Drug Misuse and Trafficking Act 1985 (NSW): s 24(2)
Drever)
Source
Original judgment source is linked above.
Catchwords
Crimes Act 1900 (NSW): ss 192K, 193C(2)Criminal Procedure Act 1986 (NSW): s 166Drug Misuse and Trafficking Act 1985 (NSW): s 24(2)Drever)
Judgment (14 paragraphs)
[1]
Solicitors:
Ms. K. McCrossin (The Crown)
Mr. C. Elliopolous (The Offender; Reilly)
File Number(s): 2020/00009853 (Reilly)
2020/00009857 (Drever)
[2]
Judgment
This is a sentence judgment in the matters of Drever and Reilly. Luke Drever and Kevin Reilly are before the Court for sentence after each pleaded guilty in the Local Court to a charge of being knowingly involved in the manufacture of a large commercial quantity of the prohibited drug methylamphetamine. This is an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) which carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years.
Whilst there will be a separate sentence for each offender, they are being heard together because they were involved in the same criminal enterprise and the relevant facts either specifically for each or providing the context and background for their individual offending is the same. The substantive charge for each of them is identical except for the time period.
Each of them is to be sentenced for knowingly taking part in the manufacture of 46.402 kilograms of methylamphetamine, which is not less than the large commercial quantity of this drug. The bottom of the weight range for this drug is 500 grams and so the offence for each of them involves his being knowingly involved in the manufacture of just over 90 times the bottom of the weight range.
The charge against the offender Luke Drever is that he was knowingly involved between 9 and 11 January 2020 at Harolds Cross, New South Wales, and for Kevin Reilly that he was knowingly involved between 4 November 2019 and 11 January 2020 at the same place.
Mr Drever asks that when sentencing him for this offence I take into account, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), two additional offences which were either certified for the District Court or forwarded to this Court as a related offence pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). They are, it appears, in a schedule to a Form 1 document signed by him and on behalf of the DPP and exhibited in these proceedings. They are as follows:
[3]
Sequence 2: A charge contrary to s 192K of the Crimes Act 1900 (NSW) that between 9 and 11 January 2020 at Harolds Cross he possessed identification information with the intention of committing an indictable offence. If sentenced separately that would carry a maximum penalty of 7 years imprisonment and is, as I understand it, also capable of being dealt with in the Local Court.
[4]
Sequence 3: This is a charge contrary to s 193C(2) of the Crimes Act 1900 of dealing with the proceeds of crime relating to the sum of $3,340 in cash. This offence, if sentenced separately, would carry a maximum penalty of 3 years imprisonment and would normally be dealt with in the Local Court where there would be a jurisdictional limit of 2 years.
6. The offender, Kevin Reilly, also asks that six additional offences be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. They are the following, and I add that there are too many of them, but they are the following:
[5]
Sequence 2: A charge of possessing an unauthorised prohibited firearm contrary to s 7 of the Firearms Act 1996 (NSW). The maximum penalty for this offence if sentenced separately is 14 years imprisonment with a standard non-parole period of 3 years.
[6]
Sequence 3: A charge of not keeping that prohibited firearm safely contrary to s 39(1)(a) of the Firearms Act 1996 which would carry a maximum penalty of 2 years imprisonment if sentenced separately.
[7]
Sequence 4: A charge of possessing an unauthorised firearm contrary to s 7A(2) of the Firearms Act 1996 which would carry a maximum penalty of 5 years imprisonment.
[8]
Sequence 5: A charge of not keeping that firearm safely, also contrary to s 39(1)(a) but with a maximum penalty of 12 months imprisonment if sentenced separately.
[9]
Sequence 6: A charge of possessing an unregistered firearm contrary to s 36(1) of the Firearms Act 1996 with a maximum penalty of 5 years imprisonment if sentenced separately.
[10]
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.
[11]
For Mr Reilly
1. He is sentenced to a non-parole period of 4 years to commence on 11 January 2020 and expire on 10 January 2024 with parole thereafter of 2 years and 9 months commencing on 11 January 2024 and expiring on 10 October 2026, giving rise to an overall term of imprisonment of 6 years and 9 months commencing 11 January 2020 and expiring 10 October 2026.
2. Form 1 offences taken into account.
[12]
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.
[13]
DE BRENNAN: Yes, thank you.
HER HONOUR: Nothing further?
KERR: Your Honour, could I raise one minor point?
HER HONOUR: Yes.
KERR: Your Honour made a criticism of the officer in charge relating to the non-disclosure or the non-inclusion in the facts that the methylamphetamine oil was to be transported somewhere else. Any criticism--
HER HONOUR: That wasn't a criticism of the officer in charge, let me assure you, and I didn't say it was.
KERR: I'm sorry, your Honour, I've misunderstood. I don't need to say--
HER HONOUR: It ought to have been in the facts. The facts are not put together by the OIC or, if they are, they shouldn't be.
KERR: No, they were not, your Honour. They were put together by the DPP.
HER HONOUR: Yes, I know that. It was a criticism of the DPP but I didn't say so specifically.
KERR: Thank you, your Honour. I don't need to say anything else.
HER HONOUR: Thank you.
[14]
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Decision last updated: 17 November 2022
Mr Reilly's objective criminality is that he played a lesser role than Mr Drever and that is clear from some of the surveillance evidence at the shed in which he was, to an extent, following advice given to him by Mr Reilly. However, he was not, as it is claimed on his behalf, just a labourer on the day. It is the case that he was following Drever's advice at least in relation to some aspects, like the quantity of water to add and deferred to his specialist knowledge. However, he was involved over a longer period of time and had at least some role in setting up the manufacturing lab and ensuring that the cooking process could occur on those days. This included going to Bunnings on the day that Drever arrived to collect necessary items, including the jerry cans into which I infer the drugs were ultimately placed and were located by police.
This could not have happened by complete coincidence and there seems to be no connection to Mr Drever, at least not by intercepted telephone calls. He either knew what he was to obtain or he was given instructions, but the evidence does not allow for a finding about that. Further, I accept that he had been involved since November 2019 in constructing the second shed on the property.
It is submitted on his behalf that there is no evidence that he knew the purpose of his shed and did not actually become involved in this offending until shortly before 9 January. I do not accept that submission. It seems patently clear to me from the conversation he had with Drever that at the time he was involved in constructing the shed he realised that it was for the use of manufacturing drugs. As it was, there was already another shed on the property, the cream shed, which contained a large amount of equipment, and which had other items around it which must have been obvious and had already been used for the manufacture of drugs.The property was secluded. He told Drever that he thought he had avoided any possible suspicions from contractors who might have attended because his wife and child had been there. Also, his comments about the fact that he had not yet been paid for constructing the shed and was even having trouble getting money from others to pay for the shed components do not have the flavour of a person involved in the construction industry who was undertaking simply a construction process for someone at the time.
I accept that he knew from November that he was involving himself in the manufacture of illegal drugs and his role was to have the second shed constructed, to purchase further equipment on the day, to be available to take Mr Drever to the premises and to assist him with the manufacture. The only possible inference is that he did so for financial gain but, as I have said, there is no specific evidence about what that was.
The fact that he acknowledges that the firearms were somehow under his control, albeit either secreted or largely secreted in the homestead part of the premises, is also indicative that he knew what he was involving himself in, namely, a clandestine drug manufacturing lab on a secluded rural property, knowing that he would be meeting up with the cook and working with him to assist in the production of the end product. His involvement however is less than Drever because he did not have specialist knowledge and it was largely as a labourer, but not simply a labourer. It was a greater involvement than that.
This is a case in which there was clearly a much larger drug manufacturing syndicate based somewhere else, either in New South Wales or South Australia or elsewhere. Two of the other people involved in the telephone intercepts with Reilly appear to have had discrete roles largely directing Reilly to construct a shed on the property but none other which can be inferred from the conversation. The third person referred to during the course of the manufacture at the site, on the face of it, the person referred to as MC, may have had a greater role, given that he was asking how they were progressing. However, it is not possible to determine exactly what role that person had. However, this was clearly a bigger syndicate.
The lab had already been set up by the time each of these offenders came on site and there was already one there in August which had been used previously. Someone unknown had already set the property up with the necessary equipment in the cream shed by the time they both arrived on 9 January and there were other persons unknown who were going to collect the manufactured drugs and take them away for further use.
There must have been either a person or a group who was making decisions at a higher level about this manufacture, but there is no evidence that either of these two offenders had any role in either the management of this syndicate or larger decisions made by it. The roles that they played which informs their objective criminality.
Mr Reilly, I accept, downplayed his role in the history he gave to the psychologist. He was not just following orders. He did not actually go to the airport to pick up the co-offender, Mr Drever. He did not just follow orders from anybody. He was able to discuss a person they both referred to as MC, who was asking him how things were progressing. He was able to engage with Drever in a discussion about the decision to cook using the distillation process rather than using pseudoephedrine and the relative merits of this, given that this might make the locally produced product more competitive with cheap overseas ice and expressed the view that hopefully imports would be stopped which would improve the position for what was referred to as "us" by Mr Drever which was not gainsaid by Mr Reilly. He also spoke to Mr Drever about the process used on a previous occasion. What he told the psychologist is not the whole truth and I do not accept that he was as minimally involved as he suggests.
Mr Drever gave evidence that he only became involved in this offence because of threats of violence made to him. He relied on what is commonly known as non-exculpatory duress to reduce his moral culpability. I must deal with that issue now.
Mr Drever is now 40 and comes from Adelaide. He was a good student and obtained an honours degree in chemical engineering. He also has suffered from depression, social anxiety and poor self-esteem since he was young and, after graduating, was unable to find work in his field. He turned to the use of drugs, including methylamphetamine, and because of his chemical engineering skills he was able to, and did start, manufacturing his own. He would appear to have done so in his own premises at the time.
He was charged with manufacturing a commercial quantity of methylamphetamine in Adelaide and the sentence judgment of his Honour Judge Boylan in the South Australian District Court on 20 November 2009 is tendered. I accept from that, that on 17 December 2007 he had been cooking a quantity of methylamphetamine at his home when there was an explosion which attracted police attention and he was charged. The quantity which was the aim of that manufacturing process was 195 grams. He admitted that a small portion was for his own use and the vast bulk he intended to sell. He admitted that he had been manufacturing methylamphetamine for two years beforehand and there was evidence even then before the Court that he was addicted to methylamphetamine at the time. He was ultimately sentenced in November 2009 to a term of imprisonment of 5 years with a 2 year and 8-month non-parole period which commenced on 20 November 2009.
The offender Drever has written a letter to the Court, given a history about this to a psychologist and given evidence in these proceedings. Relevant to his motivation for committing the offence now before the Court is his claim, in summary, that he only committed this offence because he was subject to a threat from those he believed capable of carrying it out, that he would be killed, specifically that his house would be set on fire with himself and his girlfriend inside unless he agreed to become involved in this offence as the cook.
Relevant also to this issue is a judgment from the South Australian Court of Criminal Appeal relating to a charge the offender was facing before he was sentenced to the earlier period of imprisonment, relating to his refusal to answer certain questions put to him during a hearing in the Australian Crime Commission. Following his arrest in Adelaide, he was on bail for two years until being sentenced on 20 November 2009. He was before the Australian Crime Commission at a hearing on 20 February 2008 and answered a number of questions but refused to answer questions about how he obtained some of the equipment he was using to manufacture the drug, who supplied him with the pseudoephedrine and to whom he proposed to sell the drugs. He was charged with refusing to answer and gave an explanation that he feared for his safety and the safety of his family if he provided this information and he was ultimately sentenced, effectively, to an additional 6 months in custody in addition to the pre-existing non-parole period for the drug offence.
He appealed this decision, and it is the judgment of the South Australian Court of Criminal Appeal that is before me. His appeal was dismissed. It is to be noted that his refusal to answer questions occurred at a hearing in February 2008, before he went into custody for the manufacturing charge, which was not until 20 November 2009.
Specifically, his evidence about why he became involved in the offence before the Court here was that when he went to gaol in 2009 he was bashed a couple of times and experienced bullying. He says that he fell in with a group of people in custody who looked after him and they would ask him questions whilst they remained together in custody about their own operation of cooking methamphetamine and, in particular, would run particular problems past him. He seems to suggest that he answered those questions.
I note that he would apparently already have had fears from some group or other with whom he was connected at the time he committed the offences in 2007 and that, whatever fears he might subsequently have had, did not just arise from his period in custody from 2009.
He was released to parole in 2012. He gave evidence that he lived in Adelaide. He never worked again as a chemical engineer and worked initially as a subcontractor for a builder with a friend and in 2014, according to the history given to Ms Bollinger, they began a building company which he ran until 2020 when he was arrested. He said that it kept them afloat but it was not profitable. In this capacity he bought a home for himself and his girlfriend that they had just moved into before he was arrested.
As I have said he gave this history to Ms Bollinger, but also that he was released in 2012 but this other group who he had spent time with in custody was released, in his words, many years after him, although it would appear in further evidence that was about two to three years after him. He told Ms Bollinger that after they were released they assumed that he would take over their manufacturing operation, that he initially refused to participate, but that one member of this group became aggressive and threatened, as I have already said, to burn down his house with himself and his girlfriend inside and that the other members of the group agreed to protect him from that individual if he participated in a manufacture of drugs and that they would assist to get him out of the operation if he trained someone new and continued to be available on a consultant basis.
He told Ms Bollinger that he felt coerced into committing this offence because he feared for his safety if he did not. This apparently occurred in 2018 and the offending before me, at least on the evidence before me by him, occurred in January 2020. In his oral evidence to this Court, he said that sometime after his parole ended he ran into these former colleagues at a shopping centre. I accept, more probably than not, in Adelaide. As I understand his evidence, this occurred in about 2015. There is no evidence that he had anything further to do with them until 2018, when he was approached by the person who made the threat that he claims was made.
His evidence was that he initially refused but did so in circumstances where the remainder of the group agreed to protect him from this other person and in the way that I have already set out. If proved, this would amount to a mitigating factor because it would reduce his moral culpability. The onus rests on the offender to establish that on the balance of probabilities. I do not accept that it has been made out here.
The explanation does not have the ring of truth about it. It is clear, as I said, that even before he started his gaol term and fell into company with this group in gaol, there were those somehow or other connected to his earlier offending about whom he had some fear, even to the extent that he was prepared to serve an extra 6 months in gaol rather than to disclose anything about them. Further, even though he was apparently assisting this group in gaol answering questions about the methylamphetamine manufacturing business which apparently used pseudoephedrine to do so, they do not on his evidence at least seemed to have sought him out after they were released from custody at least for about two or three years. So, on the face of it, this must lead to a view that he was not of immediately use to them.
According to his own evidence, their contact was only re-established by coincidence after they ran into him in a shopping centre and then it was another two or three years until he was approached by one of them and threatened. This timing, it seems to me, does not have the ring of truth about it.
It also seems to me from the material and the agreed facts, especially the content and tone of the conversation between him and Reilly at the scene of manufacturing, that he is not presenting in the role of reluctant participant, only involving himself because he felt significantly threatened and in circumstances where he thought he might be killed if he did not commit the offence. If this were the case, presumably, he would have anticipated that Reilly was part of the group of which he was in fear. He does not give that impression.
What is more, according to his version of events, after he was released to parole he never returned to the field of chemical engineering and worked in the construction industry and yet the conversations have him talking to Reilly about a method of manufacturing methylamphetamine that they proposed to use, namely, the distillation method and how this is preferable to the use of pseudoephedrine, the method that he used on the previous occasion when he was charged and served a term of imprisonment.
He would appear to have continued to have the knowledge and up to date knowledge and expertise and also gave an indication in those conversations that he intended to continue in the future using the distillation process. None of these surveillance calls give the impression that he was only involving himself on this occasion because of duress or because he felt coerced to do so.
Further, and perhaps more significantly, he also gave the evidence that he was paid for his role and in fact he had been paid $40,000 at $1,000 a kilo. He told Ms Bollinger that the $3,340 in his possession was just petty cash for buying things at Bunnings, for travel and the like. This may well be the case, but it is not the evidence that he has given here, namely, that the $3,340 was what was left over from the $40,000 he had already received.
It is true that his giving the evidence of having received $40,000 amounts to evidence against interest because, except for this evidence, there could be no other evidence about what he had in fact received. The fact that he did disclose this evidence against his interests sounds in his favour, but it also makes less likely the proposition that he committed this offence because of the threats that were made.
It is unlikely, in my view, that if in fact a threat to burn down his house with him and his girlfriend inside had been made and he believed it to be true and capable of being put into effect, that his agreement to be involved with the remainder of the group protecting him against the first individual, that there would be an offer, let alone in fact paying him for the role and actually giving him money. It just does not make sense, in my view, and I do not accept that his claim for non-exculpatory duress has been made out.
The offender Drever, I accept, committed this offence for financial gain. Why he did so in the circumstances after he had finished his parole, apparently successfully, was apparently having a successful life with his girlfriend and living a prosocial life is not apparent. Perhaps this information that the building company, in which he was involved, was not doing particularly well provides some explanation. It is simply not known by the Court, but I do not accept that the issue of duress has been proved.
For each of these offenders the offences are serious. The maximum penalty of life imprisonment is a clear indicator of how serious these offences are. Each of them was involved in a different way but neither was, in my view, a principal in the way that it is understood in cases such as this. Neither of them had a role in decision-making nor, on the evidence before me, did either of them exercise any independent role in the syndicate.
Objectively, the role of Mr Drever is higher because he is a cook with expertise and knowledge and played a vital role. Without him they could not have achieved the desired end product, but I do accept the submission made that he is more like a contractor and not a principal. Reilly played a lesser role, playing the role to an extent of labourer, but not mere labourer.
Drever, it seems to me, is around the middle or slightly below the middle of the range in terms of objective seriousness. In addition, the standard non parole period does not apply strictly because of the plea of guilty. Reilly is below that but not at the very bottom of the range and was involved for a longer period. For him, too, even without that finding, the fact that he pleaded not guilty, means that the standard non-parole period does not apply strictly. I must take that standard non-parole period into account, however, as a guidepost, albeit that it does not apply strictly to either of them, at the very least, because of the pleas of guilty.
There must, of course, be general deterrence reflected in these sentences. They are very serious offences and each of them must send a message that involvement in drug manufacture on this level will lead to lengthy terms of imprisonment. Clearly enough, the threshold for full-time custody is reached and the contrary is not argued on behalf of either of them.
Each of them has remained in custody bail refused since their arrest on 11 January 2020. This is an extremely lengthy time to be in custody bail refused. It is too long for anyone to be in custody bail refused. It is not their fault, nor, on the face of it, is it the fault of the DPP, at least not as they are in this Court. The whole process in the Local Court took far too long, involving something like 18 separate attendances for each of them. It would appear that, in large part, that was to do with negotiating facts.
The EAGP scheme, if this is the way it is being administered, is clearly a misnomer if it is said to be early. It ought not work in this way. It was clear from the beginning that each of these offenders planned to plead guilty to this serious offence. It is unfortunate that neither the DPP in the Local Court, nor those then appearing for either of the offenders, was able to bring these matters to this Court for sentence much more quickly than they did.
I now turn to the subjective circumstances for both of them. Mr Reilly is now 41. He has a criminal record, but it is relatively short, and it is not in any way connected to the offending before me. He comes from Wollongong and was raised by his father as one of three children. His mother left the family when he was only a baby, and his father raised the family. His father died last year and he was not able to attend his funeral because he was in custody. That causes him considerable concern and he held his father in high esteem for managing to raise all the children as well as he did as a single parent in the circumstances.
During their childhood the family relied on charity for some of their necessities, including clothing, and they lived in Department of Housing accommodation in Warrawong in the Illawarra region. He reports, however, that his father provided them with a very stable life but with some difficulties because of lack of funds and the need to rely on charity to an extent.
He left school in year 9 to start work. He initially mowed lawns to help support his family and then worked in a scrap metal yard when he was aged between 17 and 20. He learnt house painting on the job, and after that this represents the bulk of his employment history. He is married and is the father of a daughter who is now aged 8.
I accept from what he told the psychologist that at the time of committing the offences he was having trouble finding work as a house painter and was worried about being able to provide for his family. I accept that this caused him to remember his own childhood and he did not want his daughter to have to rely on welfare or charity. He told the psychologist that he was doing extra jobs to help provide for his family in circumstances where his wife at the time was not working and he sought to categorise the role of 'putting up a shed' in that context, that is, trying to make extra money to support his family.
Whilst accepting that he engaged in the offence for financial gain and that his involvement in the offending probably had a connection with some of the financial difficulties he was experiencing at the time, I do not accept this assertion that he was only involved doing an odd job to put up a shed.
He, himself, has never used drugs but I accept has come to a better understanding now of the impact of drugs on individuals since being in custody. As I have said, there is a criminal history, but it is not lengthy. It is mainly for driving and traffic offending and one or two minor property offences, but nothing previously connected with drug supply or use, nor anything anywhere near as serious as the offending before me. Offending to this very serious level would appear to be very much out of character, which I accept is a finding reinforced by the references that have been tendered on his behalf.
He is regarded as a model prisoner and has worked in various capacities within the gaol. He is supported in the community by his brother, sister and friends. Sadly, his wife and daughter have since moved to live in Tasmania, near her family, after he was arrested, and he believes it is likely that his wife will seek a divorce from him. He has had no contact with either of them for at least 6 months.
His separation in this way from his wife and child, I accept, make his experience of custody somewhat more onerous and make him upset and sad. I also accept that which is well known to the courts, that having been in custody from 11 January 2020, the prisons in New South Wales have regularly been in lockdown because of COVID-19 and there have been either no visits or very limited visits and few, if any, courses, or other access to outside resources available. I accept that this offender, however, has taken advantage of whatever is made available to him. However, the experience of prisoners during the time of COVID-19 has made their experience of custody more difficult and that is so for this offender as well.
It is argued that I would regard his upbringing as being hard and that this has an impact on his moral culpability. As I said, I accept he was raised in a household with little money and had to rely on charity from time to time. But his comments to Mr Borenstein do not indicate that he feels particularly disadvantaged and, in fact, regarded his father as exemplary to him and his siblings.
I accept that there is probably some connection between his decision to commit this offence for financial gain to make quick money and the fact that he did not want his own daughter to be raised in a similarly disadvantage situation, but it does not in my view much, if any, altar his moral culpability. He took the risk and is now paying a significantly high price for his decision to make what is not known but was probably not a huge amount. He has lost his wife and child, he will lose several years of his life in prison and he has seriously disappointed his family and friends, as is evidenced from the multitude of references.
As I have said, I must take the Form 1 offences for him into account in a meaningful way, albeit in the absence of evidence. The most serious of the firearm offences is clearly a serious offence and he has admitted to being in possession of that firearm, in particular, albeit in a way that cannot be understood but, nonetheless, he has admitted to being in possession of it. That too is out of character and probably has a connection with the group with whom he was associating at the time of committing the offence.
His being in possession, on his own admission, of a self-loading firearm must increase the relevant sentence for the substantive offence. The others probably do not, but being in possession of both firearms is serious and must increase the sentence to an extent, at least, to take them into account in the meaningful way. The other four Form 1 offences do not, and cannot, increase the appropriate sentence.
I accept that he has expressed genuine remorse and contrition to his friends and family and that he is in fact genuinely remorseful. His prospects of rehabilitation are good, in my view, and it is likely that when he is released he will be able to obtain employment in the field of house painting, as he did in the past.
For Mr Drever, he is now 40. His criminal history is limited but more significant than that of Mr Reilly. It is the two offences to which I have already referred in South Australia, namely, the manufacture and the refuse to answer questions. There is nothing on his record since that refusal to answer questions in February 2008. He too pleaded guilty early and is entitled to a 25% discount.
He has supportive family in South Australia and there are references from his parents and other family members which I take into account. They will remain available to him, which increases his prospects of rehabilitation. He has not been able to have much, if any, contact with them since being arrested and incarcerated in New South Wales, which is an even worse position than just as a result of COVID-19 because of the distances involved. He has lost his relationship with his former girlfriend following his arrest and incarceration.
He would appear to have had a relatively good upbringing supported by family and did well at school, excelling at sports, and he was a good student. As I said, he went to university and obtained an honours degree in chemical engineering. Even from an early age he suffered depression and social anxiety and after finishing university, he had difficulty obtaining work in the field. He started to use alcohol to deal with his symptoms and drugs as well. He initially smoked cannabis as a teenager but stopped doing that about 5 to 10 years ago.
He started using methamphetamine when he was about 18 and became addicted to it, and it is clear from the sentence judgment in South Australia that he was addicted to it significantly at the time he committed the earlier offence. I accept that, to an extent, that was because that was a way of dealing with the depression he suffered when he could not obtain work in his field.
I accept he had stopped using this drug by the time he was arrested for the offences here. There is no evidence that he had been experiencing an ongoing problematic drug use at the time of these offences. He has, however, been treated for depression for many years and is currently taking an antidepressant. He has had serious suicidal thoughts over the years, including in custody, and has indicated that he has not acted on them because he thinks of the impact this would have on his mother. He has had counselling from psychologists in the past which he believes have not been of much use.
I accept from Ms Bollinger's report that he suffers from a major depressive disorder. I accept that there probably is some remote connection with his offending mainly because he came into contact with people with whom he, more probably than not, committed the offence before me and he was in custody at all because of his addiction to the drug which arose itself as a result of his depression.
His decision to return to offending after his release in 2012, the building of a prosocial life and involvement in a construction company and the like, it seems to me, involves his decision at the time to succumb to temptation to make money quickly. He is a person who comes to be sentenced as a person with a mental illness, but there is only a limited connection between that and his offending behaviour. He is, however, a person who suffers from a major depressive illness, which is a factor I take into account, and has some slight impact on reducing the extent to which general deterrence is to be taken into account for his sentence.
For Mr Reilly, to the extent that I have forgotten to mention, the need for specific deterrence is very low given the fact that he has not previously been involved with drug offences and he has very good prospects of rehabilitation.
There is some need for specific deterrence to be reflected in the sentence for Mr Drever because of his previous offending. Mr Drever's experience in custody has been, I accept, more onerous than for most other prisoners. That is not just because of the impact of COVID-19 on him and all other prisoners, to which I have already referred in relation to Mr Reilly, and also exacerbated to an extent because his family connections are in Adelaide. It is also because he suffers from a medical condition, namely a bowel condition, which requires him to use the toilet very frequently. There is evidence about this obtained from Justice Health records, up to at least a certain point, that this is indeed the case. I accept that this is likely to be continuing.
I accept from the evidence he has given that, until fairly recently, he has been sharing a cell and that in those shared cells the toilet is not separated from the beds. His bowel condition has been referred to by Justice Health as possibly irritable bowel syndrome and appears to manifest itself in increasing need to visit the toilet in the confines of a shared prison cell. This of course not only leads to him having feelings of embarrassment but has also caused anger and consternation on the part of some of his cellmates, even to the extent that he feared being assaulted. More recently he has been moved to a single cell for these medical reasons.
On the face of the material before me and his evidence, he would not appear to be receiving appropriate medical treatment in custody for this condition, being provided only with paracetamol and Metamucil. He has a family history of bowel cancer and has been on a waiting list for a colonoscopy for at least 16 months. The fact that he cannot get treatment for his bowel condition, nor monitoring to determine whether or not there are more serious matters involved, has increased his anxiety levels and depression in custody. That, together with his experience in custody during COVID-19, has made his experience of custody more onerous and is likely to continue at least for some part of his additional term of imprisonment in prison. It is to be hoped that Corrective Services will soon have him seen by a specialist gastroenterologist and hopefully undertake a colonoscopy to rule out the possibility of any more serious illnesses causing his bowel condition.
The Court is aware, of course, that the community generally has had difficulty over the last two years getting access to medical treatment, particularly so because of the impact of COVID-19. The difference between the community generally and Mr Drever is, of course, that Mr Drever is in custody not because of his own wish but because he is in custody in the care of the State. Those who are in custody in the care of the State, it seems to me, ought to expect the State to provide them with proper medical treatment. It does not appear to have been done in his case.
For him, the Form 1 offences it seems to me, whilst being taken into account in a meaningful way, actually form part of the factual matrix on which the objective criminality is to be judged. The fact that he had the balance of a $40,000 amount he was paid allows for a finding that he committed this offence for financial gain. The fact that he used a false identity to commit the offences is taken into account in increasing the objective criminality. Whatever the appropriate penalties for these offences might otherwise be, in those circumstances, they should not in any way increase what is the appropriate penalty for the substantive offence.
He has written a letter to the Court. Whilst I accept that he has not established the duress, nonetheless, I accept that his expressions of remorse and contrition are genuine. His prospects of rehabilitation it seems to me are relatively good but to an extent are guarded because of his history of being released from committing almost exactly the same offence, although at a somewhat lesser level, coming into the community, living a prosocial life, but then deciding to commit this offence. All his family are in South Australia, however, and his prospects of rehabilitation will be increased when he is ultimately able to have more contact with them either because he is transferred administratively to serve the balance of his non-parole period in South Australia or when he is ultimately released to parole.
I have been referred to a number of cases both on behalf of the Crown and on behalf of each of the offenders but none of them it seems to me is exactly on point. On behalf of Drever, I was referred to the sentence judgment of his Honour Judge Norrish in R v Mok, Hin Lok [2017] NSWDC 314 ("Mok") which was said to bear a degree of similarity to the circumstances of Mr Drever.
There are some similarities with that case in that Mr Mok was also the cook and was found not to be the organiser and not to have sourced the precursors and to that extent there is quite a similarity between him and Mr Drever. There is a distinction however, and a big difference in, namely, that Mr Mok had no criminal record and that is a significant distinction between that case, and the case before me. He also claimed non-exculpatory duress, which was not accepted by Judge Norrish. He was sentenced to a term of imprisonment of 9 years overall with a 6-year non-parole period. Many of the other cases to which I have been referred indicate much greater involvement, larger or lesser quantities and dissimilar factors.
I have determined for Mr Reilly, taking into account all of these findings and increasing what would otherwise be the appropriate sentence, to an extent, to take into account the relevant Form 1 offences, a starting point of 9 years imprisonment. I will reduce that by 2 years and 3 months to take into account the 25% discount. There will thus be a sentence of 6 years and 9 months backdated to commence on the date he went into custody on 11 January 2020.
There are special circumstances as follows:
1. This is his first time in custody.
2. His experience of custody has been more difficult as a result of COVID-19, and;
3. He needs to be in the community as soon as possible to engage in prosocial activities, employment and the like, to allow for his rehabilitation.
I will be setting a non-parole period of 4 years with a parole period of 2 years and 9 months for those reasons.
For Mr Drever, in my view the starting point is 13 years. I reduce that by 25% to give rise to an overall term of imprisonment of 9 years and 9 months.
There are special circumstances:
1. One is the onerous nature of custody because of both medical and psychological conditions and also COVID-19 restrictions, and
2. the need for a longer than normal period of supervision in the community to address his depression so as to properly reduce the risk of reoffending.
I will be sentencing him to a non-parole period of 6 years on those findings of special circumstances.
For those reasons, then, I make the following orders:
1. Each of the offenders is convicted.