Mitchell v R

Court of Criminal Appeal (NSW)|2021-10-18|Before: Beech-Jones CJ, Hulme J, Dhanji J, Jones CJ

Judgment

BEECH-JONES CJ at CL: I agree with Dhanji J and the orders his Honour proposes.
R A HULME J: I agree that the aggregate sentence imposed upon the applicant was commensurate with all the circumstances, importantly including the totality of criminality of the serious offending described in the statement of agreed facts. I agree with the orders proposed by Dhanji J.

Factual background

A statement of agreed facts was tendered in relation to the applicant and his two co-offenders. Those facts disclosed the following.
A strike force was established in November 2012 to investigate the manufacture and supply of large commercial quantities of methylamphetamine by the applicant and his associates. A range of investigative techniques including listening devices, physical surveillance and telephone intercepts were used. The applicant was identified as the leader of what was described as a sophisticated crime syndicate, responsible for directing and organising other members of the syndicate.
Between April and December 2013, a large number of conversations relating to the manufacture and supply of methylamphetamine were recorded. The applicant was recorded discussing drug manufacturing techniques with those carrying out the manufacturing as well as organising and directing the purchase of large amounts of pseudoephedrine and other precursor chemicals. He regularly requested "stocktakes" on the end product of the manufacturing and arranged and directed the supply of the drugs. He also discussed continuing and expanding the drug manufacturing operation, as well as discussing, at certain points, retiring from drug supply and manufacturing.
In May 2013 the applicant told an associate, in a discussion about money, "everyone thinks you make so much money what we're doin. Do you know how many costs are involved bro? people don't understand that… bottles cost me, when I get my work, 135 … I'm only makin 10 000 … I've got properties, right, that we work at. I've gotta pay rent." He later told the same person that he was in the process of buying a property in someone else's name to "work at" and said that he was going to pay someone half a million dollars to learn how to make MDMA and another half a million to teach him to make "oil from P2P". The applicant explained that "P2P's better than pseudo. If we make oil from P2P, it'll be stronger than the oil you get now." I interpolate here that P2P is a common term for phenyl-2-propanone. The discussion appears to relate to its superiority over pseudoephedrine, which was being used by the syndicate, as a precursor in the manufacture of methylamphetamine.
In June 2013 the applicant explained to a co-offender that business had been slow for the last two weeks because "half a tonne of ice [had] hit the shores." He said, "Do you know what that means for us? People aren't buying our gear cause they're not making ice …".
The agreed facts disclosed that the syndicate engaged in a number of supplies, apparently in significant quantities, over the relevant period. It was not possible to quantify the precise amount of methylamphetamine supplied in these transactions.
On 5 November 2013 the applicant called Mr Zehic and told him to "sort out getting that paper" and later said to get "1.2 mill for Red". Later that afternoon the applicant contacted Mr Grogan and asked him to come to the applicant's house. Mr Grogan did so. Upon leaving the applicant's house, Mr Grogan received a text from the applicant saying, "pull that out somewhere safe". Mr Grogan then drove to an address and was seen standing next to his car with two other people, parked in front of an open garage, with the tailgate of his ute open. Mr Grogan then left. The people he had been standing next to were intercepted by police and found to have in their vehicle a cardboard box containing $1,197,980 cash in sealed clear plastic bags. This was the conduct subject of count 3 (knowingly deal with proceeds of crime).
On 23 December 2013 the police executed simultaneous search warrants at four properties related to the syndicate's activities.
At a property in Ourimbah the police found a "sophisticated clandestine laboratory" which was fully set up but inactive at the time of the search warrant. Large quantities of chemicals and scientific glassware used in the manufacture of prohibited drugs were found. In shipping containers on the property police found hundreds of kilograms of precursor chemicals, 55 bottles containing 27.241kg of methylamphetamine oil, 4.059kg of methylamphetamine blocks, 464.2g of pseudoephedrine and 43.1g of ephedrine. In the residence on that property police found $18,000 of cash, resealable bags containing 29g of methylamphetamine and 83 rounds of ammunition. A further 83.3g of methylamphetamine was found in a safe, as well as 569g of pseudoephedrine.
Of the 27.241kg of suspected methylamphetamine oil seized, 23.171kg was forensically examined and found to be methylamphetamine with an average purity of 70.6 percent. That oil was said to be the final product of the manufacture carried out by the applicant and his associates. Further chemical processes were required to convert the oil into a crystal or powder form suitable for end user consumption.
There was no evidence that the applicant ever attended or entered those premises. This was said to be consistent with his role in directing and overseeing the enterprise. CCTV footage from the driveway showed the co-offenders Mr Grogan and Mr Zehic carrying plastic containers and bags between the shipping containers.
In January 2014 another property at which Mr Grogan and Mr Zehic had been seen was searched by police. Hundreds of litres of precursor chemicals were found along with numerous 20 litre reaction vessels and various firearms and ammunition. The other three search warrants were executed at the applicant's home, Mr Morris' home and a property used by the syndicate to store and swap between "work" vehicles.
It will be necessary to return to the facts in some greater detail for the purposes of resolving the ground of appeal.

Proceedings on sentence

As noted above, the proceedings on sentence were conducted on 3 February 2017. The Crown tender bundle comprised the charge sheets, agreed facts and the applicant's criminal and custodial history. The Crown also provided written submissions. Counsel for the applicant tendered a bundle comprising written submissions, two character references, an affidavit of the applicant sworn on 2 February 2017 and the applicant's Corrective Services case management file.
The applicant's affidavit described his early life and upbringing. He was born in Orange, the eldest of three children. His father left before he was born and his mother commenced a relationship with another man. The applicant's stepfather was violent towards him and his mother. The applicant said that his mother often ended up in hospital and that he still had scars as a result of this violence. When his mother eventually left his stepfather, the family lived in a caravan in someone's backyard for several years until moving to a small house.
The applicant described his family as "very poor" and said that there was often no food at home and the Salvation Army would bring food, especially at Christmas. The applicant began working at 14 years of age and often looked after his sister during his teenage years.
When the applicant was 17 years old he left school and began an apprenticeship as a chef. Shortly after this he was kicked out of home and began to drink heavily. When his employer went out of business the applicant was "broke and out of work" and living off Centrelink payments.
The applicant said that around this time he began to take ecstasy to feel happy and then commenced selling pills to others to fund his own habit. He did this for 6-12 months before being arrested. While on bail for that offence he completed a rehabilitation course, obtained work as a furniture salesman and was living a positive lifestyle. When he was eventually sentenced to 12 months imprisonment the applicant described feeling "scared" and "angry at the system".
Upon his release the applicant again obtained work and saved up enough money to open his own business (a solarium and spray tan shop). This business was successful until it was destroyed by a relative of the applicant's ex-girlfriend. This was apparently motivated by revenge as the applicant's former girlfriend had been left with serious injuries after a suicide attempt following the end of their relationship. After his business was destroyed the applicant said he was "completely broken and started using drugs once again". He was, however, able to rebuild the business after receiving an insurance payout and he started another relationship. Things were apparently going well for him until, on the eve of a "bucks party in Surfers Paradise" the applicant was arrested for two counts of supplying a prohibited drug. The supply on this occasion was the result of the applicant purchasing drugs for his friends in the context of the party. Following a successful appeal, the applicant was sentenced to 2 years imprisonment with a non-parole period of 18 months: Shane Bradley Mitchell v R [2008] NSWCCA 192.
After being released the applicant struggled to find work and was "completely broke" with "no idea where to go or what to do". He contacted some people he had met in gaol and began participating in criminal activity. The applicant met a new partner in 2009 and had two children, born in 2010 and 2011. He was arrested for the current offences in December 2013.
The applicant said he "never saw drugs as really bad before [he] came into gaol" and said that drugs such as ecstasy had been a "positive escape" for him. The applicant said that it was only while in gaol that he saw "how [drugs] can make people crazy and act like predators". It was then that he realised he was "sorry for being a part of something which turns people this way and for ruining their lives".
The applicant's corrective services management file evidenced a very positive response to custody, certainly by the time of sentence. The applicant's case notes stated that he had been employed in various roles and displayed a good work ethic and positive attitude. The applicant was described as well-mannered, respectful and a positive influence on other inmates.

Remarks on sentence

Consistent with the agreed facts his Honour found the applicant to be at the apex of the organisation, and together with Mr Zehic was responsible for "organising, funding and directing the extensive drug business that the offenders were involved in".
As to the quantity involved in the manufacture offence, the sentencing judge noted that taking into account the approximately 23kg of oil the subject of analysis and the 4kg of methylamphetamine in block form, the total amount was 27 times the large commercial quantity.
His Honour noted the average purity of the oil was 70.6 percent which he described as "relatively high purity". His Honour observed that quantity and purity are relevant but not determinative in relation to objective seriousness.
The sentencing judge noted, and rejected, the submission made on behalf of the applicant that the substance manufactured and supplied was in the form of oil which, given the additional processes required to convert it into a form suitable for end user consumption, was essentially a precursor substance.
With respect to the supply offence his Honour had regard to the phone intercepts between May and October 2013 which he found established that the supply offence involved the extensive supply of methylamphetamine over several months, generating substantial sums of money. The sentencing judge noted that "while the amount supplied could not be particularised, it was clearly a significant amount". His Honour was satisfied, based on the conversations set out in the agreed facts, that the amount supplied was "well in excess of the large commercial quantity".
The sentencing judge found that the applicant's involvement in the manufacture and supply offences fell above the mid-range of objective seriousness based on the time over which the offences occurred and the significant quantities of money and methylamphetamine involved. In relation to the proceeds of crime offence, the objective seriousness was found to be just below mid-range.
In relation to the Form 1 offence of directing a criminal group, the sentencing judge found that the criminal group in question was "a very significant one".
In relation to the applicant's subjective case, the sentencing judge noted that the applicant was 32 years old at the time of the offence and 35 years old at the date of sentencing. His Honour had regard to the applicant's previous convictions and custodial sentences in 2004 and 2008 for four counts of supplying a prohibited drug and three counts of possessing a prohibited drug. His Honour concluded that these prior offences, while considerably less serious, meant that specific deterrence had a role to play in sentencing the applicant.
The sentencing judge set out the applicant's personal history as described in his affidavit. His Honour "had some regard" to the applicant's difficult upbringing in accordance with Bugmy principles (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37) but observed that the applicant was at one time capable of engaging in a successful lawful business. It was noted that the applicant had been described as a positive influence on fellow inmates. His Honour accepted that the applicant was genuinely remorseful and had good prospects of rehabilitation.
His Honour rejected the submission that the applicant was "at a cross-roads" given his prior record and the seriousness of the offending. The sentencing judge declined to make a finding of special circumstances based on the fact that it was not the applicant's first time in custody and he appeared to be "well on the way to being rehabilitated".
The sentencing judge also had regard to the delay in the service of the brief, which was only finalised in July 2016, although his Honour observed that an accused person is not obliged to wait for the full brief in order to plead guilty.
In relation to the applicant's pleas of guilty the sentencing judge applied a discount of 25 percent to each of the indicative sentences based on the utilitarian value of the pleas.
His Honour found that there was a need for some cumulation between the sentences imposed for the manufacture and supply offences but considered that the proceeds of crime offence was effectively an act involved in the other offences and did not require a "considerable amount" of cumulation.
His Honour then imposed the sentences as set out above.

Determination

A summary of the principles to be applied in a complaint of manifest excess was set out in Obeid v R [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • 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. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."

Specific criticisms of the sentencing judge's reasons

As noted above, the applicant relied on the single ground of appeal, that being that the aggregate sentence imposed pursuant to s 53A of the Sentencing Act was manifestly excessive. In oral submissions in support of this ground, while not asserting that the matters amounted to specific error warranting interference with the sentence in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40 the applicant nonetheless made a number of specific criticisms with respect to the reasoning of the sentencing judge.
The applicant pointed to the sentencing judge's treatment of the applicant's background and his Honour's statement that "I have had some regard to the offender's difficult upbringing when a young person in accordance with the principles discussed by the High Court in Bugmy v The Queen … but I note that he had at one time been capable of engaging in a successful lawful business". The applicant submitted that the sentencing judge's qualification, noting that the applicant had, for at least a period, ostensibly overcome his earlier disadvantage, "impermissibly watered down" the proper application of the principles.
It may be that an offender's capacity at some points in their life to engage positively in employment, business or the community generally will not necessarily establish that his or her decision making when under different stressors will not be affected by a background of deprivation. However, insofar as there was a "watering down" of Bugmy principles such that they were not given sufficient weight, consistent with the sole ground of appeal, the only way of determining this is by determining the question of manifest excess: see Hoskins v R [2021] NSWCCA 169 at [79] per Beech-Jones J (as his Honour then was). The application of "Bugmy principles" is discussed further, below, in that context.
The applicant pointed to a tension between the sentencing judge's approach to specific deterrence and his Honour's findings with respect to rehabilitation and the associated denial of a finding of special circumstances. With respect to the former, the sentencing judge referred to the less serious nature of the applicant's prior convictions for supply but said, "however, his prior convictions for supplying prohibited drugs means that specific deterrence has a role to play in his sentencing". Somewhat later in his remarks, the sentencing judge said: "It was put on behalf of [the applicant] that he was 'at the cross-roads', with reference to The Queen v Robinson [2014] NSWCCA 12. I do not accept that submission given his prior record and the serious nature of the current offending. It was submitted on [the applicant's] behalf that I could find special circumstances. This is not his first time in custody and he appears to be well on the way to being rehabilitated. I do not consider that there are special circumstances in relation to [the applicant]."
Senior counsel for the applicant submitted that a finding that the applicant was "well on the way to being rehabilitated" was inconsistent with the earlier reference as to the need for specific deterrence. The equation, however, is not binary. Having regard to the applicant's history, specific deterrence was inevitably a consideration. That the applicant was "well on the way" to being rehabilitated did not mean that he was rehabilitated. Whether, in all the circumstances, having regard to other sentencing considerations, the length of any sentence would inevitably be sufficient to account for specific deterrence in the context of this case, is a matter which again falls to be considered in the light of the end result and whether that result falls inside or outside the range of sentences available in all the circumstances of this case.
With respect to the issue of accumulation and concurrency the sentencing judge, while dealing with this applicant and his co-offender, Mr Grogan, said "in my opinion there must clearly be some accumulation between the sentence imposed for the supply and the manufacture offences". No issue was taken with this. Plainly, while both offences were part of the same overarching criminal enterprise, the supply offence was distinct from the manufacturing offence. This is not the sort of case with the type of overlap which can be seen where an offender is charged with manufacture of a prohibited drug and supply of the same quantity of drug based on possession for the purposes of supply. Even in such a case it remains necessary to analyse the criminality encompassed by each offence, which may be different: see Kwok v R [2018] NSWCCA 200 at [28]-[30]. Here the two offences were alleged to have occurred at different times and did not relate to the same product. That is, it was not the case that the drugs supplied were the same drugs as were manufactured.
The applicant however, was critical of the sentencing judge's approach to "cumulation" in relation to the proceeds offence. While there was in fact no actual cumulation given the imposition of an aggregate sentence, the applicant referred to the sentencing judge's statement, made with respect to the applicant and Mr Grogan, that "I consider the proceeds of crime offence is effectively an act involved in the supply and the manufacture offences and do not consider it requires a considerable amount of accumulation". With respect to the co-offender Grogan, having regard to his subordinate role with respect to the manufacture and the supply offences, it is understandable that some, though not "considerable" accumulation was appropriate given that his role with respect to the primary offences did not necessarily require or entail his dealing with large amounts of money. Further, as was pointed out by Harrison J in dealing with Mr Grogan's appeal, the dealing with respect to the money involved not just the possession of the money, but its deployment for the purposes of purchasing items associated with the manufacturing of drugs (see Grogan v R [2019] NSWCCA 51 at [34]). With respect to the applicant the position was different. He was sentenced on the basis that he was a principal in a criminal organisation involving a "sophisticated clandestine laboratory". As part of that enterprise he was engaged in the supply of methylamphetamine oil and received in relation to that supply, very large amounts of money. The money the subject of the charge was seized on 5 November 2013 which was about 6 weeks prior to the start date of the manufacture charge. In the case of this applicant, his direction to use the money to obtain items to be used in the manufacture could not be separated from the criminality exposed in the manufacturing charge, bearing in mind that the sentence on that charge was based on the applicant's involvement in the "sophisticated" ongoing operation. It is difficult to see, in those circumstances, that the proceeds matter could add to this applicant's criminality given the basis on which he stood to be sentenced for the supply and manufacture offences.
Given the imposition of an aggregate sentence, it is not possible to determine from the indicative sentences, what if any impact the proceeds matter had on the sentence imposed. Analysis of the indicative sentences on Mr Grogan, however, suggests the proceeds matter had a greater impact on his sentence than occurred in the applicant's case. This would be consistent with the reasoning in the preceding paragraph. In sentencing Mr Grogan, the sentencing judge provided indicative sentences (leaving aside the non-parole periods) of 8 years and 10 years for the manufacture and supply offences respectively. Ignoring the proceeds offence, had actual rather than indicative sentences been imposed, and the longer sentence made cumulative on the shorter sentence, the total sentence of 14 years in Mr Grogan's case would have represented a starting date for the manufacture offence 4 years after the commencement of the supply offence. The same exercise, if applied to the applicant, results in a notional cumulation of 3 years. This suggests the proceeds offence had a greater role to play in Mr Grogan's case as would, on the view I take of the facts, be appropriate. (See also the analysis in Grogan at [35].)
A similar issue arises with respect to the Form 1 matter. With respect to that the sentencing judge said, "in relation to [the applicant] I have had regard to the matter on the [Form 1] …". His Honour went on to observe that, "[t]he criminal group involved here was a very significant one as reflected in the facts". The nature of the criminal group is reflected in the facts and informed the role of the offender with respect to the supply and manufacture charges. It is difficult to see that the Form 1 could properly add anything by way of additional penalty. Put another way, had the offence not been on a Form 1, and the applicant sentenced for it, is difficult to see that the sentence would have been other than concurrent. It would be an odd result if the applicant was worse off as a result of the matter being placed on a Form 1.
The sentencing judge did not, however, say more than that he had regard to the Form 1 matter and did not explicitly refer to it having any impact on the length of the sentence. In any event, the attack is limited to the aggregate sentence, and that attack in turn is limited to a challenge of manifest excess. While there is force in what has been said about appropriate accumulation between the three charges, and the significance of the Form 1, these matters are appropriately taken into account when forming a view as to whether the aggregate sentence ultimately exceeded the bounds of the sentencing discretion.

Manifest excess

It falls then to determine whether, having regard to all the circumstances, the sentence imposed at first instance was outside the legitimate exercise of the sentencing discretion.

The objective gravity of the offending

The role of an offender in drug supply and manufacturing offences is an important factor, usually more important than the quantity of drugs involved: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64]; Melikian v R [2008] NSWCCA 156 at [42]. Here, the applicant held a role at the apex of the organisation. As noted above, the facts described, and the sentencing judge accepted, that the applicant's role was as the leader of "a sophisticated criminal syndicate directing and organising the other participants in their various roles". To understand what that means with respect to his objective criminality it is necessary to have regard to the nature of the organisation including, to the extent that it is ascertainable, the quantity of drugs both manufactured and supplied. Sophisticated enterprises may operate at very different volumes generating very different profits and, importantly, generating different levels of harm. As is often the case, precise findings are not possible.
The operation appears to have been "wholesale" in nature, manufacturing and then supplying relatively large quantities of methylamphetamine oil to others who presumably converted it to crystal form and on-sold in bulk or supplied the drug through their own distribution networks. The applicant was not therefore at the apex of an organisation that operated "from top to bottom". Insofar as the applicant was "directing and organising others", the agreed facts reveal there to have been at least six other participants. If there were more it does not appear there were significantly more. The number of participants appears consistent with a large wholesale operation.

The manufacture offence

There were a number of properties associated with the enterprise. The site of the manufacture was, as noted above, a property in Ourimbah where the product of the manufacture charge was located. The facts recorded the finding of 55 bottles containing 27.241kg of methylamphetamine oil and 4.059kg of methylamphetamine in blocks. I pause to note that, in terms of the material produced, it appears that the bottles (if uniform in volume) would have contained approximately 0.5kg of methylamphetamine oil each.
That property was described as being on a "large semi-rural block", and, unsurprisingly for a location selected for such a purpose, was "surrounded by dense bush". It consisted of a "house, detached double lock up garage and two shipping containers." Access was via a 200-metre concealed driveway, with a front gate which police found secured with a number of padlocks. The laboratory was set up in the double garage. The shipping containers were being used to store precursor chemicals. There were hundreds of kilograms of such chemicals, although the amount of pseudoephedrine, a key ingredient, was less than half a kilogram. A closed-circuit television system was in place to monitor the entry to the property and the shipping containers. At the time the search warrant was executed only Mr Grogan was present. It is significant in terms of the applicant's role that he never attended the property.
It is significant in terms of the sophistication of the operation that a further property at Palmdale was used as a "staging post". The facts recorded that five vehicles, registered in the names of other people and referred to as "work vehicles" were parked at this location. Syndicate members swapped between vehicles to avoid surveillance. Different vehicles were used for transporting chemicals, equipment and drugs from the laboratory at the property in Ourimbah to those used for collecting items from suppliers or delivering drugs to purchasers. When searched, there were five vehicles with keys located nearby. A further vehicle was located at the applicant's home for which no owner could be identified.
A further property at Jerrys Plains was employed by the syndicate for the storage of precursor chemicals and glassware. A shipping container at that location contained "hundreds of litres of precursor chemicals" together with "cooking equipment", ammunition and magazines for various firearms.
It is plain from the various properties, vehicles and personnel, that there was a level of sophistication to the manufacturing operation. The quantity of drugs manufactured in the period of the charge, 17 to 23 December 2013, was also significant. While the quantity of drugs produced was not particularised in the charge, the matter appeared to have proceeded on the basis that at least the quantity found on searching was attributable to the period particularised in the charge. Certainly, there was no complaint as regards the sentencing judge's finding that the approximately 27kgs seized was attributable to the charge.
The large commercial quantity of methylamphetamine was, at the time 1kg (and not 0.5kgs as it presently is). The quantity in terms of the legislative demarcations is therefore less than it would be if seized today. It is also the case that the quantity is not nearly as large as is sometimes seen in large commercial supplies or importations where quantities in the hundreds of kilograms and sometimes in excess of a tonne are seen. It may be that such quantities are not generally seen in manufacturing offences because, in the nature of such operations, the product of the manufacture will generally be moved on and not stockpiled. That is not to say that cases might not occur where, for example, the authorities are able to calculate the amount manufactured over a lengthy period rather than basing the charge on, as here, what is found at the premises on searching. This underscores the importance, in a case like the present, of ensuring the offender is sentenced only in respect of what he is charged with. Here it is the manufacture of approximately 27kgs of methylamphetamine. It remains, of course, relevant to understand that this quantity was manufactured in the context of an established, ongoing operation, which (despite the applicant expressing some thoughts of discontinuing the operation) would, but for the intervention of the authorities, have continued at least for a time into the foreseeable future.
There was no challenge to the sentencing judge's assessment of the objective seriousness being "above the mid-range level". Nor, in my view, could there be. However, the vagaries of such descriptions are such that the content of the description must necessarily be informed by the detail described above. Having regard to that detail the present offending is, consistent with the finding of "above mid-range", not at the highest end, or necessarily close to it, but nonetheless a very serious example of an offence of manufacturing a large commercial quantity of a prohibited drug.

The supply offence

There was clearly an overlap between the manufacture and supply operations. The chemical storage locations and the manufacturing set up at Ourimbah were largely exclusive to the manufacturing charge. The location at Ourimbah as the source of the drugs and the staging area at Palmdale, including the multiple vehicles and the workers engaged in the overall enterprise, were both relevant to the supply offences, which as noted above can be described as a wholesale operation of relatively large scale.
Of particular significance to the supply charge is the period of the charge: from 4 April 2013 to 17 December 2013, a period of over eight months. Further, this is not a large commercial supply charge where the threshold quantity is reached by charging a long period over which numerous small transactions take place. Here, while the agreed facts provided less clarity than they might have, there was no criticism of the sentencing judge's assessment of the quantity, based on a reference to some of the detail in the facts, as "clearly a significant amount", "substantial" and "many times greater than the large commercial quantity". These descriptions on their own are not, however, capable of conveying much with respect to how the present offence might compare with other offences of its type.
To gain some understanding of the objective gravity of the supply offence, it is again necessary to return to the agreed facts. In the recorded telephone conversations, the quantity of drugs supplied was usually described in terms of "bottles", "bots" and "babies". Despite the finding of 55 bottles containing approximately 27.24kgs of methylamphetamine (the quantity subject of the manufacture offence), no attempt was made in the agreed facts to define the quantity in a "bottle" or "bot" when those terms were used in the context of the supply. Nor, despite some conversations suggesting an equivalence between "bots" and "babies", was the relationship between the two terms ever clarified. The applicant at one stage referred to bottles costing him "135" with the result he was "only making $10,000", the inference being the process of producing the bottles cost $135,000, while they were being sold for $145,000. He also complained about other syndicates selling methylamphetamine in crystal form, "a kilo for 170". It is therefore apparent, having regard to these matters as well as the nature of the operation and the facts more generally, that each bottle, "bot" or "baby" contained a substantial quantity of methylamphetamine, at least in the order of 0.5kgs. With this understanding some content can be given to various conversations over the charged period, as discussed below.
In June the applicant discussed with Mr Zehic the supply of 5 and of 10 "babies", though it is not clear whether the 5 was additional to, or part of the 10. He also referred to new customers who wanted 20 bottles a week and said that the syndicate was set up to produce "20 to 24 kilos at once". It is not clear from the agreed facts whether the syndicate engaged with the new customers. In July there were discussions regarding a sale of "two pounds" and numerous other transactions for "5", "2" and "1", where, while it is not clear whether the reference is to bottles, kilograms, pounds or some other amount, it is clear that it is a substantial amount. In August the applicant spoke of selling bottles of, inferentially, the best quality, for "180" with the result they were getting "an extra 60 grand a bottle". In the context of this discussion of bottles, there was a reference to a sale of "5", a potential sale of a further 5 and other customers who will also be "up soon too". Later in August there was to be a supply of "7 or something" which could be met because, as the applicant said to Mr Zehic, "you're doing 10 tomorrow". There was further conversation towards the end of August suggesting the operation was about to produce 28.5 litres.
In September the applicant discussed receiving precursors and in this context referred to a number of bottles, saying "should be around 54 bottles I think", and referred to "send[ing] 20 down South". Two days later the applicant discussed still having 15 bottles after selling 5. In October there was a conversation relating to the applicant checking with Mr Grogan as to whether he had "9.5 babies there"; a later conversation relating to the supply ("dropping off") of "4 bots" by Grogan and a further conversation where the applicant suggested another worker might "drop off 6 bots" and pick up money. The facts detail activities related to supplies on 18 and 23 October, potentially, though not necessarily, related to this conversation. Between 28 October and 2 November the applicant arranged for the supply of "5 more 6 all up", referred to at times as "babies" and at times as "bots".
On 3 November 2013 Mr Grogan informed the applicant he had "14 bots, so that's 7". Grogan then referred to a further 5, which in context appears to have been a reference to an additional 5 bottles which were earmarked for a particular individual.
Further, it was apparent that the syndicate was dealing in very substantial sums of money. There was a reference by the applicant to having $400,000 in a safe in May; the applicant referred to being "900 in debt" in August; in November almost $1.2 million, which was being put back into the manufacturing operation was seized; and in December Mr Zehic referred to having spent "two mill" which was lost as a result of "20 blocks" not turning out as hoped.
It is to be observed that some of the conversations referred to above relate to the manufacture of the drug. While the applicant, when sentenced for the supply (at least in the sense of the determination of the indicative sentence), was not to be sentenced for manufacturing the drug, the manufacturing produced the drug that was supplied. The conversations in the period of the supply charge relating to manufacture are in this way informative of the scale of the supply. In gaining an understanding of the scale it is also relevant to note that it was not suggested that the recordings as summarised in the agreed facts captured the full extent of the drug supplying activity.
The above detail provides some colour to the sentencing judge's description of the supply offence as involving "substantial" quantities. When that fact is combined with the applicant's role, the sentencing judge's assessment of the offending being "above the mid-range level of objective seriousness" is inescapable.
The evaluation of the sentence, of course requires a consideration of all of the facts and circumstances relevant to a sentencing purpose, the maximum penalty and any standard non-parole period. These factors are then evaluated in an "instinctive synthesis" having regard to the purposes of sentencing in s 3A of the Sentencing Act.
The applicant's subjective circumstances have been described above. He was 35 years old by the time of sentence. He had suffered disadvantage in his upbringing and a submission was made that his moral culpability was thereby reduced. The criticism of the sentencing judge's finding in this regard has been discussed above. To this may be added that offences in question were the result of deliberate decisions made by the applicant with which he persisted. They cannot be described as an inability to control his impulses: cf Bugmy at [44]. It may be that the applicant had "fewer emotional resources to guide his … decisions" and as such his background could be considered as "affording some (although limited) mitigation": R v Millwood [2012] NSWCCA 2 at [69]. The decision making here, however, involved significant premeditation and planning and was at least very different from that which pertained in Bugmy and, albeit to a lesser degree, in Millwood. This does not mean the applicant's experiences during childhood were not relevant. Nor does the fact that, as discussed above, the applicant was at certain times in his life able to function successfully as a law-abiding member of the community. The applicant's background remained relevant in understanding the individual who stood to be sentenced and the course of his life that brought him to that point. The weight to be given to the applicant's childhood was necessarily impacted by the course of his life since childhood and the nature of the offences committed: see Dungay v R [2020] NSWCCA 209 at [143]-[153]; see also Nasrallah v R [2021] NSWCCA 207.
As noted above, the applicant's performance since coming into custody was positive, providing some evidence of rehabilitation. Contrary to the submission made at first instance, however, the applicant was not in a "cross-roads" situation as that expression is generally understood: see R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394. The circumstances in this case were such that while rehabilitation was a relevant factor, the sentencing judge was entitled to take the view that weight should be given to specific and particularly, general deterrence.
The applicant's performance in custody did provide support for the applicant's assertions as to his remorse which the sentencing judge found were genuine. He was entitled to some consideration with respect to the delay (which to some extent overlapped with the evidence of rehabilitation): see Sabra v Regina [2015] NSWCCA 38; (2015) 257 A Crim R 33; R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303.
As noted above, the assimilation of the above factors resulted in a starting point for the indicative sentence (that is, before applying a discount of 25 percent for the plea of guilty) of 22 years and 8 months in relation to the manufacture offence. This head sentence, applying the statutory norm, would produce a non-parole period of 17 years, that being 2 years above the standard non-parole period. In relation to the supply charge the starting point was 20 years which produces a putative non-parole period of 15 years. The starting point for the proceeds matter was 6 years and 8 months. There being no standard non-parole period, analysis of any putative non-parole period is not relevant.
After application of the 25 percent discount, the respective indicative sentences were 17, 15 and 5 years. Given the findings above with respect to the objective criminality, those indicative sentences are, in my view high, but within the available range. For the reasons discussed above, I do not regard any cumulation on the basis of the proceeds matter, or inflation based on the Form 1 matter, as warranted. The total sentence of 20 years therefore reflects cumulation between the two most serious offences of 3 years. Given the distinct criminality involved that level of cumulation is not excessive.
The total sentence of 20 years and the corresponding 15 year non-parole period, against which the only ground of appeal is brought, is a very substantial sentence. Its severity must be understood in the light of the principle that the severity of a sentence is not linear but rather increases exponentially as it gets longer: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [16]. Ultimately however, having regard to the high level of criminality involved and the applicable maximum penalties and standard non-parole periods, the sentence does not strike me as outside the broad sentencing discretion of the judge at first instance.

Sentences imposed in other cases

Before reaching a final view as to this, and noting the limitations of such an exercise, regard should be had to the results in a number of cases relied on by the applicant to support his contention of manifest excess. Senior counsel for the applicant relied on four comparative cases, each of which is discussed below.
In R v Dashti [2016] NSWCCA 251, the offender pleaded guilty to two counts of supplying not less than a large commercial quantity of a prohibited drug (49.85kg of opium and 47.56kg of methylamphetamine respectively) and one count of agreeing to supply 2kg of heroin. Three further offences of supply were taken into account on a Form 1 along with one count of dealing with the proceeds of crime. Mr Dashti was found to be the principal in respect of the methylamphetamine and heroin supplies. The offending was found to be above the mid-range of objective seriousness. The offender had no prior criminal history but there were "few mitigating circumstances" in his case. He received a 15 percent discount for his plea of guilty. Following a successful Crown appeal, Mr Dashti was sentenced to an aggregate term of 28 years and 8 months imprisonment with a non-parole period of 21 years and 6 months.
In Vigo v R [2009] NSWCCA 98, the applicant was convicted following a trial of supplying not less than a large commercial quantity of methylamphetamine. He was found to have supplied in excess of 40kgs of the drug over a period of three and a half years. He purchased this amount in varying quantities from an "up-line" supplier, most often in half-pound quantities (less than 0.25kgs) but sometimes more. He then on-sold to clients in what was necessarily a substantial retail operation. The applicant was not found to have good prospects of rehabilitation, although the sentencing judge took into account the applicant's separation from his young children as a mitigating factor. The applicant was sentenced to 16 years imprisonment with a non-parole period of 12 years.
In Bell v R [2019] NSWCCA 271 the applicant was sentenced for one count of manufacturing a large commercial quantity of methamphetamine (30.4kg), with four offences of possessing precursors taken into account on a Form 1. The applicant successfully appealed on the ground of parity as his non-parole period was one year longer than that of his co-offenders who had less favourable subjective cases and received the benefit of special circumstances due to their need for rehabilitation. The applicant's role in the enterprise was described as a "worker"; he rented the property at which the manufacture took place in his own name, constructed a fence to conceal the manufacture and was given certain instructions about steps in the manufacturing process. The sentencing judge found that his role involved "carrying out instructions" but was nonetheless "significant". The objective seriousness of the offence was found to be in the lower end of the mid-range. He had no prior criminal history, had shown remorse, was suffering a psychiatric illness at the time of the offence and had good prospects of rehabilitation. The applicant pleaded guilty and received a discount of 25 percent. He was sentenced by the Court of Criminal Appeal to 13 years and 4 months imprisonment with a non-parole period of 9 years.
In Kwok the applicant pleaded guilty in the Local Court to one count of knowingly take part in the manufacture of a prohibited drug in an amount not less than a large commercial quantity (144.6kg of methamphetamine) and one count of supplying not less than a large commercial quantity of methamphetamine (15.94kg). Mr Kwok was described as the "apex" of the known offenders. He was found to have supervised the "cooking" process for several days and his role was described as "supervisory" in relation to his co-offenders who were "subordinate". The applicant was also responsible for liaising with other members of the syndicate to organise the supply. The objective seriousness was found to be in the "upper range". The applicant had travelled to Australia for the purpose of producing and selling drugs, at the direction of persons in Hong Kong to whom he owed a gambling debt. He had a criminal history in Hong Kong (although not in Australia) and had shown remorse but had limited prospects of rehabilitation. Mr Kwok received a 25 percent discount for his plea of guilty. He was sentenced to 22 years and 15 years imprisonment respectively, with non-parole periods of 14 years and 11 years 3 months. His total sentence was 25 years imprisonment with a non-parole period of 17 years.
The sentence imposed in Dashti was significantly higher than that imposed here. While the offending was of a different nature it is not clear that the result in Dashti assists this applicant. In Vigo, the quantity was very substantial and the offending was over a lengthy period. The nature of the offending was somewhat different and there was only a supply charge and no manufacturing charge being a retail supplier. Significantly, the offending took place between 1997 and 2001 which was prior to the introduction of the standard non-parole period that applied in the present case. That decision is consequently of limited utility. The applicant in Bell received a substantially shorter sentence than this applicant but his criminality can also be seen to have been substantially less. The offending in Kwok was of a very high order of magnitude. However, while senior among the known offenders, he was not responsible for the instigation of the enterprise and was operating under the direction of others. The offending was also over a relatively short period. The total sentence was longer than that here.
Having regard to the various differences in the cases relied on by the applicant, my initial view that the sentences imposed on the applicant are within the available range is ultimately fortified, or at least, not undermined. The ground of appeal is not made out.

ORDERS

I would propose the following orders: 1. Grant leave to appeal; 2. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2021

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