the respondent's factory could never establish the manufacture of the 1.0938 kgs of MDMA the subject of the charge. Mr Dhanji referred this Court to the Crown Advocate's advice to the Judge that whilst it was the Crown contention that the factory had been used for the manufacture of prohibited drugs, it was not the Crown case that it was the respondent who manufactured them. 58 It was not an agreed fact that the drugs the subject of the charge were manufactured in the respondent's factory.

59 Ms Sewell's evidence, in my opinion, was compelling. I have no doubt on the evidence before his Honour that MDMA and methylamphetamine had been manufactured on the premises notwithstanding the respondent's evidence. The presence of MDP2P and caffeine were some of the circumstances which pointed strongly to manufacture. The difficulty, however, for the Crown as Mr Babb fairly conceded in this Court was that the forensic chemist's evidence could not be linked to the manufacture of the 1.0938 kilograms of MDMA the subject of count 1. As the Judge correctly pointed out, suspicion was not enough, proof beyond reasonable doubt was required. His Honour, in my view, did not err in his assessment of the respondent's role in the commission of the offence. 60 The Crown argued that his Honour erred when he said: (ROS at 10) "I accept that his addiction has so conditioned his mental processes that he has not appreciated the full extent of his criminality." 61 There was no evidence, the Crown submitted, on which to base this finding. 62 The Judge had heard evidence of the respondent's drug addiction and had the opportunity, unlike this Court, of seeing and hearing him give evidence. It was open to his Honour to make such a finding on the evidence before him. In any event, as was submitted for the respondent, his Honour did not suggest that he regarded this to be a matter in mitigation, but rather as providing some explanation for the respondent's involvement in the offence. 63 I am not satisfied that the second ground of discrete error alleged by the Crown has been established. 64 The Crown did not submit that his Honour erred in characterising the offence as falling within the middle of the range of objective seriousness. The Crown, however, submitted that it was hard to reconcile this finding with the sentence imposed, especially as the head sentence but for the plea would have been 10 years imprisonment. The Crown was also critical of the utilitarian discount for the plea of guilty being assessed at 25 per cent. 65 In his sentencing remarks, the Judge acknowledged that the Court was required to take into account the standard non-parole period even though a guilty plea had been entered. 66 The Judge said (ROS at 11): " The fact that the case falls within the mid range of seriousness does not of itself mean, in circumstances where the offender has pleaded guilty, that the standard non-parole period applies. I do take into account as I have already stated the nature and circumstances in which the offender came to be involved. I take into account his remorse and I also take into account in particular that he is at the crossroads in a period in his life. He is now forty-one years of age. His business has gone, his parents who are on the pension and have done their best to educate he and his sister and make them good citizens have been involved in expenses and the selling of the business. He has a son who is at present fourteen years of age and on the evidence of his sister he is devoted to and whom he wishes to be of assistance. These factors, particularly as I have stated, his present age and his plea of guilty and the fact that the offence is concerned with taking part in the manufacture of the prohibited substance in the count one, and that amount only and for the period referred to in the indictment, I consider that it is appropriate not to apply the standard non-parole period of fifteen years." (italics added) 67 And further (ROS at 13): "I consider the appropriate sentence but for the plea of guilty would be a period of imprisonment of ten years . I would consider that the offender is entitled to a discount of twenty-five per cent. The reason for that, despite the fact that the plea was made on 11 February 2008, is that the thrust of the offender's defence to the offence was that the evidence obtained on the covert search was evidence which could have been successfully challenged by the accused as appropriately admissible. The Crown has accepted that if the evidence was found to be inadmissible, that is the evidence of the covert search occurred, then the Crown case against the offender would not be as strong. The plea therefore by the offender does have considerable utilitarian value and because of that utilitarian value, I consider that the offender is entitled to the discount of twenty-five per cent. A discount of twenty-five percent would bring about a sentence of seven and a half years imprisonment." (italics added) 68 His Honour found special circumstances being the respondent's need to continue with his efforts at rehabilitation and to ensure that he remains drug free. A non-parole period of 4 years was set. 69 It is apparent from the Judge's sentencing remarks that his assessment of the utilitarian value of the plea focussed on the respondent's waiver of a possible defence. Such a consideration has no bearing on the utilitarian value of the plea which was entered on the first day of the trial following what was described as the presentation of a "fresh indictment". Counsel for the respondent acknowledged in written submissions that the fact that the respondent pleaded guilty where he may have had a defence available to him went to the strength of the Crown case and was not a matter relevant to the utilitarian value of the plea: see R v Sutton [2004] NSWCCA at [12]. 70 Having made that concession, counsel for the respondent argued that the discount could be justified as encompassing the utilitarian value of the plea and remorse. Mr Dhanji further cited R v Halls [2008] NSWCCA 251 where a discount of 20 per cent for a plea entered on the second day of the trial was found to be within the available sentencing range. 71 Remorse was a factor which was taken into account by his Honour in departing from the standard non-parole period and to take remorse into account again in the assessment of the value of the plea would amount to impermissible double counting. This Court has emphasised that a discount for remorse "in combination with the discount resulting from the utilitarian value of the plea of guilty is to be avoided": R v M.A.K; M.S.K [2006] NSWCCA 381 at [44]. In any event, the Judge did not combine in his assessment of the value of the plea its utilitarian benefit and remorse and I reject Mr Dhanji's submission. 72 This was a plea which was entered on the first day of a trial which was estimated to take two weeks. The respondent had been committed for trial after a three day committal hearing in October 2007. The trial whilst not straight forward was not unduly complex. The rationale for a twenty five per cent discount did not exist in this case. As was said in R v Thomson & Houlton (2000) 49 NSWLR 383 per Spigelman CJ at [155]: "The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial."

73 The facts in Halls were different to the present case. There the trial was potentially lengthy. The estimate was three to ten weeks. The Crown would have been obliged to prove tendency by reference to past offences. The assessment of the utilitarian value of the plea entered on the second day of the trial of 20 per cent was described by Kirby J as "most generous" and "stretching the envelope". Kirby J, however, with whom Hodgson JA agreed, came to the view "with some hesitation" that the allowance was open to the Judge in that case [at 47]. Hislop J in a separate judgment did not agree that the allowance of a 20 per cent discount for the plea entered on the second day of the trial was open to the Judge.

74 In my respectful opinion, his Honour erred in the exercise of his discretion when he assessed the utilitarian value of the plea at 25 per cent. The discount for the plea should not have been assessed at more than 15 per cent. 75 His Honour appropriately characterised the offence as falling within the mid-range of objective seriousness. As his Honour found, the respondent's role in storing and obtaining the chemicals was "significant" and "was part of a planned activity". His criminality included the repair of the pill press which was of importance to the commercial operation. The amount of the prohibited drug was slightly more than double the large commercial quantity. The offending occurred between early April and late September 2006. The prior conviction for supply of a prohibited drug, his Honour found, indicated that "no leniency be shown to the offender." 76 Even though the respondent pleaded guilty, the standard non-parole period of 15 years remained a guidepost or indicator of the appropriate sentence. Apart from the plea, the factors identified by the Judge in justifying the departure from the standard non-parole period were the respondent's remorse, that he was "at a crossroads in a period in his life", was 41 years old and the finding of special circumstances which the Judge considered involved rehabilitation. The Judge noted that the respondent had been participating whilst in custody in a twelve-step program to understand his drug addiction and the respondent considered himself to be drug free. It was necessary, his Honour said, for the respondent at this time of his life to continue with his efforts at rehabilitation and to remain drug free. As against the guidepost of 15 years, the mandatory period of custody was set at 4 years. 77 The promotion of the rehabilitation of an offender is one of seven purposes of punishment set out in s 3A of the Crimes (Sentencing Procedure) Act and the prospect of rehabilitation is an important consideration in the sentencing exercise. It was, however, incumbent upon the Judge not to give undue weight to rehabilitation in the balancing process and to have proper regard to the serious objective circumstances of the respondent's offending. This Court has for many years emphasised that the evils of the drug trade require that the Courts take a very firm stand against it. R v Wong (1988) 39 A Crim R 1 at 3; R v Colin [2000] NSWCCA 236 at [15]. Deterrence both specific and general and the protection of the community must be important considerations. It seems clear that the Judge allowed the respondent's subjective features to overshadow his regard for the standard non-parole period as a guidepost and insufficient weight was given to the standard non-parole period of 15 years. With respect, proper consideration of the term of the standard non-parole period was not given by the mere acknowledgement that it must be taken into account. 78 I am satisfied that the first, third and fifth grounds of discrete error alleged by the Crown have been established. 79 The Crown next complained that the Judge erred in his approach to the drug offences on the Form 1. 80 The Crown submitted that the Judge had acted on the misunderstanding that the first offence on the Form 1 could be dealt with summarily and had, furthermore, understood the respondent's evidence to have been that the prohibited drugs, the subject of offences 2 and 3 on the Form 1, were for his own use when that was not the case. 81 Counsel for the respondent argued that the misunderstandings by the Judge would not have had any significant impact on the weight to be given to personal deterrence or retribution with respect to the offence on the indictment. 82 The first offence on the Form 1 was the possession of a precursor, 388.6 grams of 3, 4 methylenedioxy-phenyl-2-propanone, (MDP2P) intended to be used in the manufacture of a prohibited drug, namely 3,4 - methylenedioxmethylamphetamine (MDMA) contrary to s 24A(1) of the Drug Misuse and Trafficking Act. 83 During his sentencing remarks, the following exchange took place between the Judge and the respondent's then counsel: "In determining the appropriate sentence I also have to take into account the matters as I have already referred to in the Form 1. The first offence referred to in the Form 1 is a matter which can be dealt with summarily, is it not, Mr Goold? In any event, it is a maximum penalty of two years imprisonment. Goold: That's correct, your Honour." 84 Section 260(1) of the Criminal Procedure Act provides: "An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by a Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment." 85 Part 16 of Table 1 to Schedule 1 applies to offences under the Drug Misuse and Trafficking Act .

86 Clause 30A of Schedule 1 of the Criminal Procedure Act is as follows: " Offence involving possession of precursors for manufacture or production of prohibited drugs An offence referred to in section 24A of the Drug Misuse and Trafficking Act 1985." 87 The first offence on the Form 1 being an offence contrary to s 24A of the Drug Misuse and Trafficking Act was an indictable offence which was to be dealt with summarily unless the prosecutor or the person charged elected to have it dealt with upon indictment. The maximum penalty upon summary disposal is 2 years imprisonment or a fine of 100 penalty units, or both. If dealt with upon indictment, the maximum penalty is a term of imprisonment for a term of 10 years or a fine of 2000 penalty units or both. 88 During the proceedings on sentence, the Judge was informed that the maximum penalty was 10 years. His Honour was entitled to take into account that the offence could have been dealt with summarily. I am not persuaded that what was said was anything more than recognition by his Honour that the offence was capable of summary disposal. 89 This was, however, a serious offence. The police found in the respondent's factory over a third of a kilogram of MDP2P which was a precursor to the manufacture of MDMA. The amount of the prohibited drug in the respondent's possession was more than the commercial quantity applicable to that drug. It would not have been appropriate for this offence to have been dealt with summarily in the Local Court. 90 As to offences 2 and 3 on the Form 1, his Honour said: "I accept the evidence as to the offences numbered 2 and 3 on the Form 1 that the prohibited drugs were for his own use." 91 It is evident that his Honour overlooked the following question and answer in the respondent's testimony: " Q. Is it the situation that you didn't have either for any commercial supply but accept you may have given it gratuitously to friends? A. Absolutely, just to share with friends." 92 The amounts of the methylamphetamine, the subject of the second offence on the Form 1, and MDMA, the subject of the third offence on the Form was more than the indictable quantity applicable to each prohibited drug. The respondent was pursuant to s 29(1) of the Drug Misuse and Trafficking Act deemed to have had the drugs in his possession for supply. It was not open on the evidence for his Honour to accept that the drugs were for the respondent's own use and in doing so, in my respectful opinion, his Honour erred. Each offence, the maximum penalty for which was 15 years imprisonment, was serious. 93 It is settled principle that the sentence for the primary offence should not be only slightly increased if the offences to be taken into account on the Form 1 are serious in their own right: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. 94 The term of the sentence imposed reflects his Honour's failure to properly consider the drug offences on the Form 1. I find the fourth discrete error alleged by the Crown established. 95 Although error has been identified the question remains whether the sentence is manifestly inadequate. 96 Counsel for the respondent contended that the sentence imposed by the Judge was open to him having regard to the sentence imposed on the co-offender Joseph Arthur (Arthur). Arthur was charged in similar terms to the respondent with an offence contrary to s 24(2) of the Drug Misuse and Traffic Act. Sweeney DCJ sentenced Arthur to 5 years imprisonment consisting of a non-parole period of 3 years with a balance of term of 2 years. The Crown did not appeal against the manifest inadequacy of Arthur's sentence. 97 Mr Dhanji submitted that the Judge had regard to the sentence imposed on Arthur and the sentence imposed on the respondent achieved parity with that imposed on Arthur taking into account their different involvements and respective subjective cases. It was argued that the Court should not intervene on a Crown appeal to create a disparity. 98 It would seem from Sweeney DCJ's sentencing remarks that Arthur's role in the criminal enterprise was confined to obtaining parts for and repairing the pill press and to providing his premises for the pill pressing to occur. He was to be paid $4,000. An aggravating factor was at the time of the commission of the offence he was on bail. He had prior convictions for drug supply. Her Honour took into account that alcohol was a factor in the commission of the offence and that Arthur, who was 49 years old, had good prospects of rehabilitation. Sweeney DCJ found special circumstances. Her Honour characterised Arthur's offence as being "well below the mid-range of seriousness." Arthur had pleaded guilty in the Local Court and an allowance for the utilitarian value of the plea was determined at 25 per cent. 99 In the present case, the Judge referred to Sweeney DCJ's sentencing remarks and correctly determined, as I have indicated, that the respondent's offence fell within the mid-range of seriousness. Unlike Arthur, the part which the respondent played in the offence extended beyond the pill press. Although the respondent was not on conditional liberty when he offended, the Judge was required to take into account the offences on the Form 1. The utilitarian discount for the plea should not have been assessed at more than 15 per cent. 100 The parity principle is "an aspect of equal justice": Postiglione v The Queen (1997) 189 CLR 295 at 301. As was pointed out by Dawson and Gaudron JJ "like should be treated alike, but that, if there are relevant differences, due allowance should be made for them." 101 As a result of the errors that the Judge made when he came to sentence the respondent, due allowance was not made, in my respectful opinion, for the respondent's more serious offending and I reject the submission made for the respondent. 102 A number of sentences imposed in other cases were referred to by the respondent's counsel in written submissions. Some of those sentences preceded the prescription of the standard non-parole period. Attention was also drawn to Judicial Commission sentencing statistics. Whilst a consideration of this material is helpful and promotes consistency in sentencing, it is for this Court to determine upon the facts in this case whether the sentence imposed is manifestly inadequate. 103 The maximum penalty for the offence contrary to s 24(2) of the Drug Misuse and Trafficking Act is life imprisonment with a standard non-parole period of 15 years. To my mind, a sentence of 7 years 6 months with a non-parole period of 4 years is not merely lenient but is manifestly inadequate.

Intervention 104 Even if error is shown, this Court has a discretion to refuse to intervene and in deciding whether to exercise that discretion, the Court is to have regard to the double jeopardy that the convicted person faces as a result of a Crown appeal. In considering whether to exercise that discretion I have taken into account the respondent's affidavit affirmed 2 December 2008 which indicates that he continues to seek drug rehabilitation and is employed in a position of trust at the Kempsey Correctional Centre. Whilst that is encouraging, the respondent knowingly took part in the manufacture of a large commercial quantity of MDMA and it is of importance because of the evils of drug related crime that this Court ensures proper sentencing standards are adhered to: see R v Harmouche (2005) 158 A Crim R 357. I am not of the opinion in the circumstances of this case that the Court should exercise its discretion not to intervene. 105 I am satisfied that the Crown appeal should be upheld. Re-sentencing 106 The Court is obliged to have regard when re-sentencing to the principles of double jeopardy and to the obligation to impose the minimum sentence which a Court might have imposed at first instance rather than a sentence that the Court considers to be the appropriate sentence. I have taken into account upon re-sentence the contents of the respondent's affidavit and the sentence imposed on Arthur. Considerations of parity remain of importance when re-sentencing. 107 I have concluded that the minimum sentence that might have been imposed is a term of imprisonment of 9 years consisting of a non-parole period of 5 years 6 months with a balance of term of 3 years 6 months. If it had not been necessary to give weight to parity with Arthur's sentence the increase in sentence would have been more substantial. 108 The starting point of the sentence is 10 years 7 months and the utilitarian value of the plea of guilty is assessed at 15 per cent. The plea, the respondent's subjective features and considerations of parity justify the departure from the standard non-parole period and the balance of term reflects the special circumstances of the need for rehabilitation.

109 Accordingly, the orders that I propose are: 1. The Crown appeal against sentence be upheld. 2. The sentence imposed in the District Court for count 1 being an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act be quashed. 3. The conviction is confirmed. 4. The respondent in respect of count 1 (taking into account the matters on the Form 1) is sentenced to a term of imprisonment of 9 years consisting of a non-parole period of 5 years 6 months commencing on 29 September 2006 and expiring on 28 March 2012 with a balance of term of 3 years 6 months commencing on 29 March 2012 and expiring on 28 September 2015.

The earliest date on which the respondent will be eligible for release to parole is 28 March 2012. **********

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