Lewis v R

Lewis v R - [2021] NSWCCA 108 - NSWCCA 2021 case summary — Zoe

[3]

THE FACTS OF THE OFFENDING

The facts of the offending which were found by the sentencing judge following the jury's verdict may be summarised as follows.
In late 2015, the applicant was employed by the Hawkesbury City Council. Michael Stewart (Stewart), who was the applicant's supervisor and with whom he also had a social relationship, owned a property in East Kurrajong, the area of which was slightly less than one acre. A three bedroom house, a carport, and a double garage/shed were erected on the property.
In late 2015, the applicant asked Stewart if he could store some equipment in the shed for a friend, Raymond Bell (Bell). The applicant told Stewart that he wanted to "do a cook-up" which would "only be a small thing" and which would "go for a couple of hours". A number of items were subsequently delivered to the property including two large reaction vessels each with a capacity of about 220 litres, stoppers to seal the apertures at the top of each reaction vessel, injection tubes, funnels and condensers.
On 28 December 2015 the applicant told Stewart that the "cook-up" would be likely to take place that evening. Stewart was home at about 8.00pm when two vehicles arrived, one of which he recognised as the applicant's work utility. In the rear tray of that vehicle Stewart saw a number of items including gas bottles, a pump, a length of blue hose and what he thought were a number of empty boxes. Another vehicle driven by Tsimingos subsequently arrived at the property. Both vehicles were then driven to the entrance to the shed, at which time the items from the back of the applicant's utility were unloaded before being taken inside the shed and assembled. The windows of the shed were then taped up and one of the reaction vessels was unwrapped.
When Stewart later returned to the shed he saw Tsimingos using a red funnel. When Tsimingos asked him whether he had anything to remove a blockage in the funnel, Stewart found an aluminium rod which he gave to Tsimingos. Stewart also observed Bell with a 20 litre bucket which contained what he described as "bluey-purply" crystals. He also saw the applicant using a rod to break up the crystals in the bucket.
At about 11.00pm the applicant, Tsimingos and Bell all came out of the shed. The applicant then fell to the ground with a coughing attack. Either Bell or Tsimingos told Stewart that the applicant had "sucked in a mouthful", an apparent reference to the applicant having inhaled fumes created by the manufacturing process. As the applicant continued coughing, Stewart took him inside the house and assisted him by providing a nebuliser. The applicant stayed inside Stewart's premises for the remainder of the night while Bell and Tsimingos remained in or about the shed.
At about 6.00am the following morning Stewart went outside and saw Tsimingos coming out of the shed. He was wearing a mask and was accompanied by Bell. Stewart heard Tsimingos say words to the effect "it's too hot. It's not cooling down" before walking back into the shed. About 10 seconds later, there was a large explosion which propelled a reaction vessel through the roller door of the shed. The chemicals inside the reaction vessel splattered throughout the shed, over the applicant's vehicle and over the vehicle which had been driven to the premises by Tsimingos. The explosion also shattered a glass window at the back of the shed. Tsimingos suffered significant injuries as a consequence of the explosion, including substantial burns extending from above his groin to below his knees and shrapnel punctures as a consequence of being sprayed with multiple glass fragments.
Stewart saw smoke coming out of the shed and heard Tsimingos yelling for help. He obtained a hose and sprayed water on Tsimingos, following which Bell and the applicant put Tsimingos on the back seat of the applicant's vehicle and drove off. Subsequent investigations by the police found 13.0569kg of methylamphetamine in the exploded reaction vessel.

[5]

THE FINDINGS OF THE SENTENCING JUDGE

The sentencing judge found that the applicant: [1] 1. had persuaded Stewart to lend his property to the enterprise so that the cooking kit could be stored, and the manufacture carried out, at that property; 2. knew what the kit was for, having told Stewart of the proposed manufacture; 3. knew when the manufacture was to occur; 4. took items to the property which were to be used in the manufacture; 5. was seen to be actively engaged in crushing material, which may well have been Iodine, that was used in the manufacture; 6. was overcome by fumes generated from the manufacturing process, following which he took no further part in it; 7. assisted Bell in taking Tsimingos away from the site of the explosion; and 8. sought to cover his tracks by having his vehicle detailed in an attempt to try to remove evidence that it had been splattered by the contents of the exploded reaction vessel.
Having made those findings, his Honour said: [2] [26] ….Having said that, there is no evidence that this 'cook-up' was planned by [the applicant] or that he stood to gain a large amount of money from it. If I categorise [the applicant] as a 'worker' in some other person's scheme, one would expect him to obtain some reward of a financial nature, but one would not expect him to obtain what could be described as 'profit' from the venture.
His Honour then turned to the role of Tsimingos: [3] [27] The role of Tsimingos was addressed by her Honour Judge Noman when she sentenced him. That was based on agreed facts which clearly cannot bind [the applicant]. The evidence establishes that it was Bell who manufactured the 'kit' that was used in the production of the large commercial quantity of methylamphetamine, which kit failed and lead [sic] to Tsimingos' injuries. However, there is no evidence that Tsimingos was the principal nor is there any evidence that Bell was the principal, although he appears to have some familiarity with the process from having manufactured the 'kit'.
Having addressed aspects of the applicant's subjective case, the sentencing judge then returned to the issue of the applicant's role: [4] [31] Again I come back to the question of what was the role of [the applicant] in this joint criminal enterprise. The only thing I can do is to put him on the same basis as Mr Tsimingos, that is, as a 'worker' in the project that may have been overseen by Mr Bell but may well have been somebody else's project. The only rational inference to draw is that there was some promise of material reward to the offender because of his involvement in the enterprise. [The applicant] was not a user of illicit drugs so it was not to obtain illicit drugs or money to support an illicit drug habit. That money which would probably not be taxed would be used to support his own lifestyle and his own financial interests.

[7]

Submissions of the Crown

The Crown submitted that the basis of the applicant's criminal liability for the offending was his participation in the manufacture of a quantity of methylamphetamine as part of a joint criminal enterprise, and that as a consequence he was liable for the acts of the other participants in furtherance of that enterprise. Whilst accepting that the applicant's level of criminality was to be assessed by reference to his conduct in the course of participating in that enterprise, the Crown submitted that this did not lead to a conclusion that such an assessment was to be limited to a consideration of his involvement in the actual process of manufacture. It was submitted that such an approach was impermissibly narrow.
The Crown submitted that the evidence supported a finding that the applicant was part of the joint criminal enterprise on and from the time he asked Stewart for permission to use the property to carry out the manufacture. In terms of what the applicant had subsequently done, the Crown pointed to his acts in bringing equipment to the property, setting it up, and taking part in the manufacturing process.
The Crown further submitted that the applicant's presence in the shed whilst the manufacture was being undertaken was a fact from which his participation in that process could be inferred. Whilst the Crown accepted that it was not possible to determine who performed what precise act(s) inside the shed, it was submitted that it was evident that each of the participants was present during the manufacturing process and that in the case of the applicant, such an inference was available from his obvious exposure to the fumes and chemicals. The Crown submitted that in all of these circumstances it had been open in sentencing judge to find that both the applicant and Tsimingos were "worker[s]" who were present and assisting in the manufacturing process.
Finally, the Crown submitted that properly understood, the sentencing judge did not equate the role played by the applicant on the one hand and Tsimingos on the other. It was submitted that notwithstanding that the sentencing judge had classified both the applicant and Tsimingos as "workers", he had nevertheless drawn a clear distinction between their actual roles, and had concluded that at least in terms of the hours spent engaged in the process of manufacture, Tsimingos' role was greater than that of the applicant.

[8]

Consideration

The proposition that the applicant's role was to be assessed solely by reference to what he did when engaged in the actual manufacturing process, and without regard to (for example) any act he performed preparatory to that process, is in my view erroneous. The applicant was a participant in a joint criminal enterprise. The assessment of his role was to be made according to what he did, and according to the entirety of the acts that he performed, in furtherance of that enterprise. [5]
Further, the dichotomy created by s 24(3) of the DMT Act provides no support for the proposition that the sentencing judge was in error in taking into account the applicant's preparatory acts when assessing his role in the joint criminal enterprise. Section 24(3) creates two offences, namely manufacturing a prohibited drug and knowingly taking part in the manufacture of a prohibited drug. The same maximum penalty is prescribed in each case, regardless of whether the drug in question is successfully produced. Generally speaking, a charge of manufacture is laid where the prohibited drug is brought into existence, and a charge of knowingly take part in the manufacture is laid when it is not. The relevant focus, therefore, is upon the outcome of the process of manufacture, rather than upon the process itself. [6]
For all of these reasons, there was no error in the approach taken by the sentencing judge in assessing the applicant's role.
Further, and contrary to the express proposition upon which this ground is based, the sentencing judge did not find that the applicant's involvement was the same as that of Tsimingos. Although his Honour found that the applicant, like Tsimingos, was a "worker", [7] he drew a clear distinction between their respective levels of involvement. In doing so, his Honour specifically pointed out that the applicant had ceased any involvement in the actual manufacturing process at about 11.00pm on 28 December 2015, but that Tsimingos had continued for a further 7 hours until the explosion. [8] Properly understood, his Honour's assessment was that Tsimingos' role was greater than that of the applicant.
For all of these reasons, this ground is not made out.

[12]

Consideration

In Goodbun v R this Court summarised the relevant principles applicable to a ground of appeal asserting manifest excess of sentence as follows: [10] 1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; 2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; 3. it is not to the point that an appellate court might have exercised the sentencing discretion differently; 4. there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and 5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.
For the reasons stated when considering ground 1, there was no error on the part of the sentencing judge in assessing the applicant's role in the offending, or his criminality.
The offence of which the applicant was found guilty, carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment. Those provisions provided important yardsticks for the assistance of the sentencing judge in determining the appropriate sentence.
Further, the amount of methylamphetamine was significant, as was the role played by the applicant. As the sentencing judge found, that role encompassed a number of separate and distinct acts, some of which were preparatory to, and others of which centred directly upon, the process of manufacturing. Further, the applicant's "detachment" from the enterprise was not the result of his voluntary withdrawal, but was forced upon him as a consequence of the fact that he was not able to physically continue. His subjective case was generally unremarkable and the overwhelming inference was that he became involved in the enterprise because of some expectation of a monetary reward. General deterrence was therefore a significant factor on sentence.
In all of these circumstances, I am not satisfied that the sentence imposed was unreasonable or plainly unjust.

[14]

THE REASONS OF THE SENTENCING JUDGE

In sentencing the applicant, the sentencing judge specifically adverted to the issue of parity: [11] [32] In my view, parity plays a major role in this case. Her Honour allowed to Tsimingos a discount of 25% for the utilitarian value of his plea of guilty. Her Honour fixed a head sentence of [9] years imprisonment. That means that if Tsimingos had not pleaded guilty her Honour would have sentenced him to imprisonment for 12 years. [The applicant] finds himself in that position. Indeed, this offender finds himself in a worse position. Tsimingos clearly had his sentence reduced because of the injuries he received which her Honour described as 'extra curial punishment'. Had he not received the injuries he did, he would have received a higher sentence than 12 years imprisonment. On the other hand, [the applicant] stopped his involvement because of a medical issue at about 11.00pm on 28 December 2015 and it appears that Mr Tsimingos and Mr Bell have continued their involvement for a further [7] hours until the explosion. Those considerations may cancel each other out. Subject to considering the personal circumstances of the [applicant], it appears to me the head sentence of 12 years is appropriate.
His Honour then addressed various aspects of the applicant's subjective case and found (inter alia) that "[i]n essence" he was a person of prior good character [12] before returning to the question of parity: [13] [36] I have mentioned the sentence passed upon the co-offender, Bill Tsimingos, to point to the matters to which I have referred. Passing a sentence of less than 12 years imprisonment upon [the applicant] would cause Mr Tsimingos to complain that there was no point in his pleading guilty because in effect his reward for pleading guilty was not as great as he had been led to believe. At the time of the offence now in question [the applicant] was 39 years old. He is now 42 years old. According to Judge Noman's remarks, Tsimingos suffered 'no disadvantage prior to offending'. Neither did the [applicant]. According to her Honour, Tsimingos had experienced "financial pressures, although it is observed that the offender was 'reasonably stable in terms of career and housing'." Even if the [applicant] perceived himself to be under financial pressure, there are other ways of increasing one's income than turning to the manufacture of illicit drugs. Her Honour accepted that Tsimingos was remorseful. There is no evidence that the [applicant] is remorseful. The history which he gave to Dr Allnutt indicates that [the applicant] does not accept the validity of the jury's verdict. Remorse is a mitigating factor but the [applicant] shows no remorse. There is nothing to differentiate [the applicant] from Mr Tsimingos other than Mr Tsimingos' injuries and his remorse.

[15]

THE SENTENCE IMPOSED ON THE CO-OFFENDER

As previously noted, Tsimingos pleaded guilty to the same charge as that brought against the applicant. After a discount of 25% to reflect the utilitarian value of that plea, Tsimingos was sentenced by her Honour Judge Noman SC to imprisonment for 9 years with a non-parole period of 6 years and 9 months. It is therefore apparent that in sentencing Tsimingos, her Honour adopted a starting point of 12 years imprisonment.
Tsimingos was sentenced on the basis of a statement of agreed facts, by reference to which her Honour said the following in assessing Tsimingos' role: [14] The acts undertaken by the offender informed his participation, although I am mindful of the overall enterprise given the reliance upon a joint criminal enterprise. The available evidence implicates the offender in purchasing some items to be used in the manufacture process and being at the shed for the duration of the manufacture undertaken. [The applicant] is implicated in organising the location and being involved initially in the manufacture process. Bell is implicated in purchasing items on the day of the commencement of the manufacture and at some earlier time custom-building the vessels. Both the offender and Bell continued with the manufacture when Lewis had absented himself due to inhaling chemicals. This impact of inhaling chemicals demonstrated the actual rather than inherent risk of engaging in illicit manufacture. The offender did not cease his involvement even when [the applicant] was required to absent himself. Clearly from what was said and done, both the offender and Bell played a continuing role in the ill-fated manufacture. Without categorising the role, it was apparently one of three involved in the cook and one of two who maintained proximity to the cook. [The applicant] appears to serve the role of facilitating the manufacture through sourcing the property well ahead of the cook and participating to a lesser extent in the manufacture. There was some pre-involvement as evidenced by the Bunnings trip. The available evidence would suggest he was differently and slightly less involved as against the co-offenders.
Although the final sentence of that paragraph is a little ambiguous, the reference to the "Bunnings trip" in the immediately preceding sentence was clearly a reference to Tsimingos. It follows that the final sentence must be construed as a finding that Tsimingos was differently and slightly less involved than the applicant. Such a finding was contrary to that made by the sentencing judge when sentencing the applicant.
Her Honour found that Tsimingos was a person of prior good character. [15] She accepted that he was remorseful for his involvement, [16] and found that such involvement was "inexplicable and an aberration". [17] Her Honour concluded that Tsimingos had insight into his offending, that his prospects of rehabilitation were highly favourable, and that he was most unlikely to reoffend". [18]
Her Honour also found that Tsimingos sustained a number of injuries as a result of the explosion, including substantial burns, lacerations to a nerve in the knee, shrapnel punctures and multiple fragmentation injuries which resulted in the necessity to undergo a series of surgeries. [19] Her Honour accepted that those injuries gave rise to ongoing issues and amounted to extra-curial punishment, [20] but did not accept that such issues could not be appropriately addressed by Justice Health. However, her Honour did accept that such injuries would render Tsimingos' period of incarceration moderately more difficult, and concluded that such matters should mitigate the sentence to be imposed. [21]
Her Honour also found that as a consequence of the explosion Tsimingos was susceptible to noise which would render his conditions of custody more onerous than might otherwise have been the case, and that there should be a "slight amelioration in sentence" as a consequence of that factor. [22] Her Honour accepted that Tsimingos suffered from a depressed mood but concluded that this was consistent with his injured state, and his expectation of incarceration. [23] She concluded that these issues did not reduce Tsimingos' moral culpability. [24]

[18]

Consideration

The principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice also requires, where permissible, the different treatment of persons according to the differences between them. Consistency in the punishment of offences against criminal law finds its expression in the parity principle which requires that like offenders should be treated in a like manner, and which allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances. [25]
The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. The question is always one of due proportion being structured between those sentences which is to be determined having regard to the different circumstances of the co-offenders and their different degrees of criminality. [26]
As discussed when considering ground 1, it is apparent that the sentencing judge concluded that having regard to the extended period of time in which Tsimingos remained in the shed compared with the applicant, Tsimingos' level of criminality was greater because he had a greater role in the actual process of manufacture. That conclusion was necessarily favourable to the applicant. That aside, I am unable to accept the submission of counsel for the applicant that the two subjective cases were essentially the same. On the contrary, there were a number of important distinguishing factors between them.
Firstly, Tsimingos pleaded guilty at the earliest opportunity, and was given the benefit of a discount of 25%. The applicant elected to go to trial.
Secondly, Judge Noman SC found that Tsimingos was remorseful. [27] No such finding was made in the applicant's case.
Thirdly, Judge Noman SC found that Tsimingos had "highly favourable" prospects of rehabilitation. The sentencing judge found himself unable, in the absence of an admission of guilt, to reach a similar conclusion in favour of the applicant.
Fourthly, Judge Noman SC found, based upon what she described as Tsimingos' "own insight supplemented by strong support in the community", that Tsimingos was "most unlikely" to reoffend. No such finding was made in the case of the applicant.
Fifthly, Tsimingos was severely injured in the course of the offending. The severity of those injuries, and their ongoing sequelae, have been summarised above and need no further comment. Contrary to the submission advanced on behalf of the applicant, those injuries are not properly viewed as having been self-inflicted, and thus deserving of little or no weight. They were accidentally inflicted in the course of committing the offence. They were also significant. It was clearly open to Judge Noman SC to regard them as constituting extra-curial punishment and to take them into account on that basis. [28] It was also open to her Honour to find that those injuries, along with Tsimingos' susceptibility to noise as a consequence of the explosion, would render his conditions of custody more onerous. The applicant did not have the benefit of any of those findings.
In light of these matters, the conclusion of the sentencing judge that there was nothing to differentiate the two subjective cases apart from Tsimingos' injuries and his remorse was an error. [29] However, it was one which favoured the applicant.
Finally, it is necessary to emphasise that when sentencing the applicant the sentencing judge specifically alluded to the question of parity. It is also important to bear in mind that the sense of grievance necessary to attract appellate intervention with respect to sentences which are said to be disparate 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 when disparity is justified by differences between co-offenders. [30] For the reasons I have set out, the disparity in the respective sentences imposed on the applicant and Tsimingos is entirely justified by the important distinguishing features in their respective subjective cases. In these circumstances, I am not persuaded that the applicant has a justifiable sense of grievance. This remains the case notwithstanding the fact that this Court has concluded [31] that Tsimingos has a justifiable sense of grievance in view of the disparity in the respective sentences which were imposed, and that his sentence should be reduced on that basis.

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