[2013] HCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
Veen v The Queen (No 2) (1988) 164 CLR 465
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
Veen v The Queen (No 2) (1988) 164 CLR 465
Judgment (5 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Offender)
File Number(s): 2017/127752
[2]
remarks on sentence
HIS HONOUR: Daniel Michael Bushell was charged with the murder of Ricky Ciano, the supply of a large commercial quantity of methylamphetamine, the manufacture of a large commercial quantity of methylamphetamine, and supply of a large commercial quantity of MDMA. Mr Bushell pleaded guilty to the three drug offences (hereinafter "the manufacture offence" and "the supply offences") which were said to have occurred between 13 January 2017 and 28 April 2017. Mr Bushell pleaded not guilty to the murder of Mr Ciano, but guilty of manslaughter, and on 5 September 2023, a Jury found Mr Bushell not guilty of murder, but guilty of manslaughter.
There are disputed facts in relation to the manslaughter offence and agreed facts in relation to the three drug offences. It is necessary for the Court to make findings not inconsistent with the verdict of the Jury.
R v Bushell [2023] NSWSC 1456 | Case summary | Zoe
As well as the drug offences charged and on which the Court is required to sentence, the offender seeks to have the Court take into account, in the sentence on the manufacture offence, a Form 1 offence that between 13 January 2017 and 28 April 2017 he possessed ephedrine, being a precursor intended by him for use in the manufacture by him or by another person of a prohibited drug, namely methylamphetamine. The Form 1 offence is an offence under s 24A(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW).
Manslaughter is an offence punishable, by a maximum sentence of 25 years' imprisonment, in accordance with s 18(1)(b) of the Crimes Act 1900 (NSW). The drug offences are offences contrary to ss 24(2) and 25(2) of the Drug Misuse and Trafficking Act, and each of them carries a maximum penalty of imprisonment for life, and/or a substantial fine and a standard non-parole period of 15 years. There is no standard non-parole period prescribed for manslaughter.
Mr Bushell has already been in custody for these offences only since 26 July 2018, a period of almost 5 years and 4 months. As stated, the Form 1 offence is to be taken into account in the sentencing for the manufacture offence.
In relation to the drug offences, a significant amount of the evidence has been obtained by lawfully deployed surveillance devices. On 27 April 2017, the offender left his brother's home in Ropes Crossing with a green Enviro bag and took a taxi to a unit in Lethbridge Park. There he met Mr Hagop Kupelian.
The offender filled plastic containers with approximately 2 kg of methylamphetamine, during which time Mr Kupelian was communicating with Mr John Tozer, the offender's brother and, at the beginning of the trial, his co-accused. The communication was via a Blackberry, which is an encrypted device, and included messages relating to the supply of prohibited drugs, which demonstrated some frustration on the part of Mr Tozer as to Mr Bushell's apparent inadequate performance of the task.
Both the offender and Mr Kupelian then exited the unit, and Mr Kupelian drove the offender back to Ropes Crossing. The offender obtained cash and gave it to Mr Kupelian in part-payment for the drugs. Mr Kupelian then left, picked up another individual, then began driving north to Queensland to deliver the drugs.
In the early hours of 28 April 2017, Mr Kupelian's car was stopped by police and police identified the Enviro bag containing the containers of prohibited drugs. The men were let go and police continued monitoring their progress, but when it became apparent that they were leaving the New South Wales jurisdiction, police arrested them.
At an interview after arrest, Mr Kupelian made full admissions. He said he often delivered packages for Mr Tozer and did not enquire as to the contents of the packages, although he knew that he was, at the time, transporting nearly 3 kg of a drug. The police found 1.928 kg of methylamphetamine with a purity of between 59 and 75.5%. The offender's fingerprints were found on one of the components, as was his DNA.
On 28 April 2017, police executed a search warrant at the address in Lethbridge Park. There, police found a clandestine drug lab, mostly located within one bedroom. A large extractor fan had been set up, as well as other cooking and drug production paraphernalia, including personal protective equipment. Police determined that 1.4442 kg of manufactured methylamphetamine was present, together with waste products.
There were also bags of brown tablets, some of which contained methylamphetamine and methylenedioxyamphetamine, which did not seem to have been manufactured at the location.
Further, again, police found a bag of 1004.4 g of ephedrine as well as substances used in the manufacture of methylamphetamine. DNA of both the offender and Mr Tozer were found on various items at the premises.
On the same day, namely 28 April 2017, the offender was arrested at the house in Ropes Crossing. He declined to participate in an interview. In December 2017, he was recorded on surveillance devices in his cell discussing the offences with his cellmate, with such admissions according with the drugs found at the house and the statements of Mr Kupelian.
As earlier stated, it is for the Court to make appropriate findings of fact for the manslaughter offence, limited to findings that are not inconsistent with the Jury's verdict. On behalf of Mr Bushell, it was submitted that the Court should find the following facts: the cause of Mr Ciano's death was due to a mixed-drug overdose; the main drugs causing death were heroin and cocaine; other drugs found were alprazolam, which is a sedative of benzodiazepine, and oxycodone.
Upon post-mortem examination, the forensic pathologist observed a very recent injection site to the deceased's left antecubital and only one site for an injection.
In the period leading up to his death, the deceased was a user of oxycodone and kapanol. In the week or two before his death, the deceased's wife, Ms Rachel Ciano, saw the deceased taking Targin (an oxycodone and naloxone mixture) once a day, mixing it in glasses.
There was a large number of Targin tablets found in Mr Ciano's BMW, with his body. There were three undigested Targin tablets found in Mr Ciano's stomach.
The offender also relies upon evidence adduced as to the Web History section of the Cellebrite Extraction Report of the deceased's iPhone which included a news article entitled "My two-year battle to beat oxycodone addiction". On the morning he travelled to Oberon, the deceased visited a webpage on his iPhone which read "Precipitated Withdrawal Following Injection of Oxycodone/Naloxone Combination Tablets - Targin".
As to the actual offending, the offender submits that the Court should accept the version of events provided by Mr Tozer to Witness A, namely that the deceased accidentally overdosed while he was with Mr Bushell and Mr Tozer "partying" and had asked for a "shot". Ordinarily, such evidence would not have been able to be adduced in Mr Bushell's trial.
Witness A was called at a time when the trial concerned both Mr Bushell and his brother, Mr Tozer. Were it not for that circumstance, the statement by Mr Tozer to Witness A, albeit admitted without objection, may have been hearsay and inadmissible. The Court, on sentencing, is not bound by the rules of evidence.
Nevertheless, the statement to Witness A was self-serving and exculpatory to Mr Tozer and, in order to accept it, the Court would need to accept the evidence of Witness A, and that Mr Tozer was telling Witness A the truth. There is good reason why hearsay evidence is generally excluded. It cannot be the subject of testing in the usual manner.
Having made that comment, I accept that Witness A was truthful and, generally, reliable. In the course of the proceedings, it seems both the Crown and the accused accepted his evidence.
Nevertheless, there would have been very good reason why Mr Tozer would have been untruthful about the circumstances of the consumption by the deceased of a mixture of heroin and cocaine and I do not accept, even on the balance of probability, that Mr Tozer was being truthful. Further, given other evidence, to which I will come, I do not accept this version as a reasonable possibility.
I note, at this juncture, that any conclusion of fact to be held against the offender is required to be proved beyond reasonable doubt. Because of that onus, it is unnecessary for the offender to prove that the deceased consumed the drugs willingly; it is only necessary for there to be a reasonable doubt that the deceased consumed the drugs in circumstances where he was not consenting to that consumption.
The offender submits that the Court should sentence him on the basis that he or Mr Tozer injected the deceased with drugs with the deceased's consent. In my view, this puts the burden of proof incorrectly. It is only necessary for the Court to have a reasonable doubt that the injection occurred without consent.
On the other hand, if the offender seeks to rely upon the proposition that the deceased requested the injection, the deceased bears the onus of proving that on the balance of probabilities. It also involves the proposition that the deceased was fully conscious and able to give consent at the time that Mr Bushell or his brother injected the drugs that, ultimately, killed Mr Ciano.
The Jury verdict is consistent only with the proposition that the offender and/or his brother deliberately injected the deceased with a mixture of drugs containing heroin and cocaine. It is also consistent only with the proposition that the injection occurred in circumstances where the Crown has been unable to prove that the offender intended to kill the deceased or to cause him grievous bodily harm.
The evidence in the trial discloses that the deceased was a user of oxycodone. It seems that the use commenced because of chronic pain associated with the deceased's back and the prescribed medication did not always relieve the pain. It seems that the deceased used oxycodone significantly more than was the dosage prescribed for him. He obtained oxycodone tablets otherwise than on a prescription written for the deceased. Indeed, Witness A provided the deceased with oxycodone tablets.
While the deceased, at least on the balance of probabilities, researched information relating to withdrawals from oxycodone and naloxone and the Court is satisfied that the deceased abused and was probably addicted to oxycodone, there is no evidence to suggest that the deceased was a user of methylamphetamine or heroin nor, in recent history, of cocaine or heroin.
On the contrary, the evidence is that the deceased expressed views deploring the use of methylamphetamine and heroin. The evidence of his former mother-in-law, Ms Julieann Fulcher, former partner, Ms Bianca Barnier, and wife, Ms Rachel Ciano, were to that effect, and also to the effect that he had a phobia about injections of the kind that would need to be used to inject a mixture of cocaine and heroin.
The evidence adduced through Ms Fulcher was compelling as to his attitude to injections. While the deceased injected himself with steroids during the period that he was bodybuilding (and not intending to have children), these were injected using insulin needles or subcutaneous needles, which merely pierce the upper layers of the skin and, in some circumstances, the very top of the muscle.
The evidence of his attitude to intravenous injections was, as just stated, compelling and such that I consider it most unlikely that the deceased consented to the injecting of these drugs. Added to that circumstance is the deceased's expressed view as to the use of heroin and certain other illicit drugs, the level of sedative drugs in his system, and the manner in which the offender and his brother arranged the body.
First, I deal with the level of sedation.
Because of the presence of heroin metabolites and cocaine metabolites, which do not last long in the blood, it is clear that death occurred very shortly after the injection of the mixture of cocaine and heroin. Heroin itself has a half-life of three minutes and, because of that short half-life, is not the subject of testing directly. Its metabolite has a half-life of 15 minutes, and that metabolite was present in the blood of the deceased. It eventually metabolises to morphine, which has a half-life of six hours.
There is some caution that must be applied because of the fact that the sample of the deceased's blood which was tested originated from the heart rather than a peripheral site. There is no doubt, on the expert evidence adduced in the proceedings, that death was fairly rapid after the injection.
Dr John Farrar, Forensic Pharmacologist, was unable, merely from pharmacology tests, to determine whether cocaine and heroin were administered at the same time, but the inference to that effect is overwhelming. The syringe contained traces of both drugs.
Alprazolam, which is a sedative, was also present in the deceased's blood and must have been consumed 15 to 20 minutes before death in order for it to have been absorbed. Oxycodone also causes sedation. The three tablets in the stomach had not been absorbed. As a consequence, they do not account for the sedatives or oxycodone otherwise found in the blood.
It is most unlikely, but not beyond reasonable doubt, that the sedative drugs were consumed well before the mixture of heroin and cocaine. That inference, which derives from the time of absorption and the effect of the sedative and the shot of heroin and cocaine, satisfies the Court, together with the other evidence, that the sedation was consumed before the lethal mixture of drugs and that the deceased was sedated at the time that the mixture was injected.
If, as is accepted, the deceased were sedated prior to the lethal injection, it would have been next to impossible for the deceased to have injected himself. The Jury verdict is consistent with the offender and/or his brother injecting the deceased.
Given the attitude of the deceased to illicit drugs, his aversion, if not phobia, to needles and the stage of his life and attitude generally to life, the Court is satisfied, beyond reasonable doubt, that he did not consent to the injection of heroin or cocaine.
There may be a host of reasons why either the offender or Mr Tozer injected the deceased, without an intention to kill or to cause grievous bodily harm. It should be noted that the Crown did not rely upon any intention to cause grievous bodily harm. Those motives might include an intention to keep to themselves the product of the methylamphetamine cook that was being undertaken at the time that the injection occurred.
After the injection occurred, the offender was involved either directly or indirectly in placing the deceased's body in the back of a car and driving the car to a spot where it could be found. The rear of the car was set up in a manner which suggested, or sought to suggest, that the deceased had injected himself with the drugs, possibly for the purpose of suicide. That attempt failed. Nevertheless, the attempt is one of the many factors going to the state of mind of the offender. However, I do not consider it, for obvious reasons, a consciousness of guilt of murder, nor indeed, necessarily, of manslaughter.
Over and above the foregoing, there is evidence of Witness B who was a cellmate of the offender. There was some doubt cast on the evidence of Witness B by the use of an interpreter to translate notes written in Farsi (Persian) by Witness B. However, in my view, the doubt cast on the evidence of Witness B was not so great. I take into account all of the warnings given to the Jury about the evidence of Witness B.
Witness B attested to the fact that the offender said: "We racked him up!"; and was adamant that the offender told him that he and/or his brother had killed the deceased. The demeanour of Witness B was such that I consider he was being both truthful and reliable in his evidence.
Witness B gave evidence that was both inculpatory and exculpatory of the offender. For example, he attested to the fact that the offender had said he "freaked out" when he saw froth coming from the deceased's mouth, which is inconsistent with an intention to kill and consistent with surprise as to the fatal effect of the drugs injected.
Notwithstanding the testimony of the interpreter, Witness B was adamant the offender had said "we racked him up" and that they were "all partying".
It is accepted that the injection occurred in circumstances where the offender, his brother and the deceased were cooking "ice" and a significant amount of drugs had been produced. At the time that the conversation occurred between Witness B and the offender there was toilet paper on the intercom about which Witness B asked and to which the offender responded that it was because there were transcripts in the brief that he had been provided in relation to the charges against him.
Witness B referred to the offender saying that he had "G'd" the deceased, which was slang for the effect of GHB or sedation. There was cross-examination about the discount received by Witness B in exchange for providing information to police about his conversations with the offender. At the time the discussions took place, Witness B was serving a sentence for serious drug offences. Evidence was adduced that Witness B received financial benefits in exchange for the information he provided, as well as some kind of support from police in respect of his immigration status.
It is necessary to deal with the effect of the interpreter's evidence. First, there is a reference in the notes made by Witness B to "Friday night", however, the note that was translated, is equally referable to when the conversation occurred as to when the events that were noted occurred. A translation of the note written by Witness B refers to the term "wrapped", but the witness insisted that the term used was "racked" and I accept that evidence. Further, I accept that it refers to the consumption of cocaine and, in the context used, the injecting of cocaine by either Mr Tozer or the offender.
Witness B suffered from the fact that English is, at best, his second language and the discussion, in English, with the offender was one in which a significant amount of slang would have been used. I do not see a difference between a translation of Farsi into "dirty syringe" and the words which were said to be used, which were "dirty shot".
In the circumstances of these proceedings and this conversation a "shot" is an injection and might easily have been written using a term that also means syringe. While I do not accept all of the evidence that Witness B gave, I do accept that the offender used the term "we racked him up". I also accept that he used the expression or an expression indicating that he had "G'd" the deceased, meaning that he had sedated him.
Further, Witness C gave similar evidence that the offender had admitted to giving the deceased a cocktail of drugs via injection, and that the deceased was "G'd" out, which generally corroborates the evidence of Witness B. Witness C was an earlier cellmate who received a discount on his sentence on account of his assistance, including providing the evidence given during the course of this trial. He also provided assistance in another matter. There was a total assistance of 15% for this trial and the other matter, which is at the lower end of the range for such assistance.
I do not consider Witness C as reliable as Witness B, but I find there has been no contamination of their evidence and, in those circumstances, the coincidence would be extraordinary.
My conclusion on all of the evidence is that the offender has been proved, beyond reasonable doubt, to have injected the deceased (either directly or aiding and abetting his brother in so doing) with a lethal shot of heroin and cocaine but not in circumstances where there was an intention to kill or to cause grievous bodily harm. Further, I accept that this was done without the consent and not at the request of the deceased.
The Crown and the Court, in its directions, informed the Jury that an unlawful act for the purpose of the charge of manslaughter could consist of the offender's involvement in the injection of illicit drugs, even if it were, by consent. Whether the Jury accepted the matter on that basis or on the basis of an assault, namely, without the consent of the deceased, is not a matter on which the Court is entitled to conjecture. It is sufficient, for current purposes, for the Court to determine itself the circumstances of the injection, which, beyond reasonable doubt, the Court is satisfied occurred without the consent of the deceased.
One issue needs comment. The offender put submissions on the basis of the impact of a question from the Jury as to whether ignorance of the fatal contents of the shot but being a willing participant constituted consent or non-consent. Embarking on an analysis of the evidence on the basis of a question and answer, including a direction from the Court during the course of the trial, is fraught with difficulty. It is not the function of the Court to determine how the Jury arrived at its verdict. There may be some in the Jury who came to a verdict on the basis of different legal liability than others. The Court is required to determine independently the facts that give rise to the manslaughter in question.
[3]
Subjective Circumstances
The Court has been addressed on subjective circumstances at some length. Relying upon the history given to Dr Richard Furst, Forensic Psychiatrist, the offender submits that his disrupted childhood in which he was exposed to his parents' drug use and addictions and during which he spent time in boys' homes and suffered periods of homelessness, was a period of deprivation and warrants application of the principles summarised by the High Court in Bugmy v The Queen [1] . I accept that proposition.
His homelessness and exposure to drug use during formative years would have had an effect to which the Court has regard. In my view, such exposure and the consequent exclusion from normative social behaviours, is likely to lead to antisocial behaviour and requires some amelioration in the sentence. The factor goes into the mix in the intuitive synthesis that is involved in sentencing. That issue is the subject of comment later in these remarks.
Over and above the childhood deprivation, the offender has been diagnosed by Dr Furst, in his Report of 7 February 2021, with schizophrenia and substance use disorder (methylamphetamines and heroin). The schizophrenia, which is a chronic and severe mental disorder, commonly has symptoms including hallucinations, delusions, mood disturbance, and behavioural disturbances.
Mr Bushell hears voices of "demons" and "angels" but, according to the Report, was not obviously troubled or distracted by the apparent hallucinations. Nor was Mr Bushell depressed in mood or especially anxious. The Report was crafted for the purposes of the drug offences, rather than the manslaughter offence, but is relevant to all of the offences.
In terms of his social history, the offender had a relationship with the mother of his child, which had been a protective and positive factor in his development. The relationship assisted the offender in developing a pro-social lifestyle during the time of the relationship and his partner cared for him and assisted him in taking antipsychotics and in his methadone treatment program. Unfortunately, his partner passed away from a drug overdose in 2013 which, according to the Report, the offender said had a significant effect on him.
There was a subsequent relationship in which both parties were involved heavily in drug use. During that time the offender was incarcerated often for property and drug-related offending.
Dr Furst summarised the offender's medical records held by Justice Health. Those records are extensive. Dr Furst expressed the opinion that the offender would be more vulnerable in custody than a prisoner without the conditions suffered by the offender and would require significant support in the community when released. I accept that opinion.
It is not suggested that the mental conditions suffered by the offender were causative of the offending. Rather, the offender suggested that he "did as his brother told him". That comment is relied upon by the Crown to suggest that there is no contrition. In and of itself I do not accept that submission.
However, there is no acceptable evidence of remorse or contrition in relation to any of the offending, apart from the pleas of guilty. I take into account the psychiatric conditions, in the manner expressed by the Court on a number of occasions and summarised in DPP (Cth) v De La Rosa, [2] which, while not exhaustive, provides the Court with a basis for treating those medical conditions as diminishing the offender's moral culpability; rendering general deterrence of less significance; and, accepting the opinion of Dr Furst that the offender's time in custody is likely to be more onerous than an inmate without those conditions.
While greater emphasis can be placed upon Mr Bushell's rehabilitation, the lack of remorse expressed by Mr Bushell, does not satisfy the Court that Mr Bushell's prospects of rehabilitation are anything but extremely guarded.
The plea of guilty to manslaughter, whatever be the factual basis for that plea, was taken before trial, as were the pleas of guilty to the drug charges and, in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender is entitled to a 25% discount on the sentence to be imposed.
I have been provided with Victim Impact Statements which, necessarily, expressed the hurt and sadness that accompanies any death and, more particularly, a violent death. I have read and acknowledge those Victim Impact Statements.
While the offence involved the actual or threatened use of violence, this is part of the nature of the offence of manslaughter which would otherwise apply. No such factor is involved in the drug offences. A similar analysis also applies to the use of a weapon (in this case the syringe) and the use of a chemical agent and the use of a narcotic drug.
I do not consider that the offences involved gratuitous cruelty, beyond the necessary aspects of manslaughter or otherwise.
However, the offence of manslaughter was conducted in company which aggravates the circumstances of the offending.
In terms of subjective circumstances, the offender has a substantial criminal history, particularly in relation to drug offences, which shows the need for specific deterrence at a significant level. Further, the offences for which he is now to be sentenced were all committed while the offender was on conditional liberty in relation to other offences.
Having made those comments, the manslaughter offence does not, on the material produced to the Court, form part of a planned organised criminal activity. Obviously, in relation to the manufacture and supply offences, that is part of a planned and organised criminal activity, but I take it into account in the nature of the offence itself.
To those unfamiliar with the process of sentencing, some aspects of it are difficult to understand and need some explanation. Even in relation to a charge as serious as manslaughter and as serious as the three drug offences, the Court is required to assess the objective seriousness of the particular offence, within the range of conduct covered by the offence. It is necessary to assess the conduct of Mr Bushell to determine where, objectively, in the range of seriousness of the offence of manslaughter and of the drug offences, this offence fits.
As already stated, for the worst category of offences, one may impose the maximum sentence fixed by Parliament. This has already been described. For manslaughter, the maximum sentence is 25 years' imprisonment. For each of the drug offences, there is a maximum sentence of life imprisonment. There is no standard non-parole period for manslaughter, but for each of the drug offences there is a standard non-parole period of 15 years for the "hypothetical" mid-range of seriousness of offending.
There are two supply offences, each of a large commercial quantity, one of methylamphetamine and one of MDMA. Count 1 relates to 1.928 kg of methylamphetamine, Count 3 relates to the supply of a large commercial quality being 2.80522 kg of MDMA. The manufacturing offence is also of a large commercial quantity being 1.4442 kg of methylamphetamine. As earlier stated, each of them carries a maximum penalty of imprisonment for life, and a fine, and has a prescribed standard non-parole period of 15 years' imprisonment.
The sentence to be fixed involves a consideration of both the objective circumstances and the subjective aspects relating to the offender. I do not consider any of the offences in the "worst category", but the question of what kind of offence is a "worst case" is not determined by imagining conduct that could be worse. None of these offences are in the category that warrants the imposition of the maximum sentence.
The purposes of sentencing are prescribed by s 3A of the Crimes (Sentencing Procedure) Act, which, in turn, reflects common law principles. Those objectives include: the protection of society; the deterrence of the offender, and of others who might be tempted to offend; retribution and reform. Those objectives overlap and may often, if not always, point in different directions. None of the purposes can be considered in isolation and each is a guidepost to the appropriate sentence to be imposed.
The process of sentencing is neither logical nor mathematical; and is often referred to as a process of "intuitive synthesis", as mentioned earlier. This process requires the assessment and weighing of each of the objective and subjective circumstances in order to achieve an appropriate sentence that fulfils the overall objectives undertaken in the sentencing process. [3]
The provisions of s 21A of the Crimes (Sentencing Procedure) Act also prescribe matters that, if relevant, and not otherwise taken into account in the determination of the appropriate sentence, are either aggravating or mitigating factors in the severity of the sentence to be imposed or the nature of the conduct that has occurred. I have dealt with those matters that are most relevant in s 21A, and the subjective elements relevant to the offender. I accept that the drugs in question were not distributed into the community, which is a factor to which I have had regard in considering the objective seriousness of the offence.
Taking into account the circumstances of the offending and the fact that the manslaughter occurred in circumstances where the only intent could have been to render the deceased incapable for a time, it seems, notwithstanding the danger to which the offender put the deceased, to be an offence at just below mid-range in objective criminality. In coming to that conclusion, the Court bears in mind all of the factual findings that have previously been outlined.
In relation to the subjective circumstances, the Court has set out, albeit in short form, the circumstances to which the Court has had regard and which, generally, ameliorate the sentence that would otherwise be imposed. The Court takes the view that the drug offences are essentially one course of conduct and there needs to be significant, but not total, concurrency in any sentence that is to be imposed.
However, in terms of totality, the Court takes the view that the manslaughter, even though committed in the circumstances of a drug cook, was fundamentally different to the drug offences for which the offender was charged and to which he pleaded guilty. As already stated, the Court applies 25% discount on account of the plea of guilty to each of the three drug offences and the manslaughter offence.
The Court has been provided with statistics which the Court has used to check the exercise of discretion, which I have otherwise determined. However, the number of offences that are of like kind is very small and the statistics are not particularly helpful. The range of offending is not the same as the pattern of past offences, if a pattern is the correct term for the offences that have been provided in the statistics.
Further, the remarks on sentence of Judge Yehia SC (as her Honour then was) in relation to a co-offender, Mr Aaron Barsley are before the Court. After a reduction of 25% for plea of guilty, Mr Barsley, who had a much less significant and much less knowing role in some of the offending to which Mr Bushell has pleaded, was sentenced in circumstances where there were good prospects of rehabilitation and positive progress obtained and his role in the offence was at the lower end of the range of objective seriousness. Her Honour was not satisfied that the s 5 threshold [4] had been met and sentenced that co-offender to a 2-year Community Corrections Order.
Further, Mr Kupelian, who has been the subject of comment earlier in these reasons and, again, played a much less significant role in the offending than did the offender now to be sentenced, was the subject of a sentence from Judge Flannery. For the supply offence, in which he was a co-offender with Mr Bushell, Mr Kupelian received an indicative sentence of 44 months, with an indicated non-parole period of 32 months as part of an aggregate sentence that totalled 4 years. The other offence was a proceeds of crime offence.
Mr Kupelian was sentenced having regard to parity with Mr Barsley. As already stated, Mr Kupelian was a courier and, while the Court does not find that Mr Bushell was the principal, the Court does consider that he was significantly higher in the organisation than was Mr Kupelian.
Mr Kupelian was sentenced following a discount of 25% for plea of guilty, and 30% for assistance, bringing a total discount of 55%, which means that the drug offence had a starting point of 6 years and 8 months' imprisonment. Further, the sentence does not include a sentence for manufacturing.
Given the mental health conditions of the offender and his need for ongoing treatment in accordance with the report of Dr Furst, the Court considers there are special circumstances warranting a departure from the standard ratio between head sentence and non-parole period for all of the offences.
The Court has already outlined the view that the manslaughter was just below mid-range in objective seriousness. The Court considers that each of the drug offences was mid-range in objective seriousness and I propose to impose an aggregate sentence. In accordance with the legislative scheme, the indicative sentences are as follows:
1. Manslaughter, taking into account the 25% discount, 9 years' imprisonment;
2. Count 1: supply large commercial quality of methylamphetamine (1.928 kg), taking into account a 25% discount for the plea of guilty, an indicative head sentence of 9 years' imprisonment, with an indicative non-parole period of 6 years' imprisonment;
3. Count 2: manufacture large commercial quality of methylamphetamine (1.4442 kg), again taking into account a 25% discount, and taking into account the Form 1 offence, an indicative head sentence of 10 years' imprisonment, with an indicative non-parole period of 6 years and 6 months' imprisonment;
4. Count 3: supply large commercial quality of MDMA (2.80522 kg), again taking into account a 25% discount, an indicative head sentence of 9 years' imprisonment, with an indicative non-parole period of 6 years' imprisonment.
Bearing in mind the need for significant concurrency between the three drug offences but significant accumulation in relation to the manslaughter, I shall impose an aggregate sentence of 18 years' imprisonment, with a non-parole period of 12 years' imprisonment.
Obviously, the threshold in s 5 [5] has been met and I consider that no penalty other than imprisonment is appropriate. The sentence will date from the date of arrest, being 28 April 2017.
[4]
Sentence
Mr Bushell, please rise.
Daniel Michael Bushell, you are convicted of manslaughter in that between 10 February 2017 and 14 February 2017 in Oberon in the State of New South Wales, you did unlawfully kill Ricky Ciano. You are also convicted that between 26 April 2017 and 29 April 2017 in Sydney in the State of New South Wales, you supplied a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug; you are further convicted that between 13 January 2017 and 28 April 2017 at Lethbridge Park in the State of New South Wales, you manufactured a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug; and lastly, you are convicted that between 13 January 2017 and 28 April 2017 at Lethbridge Park in the State of New South Wales, you supplied a prohibited drug, namely 3,4-methylenedioxymethylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug. The foregoing convictions are recorded.
I find special circumstances.
1. I sentence you to an aggregate sentence of imprisonment being a non-parole period of 12 years' imprisonment commencing 28 April 2017 and concluding on 27 April 2029, with the balance of term of 6 years' imprisonment, concluding 27 April 2035.
2. You are first eligible for parole on 27 April 2029.
3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that statute and that it may apply to you and to these offences and your legal team is directed to explain the significance of this fact to you.
[5]
Endnotes
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (McClellan CJ at CL).
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 5.
Ibid.
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Decision last updated: 27 November 2023