R v Drever; R v Reilly

Sequence 7: A charge of dealing with the proceeds of crime, also contrary to s 193C(2) of the Crimes Act 1900 with a maximum penalty of 3 years if sentenced separately. 7. Of these six additional offences, three were certified for the District Court or forwarded to this Court pursuant to s 166 of the Criminal Procedure Act 1986 but are now all to be found in a schedule to a Form 1 signed by the offender and on behalf of the DPP to be taken into account as additional offences. All of this, it would seem, is part of an outcome initially following an Early Appropriate Guilty Plea (EAGP) case conference. I will refer to this soon. 8. The facts for each of these offenders are before the Court by way of a statement of agreed facts. They are not agreed facts at all but, rather, a summary of evidence which would be relied on to prove the guilt of each of the accused on the substantive offence had there been pleas of not guilty. It is unfortunate that this continues to occur and there ought to have been before the Court a statement of facts which sets out actually what each of the offenders did, not the evidence from which that can be gleaned. 9. In relation to the substantive offences, the facts are identical for each of the offenders and are tendered by consent of each offender. For each of the offenders there is also a supplementary statement of agreed facts in identical terms which deals with the issues of the value of the drugs and is a matter which I will address in due course. 10. From the so-called agreed facts, I accept that there had been a strike force established by the State Crime Command Drugs and Firearms Squad to investigate the manufacture of methylamphetamine by both of these offenders and during the investigation that authority identified a property at Harolds Cross as the site of a clandestine drug laboratory. This property is a 40-hectare isolated rural property located 60 kilometres south-east of Queanbeyan and is surrounded by bushland. There is no evidence about who was the owner of that property, which strikes me as somewhat unusual in the circumstances. Nonetheless, there is no evidence about who was the owner of that property. 11. This strike force used surveillance techniques on both offenders and also the property. As a result of information gained in those ways, on 22 August police accessed the property and there found a shed which had been converted into a two-story homestead with a living section and a garage section and a smaller cream shed close by. They discovered this cream shed was set up as a laboratory for the production of methylamphetamine using a steam distillation process. 12. It would, by virtue of the description provided in the facts, appear to be a relatively sophisticated set up, including extraction vents in the roof which already showed corrosion and staining consistent with the manufacture of drugs. There was a water tank connected to the shed near which police observed orange staining consistent in appearance with iodine. Iodine, it is known to the Court, is one of those substances used in the manufacture of drugs like methylamphetamine. 13. Inside the shed police discovered a clandestine lab with four stainless steel reaction vessels, each of which had an estimated capacity of 500 litres, a number of condensers, extraction tubing, numerous fans, separating funnels, buckets which had iodine staining and eight cubic containers along a shelf set up with a hosing system. 14. Inside the garage section of the homestead shed police observed twenty 25-kilogram bags of caustic soda, thirty 9-kilograms gas bottles, generators, two 200-litre conical separating vessels, reaction vessels and a quantity of 20-litre plastic cubes which contained acetone and large drums which they believed contained iodine. All of these are items known to the Court to be used in the production of methylamphetamine and drugs similar to methylamphetamine. 15. As I have said, these observations were made by police when they visited the premises on 22 August 2019. The following day police installed optical and audio surveillance devices in the cream shed and on 20 September police commenced telephone intercepts on the telephone services used by both offenders. Between 27 October 2019 and 14 December 2019, the offender Reilly spoke to two different people who apparently were telephone contacts on his phone about constructing a 12 x 12-metre shed on the property and, in fact, between 4 November 2019 and 9 January 2020 he was engaged in building a large green shed there. 16. On 9 January 2020 the offender Drever flew from Adelaide to Canberra using a false name and carrying identity documents in that false name. His possession of those false identities is the subject matter of the first Form 1 offence relevant for him. 17. On the afternoon of 9 January 2020 Reilly went to Bunnings at Fyshwick and bought a number of items for use in the manufacture of drugs at the site, including poly pipe, black jerry cans, rubber gloves, sponges and other items, all of which are set out in paragraph 11 of the Agreed Facts. He took them to his vehicle and sat in the car park there for about 40 minutes. 18. The offender Drever then arrived in the car park by foot, greeted Riley and they drove to the property at Harolds Cross and went inside the shed. Their conversations were then captured on the listening devices installed in the shed over the next two days. There is an initial conversation at about 6.30pm, the details of which are set out in paragraph 13 of the Agreed Facts for both of them. It indicates an understanding between the two of them about the relative benefits of cooking or manufacturing methylamphetamine in Australia compared to the cost of its being imported. 19. Significantly, it indicates a more sophisticated understanding of the whole process of drug manufacturing on the part of the offender Reilly than he has been prepared to admit to a psychologist or others. In this regard, at paragraph 15 of the Agreed Facts for both of them, the offender Reilly discussed with the offender Drever the risks involved in his constructing the shed on the property because of the possibility that contractors who delivered items to the property for the shed may have become suspicious and he said, "Yeah, it actually looked better because I had my missus and kid there." This is relevant to a determination about the extent to which he had in fact been involved in this offence before 9 January 2020. 20. There are other conversations intercepted and recorded between them which are set out at paragraph 16 and involve their understanding and relative roles in relation to the cooking process and, again, that would appear to have occurred at about 6.30pm on 9 January. Later that night, around 8.30pm, a conversation is recorded which appears at paragraph 17 of the Agreed Facts for both of them, during which the offender Reilly told Drever that a person referred to as MC had asked how they were going and there was further conversation between them about that. 21. In the early hours of 10 January, somewhere between 5am and 6am, there was more conversation between the two of them about the cooking process and the offender Drever gave some instructions to Reilly about how to add more water to the process to reduce the risk of overheating. Paragraph 21 of the Agreed Facts sets out what each offender was observed doing, in fact, captured by the video surveillance device between 9 and 10 January. Paragraph 21 is identical for each offender, although, each of them carried out different tasks. They represent the various physical steps involved in cooking the methylamphetamine over this period using the distillation process. 22. On 11 January police executed a crime scene warrant at the property and located both offenders, who were arrested. They located three jerry cans outside the garage door of the small cream shed, which was seen to contain an oily liquid, and they were seized. After the arrest they were taken to Queanbeyan Police Station and charged. The offender Reilly exercised his right to silence. The offender Drever engaged in a record of interview but, it seems to me, from a reading of paragraph 28 of the Agreed Facts, that he said very little in relation to his actual involvement in the substantive offence. 23. Police searched the property which indicated that both sheds and the garage section of the homestead had a connection with the manufacture of drugs. The details are set out in the Agreed Facts and I do not propose to repeat them in this sentence judgment. It was, I accept, an extensive drug manufacturing site which, as is clear from the earlier visit to the property in August 2019, had previously been used for that and was set up for future use. 24. The three jerry cans seized from the premises were analysed and were found to contain, as to the first, 19,172 grams of a clear colourless liquid, for the second, 19,223 grams of a clear colourless liquid and for the third, 8,007 grams of a clear colourless liquid. The total amount of liquid in the three cans was 46,402 grams of which 69% was methylamphetamine. The total amount of pure methylamphetamine in the three jerry cans was 31,975 grams. 25. At the scene police also searched the vehicle in which the offenders had driven to the property, which is described as being the vehicle owned or at least driven by Mr Reilly at the time. In that they found Mr Drever's wallet and phone. There is nothing to suggest other than that it was his own phone. The wallet was found to contain $390 in cash and three ID documents in the name of Andrew Simmonds which was the name he used to travel to Canberra from Adelaide. The three false ID documents were a Medicare card, a driver's licence and a bank card. As I have said, this is the subject matter of the first Form 1 offence relevant for Drever. 26. Inside the homestead premises they located Mr Drever's backpack and in that found the sum of $2,950 in cash. Together, that amounts to the $3,340 in cash found either in Mr Drever's wallet or in his backpack and by asking that the second Form 1 offence be taken into account, he admits that he was in possession of that cash in circumstances where he was knowingly dealing with property which was the proceeds of crime. He has also given evidence to that effect. 27. Also, inside the homestead portion of the property police found two firearms which are the subject matter of the numerous Form 1 offences relevant for Mr Reilly. One of those firearms was a rifle with a scope attached in a bag under the flooring of the top stair in an open gap between the top and the second stair which is sequence 4, namely, possessing an unauthorised firearm. Sequence 5 is not keeping that firearm safely, and sequence 6 is a charge of possessing that as an unregistered firearm. It was not a registered rifle. 28. The second firearm was a Breda self-loading shotgun which was located under the flooring of the top stair in a cavity to the side of the open gap between the top and the second stair, obscured from view to persons using the stairs. This is the subject matter of sequence 2, the charge of possessing a prohibited firearm, and sequence 3, not keeping that firearm safely. As I have said, the facts indicate that the rifle was not registered, and the offender Reilly was not the holder of a firearms licence. 29. This multiplicity of Form 1 offences for Mr Reilly, it seems to me, is unnecessary. It is yet a further indication of the way in which the EAGP scheme and the case conferences involved with it have made the task for the District Court more complicated than it ought be. That is particularly so in this case because there is not one single piece of evidence before me on this sentence from which I can ascertain how it is that this offender, Reilly, was in possession of either of these two firearms, except that he has admitted committing the offences by asking them to be taken into account. 30. As I have said, I cannot in any way determine how to take them into account in any meaningful way because I do not have one single piece of evidence about them to determine, for example, for how long they had been there, whether or not this offender had actually seen them, in which way it is suggested that he had any form of control over them except that he has asked they be taken into account as additional offences. 31. It seems to me that this is just book clearing on the part of the DPP in the Local Court and those representing the offender, for that matter as well, as part of the EAGP scheme case conferencing. The evidence does not indicate who was the owner of the property on which the homestead was built who would at first blush, no doubt, be the first candidate for being in possession of anything found inside the property, or whether or not the offender Reilly ever lived there. 32. The evidence in relation to the Breda self-loading shotgun is that it was obscured from view. Possession of this firearm is by far and away the most serious of any of the Form 1 offences for Mr Reilly and yet I am not able to determine how it was that he was in possession of it, let alone for what purpose and for how long, except that he admits to some extent or other he had control over it. 33. The charges of not keeping either of these firearms safely it seems to me are completely unnecessary in the circumstances, especially as there is not one piece of evidence, except for his effective plea, that he even knew they were there. This, and the fact that he was in possession of an unregistered rifle, could never in any way increase what would be the appropriate sentence for the substantive offence, which carries a maximum penalty of life imprisonment, and frankly, with the greatest of respect to all involved, they ought to have, apart from the Form 1 offence of being in possession of prohibited weapon, which is much more serious, they should have stayed in the Local Court where they belong and have been dismissed or discontinued in the Local Court once the pleas of guilty for the much more serious offences were entered. 34. The fact that this continues to occur in the Local Court as part of the EAGP scheme increases the extent to which this Court needs to have regard to the facts of such offences to indicate the extent to which, if at all, it increases the penalty for the appropriate offence. It increases the amount of administration work to be undertaken by associates and court staff and the like. It is unnecessary, it ought not be part of the case conferencing requiring admission and for these matters to be taken into account before a plea of guilty is accepted and sent to this Court by way of certification. 35. What is more, as I have said, how it is that I could possibly take any of them into account in a meaningful way is hard to imagine, given the absolute scarcity and paucity of evidence. That having been said, I must do so, and I can only do the best I can from the evidence that is available. 36. I accept from the Agreed Facts for both of these offenders that there were other people involved in this manufacture enterprise and it is clear from the other evidence that the cream shed had already been used for drug manufacturing at some stage before August 2019. 37. Whilst the agreed facts do not indicate this specifically, I accept from evidence given by the offender Drever and not challenged by the DPP, that at the time police attended to arrest them on 11 January, the cooking process had ended and that the two offenders were cleaning up the premises and planning to leave. 38. It is also agreed between the DPP and each of the offenders, apparently as an agreement reached as part of the case conferencing process in the Local Court which should have been included in the facts but was not, that the jerry cans of methylamphetamine oil were to be left at the premises by the offenders and collected and taken away by others. There is no evidence that either of these two offenders planned to have anything further to do with the drugs either by way of further breaking down or diluting them or distributing them in due course. 39. This is a significant quantity of methylamphetamine oil with a relatively high purity of the overall quantity produced. The value of drugs is always a relevant factor in determining the objective seriousness for any drug manufacture charge. From the supplementary statement of facts for each of these offenders I accept that methylamphetamine oil is not commonly used in that form by users and usually undergoes a further manufacture process before it is ultimately supplied and used. The further manufacturing process is required to produce methylamphetamine hydrochloride, the drug commonly known as 'ice', and there is generally a yield of just over 124% from methylamphetamine oil to ice. Therefore, provided everything in this further process proceeded without any problem and at optimum outcome, a yield of 39,766 grams of ice was capable of being produced from this quantity of methylamphetamine oil. That quantity of ice clearly has a significant value on the streets, depending on the quantities in which it is sold either wholesale or by a kilo or by way of individual street deals which are usually as small as a point or 0.1 of a gram. 40. The Agreed Supplementary Statement of Facts indicates that the value of this methylamphetamine, when ultimately sold on the street, could range from as low as $4 million right up to about $159 million but I accept that there are many variables which would influence that including the success or otherwise of the further manufacture process and therefore how much is produced, the quantity at which the final product is sold, the purity at which it is sold, and many other factors including, as the two offenders themselves noted early in their conversations, the competition in the market from cheap methylamphetamine brought in from overseas. 41. Whatever might have been the ultimate value of this, however there are three things that emerge: 1. It was a relatively large amount of this drug, 90 times more than the bottom of the range for a large commercial quantity. It is not, however, of the huge quantities so often seen in offences of this type and which have been the subject of some reported sentencing decisions. 2. Even without more, however, and without the benefit of the supplementary evidence, this is a very valuable product and that much is clear from the quantity involved. 3. There is no evidence that either of these offenders was ever going to have any further involvement with this drug or to be paid anything from the proceeds of any further sales.

Therefore, whilst the ultimate street value or on sell value of this drug is important in terms of a finding of the objective criminality for this offence of knowing involvement in the large commercial quantity of methylamphetamine, and whilst I accept it is a large quantity of a large scale and relatively sophisticated drug manufacturing process, however, the objective seriousness of the offending relevant for each of the offenders is to be judged not just on that and, in fact, not largely because of the quantity involved, but by the role that each of them played in this syndicate, rather than by the fact that down the track there were very large sums of money to be made by others.
The objective seriousness for each of them is informed by a number of factors. There are some different factors for each but there are also some common factors: 1. The quantity, which is a matter to which I have already referred, 2. it was a relatively sophisticated arrangement for drug manufacturing, 3. they were producing a product which they knew would ultimately be supplied onto the market or into the market as ice but it was not in a form that was likely to be made available immediately, 4. they were not going to be involved in a further manufacturing process or supply, and, 5. each of them was involved for financial gain.
For the offender Reilly, there is no evidence of what he was to obtain but it would fly in the face of logic to make any finding other than that he was involved in this for the purpose of financial gain. So far as this is concerned for Drever, he gave evidence on sentence that the agreement he had reached was that he would be paid $1000 a kilo for this drug, that he anticipated producing 40 kilos and had already been paid the sum of $40,000, of which $3,340 was remaining, which was found in his possession and which is the subject matter of the second Form 1 offence.
For Mr Drever, there are further matters informing the objective criminality of his offending. I accept that his involvement was as the cook and as a person with specialist skills as a qualified chemical engineer. He played a vital role in the process but, on the evidence before me, was involved for a relatively short period of time. That having been said, however, leaving aside for a moment his evidence about how he claims to have become involved, it is patently clear that he must have been involved for at least a short period of time before 9 January, having been provided with fake ID documents to use to fly to Sydney.
I accept that his criminality is informed to an extent, also, because he did just that, used a false identity with false ID documents to commit this offence and he did that in order to avoid detection. On the other hand, it would appear that he brought his own phone with him, which was located in the motor vehicle. There is no evidence, however, before me of his having used that phone in connection with this offending, All of the intercepted telephone conversations, about which there is evidence, seem to have been connected to the offender Reilly.

For Mr Drever 1. He is sentenced to a non-parole period of 6 years commencing 11 January 2020 and expiring 10 January 2026 with parole thereafter of 3 years and 9 months commencing 11 January 2026 and expiring 10 October 2029, giving rise to an overall term of imprisonment of 9 years and 9 months commencing 11 January 2020 and expiring 10 October 2029. 2. Form 1 offences taken into account.

I realise that I have actually forgotten to set out the $1,110 found in Reilly's wallet, which is the sixth Form 1 offence. I will just return to the sentence judgment.
In addition to the five firearm offences, there is a further Form 1 offence for the offender Reilly, that he dealt with the proceeds of crime, namely, $1,110. This amount was found inside a wallet inside his HiLux vehicle that the police searched after they arrested them at the scene. I know nothing more of it except that he has admitted it was the proceeds of crime by asking it to be taken into account. Again, for him that Form 1 offence cannot increase the appropriate sentence for the substantive offence. It is part of the overall factual matrix.
I return then to the final orders: 1. I make orders in terms of short minutes of order for each offender: 1. For the offender Reilly, that the sum of $1,110 be forfeited to the State. 2. For the offender Drever, that the sum of $3,340 be forfeited to the State.

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