R v Baker

District Court of NSW|2009-05-27

HEARING DATE(S): 08/02/08, 19/03/09, 11/07/08, 25/08/08, 26/09/08, 24/10/08, 05/12/08, 23/01/09, 19/02/09, 27/05/09

Mr Baker was convicted . DECISION: Sentenced to a non-parole period of 3 years and 6 months to commence on 27 May 2009 and expire on 26 November 2012. Sentenced to a total term of imprisonment of 10 years and 6 months to commence on 27 May 2009 and expire on 26 November 2019. Eligible for release on parole on 26 November 2012.

CATCHWORDS: Quadriplegic at the time of the offence. - Can a quadriplegic be accommodated in prison? - Conspiracy to manufacture not less than a large commercial quantity of MDMA. - Is the very substantial extra cost to the State of accommodating an offender who is quadraplegic a relevant factor in sentencing? - The extraordinary social and physical isolation of a prisoner who is quadraplegic as a factor to reduce the sentence.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

R v Barci & Asling (1994) 76 ACrimR 103 R v Burchell (1987) 34 ACrimR 148 R v Cartwright (1989) 17 NSWLR 243 CASES CITED: R v Daetz (2003) 139 ACrimR 398 R v Genz [1999] NSWCCA 285 R v Nomchong NSWCCA 10 April 1997 unreported R v Thomson and Houlton (2000) 49 NSWLR 285

COUNSEL: Ms Olender - Solicitor Mr Peluso - Counsel

SOLICITORS: Depatment of Public Prosecution Michael Jokovic and Associates

1 Mr Baker has pleaded guilty to one offence of conspiracy to manufacture not less than a large commercial quantity of MDMA. The co-conspirators were MS, AD and CR. The offence was committed between 1 September 2005 and 1 August 2006 at Sydney.

2 The agreed facts, which need not be recited in all their detail, are these:

3 The offence of manufacturing prohibited drugs is created by s.24(2) of the Drug Misuse and Trafficking Act 1985. Section 26 of that Act provides that a person who conspires to commit such an offence is liable for the same punishment as one who committed the offence of manufacture a prohibited drug.

4 Section 33(1)(a) and (3) prescribe a maximum penalty for the offence of 5,000 penalty units or life imprisonment or both.

5 It is accepted by the Crown that Mr Baker ("Baker") entered his plea at the earliest opportunity and as indicated during the course of submissions I propose to discount his sentence by 25% to allow for the utilitarian value of that plea. There is no dissent from the Crown that I ought to adopt that course.

6 Mr Baker was born in 1972 and is thus now 36. He was about 33 at the time of this offence. His criminal record is insignificant and plays no role in the sentence to be imposed.

7 I do not propose to read out all of the agreed facts as they extend over about 15 pages but they shall be annexed to these reasons and incorporated as part of them. Some of that material is relevant and relates not specifically to this offence but is background material which places both the offence and Mr Baker's role in the conspiracy in context. It is enough to say for present purposes the following which is taken from material which is headed "Overview" from the Agreed Facts.

8 Baker admits his guilt in relation to a conspiracy between himself and the co-accused MS, CR and AD to manufacture a large commercial quantity of 3,4-methylenedioxy methylamphetamine ("MDMA"). In mid-2005, MS arranged for the importation of 11 x 200L containers of methylamine. Baker was not involved in this nor did he have knowledge of this until some months later. Thereafter, Baker, in concert with his co-offenders, researched the relevant information and literature, acquired the relevant chemicals and necessary equipment, conducted preliminary conversions to acquire precursor drugs and visited many rural properties in a search for the ideal location for a clandestine lab. Baker's main role in the conspiracy was to obtain the glassware and hardware required to conduct the manufacture through his importation companies.

ANTECEDENTS 9 The offender, Paul Baker was born in1972 and was about 33 at the time of the commission of the offences. He was convicted of two counts of Possess Unauthorised Firearm in 2002 and placed on two section 9 bonds. Mr Baker is a quadriplegic and requires constant care for day-to-day living. He is unemployed and is the proprietor of a number of companies involved in the importation of various items into Australia for on-sale. 10 The Conspiracy to Manufacture Not Less than Large Commercial Quantity of MDMA S24(2)/S26 DMT Act. All acts set out below, with the exception of the importation of methylamine, were done on behalf of each other and in a preconcert and with the agreement of the offender Baker; there is no evidence that Baker and AD was involved in the importation of the methylamine. At that time, CR was not part of the conspiracy. 11 The balance of the facts are a schedule to these reasons. CUSTODY DETAILS AND TIMING OF PLEA 12 Baker was granted conditional bail on these charges since the date of his arrest on 1st August 2006. The Crown concedes that his plea was entered at the earliest opportunity.

13 There is only one unusual feature in this man's case, otherwise it is more or less a conventional conspiracy to manufacture an illicit drug. That feature is that Mr Baker is quadriplegic. He was a quadriplegic at the time he committed this crime.

14 His role as can be seen from the facts was to source equipment to be used in the manufacturing process, particularly glassware and the chemicals necessary to manufacture MDMA and premises both to manufacture the drugs and store the product.

15 It is fair to describe his role as central to the operation but I shall discuss the genesis of that outcome later in these reasons, particularly his evidence relating to the way he became involved in the conspiracy.

16 During the course of submissions I stated to counsel that in my opinion there was a reasonable equation between this offender's involvement and that of CR who I sentenced on 2 May 2008. In sentencing Mr Baker I shall bear that equation in mind. The differences in sentence will be largely a reflection of the different subjective circumstances of each. Again, those differences will become apparent during the course of these reasons. There is no standard non-parole period for this offence.

17 It is sadly, almost trite, to say that this is offence is one of the utmost seriousness. The very fact that it attracts a life sentence as a maximum penalty describes that. It is perhaps notable that during the course of his evidence Mr Baker said that during the course of his involvement in this crime he was of the view that the drug to be manufactured was relatively innocuous. He understood that it was taken by many people with no particular ill effects and did not represent any significant danger. Sadly, the community's experience is different. It has taken young lives and represents a blight on the community.

18 Mr Baker has come to that realisation since his arrest. I shall develop this part of his evidence later, save to say that he not only has an understanding of the dangers of this drug but has expressed contrition, remorse and an understanding of the serious nature of his crime, which I accept as genuine.

19 The only real debate before me was whether I should sentence him to a term of full time imprisonment and the only reason why any other sentence could be in contemplation was because of his physical disabilities and, secondly, if I do send him to gaol, what discount should I allow for the fact and consequences of this disability, if any?

20 It was not submitted to me, nor could it be, that in the normal course of events if Mr Baker did not suffer from the disability he endures I would sentence him to anything other than a lengthy prison sentence.

21 To my mind the first question really devolves down to one which asks: Can Mr Baker be properly accommodated within the NSW prison system? I am of the view that if he can be so accommodated then the only proper sentence to be imposed upon him is one of full time imprisonment.

22 An enormous amount of work has been done by the officers of the Department of Corrective Services to examine this question and, particularly Ms Anne Langford, whose reports are of great assistance to me and are in evidence.

23 The problems of care for Mr Baker are substantial. As noted, he is a quadriplegic and has been since an incident in 1995. Mr Baker's daily routine is broadly described in a report of Dr Thomas Nash of 11 March 2008, which is part of Exhibit A. That routine is as follows: -

Mr Baker is cared for by Australian Home Care. Morning 7am to 9am Medication. His urinary bottle is emptied. All pillows are removed and he is transferred by hoist from bed to commode chair and wheeled to bathroom. He is showered, dried, shaved, his teeth are cleaned and he is dressed. He requires flushing of nasal sinuses each morning. He is fed breakfast and transferred to his wheelchair for the day. Movement is complicated by involuntary muscle spasms. He is strapped into his wheelchair because he has had falls in the past when he has leant over and toppled out of the chair. Carer Lunch 12 noon - 1pm Carer Medicate. Urinary bottle checked. Fed lunch, has pressure relief (lower limbs elevated). Face, hands and groin washed. Dinner 5pm-6pm Medication. Urinary bottle checked. Pressure relief. Fed dinner. Carer Late Evening 8pm-9pm Medication, Wash including groin care. Teeth. Transferred to bed by hoist. Arms and legs propped up by pillows to relieve pressure and oedema. He has to lie at a 45 deg angle and suffers from obstructive sleep apnoea. Every Second Evening Administered enema, with two bowel motions after 20 minutes and another about 30 minutes. Cleaned. The bowel routine takes about one hour.

If Mr Baker requires any assistance during the night he has to call his flatmate. He is unable to roll over or turn in bed.

In addition, he requires assistance eating; he needs his suprapubic catheter changed two to three times a week; and he has hydrotherapy twice a week and physiotherapy three times a week.

24 As noted by Dr Nash his movements are severely limited. He has minimal movement in his right elbow joint and some movement of his left arm. He is 5'7" tall and weighs 140 kilograms which fact is of some significance as will be discussed later. He is confined to a motorised wheelchair which he works with some downward pressure from his left arm onto a pressure button and chin control.

25 I also have an occupational therapist report from Sue Luckersmith dated 12 March 2008. She was qualified by Mr Baker's solicitors. That report usefully sets out the specialised equipment that will be required to accommodate Mr Baker and in greater detail sets out his daily regime and requirements. The attendant care includes 6 hours per day with an additional 6 to 8 hours per week overnight and in total represents 50 hours per week. The carers need to have appropriate qualifications to attend to Mr Baker's needs.

26 I should note that there has been a substantial degree of cooperation between the lawyers for the Crown and the accused in this case to address the particularly difficult problems which arise and I thank them for their assistance.

27 As noted, the principal point of contact and report from the Department of Corrective Services has been through Ms Langford. She is the Principal Officer Disabilities for the Department and her first report is within Exhibit A and is dated 19 March 2008. In that report Ms Langford noted that Mr Baker presented a unique set of disabilities for the Department, although offenders with paraplegia have been managed within it previously.

28 Ms Langford noted the following and properly: - It is essential that if Mr Baker is to be incarcerated he receive the same quality of care in custody that he receives in the community where he is currently receiving 35 hours per week attendant care to address his basic needs.

29 She then noted the nature of the care that he was receiving. That proposition as stated by Ms Langford is, of course, of the first importance.

30 Sentences imposed by the courts of imprisonment are imprisonment. There should not be any additional penalty imposed upon an offender in consequence of that fact other than those that are always attendant upon such a sentence. The principal feature of any sentence of imprisonment is the deprivation of liberty.

31 The initial report from Justice Health is from Dr Hampton dated 13 March 2008. It stated that albeit that it was possible for Mr Baker to serve a custodial sentence, the options for accommodating him were limited and it was anticipated at that stage that it would mean that he would spend the whole of his sentence within the prison hospital, which the doctor noted was a "maximum security facility".

32 Ms Langford's next report is Exhibit B and is dated 2 May 2008. In this report significantly Ms Langford noted that whilst in custody Mr Baker would not have Internet access and computer access only under supervision. Normally, of course, this would be expected, however, in Mr Baker's case his Internet access is a primary source of entertainment and distraction for him and deprivation from it would be of great significance to his morale and psychological health.

33 I have a further report from Mr Ian Sinnett dated 30 June 2008 which is Exhibit G. Amongst other things Mr Sinnett noted at page 2: - During the period of admission (my words: into the Long Bay Prison Hospital) there will be a review to evaluate whether his care needs would be sufficient, given the restrictions with access, potential isolation experienced by Mr Baker in custody and any change in his presentation or level of dependence. In addition Justice Health would seek to replicate as much as reasonably possible the routines that Mr Baker experiences in his own accommodation.

34 It should also be noted that Mr Sinnett said: - Mr Baker has been assigned a Key worker who will coordinate his immediate care and ensure that the necessary assessments are completed should he be received into custody.

35 He concluded: - In summary, Mr Baker could be received in custody and appropriately accommodated from the prospective of Justice Health, subject to the necessary ongoing arrangement being made by the Department of Corrective Services. Whilst his potential chair needs are challenging they could be met by the additional procurement of supplementary services to support the health provision which is universally provided. It is anticipated that Mr Baker, due to his disability, may experience some complications or need for future or specialist care. These could be addressed by either future admission into the Long Bay Hospital, Prince of Wales Hospital and/or associated out patients attendance, subject to the Department of Corrective Services escorting.

36 Ms Langford provided a further joint report signed also by Mr Luke Grant, Assistant Commissioner Offender and Services Programs, dated 10 July 2008.

37 Amongst other things, this report identified the very substantial additional expenditure that will be required to accommodate Mr Baker in custody. I note in passing that on my rough calculation that amounts to about $100,000 annually above and beyond the cost of accommodating an offender within the prison system. In addition, there will be substantial initial costs incurred to make appropriate alterations and adjustments to areas in which he is to be accommodated.

38 Thus, it can be seen that the cost to the State of accommodating Mr Baker in prison is very substantial, however, to my mind, that cost is an irrelevant consideration in the sentencing process. The question is: Can Mr Baker be accommodated by the Department of Corrective Services?

39 I think that it is useful to set out in full the additional hardships identified in this report: - Although considerable effort has been made to identify and plan strategies to meet the additional support needs of Mr Baker there is no doubt that he would experience considerable additional hardships within the custodial environment. Although some hardships can readily be identified, it is likely that some will only become apparent once he enters custody - associated with the fact that Mr Baker would be the first offender with high support needs associated with quadriplegia to be given a custodial sentence. Obvious additional hardships include: - 1. As with any inmate, department security considerations and his personal needs for protection from some other inmates are the first considerations. Acknowledging these standard considerations, decision relating to Mr Baker's correctional centre placement will be made almost entirely on the basis of accommodation and service availability to address his disability needs. Only one location has been identified where his needs can be met - including his access requirements, additional health needs and consistent attendant care provisions. This placement is within the Additional Support Units (ASU) at Long Bay a multi classification unit which caters for offenders with disabilities who are assessed as vulnerable within the correctional environment.

Most of the offenders in the ASU have intellectual or other cognitive disabilities - both developmental and acquired through a range of accidents as an adult. Although the latter may appear to have some similarity with Mr Baker's situation, if an offender with Mr Baker's cognitive skills was transferred to the unit following assessment of vulnerability within a correctional centre, it is most likely that as he became familiar with the custodial environment his level of coping would increase and following assessment, alternate placement would be sought. No such alternate placement option is available for Mr Baker. His placement throughout his custodial sentence is most likely to be within the ASU - a unit which primarily caters for offenders with intellectual disability and low cognitive functioning. This could be seen as limiting his opportunities for socialisation and the range of programs available to him.

Mr Baker's disability and limited financial assets severely limits his options in the community. His home is appropriately designed to allow free access throughout and in addition to the services provided by the carers, it appears that his day consists largely of socialising with friends who visit his home and using his computer - mainly accessing the Internet. Although in custody Mr Baker will be able to receive visitors on weekends and public holidays - he will not be able to access the Internet throughout his entire custodial sentence. Although this restriction covers all inmates in NSW, for some inmates with disabilities (including Mr Baker) this restriction is likely to have greater significance.

All inmates in NSW can only access computers for educational or personal use under supervision. As Mr Baker requires a computer to 'write' letters and other documents, this restriction is likely to be keenly felt.

Mr Baker reported that his mobile phone provides him with important contact with family and friends. As mobile phones are not permitted in correctional centres and as Mr Baker will not be able to use the standard inmate phone because of the nature of his disability, arrangements will need to be made for staff to facilitate phone calls thus reducing the spontaneity often associated with phone contact. The importance of ongoing contact by phone and personal visits for inmates in custody cannot be underestimated."

40 I have taken all of those comments into account in determining that the only proper sentence in this man's case is one of full time custody, but to my mind that will affect the duration of the sentence and the finding of the special circumstances in his case. That is not to say that there will be double counting in that respect, however, some of those factors will apply variously to each of those considerations, namely the overall duration of his sentence and the consequences of finding special circumstances.

41 Mr Peluso for the offender submitted that I should take into account what was said to be the reduced life expectancy of the offender. It was said to result from his quadriplegia and its collateral consequences such as his weight gain and other hazards associated to it. He called Dr Nash who said that the offender's life expectancy was 10 years.

43 He has treated quadriplegics but has no experience nor is he qualified to estimate their life expectancy. (T.33:26-33)

44 I find his evidence difficult to accept. He said that the effect of Mr Baker's morbid obesity would reduce his life expectancy by 13 years. His life expectancy otherwise would be 41 years.

45 He said at T.34.35: - Q. If you take 13 off that it gives you, say, 27. How did you reach 10? A. From my clinical examination I don't believe he's got that chance of reaching that.

Q. I understand that but is it a matter of your clinical examination of him or did you use other objective data in reaching your figure? A. Well just his past history would suggest to me that he's not going to live more than ten years.

46 He conceded he would defer to Dr Bowers' opinion.

47 Dr Bowers is undoubtedly qualified to offer an opinion as to the offender's life expectancy. He was qualified by the Crown. His report is Exhibit L and dated 12 February 2009. He treated Mr Baker at some time. After reviewing the relevant material he concluded at page 4 of that report: - As a result of this, my interpretation is that the life expectancy for Mr Baker is 77% of the life expectancy of the average Australian male his age. This 77% figure should be applied to the Australian Standard Life Tables and not to any projected cohort life Table. If one were to use a projected cohort life Table then the life expectancy figure would revert to 67%. As such, in my opinion, Mr Baker's life expectancy is 77% of forty-one years which equates to approximately thirty-one further years of life. There was nothing else in the documentation sent to suggest that Mr Baker had other medical conditions, which would lead to variation to this thirty-one year life expectancy estimate."

48 I prefer the opinion of Dr Bowers. I conclude that the reduced life expectancy of the offender plays no part in the sentencing process because: - a. It was a fact that predated the offence; b. Given the relative longevity as estimated by Dr Bowers, his imprisonment would have no effect on it; and c. There is no principle that would apply in this man's case that somehow to spend some of the rest of his life in prison would be either unjust or unfair in the circumstances of his crime.

49 The offender is particularly vulnerable. He cannot fend for himself.

50 It is not disputed that whilst he was on bail police determined that there was a very real threat to his life and attended on the offender and moved him as a matter of urgency.

51 The seriousness of that threat is highlighted by what was entailed in moving him.

52 He lived in his own house. It was set up to accommodate him with his many special needs. I accept what the offender tells me happened as is set out in Exhibit 9. It reads in part: - The thing that really made me realise the seriousness of the situation I had gotten myself into was when the police came to my home and told me that they had received intelligence that an imminent attempt on my life was to take place and that I had to pack my bags, and leave my home. I didn't know what to do. I called Paraquad, that's the Paraplegic and Quadriplegic Association. At the time they were my care providers. I told them that the Police were at my home, and asked them if they could help me find some other accommodation. They run a facility at Lidcombe called Ferguson Lodge, which is like a nursing home for Quadriplegics and I asked them if I could stay there, even under a fake name, But they refused to help, not only that, they stopped all my carers from helping me unless I could find somewhere far away that no one knew about, they wouldn't help me. I called my cousin Andrew, who lives at Coffs Harbour and told him what had happened, and asked him if I could come stay there for a while. My nephew Andrew hired a minivan and Jarrad, a friend at the time who is now my flat mate/carer, came to Coffs Harbour with me. I stayed there for about a week but it was not suitable as he owns a Macadamia farm and it was not wheelchair accessible, and hard for me to get around. We came back to Sydney, and I stayed a couple of nights at my mum's villa, that is down the road but Paraquad said it was too close to my home, so they still refused to help me. The only thing I could do was to go back home and hide inside. My brother, his son and Jarrad tried to care for me as best as they could but at the time none of them had any sort of training and within a few weeks I had pressure sores on my bottom and in my groin. I kept calling every organization I knew of, to see if they could help me but none of them would. Eventually one of the Managers of DOCS told me to go to Royal North Shore Hospital and get myself admitted into the Spinal Ward before my condition deteriorated any further. They admitted me to the Spinal Unit and they were able to heal my pressure areas and they wanted to discharge me. But we still couldn't find anywhere for me to go, the hospital had many meetings with all the different Government Agencies, including the Police Force. They continued to investigate the threats, but it dragged on for months and months. Eventually, I contracted MRSA (which is golden staph), because I was in hospital so long. I believe it was six months all up. I felt as if I was already incarcerated. It was the lowest time in my life. It was worse than when I broke my neck. It came out in the meetings that MS, a guy who I thought was my friend for almost 15 years, was the one who was offering to pay for someone to come to my home and kill me. I was in shock. I really just wanted my life to end.

CAN THE EVENTS BE CONSIDERED AS "EXTRA CURIAL PUNISHMENT" AND IF SO SHOULD REGARD BE HAD TO LESSEN THE SENTENCE TO BE IMPOSED?

53 In Allpass (1993) 72 ACrimR 561 the court described what it found constituted extra curial punishment in that case at 566: Finally, there was a particular and unusual feature of the case involving a form of punishment which certain members of the community had taken it upon themselves to inflict on the respondent prior to the sentencing proceedings. The evidence showed that, following the events of 4 January 1992, the respondent and his elderly wife were subjected to a campaign of abuse and harassment, involving threats of serious injury to person and property. It should be added that the Crown concedes that it is relevant to the outcome of this appeal that this campaign intensified following the announcement of Judge O'Reilly's decision. It reached such a level that the respondent was forced into a psychiatric clinic for treatment, and, according to the evidence, he was pursued even there. The respondent and his wife have had to leave their home, removing their belongings under cover of darkness, and they now live elsewhere under assumed names. Quite apart from the decision of this Court, the respondent and his wife have paid a high price for his wrongdoing.

54 Here it was not a vigilante reprisal that was feared by the police but I conclude the prospect of the offender being killed or further maimed to keep him quiet. It seems to me that that constitutes a form of extra curial punishment and not merely an occupational hazard of those involved in crimes such as this, although it is proper to concede that there were elements of that in what happened. (see R v Genz [1999] NSWCCA 285).

55 I propose to take it into account when sentencing to mitigate the punishment. (See R v Barci & Asling (1994) 76 ACrimR 103 at 111 and R v Daetz (2003) 139 ACrimR 398 per James J at paragraphs 62-66).

56 His time in custody will undoubtedly be demoralising because he can associate only with offenders with "… intellectual or other cognitive disabilities" where he has neither. He is a person probably in a superior intellectual range.

57 Secondly, he will have very restricted access to activities which would otherwise occupy him. In his case it has been provided by the Internet, which I note in miserable irony was the vehicle for his participation in this crime.

58 There will be little, if anything, for him to do in gaol. He will not have his mobile phone which presently allows him to socialise with others. His ability to associate with other inmates because of the circumstances in which he is to be housed will be substantially and detrimentally restricted - much more, I find, than an inmate sentenced for an offence such as this but without his physical disabilities.

59 Hardship that an offender will suffer in gaol that is extraordinary to that of any offender can be taken into account in determining the proper length of the sentence to be imposed. Normally this question arises in circumstances where it is anticipated that a prisoner will need to be held in some form of protective custody (see for instance, R v Cartwright (1989) 17 NSWLR 243 and R v Burchell (1987) 34 ACrimR 148).

60 Questions relating to the safety of prisoners within gaol are properly matters for the Department and not for the Court. (see R v Nomchong NSWCCA 10 April 1997 unreported)

61 As McInerney J noted in that case: - … the question of the manner in which the prisoner may serve his sentence in respect to segregation and matters of that nature is a particular matter that can be taken into account in determining an appropriate sentence.

62 Even though the offender's condition is that which it was at the time he committed this offence and it could be said that he should have been aware that a consequence of being caught and punished for it would be as I have described, I am of the view that the unusual hardships he will endure in prison because of his quadriplegia attracts a significant reduction in the sentence that would otherwise apply.

63 In doing so, however, I bear in mind that the effective discount ought not be so great for this and other relevant factors as to be disproportionate to a proper sentence for such a serious crime.

64 This is not a case which requires an uncertain prediction as to the nature of his circumstances in custody. His physical disabilities will not change and thus will be the same through his sentence. I find that his time in custody will be spent in circumstances described in the joint report of Mr Grant and Ms Langford recited above.

WHEN THEN IS THE PROPER STARTING POINT TO DETERMINE THIS SENTENCE?

65 I sentenced CR on 2 May 2008. For this offence I imposed a total sentence of 11 years and 3 months and a non-parole period of 5 years and 2 months. He received a combined discount of 55% for both his plea at an early stage and very significant assistance to authorities.

66 Against that, there was the very significant aggravating feature of his case that he was on parole at the time he committed the signal offence and that crime was for a very similar offence to that for which he stood to be sentenced.

67 That factor does not apply in Baker's case. He has some prior convictions which it is agreed were relatively trivial. (T.4:18)

68 Thus, without the discounts, the sentence for CR would have been a head sentence of 20 years and 6 months and applying the sentencing formula, a non-parole period of 15 years and 4 months.

69 To allow for the serious aggravating feature in CR's case not present here (namely that he was on parole for a very similar offence at the time) I find that a proper starting point for the total sentence in Baker's case is 15 years.

70 I allow a discount of 25% for the utilitarian value of the plea (R v Thomson and Houlton (2000) 49 NSWLR 285) which results in a starting point of 11 years and 3 months.

71 In fixing a total sentence, I allow for what I have described as extra curial punishment and some delay in sentencing Mr Baker, which was caused by the difficulties attendant upon obtaining proper advice from the authorities, and not of his making.

72 To reflect those matters the total sentence will be 10 years and 6 months.

73 I find special circumstances. They include that the offender is genuinely remorseful and he represents excellent prospects for rehabilitation. In fact, I believe I can predict with an unusual degree of confidence that he will never re-offend. He has never been to prison before.

74 I am of the view that the highly unusual feature of the effect of his physical condition and the way in which he will have to serve his sentence is properly treated as a special circumstance and a very significant one.

75 I will sentence the offender to a non-parole period of 3 years and 6 months.

76 Paul Anthony Baker for the offence of conspiracy to manufacture not less than a large commercial quantity of MDMA you are convicted . I sentence you to a non-parole period of 3 years and 6 months to commence on 27 May 2009 and expire on 26 November 2012. You are sentenced to a total term of imprisonment of 10 years and 6 months to commence on 27 May 2009 and expire on 26 November 2019

77 You will be eligible for release on parole on 26 November 2012.

SCHEDULE Obtaining Methylamine: In early 2005, MS, in concert with innocent agent, Claudio Cristofano ("Cristofano") arranged for the importation of Oleic Acid from China, through import company Southern Cross. MS paid Cristofano $28,000 cash to pay for this importation. On 21 June 2005 this shipment was examined by Police and Customs who found 11 x 200 litre drums of methylamine smuggled with 69 drums of Oleic Acid. Oleic Acid has no use in the manufacture of illegal drugs and was merely a disguise for the importation of the methylamine. Methylamine in its pure form is not a prohibited drug but it is a key reagent that is capable of being converted into MDMA when reacted with other necessary chemicals and precursors. In its original state, the 2200 litres of methylamine, when used in conjunction with other chemicals, could have produced approximately 500-1200kg of the prohibited drug MDMA. Investigators later diluted the methylamine whilst in the custody of Customs, making it unusable. MS later arranged for these drums of methylamine to be transported to locations which became accessible to the offenders.

On 22 December 2005, Baker made an offer to MS to help out with the storage of the remaining drums of Oleic Acid which were in storage. Baker "you know that Olfic acid (sic)? … get your mate to find out … what company it came from … was it organised in China?", which MS confirmed. MS told Baker it was costing $375 to store each pallet and Baker offers a double garage that "could probably store it for $375 for the whole lot."

On 17 November 2005 MS and Baker discuss the chances of chasing the company from China who they believe sold MS the diluted methylamine. Baker asked if he got a "Certificate of analysis" and MS tells Baker that "The Company over there wiped their hands, full stop. They closed down … they were only set up for one thing." They discuss selling the methylamine and Oleic Acid "so you can cash it in" and MS agrees "otherwise it's just costing money every day that its there." MS employed Glen Faunce to make several deliveries of the methylamine to Melbourne.

CR is Recruited: CR had got to know AD in goal, and in about April 2005 AD had asked CR for simple instructions that anyone could follow to make MDMA. This list included the chemicals hydrobromic acid (HBr), glacial acetic acid, sassafras, di-methyl formamide and palladium chloride; the chemicals used in the bromosafrole method of MDMA manufacture. CR did not know about the methylamine and did not intend to use it for the manufacture of MDMA. These handwritten notes were later found in the possession of AD. Around August 2005, CR was released from gaol on parole.

Acquisition of the Chemicals Required to Manufacture MDMA: On 29 June 2005, MS ordered one 20L drum each of Di-Chloro Methane AR and Hydrogen Peroxide from a legitimate chemical company, Fronine Pty Ltd, calling himself "M from Sonar" to be delivered to Sonar, a legitimate cleaning company at 25A Amax Avenue, Girraween. MS then arranged for an associate to pick them up. Di-Chloro Methane AR is a general solvent, and can be used in any drug manufacture process including MDMA and methylamphetamine. CR recommended them to MS and AD.

By 10 August 2005, AD had given the handwritten list of chemicals to MS and called him concerning the chemical "Acetonitrile", a chemical used in the manufacture of MDMA and not methylamphetamine, which was on CR's list. AD: "You wanna pull out that paper out for a second … halfway down there's something ending with "trile" T-R-I-L-E. … can ya get that one too?" MS: "Yep". AD: "… Just let me know what 20 litres is worth … I can use that as leverage with someone." MS: "No problems". On 13 October 2005, AD asked if Baker had looked into getting some "Acetonitrile" so that they can "grab it and trade it". AD said he would "ring the guy and see if he struck a deal". Baker offers to get a price on a "ton of it for ya". On 20 October 2005, Baker advised AD that he had got a price for the acetonitrile - $9 per kilo - 160 kilos to a 200L drum.

On 17 August 2005, MS calling himself "M from Sonar" ordered one drum each of Methylated spirits 70%, chloroform 20L AR grade and hexane fraction from Fronine. that day, he ordered Ammonia Acetate AR. These chemicals; Methylated Spirits 70%, Chloroform 20L AR grade, Hexane Fraction and Ammonia Acetate are all used in the manufacture of MDMA. On the 2 September 2005, these chemicals were collected from Sonar Enterprises by Gary Aquilina and conveyed to Aquilina's home address in Greystanes. Police surveillance later monitored MS and his de-facto collecting these chemicals from Aquilina premises and conveying the chemicals to AD's home, with police taking photos of the drums and their labels. Ammonium Acetate was found later in a search of AD's home.

An Agreement To Manufacture at the First Meeting of the Offenders: It was around this time that CR met MS and Baker for the first time at AD's home. Over a period of 2-3 hours they spoke about getting the equipment and chemicals together and what they would need to manufacture MDMA. Baker asked CR what equipment was needed to convert the large quantities of Safrole that A had to MDP-2-P and then convert this MDP-2-P to MDMA It became clear to CR that AD, MS and Baker were intending on gathering the necessary equipment and chemicals to manufacture MDMA and that they were asking CR for advice on what equipment and chemicals they needed to manufacture it. One chemical which was hard to source was di-methyl formamide and CR states that; "one of them, M, A or Paul had an uncle in the United States of America. The uncle said that he could source some di-methyl formamide. I had told A he needed this chemical back when we were in gaol together for MDMA manufacture." At this meeting, Baker told CR that he had a company set up and was going to import this equipment from China or India. MS would press the drug into pills and MS and AD would sell the product and the profits would be split four ways. CR was to be the cook. Baker asked CR for a complete equipment kit for methylamphetamine and MDMA manufacture. To this end, AD provided CR with a CD labelled "M's Internet" which had recipes for the manufacture of MDMA using Bromosafrole, Chlorosafrole and Nitro-Ethane.

Police later found "Benzoquinone", "Absolute Ethanol; and "Formamide Anhydrous Reagent Grade" in MS's home. Benzoquinone and Absolute Ethanol are used in the manufacture of MDMA only. CR recommended to MS that he get some Benzoquinone to manufacture MDP-2-P and this MDP-2-P could then be converted to MDMA.

The offenders were trying to obtain Acetonitrile (referred to as "trill") to swap for Di-methyl Formamide which was need to manufacture MDMA. CR was going to arrange the swap of Acetonitrile (that Paul Baker was going to get) for Di-methyl Formamide from another one of CR's associates. On 21 November 2005, AD asks Baker if he can obtain a small amount of Acetonitrile "trill … five litres or something ... because that guy that CR was gunna organise he wants to have a look at it." Baker immediately calls an unidentified male but he cannot provide it.

On 26 November 2005 Baker is talking about some glassware he is receiving: "centre one is 60 42 or something. It's got an adaptor and there are two side ones. They're three necked ones." CR states that "this conversation relates to glassware and in particular the sizes of a reaction vessel lid. 60 42 would be the size of the main neck adaptor on the lid and the two sides ones would relate to other necks that are for other uses such as inserting a thermometer or adding ingredients".

The Search for a "Safe House": Towards the end of 2005 and early 2006, all of the offenders looked extensively for a safe house in a remote area where they could conduct the MDMA cook. They made numerous enquiries with real estate agents and over the internet for rental properties in semi-rural areas outside Sydney, to be leased in false details. On 8 December 2005 Baker lamented to MS and later to CR that "we lost that house … the bloody real estate came and re-possessed it." Baker suggests he can provide CR with a "$800 carbon filter fan … which was good for smells" if he needs it in a smaller place but CR "doesn't think it's worth the effort". This setback is "gunna put us back further" according to Baker. For this purpose, On 9 December 2005, Baker told MS that he had "found another place" and MS agreed to "take (CR) out there". A few minutes later, MS phoned CR and arranged to pick him up and then "I'll pop over and we'll go and have a look." Then MS called Baker and they suggest that the agent meet them out there "to have a look at the property" and "when youse are finished we can up (at Baker's home) to run some stuff past CR".

CR deposed that he travelled with MS, and a person called Roger to a property at Badgery's Creek, which MS had rented for 6 months but was not suitable for an MDMA cook. On 11 December 2005 Baker confirmed that MS was going out to "check out" the property in "Annangrove off Windsor Road … it's 2 ½ acres" which was renting for "390 a week". That same day, MS and AD discussed a place at "Oran Park (that) looks pretty promising" and that "Paul (Baker) rang today with another one … over at Richmond way." MS said "I've gotta actually go over and have a look at it and then we'll take our friend over", a reference to CR. On 12 December 2005 MS asked Baker to "Print those places off for me … I've got my mate checkin' out that one on the 2 ½ acres." Later that afternoon, MS and Baker discuss finding the properties on www.realestate.com and MS could not remember the other one, so "I'll have to check … it might have been Windsor". On 17 December 2005, CR is frustrated at the lack of action; "I've been waiting here for days", and AD tells him that "they've submitted a couple of places … we're just waiting for the answers for those places." On 18 December 2005, Baker urged MS to have "a plan of strategy on chasing these bases … we need to get a nailed down effort to going out and finding them and just sending them in and filling them." He remarks on CR's frustration: "The other guy's getting pretty anxious actually." MS states "me too, everything is sitting there". On 22 December 2005, Baker told MS he had "two houses so far ... (one) is in the middle of nowhere … Kurrajong way. I'll get Rog to come and you're your or CR or somebody". This is a reference to the fact that they had not found a suitable rental property, yet the required equipment/chemicals to be used in manufacture had already been acquired

The Conversion of Hexamine into Methylamine: The offenders were finding it difficult to source di-methyl formamide. So, the offenders planned for CR to obtain hexamine from an associate and convert it to methylamine through a simple chemical reaction process. Then, according to CR, MS and AD were going to trade 100 litres of methylamine 40% aqueous for 20 litres of di-methyl formamide through AD's connection in Melbourne. On 7 December 2005, AD asks MS: "did CR see that bloke and work that thing out?" MS says later: "I said if all we gotta do is give him 40 …" a reference to the fact that CR was being paid $40,000 for 100 litres of 40% aqueous methylamine. Indeed, on 15 December 2005 AD asked CR to get "10 or 20 kilos" of "Methylamine" for him, which has to be mixed with "distilled water". AD also wanted to know whether he can make a profit to defray the cost of the previous order of diluted Methylamine: "is there a way I can make something on it to recoup-ish that other lot?" CR tells him that "it's worth peanuts (but that) he's gotta racemise this one" meaning "he's gotta boil it with hydrochloric acid and then its ready to go." On 22 December 2005, AD refers to the "400 that he's got … he's got 400 of that job that he's got" and tells MS that "He's gonna get that brought down this weekend and I'm gonna take it off him … I think we should take it off him, just to try to compensate on what damage is done." They discuss "how much we will sell that for" and decide that "I'll get rid of 10 or something … and try to get a couple out of it." This is a reference to the 400 kilograms of hexamine which was being obtained to convert to methylamine for later trading for the chemical Di-methyl Formamide, a chemical they needed for their MDMA manufacture venture.

A heating mantle was needed by CR to heat a drug mixture contained within a reaction vessel to convert the hexamine to methylamine. On 7 January 2006, Baker told MS that "I spoke to C (CR) yesterday … you know that heating thing you've got? In the 10 size … he needs one of them." MS confirms that CR needs it to make "something for us." This conversation relates to an electric heating mantel big enough to accommodate a ten litre reaction vessel. Heating mantels were seized from the home addresses of Baker and CR during search warrants executed upon their respective residential addresses on the 1 August 2006. Later that day, Baker arranged for an associate to pick up "the ten litre bottles and the heater for it" from "the farm" and in a later call, MS confirms with Baker that he is "picking up that thing for C? … the ten ones … the heating, the whole lot … all the accessories." Police surveillance captured MS giving CR a box containing a heating mantle and a 10L glass sphere to CR a few days later - they met later that day on the side of the road at Henry Lawson Drive, Panania to get the missing parts.

Now that he had the necessary parts, CR got the 2 x 25L bags of hexamine from an associate, and then got some hydrochloric acid and other equipment from Bunnings. CR tried to convert the hexamine, but the heating mantle burnt out, which he rang MS about by phone. On 11 January 2005 CR phoned MS and told him "there's no stirrer with that" heating mantle. MS checked this with Baker who had ordered more mantles with stirrers and told him that the one from India did not come with stirrers, but the one he was getting from China did. MS told CR that the "new ones" will have stirrers. An electric stirring device is an item of electrical equipment that comprises of a heating element and a magnetic stirring adaptor. Both the heating element and the stirrer can be activated simultaneously. This assists the drug manufacture reaction process by heating the reaction mixture whilst simultaneously stirring it, thus keeping the mixture evenly mixed and heated. On 25 March 2006, Baker informed CR that "my mate dropped off that bloody heater … but he's burned the element out of it" and CR tells Baker that it can be repaired. On 28 April 2006, Baker imported one electric stirrer. Two electrical stirrers were found when police searched Baker's home in August 2006.

In the meantime, CR tried to do the conversion of hexamine to methylamine without the electric stirring device. He researched hexamine conversion at home and printed out a 12-page FAQ re methylamine; a facts sheet entitled "The Methylamine FAQ 2.7" was later found at MS's home, as he had collected it from CR. CR then decided to do the conversion using a natural oxidisation process; he placed the hexamine into a dust bin and poured the hydrochloric acid over the top of it, stirred it up and left it. Three days later, they decanted the converted liquid methylamine into 5 x 20L chemical drums which CR stored at his place. Shortly afterwards, MS collected them. Later MS claimed that the people in Melbourne were having problems with the methylamine so CR tested it, found it good and provided instructions to AD and MS to pass on to the people in Melbourne, but he heard nothing further about this. The document titled "Hydrolysis of Hexamine" found at MS's home is the internet print out which CR states "I gave to A around the time I was doing the hexamine to methylamine conversion. I gave A this document when he told me his Melbourne associates were having problems with the methylamine I had manufactured for him."

On 7 April 2006, AD told CR that the methylamine he had converted from Hexamine for AD's associate was not working; "the smell is not the same as what he's used to … I explained to him (about) the additive". On 11 May 2006, AD asked to see CR about "that diagram … I need to run a couple of things through ya." CR deposes that; "The diagram relates to a sketch I had drawn for A on how to use the methylamine that I had converted from hexamine. The "couple of things" relates A's questions about the problems he was apparently encountering with the methylamine I had manufactured." On 3 May 2006, MS ordered Formamide from Fronine P/L to be delivered to Sonar.

Baker Orders the Hardware & Glassware for MDMA Manufacture: On 8 December 2005, Baker then asked CR to come over because "I want to go through everything and make sure if there's anything else you can think … cause me uncle's got me onto this guy in China, who I'm talking to and he (can provide anything you want) …. I've got two continuous steam generators …" CR later deposed that: "Baker wanted to go over everything with me because he wanted to order everything at once. This was limited to hardware and glassware that I recommended and did not include chemicals. The things I recommended included clamps, condensers, adaptors, vessels, thermometers, stirrers, retort stands and nipple grease because Paul wanted it all to come into the country after being imported in one consignment and didn't want to have to order other equipment in bits and pieces afterwards. This equipment was proposed to be used in the MDMA manufacture venture by A, M, Paul and I." After this conversation, CR then went over to Baker's home and looked at items on the internet. CR states that "Paul and I ended up settling on the equipment we needed for the MDMA venture".

Obtaining Drug Information & Literature: The offenders actively pursued the acquisition of information and literature relevant to the manufacture of MDMA. On 15 December 2005 CR asked MS when he would be coming near his home "so I could pick up that literature", however, MS had "loaned it to someone and never got it back". CR confirms that the "literature" referred to by MS and himself were the books "PIHKAL" and "TIHKAL". On 17 December 2005, a telephone conversation was intercepted between AD and CR. Both discuss a book they refer to as "The Love Story". AD tells CR: "I got that book picked up for (MS) you know that love story?", but CR says "I already have one of those (not both of them) just the love story." AD and CR are referring to a book titled "PIHKAL - A Chemical Love Story" which is a comprehensive guide to manufacturing prohibited drugs and what affects these drugs have on the body, written by an American Chemist, Professor Alex SHULGIN. During a search warrant executed upon the premises of MS on the 1 August 2006, a copy of "PIHKAL - A Chemical Love Story" was located on the floor beneath MS's bed, next to the bedside table and "TIHKAL - The Continuation" They also found a copy of "Pihkal, a Chemical Love Story" with associated documents at CR's home.

By mid-December, CR was becoming frustrated at the lack of progress with the MDMA manufacture. On 17 December 2005, AD asked CR whether he had given MS "some upsetting news" and CR expressed frustration at the lack of response by MS: "I needed to give him that list … (and) I'm trying to put something together and like to get some funds." CR explains that "The "upsetting news" referred to the lack of communication between MS and CR. CR laments his lack of money: "I haven't earned a cent since I've been out of gaol. … I've got to have $3,500 for this course by 6 February."

In February 2006, AD told CR he had a "bible" for him - this was a "Merck Index" book. On 20 February 2006, AD told CR he had just seen Baker who had "that research (you asked him for) he's got it (and) he was also saying that he might have that literature that you wanted M to get for ya." CR confirmed that "Paul (Baker) told me he was going to do some research and the get back to me Friday afternoon." In a subsequent conversation AD asks Baker about "that literature that you found for him".

On 23 February 2006 CR had a bike accident and could not return to his home, so he asked the co-offenders to get his drug literature in case his home was raided by police. MS, AD, Baker and CR discuss that "he's (CR's) got our index ("Merck Index" book) but we can get another one (and) the big fat book … he's got the other two, the professor ones" and "he's got those three very important books". AD and MS later went to CR's unit and removed these books along with some glassware and his computer." The fact that AD and MS want the books is further evidence that they were involved in a conspiracy to manufacture MDMA.

Also located in MS's home were a quantity of documents for chemical orders, books and internet web-site pages relating methylamine 40% and to chemical processes in the manufacture of the prohibited drug MDMA. Police also located a newspaper article titled "China Link to Drug Lab", an internet article relating to methylamine 40% and a Fronine Chemical price list and the bank account details for Fronine in his notebook as well as deposit slips of payments made to Fronine.

A search of CR's home revealed the following, indicating his involvement in the conspiracy to manufacture MDMA: several glass sample tubes with traces of MDMA, and related chemicals such as sulphuric acid 98%, Shellite, a set of black scales, glassware and associated equipment; metal condenser, hotplate, filter paper, sieve & funnel, electric probes and a number of resealable bags. These items could have been used in the MDMA cook if required.

A search of Baker's home revealed the following, indicating his involvement in the conspiracy to manufacture MDMA: a tablet press and parts, and a single punch tablet press manual, three scientific glass elbow joints, an amount of the chemical acetic acid as well as the cutting agent, Mannitol; two stainless steel feeder shoes, one with residue of ketamine (item G05), 25kg bags of Mannitol, sealed bags of Sodium Bromide, 20L drums of "Acetate Acid 90%" and two electrical stirrers

A search of AD's home revealed the following, indicating his involvement in the conspiracy to manufacture MDMA: digital Tanita brand scales in his bedroom and a black set of electronic scales, references to chemical processes used in prohibited drug manufacture and 509 grams of sugar mannitol.

The Acquisition and Use of Anti-Surveillance Encrypted Telephones: The offenders acquired mobile phone handsets capable of being "data encrypted". A GSMK Cryptophone was found in the search of MS's, documents relating to "Cryptophone" were found in CR's home, a Cryptophone carry case was found at Baker's home and a phone at AD's home. These "data encrypted phones" were acquired to frustrate law enforcement investigations so that they could talk freely about their MDMA manufacture plans without detection. These data encrypted phones were also the subject of lawful interception.

The offenders never accomplished a manufacture of MDMA.

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.

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Judgment (120 paragraphs)

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Cases Cited (3)