R v Gaetano VITALE; R v Mark SCALIA

FACTS - MANUFACTURE

1. In light of the fact that the offenders are to be sentenced following trial, it is necessary to set out a summary of the evidence relied upon by the Crown and the basis upon which I found the offenders guilty. This task will assist in crystallising the facts upon which I will sentence the offenders.
2. At trial, the Crown relied upon a combination of the location of what was asserted to be 1,228.62 grams of prohibited drug. In large part, the Crown relied upon the admixture rule as provided under s 4 of the Drug Misuse and Trafficking Act 1985 (NSW). The substances were found in a number of vessels in the garage at the Bringelly residence. The Crown also relied upon various categories of circumstantial evidence. The 1,228.62 grams of preparations and/or admixtures said to contain methylamphetamine and upon which the Crown relied can be set out in the following way. 1. Item B025 described as dark coloured solid substance in a glass dish located on top of a Kambrook portable hotplate, weighing 102 grams. The result of the analysis was that the substance contained methylamphetamine. 2. Item B026, dark coloured solid substance in a Sunbeam electric frypan weighing 43 grams. The result of the analysis was that the substance contained methylamphetamine. 3. Item B034, brown solid residue in a Sunbeam electric frypan, weighing 0.8 grams, which contained methylamphetamine and BMN. 4. Item B042-1 described as two layered liquid in a 2000 millilitre Schott Duran separating funnel located sitting inside item B042-2. The bottom layer was strongly alkaline. The net weight was 1,075 grams. The result of analysis was that the substance contained methylamphetamine, chlorpheniramine and triprolidine. The top layer was indicated to include xylene. 5. Lastly, Item B068, a substance in a dish weighing 7.82 grams. The result of analysis was that the substance contained methylamphetamine.
3. In addition, the Crown relied upon a circumstantial case. In February 2013, police commenced investigating Gaetano Vitale in relation to the manufacture of prohibited drugs. Telephone intercepts on his phone caused the investigators to believe that he was taking steps to manufacture and later was manufacturing a prohibited drug together with Anthony Klonaris and several others. The Crown relied upon telephone intercept material and text messages together with the results of swabs taken at the residence in West Hoxton as evidence founding an inference or conclusion that Gaetano Vitale and/or Anthony Klonaris and/or Nicholas Fenech were involved in manufacture related activity at West Hoxton. On the Crown case, these drug related activities could not continue at that address and the operation was moved to the address at Bringelly, being the residence of Angelo Vitale, Gaetano Vitale's father. The reason on the Crown case that the operation had to be moved was because Gaetano Vitale's wife, Helen, became extremely upset and angry about the manufacture of drugs at their home.
4. In evidence at trial were a number of text messages sent to Gaetano Vitale on about 15 June 2013. Intercepts revealed a number of text messages sent to Gaetano Vitale from his wife, Helen. At 5.39am, he received a text, "You can look me in the eyes and - what's wrong? Are you fucking serious? Our son lives here. Okay? What the fuck do I need to do?" At 5.42am, he received a text, "This is our home." At 5.53am, he received a text, "You smashed cunt motherfucker." At 5.43am, he received a text, "I told you what happened, you fucking grump." At 6.25am, a text is received, "Are you still going?" At 6.13am, he received a text, "Fuck off now. You're lying." At 6.13am, he received a text, "Listen here, I'm not lying. I can't even sleep. Okay?" At 6.28am, a text reads, "I feel so sick." At 6.29am, he received the text, "My eyes are stinging and my nose is burning." At 6.32am, he received a text, "You don't listen. I told you. No, no, no. You don't - you fucking listen. Why are you like this? Why are you doing this to me and the baby? Why?" At 8.26am, Gaetano Vitale sent a message to the number associated with Mark Scalia. It states, "Don't come - not to go right now. Trust me. She's not happy with me and Nick just left."
5. In the course of delivering reasons for the verdict, I determined that the text communication between Gaetano Vitale and his wife was evidence, taken together with other evidence in the trial, from which I could infer beyond reasonable doubt that Helen was angry and frustrated because her husband had commenced the process of manufacturing methylamphetamine in their garage. She was also concerned for the welfare of her son.
6. During the course of the sentence proceedings, Gaetano Vitale and his wife gave evidence. I will deal more fully with the offender's evidence in due course. However, for present purposes, each gave evidence that the fight between them on 15 June 2015, including the exchange of text messages, related to the offender smoking methylamphetamine in their home and lying about it to his wife. Each denied that the fight related to the offender manufacturing drugs in their garage.
7. This was not evidence called in the trial. In any event, I am not satisfied on the balance of probabilities that the fight between the couple was limited to the offender smoking methylamphetamine in the garage at their home. The degree of anger and frustration evidenced by the messages sent by Helen to her husband, together with the move from that house to Bringelly and the immediate setting up of a clandestine laboratory there, satisfy me beyond reasonable doubt that Gaetano Vitale had commenced the manufacture of methylamphetamine at the West Hoxton house.
8. A number of conversations captured by telephone intercepts included conversations between Gaetano Vitale and Anthony Klonaris, apparently speaking in drug related code and referring to a person called Nick whom the Crown alleged is the accused Nicholas Fenech. A number of telephone conversations referred to obtaining equipment and materials needed for the manufacture of the prohibited drug methylamphetamine. On about 16 June 2013, the drug manufacture operation was removed from Gaetano Vitale's home in West Hoxton to his father's premises at Bringelly. On 25 June 2013, police attended at the Bringelly premises and executed a search warrant. The premises consisted of a semi-rural property occupying about five acres and containing two separate dwellings, number 10 and number 12.
9. Number 10, The Retreat, Bringelly, was occupied by the accused Angelo Vitale and his wife. Number 12 appears to have been occupied by one of his sons, that son's wife, and their daughter. Upon attending at number 10, police could smell chemicals. They observed a closed internal door that was believed to lead into the garage. Upon opening the door, the police located Anthony Klonaris in the garage standing at a table in front of a metal block, tending to a yellow bubbling liquid which was later found to contain methylamphetamine. He was standing and stirring the mixture with a metal object. Police observed numerous empty chemical containers and bottles inside the garage. The video taken by police of the search of the garage and a number of still photographs that have been tendered clearly establish that a clandestine drug manufacture laboratory had been set up in the garage at number 10, The Retreat, Bringelly.
10. Amongst other things, the police located the following items. 1. A glass dish found on top of the Kambrook Hotplate with what was described as a dark coloured solid. The weight was 102 grams and the substance contained methylamphetamine, item B025; 2. A frypan found to contain 43 grams of dark coloured solid found to contain methylamphetamine, item B026. The frypan was turned on when the police arrived on 25 June 2013; 3. 3. The separating funnel containing 1,075 grams of a two layered liquid containing methylamphetamine and other substances, the top layer including xylenes; 4. 4. 0.8 gram of a brown solid residue in a Sunbeam electric frypan; 5. Swabs taken of two electric frypans showing or revealing traces of methylamphetamine; 6. 1,962 grams of a clear colourless liquid and white sludge located in a bucket, which were found to contain pseudoephedrine; 7. 273 kilograms of strongly alkaline brown liquid categorised as waste product; 8. 7.82 grams of methylamphetamine found in a dish, item B068; 9. Tins and drums labelled as containing 80 litres of acetone, 96 litres of methylated spirits, 80 litres of xylene, a plastic bottle labelled as containing 6.5 litres of hydrochloric acid, a 10 litre reaction flask, four digital pH meters, water pumps, grinder, gas ring burner, glass dishes, and a fan.
11. The police also located CCTV footage from a camera that had been installed at the subject premises. The footage contained images over a ten day period depicting a number of the accused leaving and entering the premises. Exhibit J in the trial was a disc containing a summary of that CCTV footage and exhibit K contained a number of stills from the CCTV footage. The footage included images of Gaetano Vitale arriving at Bringelly on 16 June 2013. I pause to note that he did not leave the premises until the police executed the search warrant on 25 June.
12. On 16 June 2013 at about 3.16am, he entered the premises carrying a number of plastic bags and a plastic container. About four minutes later, Gaetano Vitale, together with his father, Angelo Vitale, reversed a vehicle out of the garage. This was the garage in which the laboratory was later set up.
13. Angelo Vitale carried a halogen lamp towards number 10. At about 4.35am on the same day, Angelo Vitale arrived home carrying tins and cans, and walked towards the rear entry of number 10 where the garage is located. On a number of occasions, Gaetano Vitale walked from the rear of number 10 to the incinerator drum and back to the garage.
14. On 17 June at about 10.20am, Mark Scalia attended at the Bringelly premises in a Pantech truck. He reversed the truck towards the area of the garage. Together with Gaetano Vitale, Mark Scalia removed a number of items from the back and carried them to the rear of number 10. It was unclear to me as to how many items were removed, but they appeared to be large containers consistent with at least some of the containers located in the garage on 25 June 2013. On 17 June 2013 at about 4 o'clock, Mr Fenech removed ice from a car and carried it in the direction of the garage. Mark Scalia was also observed on the same afternoon carrying ice.
15. On 18 June at about 5.52am, Mark Scalia arrived at the Bringelly property in a black VW Golf, and at 7.34am, he carried an item from that motor vehicle to the rear of number 10. At 9.08am, he walked to the back fence and tipped something out, and at 9.14am, he carried an item to the VW and then left the property. He returned about an hour and a half later, removed an item from the boot, and conveyed it to the rear of number 10. Mark Scalia was observed at about 10.51am on the same day to be wearing gloves.
16. On 20 June, he attended the property again in the VW Golf and carried items that appeared to be buckets from the boot to the rear of number 10. This is simply a summary of some of the movements captured on the CCTV footage.
17. Essentially, that footage established that on 16 June 2013, Gaetano Vitale attended at the premises and thereafter I accept that a clandestine laboratory was set up in the garage at number 10. All the accused in this trial are seen to attend on various occasions over a period of some eight to nine days. They are seen to be carrying items, such as containers, tins, bottles, or lighting to the rear of number 10 where the garage is located.
18. The Crown relied upon the following pieces of circumstantial evidence: telephone intercept product, capturing conversations between the accused engaging in conversations alleged to be either drug related code or conversations relating to the purchase of equipment or chemicals for the purpose of manufacture of prohibited drugs; a number of items located by police upon the execution of the search warrant, including quantities of methylamphetamine and 273 kilograms of waste product; a number of containers containing acetone, methylated spirits, hydrochloric acid found in the garage.
19. Also found were various items of equipment required for the manufacture of methylamphetamine, including four digital pH meters, a separating funnel, and a 10 litre flask; ten days of footage taken by way of cameras installed at the premises which showed the attendance and movement of the accused at the Bringelly property. The Crown also relied on the purchase of chemicals and equipment related to the manufacture of a prohibited drug, and the opinion of Ms Ellam that the clandestine laboratory discovered in the garage of the premises at Bringelly was in her opinion a large scale operation.
20. At this stage, it is relevant to note that the Crown case relied in part upon s 4 of the Drug Misuse and Trafficking Act 1985 (NSW), a provision that has been sometimes referred to during the course of the trial as the admixture provision. Section 4 provides the following:
21. "In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract, or other substance containing any proportion of a prohibited drug."
22. In delivering judgment, rejecting the application for a directed verdict (see: judgment dated 26 August 2015), I concluded that the plain effect of the statutory language contained in s 4 is that preparation, admixture, extract, or other substance containing any proportion of a prohibited drug is included in the definition of prohibit drug (see: separate judgment on the application for directed verdict).
23. The Crown relied on this provision in submitting at trial that the two layered liquid contained in the item identified as B042, which weighed 1,075 grams, is a prohibited drug. The Crown argued that the substance contained methylamphetamine and therefore, the admixture provision was enlivened. On this analysis, it was submitted that I would find that the accused guilty of manufacturing a large commercial quantity of methylamphetamine.
24. Ms Ellam, a qualified forensic chemist, gave admissible evidence at trial that can be summarised as follows:
25. On 25 June 2013, she attended the premises at Bringelly with a number of other police officers. She observed and was present when a number of items were located. Located in the garage was a table, on top of which were a number of items including a glass dish containing a dark coloured solid, located on top of the Kambrook portable hotplate with brown staining. Also on the table was the Sunbeam electric frypan containing a dark coloured solid, and the separating funnel containing a two layered liquid which was sitting in a plastic cup. Other items located on the table included chemical containers, a digital pH meter, and glass dishes. Placed next to the table was a pedestal fan. Throughout the garage were numerous factory labelled chemical containers and other containers containing liquids. Items B025 and B026 were both found to contain methylamphetamine. The total weight of prohibited drug contained in those items was 145 grams. The two layered liquid located in the separating funnel weighed 1,075 grams.
26. In a statement, exhibit M in the trial, the witness states that analysis found the liquid to contain methylamphetamine, chlorpheniramine, and triprolidine. The top layer contained xylenes and the bottom layer was strongly alkaline. This item was consistent with methylamphetamine that is being separated from the remaining reaction mixture; that is, the extraction phase of manufacture. In her statement, she stated: "The methylamphetamine as methylamphetamine base oil will be in the top xylene layer, and the bottom strongly alkaline layer will contain the waste from the reaction. The top layer containing methylamphetamine can be separated from the bottom layer using a separating funnel."
27. In light of the importance placed by the Crown on the substance contained in the separating funnel, it was necessary to determine whether the admixture rule applied to total quantity of the substance found in that vessel. In order to determine that issue, I summarised Ms Ellam's evidence as follows:
28. Ms Ellam opined that the two-layered liquid contained in the separating funnel was an extraction of methylamphetamine and that it was produced as part of the manufacturing process. Xylene is added to the alkaline mixture within the separating funnel and allowed to settle into two layers. After a period, the xylene floats to the top, containing the methylamphetamine which has been extracted from the mixture. The strongly alkaline liquid settles at the bottom and they separate, in the words of the Crown during examination in chief, "similar to oil and water." During her examination in chief, Ms Ellam said that the separating funnel's purpose is to perform extractions of the two-layered liquid and to remove one layer from the other.
29. The weight of 1,075 grams includes both layers. There was no attempt to discern the weight difference between the two layers. Ms Ellam described the layers as "two discrete layers." She was unable to say categorically whether the liquid in the separating funnel was manufactured at the garage, or whether it was transported there. She gave evidence that it would not have been practical to transport it to the garage. In contrast to liquids found in other containers, Ms Ellam was of the opinion that the liquid in item B042 was an extraction process occurring in that vessel that was located at the premises. Although there may have been small traces of methylamphetamine in the bottom layer - that is, the waste product - she was unable to say with any certainty that there was a prohibited drug in the waste product and no testing was done to ascertain any such fact.
30. In the course of the judgment that I delivered with respect to the directed verdict, I said that having regard to the fact that s 4 of the Drug Misuse and Trafficking Act 1985 (NSW) refers to any preparation, admixture, extract, or other substance containing any proportion of the prohibited drug, I was satisfied that there was evidence capable of establishing that a proportion of the liquid found in the separating funnel ( in the top layer) was an admixture within the terms of s 4, although there was an absence of evidence as to the quantification of that proportion.
31. In light of Ms Ellam's evidence about the substance found in the separating funnel, I was not satisfied that the total quantity of 1,075 grams is a prohibited drug within the definition of s 4 of the Drug Misuse and Trafficking Act 1985 (NSW).
32. I also held that if I was wrong in that regard, I was not satisfied that the offenders intended the manufacture of 1,075 grams of the liquid as a prohibited drug. Clearly the bottom layer was waste product. The fact that the bottom layer was clearly waste product speaks against a finding that the offenders had an intention to manufacture the total amount as a prohibited drug. Indeed, it seemed to me that a similar line of reasoning is what led the Crown to disavow any reliance upon the 273 kilograms of waste product located at Bringelly as being a prohibited drug within the definition of s 4 of the Drug Misuse and Trafficking Act 1985 (NSW).
33. Accordingly, I was not satisfied that the total quantity of substance in the separating funnel was a prohibited drug. Furthermore, in the absence of any evidence as to the weight of the substance in the top layer, I was unable to make any certain finding with respect to the quantity of prohibited drug that was contained in that item. However, I was satisfied that a proportion of the liquid - that is, the top layer - was a prohibited drug for the purposes of s 4 of the Drug Misuse and Trafficking Act 1985 (NSW). It was a piece of evidence that I took into account in assessing the circumstantial case put forward by the Crown.
34. Each of the offenders pleaded guilty at the commencement of the trial to manufacturing or knowingly taking part in the manufacture of a prohibited drug. The only issue was quantity.
35. I was satisfied on the basis of the admixture rule that a quantity of prohibited drugs was manufactured in the garage. In addition, I took into account the circumstantial evidence relating to the location of various items in the clandestine laboratory, the content of various telephone intercepts, the period over which the manufacture was taking place, and the content of the CCTV footage in finding beyond reasonable doubt that each of the offenders was involved in the manufacture or knowingly taking part in the manufacture of not less than a commercial quantity of prohibited drug.
36. Although a significant amount of waste product was located at the premises, there is insufficient evidence before me to establish with any precision the quantity of prohibited drug produced. The only finding that I can make to the requisite standard is that a quantity of not less than 250 grams of methylamphetamine was manufactured. I proceed to sentence the offenders on the basis that the quantity of prohibited drug manufactured was closer to the threshold of 250 grams rather than the middle or upper end of the range of commercial quantity. There was an absence of any evidence capable of satisfying me to the requisite standard that the amount of drug manufactured was at the upper end of the range of commercial quantity.
37. I also proceed to sentence the offenders, on the basis that the quantity of end product, sometimes referred to as usable product, located by police in a dish (Item B068) was 7.82 grams. By end product, I mean methylamphetamine in a form that could be consumed or supplied for consumption. I do not accept the evidence of Mark Scalia and Gaetano Vitale that the amount of 7.82 grams was purchased and brought to the premises. The 7.82 grams of methylamphetamine was located in a dish in the vicinity of the equipment used to manufacture the prohibited drug. This is not a case where that quantity was located, for instance, in a plastic resealable bag suggestive of having been purchased. Indeed, there was no evidence of any packaging that may have suggested that the quantity of 7.82 grams was purchased and brought to the premises.
38. However, on the evidence before me, I am not satisfied that the offenders had succeeded in manufacturing end product other than that quantity. Furthermore, I am not satisfied that the offenders had supplied or otherwise disseminated the prohibited drugs manufactured by them. There is simply insufficient evidence to make such findings. Although the CCTV footage reveals a number of the offenders leaving and returning to the premises, there is no evidence that they removed manufactured drugs from the garage. There is no evidence of records or telephone communication giving rise to an inference that in product was removed from the premises, supplied or otherwise disseminated into the community.
39. It follows that I am not satisfied that the offenders in fact made any profit from the manufacture of the prohibited drug.

OBJECTIVE SERIOUSNESS

1. The criminal conduct took place over about nine days in circumstances where the clandestine laboratory that was set up contained a significant amount of chemicals, waste product and equipment associated with the manufacture of methylamphetamine. A quantity of not less than 250 g of methylamphetamine was produced, having regard to the application of the admixture rule and a circumstantial case presented by the Crown.
2. However, I find that the offence falls below the middle of the range of objective seriousness for the following reasons: 1. I am not persuaded that there was any planning or organisation over and above that inherent in offences of this type. 2. The offence was committed in the garage at Angelo Vitale's premises. This was not a case where a discreet location unconnected with the offenders was sourced and utilised. 3. Although the manufacturing process involved the use of various pieces of equipment, they were in the main relatively unsophisticated. 4. During the course of the sentence proceedings Mr Paish who then appeared for the Crown used the phrase "dumb and dumber" to characterise the account being given by Gaetano Vitale in his evidence. The reference was with respect to Gaetano Vitale's evidence that the large volume of waste product located at the premises was the result of multiple failed attempts to manufacture the drug. At first blush there is some force in the submission that having regard to the volume of waste product, there must have been a significant amount of usable methamphetamine produced. However, upon close analysis, there is an absence of evidence, either by way of direct evidence or inferential reasoning, that end product, other than that located when the police executed a search warrant, had been manufactured at the premises. 5. I am not satisfied that the offenders succeeded in manufacturing end product apart from approximately 7.82 grams. There is no doubt that there was a significant amount of waste product located at the premises. However, the is evidence does not establish that end product was removed from the location and supplied or otherwise disseminated into the community. 6. No profit was made as a result of the manufacture process. 7. In this case it was the application of the admixture rule that rendered the majority of the substance located at the premises a prohibited drug.
3. That said, the manufacture of prohibited drugs is very serious criminal conduct, involving as it does the production of dangerous substances that not only pose potential physical harm, but often create psychological and social problems of a debilitating nature. Considerations of general deterrence and denunciation must be given due weight when determining the appropriate penalty. Terms of full-time imprisonment of some length must be imposed upon offenders who engage in such criminal behaviour.
4. The seriousness of an offence such as the present has been emphasised in a number of decisions of the Court of Criminal Appeal. I have had regard to the relevant principles: see R v Reardon (1996) 89 A Crim R 180; Walsh v R (2006) 168 A Crim R 237.
5. I bear in mind, however, individualised justice requires that each case be assessed having regard to the objective and subjective circumstances pertaining to that case.

WERE THE OFFENCES COMMITTED FOR FINANCIAL GAIN? (See: s 21A(2)(O) of the Crimes (Sentencing Procedure) Act 1999 (NSW))

1. A significant portion of time taken up on the sentence proceedings was with respect to the issue of whether the offenders had engaged in this criminal activity for financial reward. Mark Scalia and Gaetano Vitale were called to give evidence on the sentence proceedings and a number of submissions were made by each counsel.
2. It is necessary for me to determine whether I am satisfied that the offenders engaged in this activity for financial reward, or whether they were otherwise motivated to manufacture methamphetamine.
3. In seeking to rely upon financial gain as an aggravating factor, the Crown will have to establish that fact beyond reasonable doubt.
4. In my judgment of 16 October 2015, returning verdicts and setting out my reasons, I indicated at some length the circumstantial evidence that I relied upon to find the accused guilty of manufacturing not less than a commercial quantity of methylamphetamine (see judgment of that date).
5. The Crown's circumstantial case included a number of facts, none of which had to be proven beyond reasonable doubt. Put another way, there was no fact indispensable to the chain of reasoning that had to be established to that high standard. One of the circumstances, I took into account as a piece of circumstantial evidence was that the three accused were involved in the manufacture of methylamphetamine for financial reward. Of course this was only one of many factors that I took into account.
6. During the course of the sentence proceedings, Mr Paish, the Crown who then appeared, submitted that, having made a finding that they were involved in the manufacture for financial reward, I could not now "go behind that finding". (p78 14/4/2016)
7. I reject that submission. The reference in my earlier judgment to taking into account as a piece of circumstantial evidence that the three accused were involved in the manufacture of methylamphetamine for financial reward, was a reference to one of the strands in the cable relied upon by the Crown. It was not a circumstance that had to be proven beyond reasonable doubt.
8. By contrast, before I can rely upon financial gain as an aggravating factor, I would have to be satisfied beyond reasonable doubt that the offenders were motivated by an intention to make profit from the manufacture of the prohibited drug. To be clear, I am not of the view that I am bound by any one of the circumstances that I took into account in finding the accused guilty in determining whether the Crown has established an aggravating factor beyond reasonable doubt.
9. Rather, my task in these sentence proceedings is to consider all of the evidence, including the evidence at trial and on sentence, to determine whether in each case the offenders were motivated by an intention to obtain a financial reward. I must then decide whether on that evidence I can be satisfied beyond reasonable doubt of the aggravating factor. A considered assessment of the evidence has led to different findings with respect to the individual offenders.
10. I turn now to consider the evidence on this issue and to set out my findings.
11. Although Angelo Vitale is not to be sentenced today, it is appropriate that I briefly set out my findings with respect to his motivation. I do so because it will become relevant in these proceedings with respect to my determination of the guilt of the offenders in relation to the charge on the s 166 certificate.
12. Angelo Vitale provided the premises where the drugs were manufactured. He assisted his son to move a vehicle from the garage. Four telephone intercepts relating to calls on 22 June 2013 reveal conversations between Angelo Vitale and his son, Gaetano Vitale, about the purchase of items that could be used in the manufacturing process.
13. Angelo Vitale was present at his house on occasions when one or more of his co-offenders brought items to the location.
14. He was seen on four occasions to convey items consistent with the use in the process of extracting or refining methylamphetamine. They included:

• On 16 June 2013 he was carrying lights, silver tins and clear bottles.
• On 18 June 2013 he was carrying a 20 L white container with blue lid and a small blue container.
• On 22 June 2013 he was seen carrying tins and a 4 L clear bottle.
• On 24 June 2013 he was seen carrying a shopping bag.

1. I am satisfied that Angelo Vitale knowingly took part in the manufacture of not less than a commercial quantity of methylamphetamine. This much is clear from the fact that he allowed his premises to be used for the manufacture of the drug and assisted by providing items consistent with the use in the process of extracting or refining methylamphetamine.
2. However, I am not persuaded that Angelo Vitale committed the offence for financial reward. His role was significantly less than his co-offenders. True it is that he provided the premises but he did so, in my view, at the request of his son. This is not a case where Angelo Vitale initiated the enterprise, was involved in the planning or transport of items to the location, or was involved in the actual process of production inside the garage once the laboratory was in operation.
3. I also take into account the fact that Angelo Vitale was a 66 year old man with no relevant criminal convictions. Indeed, other than an offence of goods in custody in 2002, he only has one matter of stealing in 1980. I am satisfied that, but for his son's conduct, Angelo Vitale would not have become involved in the manufacture of prohibited drugs.
4. I turn to consider the case of Mark Scalia. In determining whether he was motivated by financial reward, it is necessary to set out some of the evidence relating to his subjective case at this stage of the judgment.
5. The offender's medical records have been tendered in the proceedings. They confirm that he was involved in a car accident in 2012. The accident had a significant impact upon his physical wellbeing and his injuries led to prolonged chronic pain experienced in his back, neck and legs.
6. The offender gave evidence in the sentence proceedings and was cross-examined at some length. He said that his life hasn't been the same at all since the accident due to the chronic pain he has experienced in his back since then. For example he had trouble showering himself for a long time or going to the toilet properly. He was unable to work as a bread vendor for a period of time and now has altered his work load and capacity.
7. I have had an opportunity to observe the offender give evidence during the sentence proceedings. I have also had an opportunity to observe him generally during those proceedings and during the course of the trial. He was unable to sit down for any lengthy period of time due to his pain. He spent a significant portion of the proceedings standing up and gave some of his evidence in the witness box while standing.
8. Much of the medical material tendered in these proceedings has gone towards the ongoing physical effects of the injury and the treatment that is required. I have had regard to the reports and the medical records.
9. Twelve months after the accident the offender was admitted to hospital after a suicide attempt. He was in hospital for about one month before being released. Clinical history notes from the SouthWest clinic report that the offender reported for voluntary admission at that clinic with a history of depression and anxiety commencing after his car accident. Clearly, his back injury caused considerable pain and was, at times quite debilitating.

STANDARD NON-PAROLE PERIOD

1. The offence carries a standard non-parole period as a result of the introduction of Division 1A into Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Since the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120, the objective seriousness of the offence is determined without reference to matters personal to the offender but wholly by reference to the nature of the offending.
2. The standard non-parole period should not be the starting point or the endpoint in arriving at a sentence. I am required to identify all the factors that are relevant to sentencing. In doing so I must be mindful of the two legislative guideposts: the maximum sentence and the standard non-parole period. The broad ranging and flexible enquiry envisaged by s21A is not subjected to a procedural straitjacket in respect of particular offences by the introduction of the standard non-parole period regime.
3. I will impose a non-parole period significantly less than the standard non-parole period. I do so because I find that the objective seriousness of the offence falls below the middle of the range of objective seriousness. Secondly, the offenders pleaded guilty to the offences of manufacture or knowingly take part in the manufacture of a prohibited drug simpliciter. There was a significant degree of pre-trial disclosure and each offender facilitated the administration of justice in the way the trial was conducted. Furthermore, I have taken into account the subjective case of each of the offenders in determining the appropriate term of imprisonment, including the non-parole periods.

THE PLEA OF GUILTY

1. The Crown acknowledges that there was some utilitarian value in the way in which each accused conducted the trial. The Crown submits that an appropriate reduction in sentence is one of 15%. On behalf of each offender, it is submitted that the discount to reflect the utilitarian value of the pleas of guilty should be higher.
2. On the first day of a trial, each accused pleaded guilty to manufacturing or knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine. The Crown did not accept those pleas of guilty in full satisfaction of the indictment. The matter proceeded by way of pre-trial application and judge alone trial. From the outset each accused identified the sole issue in the trial as being the element relating to quantity of prohibited drug manufactured. Each accused indicated their willingness to proceed by way of tender of the relevant Crown material. No cross-examination was sought of any witnesses except of Ms Ellam on the voire dire relating to the pre-trial issue. The pre-trial issue was decided in favour of the accused.
3. Each accused made admissions pursuant to s 184 of the Evidence Act 1995 (NSW). The nature of those admissions is set out in my judgment dated 16 October 2015. As it transpired, I found the accused not guilty of the offence of manufacture or knowingly take part in the manufacture of not less than a large commercial quantity of methylamphetamine but guilty of manufacture or knowingly take part in the manufacture of not less than a commercial quantity.
4. I am satisfied that each of the accused had clearly identified the sole issue in the trial and conducted the trial in a manner that reflected their willingness to facilitate the administration of justice. There was clearly a significant utilitarian value in the way they conducted the trial. Had the matter run to trial in the conventional way, it would have taken in excess of four weeks.
5. It seems to me that had the offenders pleaded guilty to the offences of manufacture or knowingly take part in the manufacture of not less than the commercial quantity, a similar amount of time would have been spent on the proceedings.
6. I am satisfied that an appropriate reduction in sentence to reflect the utilitarian value of the pleas of guilty is one of 20%.

SECTION 166 MATTERS - DIRECTING OR PARTICIPATING IN A CRIMINAL GROUP

1. Each offender has pleaded not guilty to a related offence contrary to s 93T of the Crimes Act 1900 (NSW). In the case of Gaetano Vitale, it is alleged that he knowingly directed the activities of a criminal group whose activities are organised and ongoing contrary to s 93T(4A) and in the case of Angelo Vitale and Mark Scalia, it is alleged that they knowingly participated in a criminal group contrary to s 93T(1).
2. The parties submitted that I would determine the guilt of all offenders based on the evidence led at trial. Before I turn to the evidence, it is necessary to set out the elements which the Crown must satisfy beyond reasonable doubt.
3. In relation to s 93T(1), the Crown must prove beyond reasonable doubt: 1. There was a criminal group; and 2. The accused participated in the criminal group; 3. knowing it was a criminal group; and 4. The accused knew or was reckless as to whether his participation in that group contributed to the occurrence of any criminal activity. 5. In relation to s 93T(4A), the Crown must prove beyond reasonable doubt: 6. There was a criminal group; and 7. The accused participated in the criminal group; 8. By directing any of the activities of a criminal group; 9. Knowing it was a criminal group; and 10. The activities of the criminal group were organised and ongoing; and 11. The accused knew or was reckless as to whether that participation contributes to the activities of a criminal group.
4. Section 93S specifies what a "criminal group" is for the purpose of these provisions. In this case it means a group of three or more people who have as one of their objectives obtaining material benefits from conduct that constitutes a serious indictable offence, in this case, the manufacture of prohibited drugs. There are other objectives that can constitute a criminal group, however they are not relevant in this case.
5. It follows that I need to be satisfied of the existence of a criminal group involving three or more people before I turn to considerations of participation and knowledge.

DETERMINATION OF SECTION 166 MATTERS

1. On behalf of each offender, it was submitted that I would not find the offence proved beyond reasonable doubt. It was put that there was insufficient evidence to establish three or more people were acting together with the necessary objective. Alternatively, it was submitted that I would not be satisfied that each of the offenders had as one of their objectives the obtaining of the material benefit.
2. The Crown submitted that if an individual joins a group and the overall purpose of the group is to manufacture methylamphetamine, the element of obtaining a material benefit is satisfied.
3. I do not agree with that construction of section 93S. The section provides a definition of a criminal group as requiring a group of "three or more people who have as their objective obtaining material benefits from conduct that constitutes a serious indictable offence". The serious indictable offence in this case is the manufacture of methylamphetamine. The material benefit must be something that accrues from that conduct, rather than being the very conduct which constitutes the serious indictable offence.
4. An intention to profit from the manufacture of methylamphetamine is clearly an objective of obtaining a material benefit. Is an intention to manufacture methylamphetamine for personal use a material benefit?
5. There is very little authority on this issue. In White v R [2014] NSWCCA 329, the court overturned the conviction of an accused who had pleaded guilty to the offence of supplying prohibited drugs on an ongoing basis. An element of that offence is that the accused supplied the drug on three or more separate occasions for financial or material reward. The appeal succeeded the on the basis that there was no evidence that there was a material benefit arising from each relevant transaction. Hidden J held that the third transaction "might have earned him the benefit of the supply of some drug for his own use on credit", which his honour considered "could be relevant to material benefit".
6. Where an offender intends to manufacture methylamphetamine for personal use in circumstances where he or she is saved considerable expense or where that individual uses the drug to obtain pain relief, each would constitute a material benefit.
7. In the present case I am not satisfied that the mere fact that Angelo Vitale was involved in the manufacture of methylamphetamine satisfies the element that he had as his objective the obtaining of a material benefit. There is insufficient evidence to establish that he was motivated by financial reward and there is no evidence that he used methylamphetamine, let alone was addicted to the drug.
8. Both Mark Scalia and Gaetano Vitale were addicted to methylamphetamine and were spending hundreds of dollars on a weekly basis to fund their habit. Manufacturing the drug so as to provide a source for their personal use would obviate the need to purchase drug thereby saving them a considerable deal of money. I am satisfied that this would be a material benefit.
9. Furthermore, in the case of Gaetano Vitale, I am satisfied that he was partly motivated by an intention to profit from the enterprise.
10. Is there a criminal group now that I have found Angelo Vitale did not have an objective of obtaining a material benefit? For there to be a criminal group, there must be at least three people who have as their objective the obtaining of material benefit from the manufacture of methylamphetamine.
11. During the course of the trial evidence was adduced of the involvement of Anthony Klonaris in the enterprise involving these offenders. The CCTV footage placed him at the premises on various occasions when both Gaetano Vitale and Mark Scalia were present. He was clearly involved in the manufacture of the drug, having regard to the fact that when police executed the search warrant he was literally stirring the pot. I am satisfied beyond reasonable doubt that Mark Scalia, Gaetano Vitale and Anthony Klonaris constituted a criminal group in which Mark Scalia and Anthony Klonaris were participants. There is no issue that Gaetano Vitale was directing the group's activities. I am satisfied that the activities were ongoing in that they took place over a period of some nine days.
12. Accordingly, I find Mark Scalia guilty of the offence of participating in a criminal group. I find Gaetano Vitale guilty of directing the activities of a criminal group. I find Angelo Vitale not guilty of participating in a criminal group.
13. I have had regard to the fact that the facts upon which I have found the offenders guilty are substantially the same as the circumstances constituting the indictable offence of manufacturing or knowingly take part in the manufacture of a prohibited drug. The sentence I impose for that offence can comprehend the criminality involved in the offence pursuant to s 93T. The sentences I impose will be wholly concurrent.

FACTS - FRAUD OFFENCES IN RELATION TO GAETANO VITALE

1. Gaetano Vitale's co-offenders in relation to the fraud offence are George Barikhan and Carmelina Karouche. Ms Karouche is the offender's older sister. I now turn to those facts.
2. In March 2013, Gaetano Vitale was the subject of lawful interception of his telephone by police. In one call between the offender and Mr Barikhan they discussed the offender wanting to purchase a Mercedes ML, registration 189, from Ken Carroll Motors.
3. In that call, the offender contacted Mr Barikhan asking him to facilitate finance for the purchase of the car. He indicated his difficulty in obtaining finance due to his and his wife's bad credit history.
4. From 2008, Mr Barikhan was a finance referrer, predominately within the motor vehicle industry. In this role he corresponded with various brokers and finance companies in various ways, including under the business 'Infinity Home Loans Pty. Ltd' which he operated from an office at Luddenham.
5. During the call, the offender and Mr Barikhan discussed ways to obtain finance, including obtaining finance in the name of his sister, Ms Karouche. They also discussed the details to record on the loan application and supporting documents relating to Ms Karouche's employment history.
6. On 26 April 2013, a loan application on behalf of Ms Karouche was sent on her behalf by Mr Barikhan to Peter Shade - a broker at Trivett Pty Ltd. The loan application, with supporting documents relating to the assets and liabilities, employment history and income of Ms Karouche, her current employment for the past 4 years was stated as 'Rocco Ristorante' with a net monthly income of $6,952 and 4 years prior to that, employment at 'Vitale Bros Concrete Plumbing', three payslips from Rocco Ristorante were also included, as was a letter certified by an M Prasad stating that Ms Karouche was entitled to claim a predominant portion of the Mercedes as a business tax deduction.
7. Settlement took place on 2 May 2013 (facts state 2015) and a number of other documents were forwarded to BMW Finance. Relevantly, some of those documents included: 1. Declaration of acceptance of income; 2. A declaration that the car was to be used predominately for business purposes "to see stockists, wholesalers, prospective vendors, events and for functions etc". 3. An assets and liabilities statement signed by Ms Karouche and Shade that records her as having $45,000 cash in the bank and a $650,000 investment property.
8. The invoice for sale recorded an initial deposit of $31,000 leaving an outstanding balance of $169,000. The car was insured to the value of $170,000.
9. The contract for sale listed Helen Vitale, this offender's wife, as the purchaser of the Mercedes. 'Vitale Brothers Concrete Plumbing' was listed on the direct debit authority form - a business owned by the offender.
10. Subsequent investigations revealed the following: 1. Ms Karouche has never been employed at the restaurant. The payslips were not issued by the business. 2. Bank statements for Ms Karouche between the period 22 March 2013 and 21 August 2013 record that during that time she was receiving Centrelink benefits and the balance in her bank account never exceeded $4,275.87; and 3. Ms Karouche never submitted a tax return in 2013 and investigations through the ATO, Fair Trading and Rental Bond Board found no evidence of an investment property in her name.
11. On 21 January 2014, the vehicle was repossessed by agents on behalf of Alphera Finance due to non-payment of the loan. The vehicle was sold and a default judgment was awarded against Ms Karouche in the sum of $70,324.88.
12. On 2 October 2013, the offender was stopped by police for a breath test and it was found to be unregistered to 'Ken Caroll Investments'. The offender told police that 'it belongs to a car yard, I am in the process of purchasing it and I can't believe it is not registered'. In the following days police observed the vehicle parked in the offender's driveway.
13. The offender was charged on 31 March 2015.
14. In relation to his co-offenders, Ms Karouche pleaded guilty to two offences of dishonestly obtain benefit by deception and one offence of participation in a criminal group. She was sentenced at Parramatta Local Court to s 9 bonds for 2 years.
15. Mr Barikhan pleaded guilty to one offence of pervert the course of justice, one offence of participate in a criminal group, 8 offences of obtain money by deception and 17 offences of dishonestly obtain financial advantage. His matter has not yet been finalised.

OBJECTIVE SERIOUSNESS OF FRAUD OFFENCE

1. The offence involved a considerable amount of money in that the advantage gained was finance of approximately $171 to purchase the vehicle. Although the finance company obtained a judgment debt against the offender's sister (a co-offender with respect to that offence), the value of the judgment debt, being $70,324, remains unpaid.
2. I find that this offence falls below the middle of the range of objective seriousness. Although the amount of money involved was significant the motor vehicle was returned to the finance company.
3. Furthermore, although there was a degree of planning on the part of this offender I am satisfied that it was Mr Barikhan who played the primary role in planning and executing the fraud.
4. The offence was committed at a time when the offender was using methylamphetamine on a regular basis and I accept that his judgment was drug affected and impaired. He purchased the vehicle not for his own use but for that of his wife.
5. The offender's sister pleaded guilty to a similar offence in the local court. She was dealt with by way of a section 9 bond for a period of two years. However, the principle of parity has little application in that her role was at the very lowest end of the range of objective seriousness. It does not appear that she benefited in any way from the fraud. No doubt she became involved to help her brother.
6. Notwithstanding my finding that the offence falls below the middle of the range of objective seriousness, the conduct constitutes serious criminality involving a significant amount of money. This was not an offence committed out of a sense of need but rather motivated by a desire to maintain a lifestyle of luxury.
7. In sentencing the offender for this offence I take into account the Form One matter being an offence of participating in a criminal group. However, in light of the fact that the facts giving rise to this offence are substantially the same as the substantive offence, I am not of the view that there should be an increase in the penalty.
8. I have had regard to the fact that this matter could have been dealt with in the Local Court and that but for the manufacture offence, he would have been dealt within that jurisdiction.
9. On behalf of the offender it is submitted that I would deal with the matter by way of a wholly suspended sentence of three months' imprisonment. I do not agree with that submission. I am satisfied that the section 5 threshold is met and a term of imprisonment is warranted. Although the appropriate length of that term is less than two years imprisonment, I am not persuaded that the sentence should be suspended.
10. Furthermore, the offending that constitutes the fraud offence is discrete conduct separate from and unrelated to the offence of manufacturing not less than a commercial quantity of methylamphetamine. I am satisfied that there must be a measure of accumulation which will be reflected in the aggregate sentence that I impose upon this offender. In determining the extent of the accumulation I have had regard to the principle of totality.
11. I take into account that Gaetano Vitale entered his plea of guilty in the local court. It is a plea of guilty at the first opportunity and the sentence I impose will be reduced by 25% to reflect the utilitarian value of the plea.

SUBJECTIVE CASE - GAETANO VITALE

1. The offender is 37 years old and the youngest of three children of Angelo Vitale and his mother, a relationship he describes positively. The offender reported that his home life growing up was "good" and that he was spoilt by his mother. He reported that he always got his way and that his parents did not put up boundaries. Nevertheless, the offender reported that as a child he was "pretty independent and knew what was right from wrong from a young age".
2. The offender attended school without incident and left in Year 11. He then commenced running a concrete pump business, as his father had. That business is still operating.
3. The offender reported to Ms Allen, psychologist, that his friends were not a positive peer group. He agreed that they were involved in crime but that he stopped associating with them prior to the birth of his son.
4. The offender married his wife when he was 27, some 11 years ago and they resided with his parents at Bringelly for two years until 2007 when they built their house at West Hoxton. His wife suffered a miscarriage in 2007. The offender had been told he was unable to father children and had two operations, both of which were unsuccessful. He and his wife tried IVF unsuccessfully a few times, spending approximately $20,000. This necessitated borrowing money from family and friends. In 2012, his wife Helen became pregnant and gave birth to a boy in early 2013. He now also has a daughter, who was born in January this year whilst the offender was in custody.
5. The offender reported he has never had a problem with alcohol as he only drinks socially. He first used illicit drugs at 18, taking ecstasy, cannabis and speed once or twice, but not beyond that. At 18 he also began using steroids after being introduced to it by friends. He ceased his use at about 30 after being told it impacted on his fertility.
6. The offender began using ice in 2011 after experiencing a number of hardships. He said he felt "down and out". He had fertility issues, and he lost both his grandfathers, with whom he had been close, within months of each other. His father was diagnosed with prostate cancer in early 2012 and his brother and business partner were arrested and spent some 7 months in custody that same year. At the time of his arrest in June 2013, the offender was using about $500 per week of ice.
7. The offender has some matters on his criminal record. In 2000 and 2005 he was fined and placed on a section 9 bond for matters of assault occasioning actual bodily harm and destroy/damage property. In 2012 he was fined $1,000 and subject to a section 9 bond and disqualified for 12 months for driving whilst suspended and speeding. He was also dealt with for an affray in 2011.
8. The two convictions in 2000 and 2005 resulted from road rage incidents. The offender said he was using steroids on those occasions. The conviction for affray in 2011 was when he was using ice.
9. The offender does not have an extensive criminal history and has no drug related matters on his record. He is in my view entitled to some degree of leniency.
10. The offender gave evidence before me in the sentence proceedings. I have rejected part of that evidence, particularly in relation to the events connected with the manufacture of methylamphetamine. I have rejected his evidence that he was not manufacturing a prohibited drug at West Hoxton. I have also formed the impression that he was, to a degree, attempting to minimise his role.
11. Since his arrest, the offender's life has changed for the better. He ceased his use of illicit drugs. He has gained the weight that he lost as a result of his addiction. His concrete business is back on track and he has doubled or tripled his earnings in comparison to the time he was using ice and extracting money from the business. In 2014 he bought a gym franchise which has about 1400 members and has helped improve his health. He has sold his house at West Hoxton to fund his legal representation and was residing at a rental property with his parents until he thought to have his bail revoked recognising that a term of imprisonment would be imposed.
12. Thirty references were tendered on behalf of the offender. I am not going to refer to all of them; however I have read and considered each one. I note that one such reference is from his older sister, Carmelina Karouche who is his co-offender in the fraud matter. Insofar as those references describe the offender as honest and a person of good moral character, I give them very little weight. However, I accept that before his addiction, the offender was a hardworking person and committed husband. Generally speaking the references speak of the offender's criminal conduct as "out of character" and attest to the fact that he has dramatically changed his life around since the arrest in 2013. They acknowledge he is hardworking, responsible and a family man. A number of references also speak of the offenders expressed remorse with respect to his offending conduct.
13. The reference from the offender's wife Helen described what he was like in late 2012 to early 2013. She said that at the time she became pregnant in 2012, the offender was never straight with her, always high on drugs, and never wanted to sleep at night or eat. She said that in May 2012, when she was about 4 months pregnant, she walked into the garage and found the offender crying however he told her to leave him alone. This was about the time the offender's father was diagnosed with cancer and his brother was incarcerated. After the birth of their child in January 2013, the offender apparently tried to change but was still addicted to drug. Clearly he was unable at that time to abstain from drug use.
14. Mrs Vitale confirms that since then, he has remained drug free drug, has return to the gym, fitness and work. The offender has expressed remorse to her for his use of methylamphetamine.
15. Notwithstanding the fact that the offender sought to minimise his role when giving evidence before me, I am satisfied on balance that he is remorseful for his actions. He pleaded guilty to manufacturing a prohibited drug; he has expressed remorse to his family and friends and in his evidence before me, and, despite the fact that he had made significant progress following his arrest, he volunteered to be taken into custody recognising that he must be punished for his behaviour.
16. I am also satisfied that he has good prospects of rehabilitation. He does not have a criminal record of significance; he has stopped using prohibited drugs. Prior to his bail being revoked he returned to successfully operating his business and commenced a new business enterprise by opening up the gym. Since his incarceration, there have been no internal disciplinary charges and no suggestion of drug taking.
17. Now that the fog of addiction has lifted, I am satisfied that his intention upon release is to return to his family and provide for them through legitimate means. Whilst specific deterrence remains a relevant consideration in determining the appropriate sentence, I am satisfied that the weight to be given to it is reduced, having regard to the offender's positive progress.
18. Psychologist Ruth Allen, in her report dated 16 December 2015, reported that, with respect to Gaetano Vitale, there was no evidence of mental illness, nor any reported history of it. The offender said that when he feels low, he thinks of family and prays. Since being in custody, the offender has attended church weekly. A letter from Reverend Paul Drury at the Chaplaincy Service at Parklea confirmed this is the case. Reverend Paul Drury also confirmed that the offender has completed the 'Positive Lifestyles Program' and contributed well and at the time, was completing the 'Seasons for Growth' program to understand grief and loss issues. He is also employed as a sweeper.
19. Ms Allen administered a number of tests on the offender. She concluded that his overall non-verbal and verbal functioning was below average. The psychometric personality test revealed that the offender scored in the 'significant' range for narcissistic patterns which indicates that a person may perceive themselves as more deserving and special, entitled to act in a way that exploits others but that their self-image is fragile and they may become sensitive to criticism and hostile if challenged. KINTOMINAS: Your Honour my client needs to go to the bathroom. HER HONOUR: Yes alright. Well what do you want me to do? Do you want me to pause the judgment so that he can do that or should I continue in his absence? I think he should be here. KINTOMINAS: Your Honour at the moment is dealing with the co-accused, I think he should go. HER HONOUR: Alright, well if you're satisfied for him to go to the bathroom while I'm dealing with Mr Gaetano Vitale. KINTOMINAS: He intends no discourtesy to your Honour of course. HER HONOUR: I will continue then.
20. Other noteworthy responses were associated with interpersonal alienation, a sense of disconnection with others and a tendency to isolate himself. The offender provided significant scores for drug dependency and bipolar disorder, indicating that he experiences mood swings between elation and exaggerated self-esteem to depression and hopelessness.
21. Ms Allen opined that while the offender has made positive steps forward that reduce the risk of reoffending, his test scores indicate that he continues to experience unstable mood swings, likely related to personality patterns and unresolved difficulties associated with feelings of failure/inadequacy. His experience of interpersonal alienation may prevent him from addressing problems underlying his emotional coping strategies.
22. The seriousness of the offence, as reflected by its maximum penalty and standard non-parole period, warrants a lengthy period of full-time imprisonment. I reject the submission made on his behalf that it is well within my discretion to impose a penalty that results in little if any further period in custody.
23. However I find special circumstances warranting a substantial variation of the statutory ratio. I note that the Crown did not speak against a finding of special circumstances. I find special circumstances for the following reasons: this is the first time that the offender is to serve a term of imprisonment; he will require treatment and supervision upon his release to ensure that he does not relapse into drug use; and he will require a longer than usual additional term to assist him to readjust to living in the community upon his release. There is a potential for relapse to substance abuse without appropriate treatment.
24. I will pause there. Mr Scalia is back in Court. I will proceed to deal with his subjective case.

SUBJECTIVE CASE - MARK SCALIA

1. Mark Scalia is Gaetano Vitale's cousin. A number of reports have been tendered on behalf of this offender and he also gave evidence before me in the sentence proceedings.
2. He is 28 years old. He was born in Australia and is of Italian/European descent. He is the eldest of three children and although his parents divorced when he was aged 10, his family environment was close and supportive. Those relationships remain close and the offender is currently living with his mother and stepfather in Green Valley, with his father living close by. He is the cousin of Gaetano Vitale and the nephew of Angelo Vitale.
3. In 2003, at age 16, the offender had surgery following a back injury. He left school in Year 10 and was to commence a carpentry apprenticeship however a back injury prevented him from taking up the position.
4. Since the age of 18 the offender has worked as a security guard across locations in Sydney. He worked with his father in the family business as a bread vendor since he was 21. Following a car accident in 2012 he was unable to work for a period of time. Subsequently he resumed work on a restricted basis. He still holds aspirations to expand that business in the future.
5. The offender reports that he has isolated himself from most of his friends and family. In December 2015 the offender broke off his engagement as he didn't want to involve his partner along with her two young children in the current proceedings.
6. Ms Cowdery opines that the offender is experiencing symptoms of chronic pain and an underlying depression. In particular, the prolonged chronic pain makes him more prone to psychological distress. The presented level of distress at the time the offender met with Ms Cowdery was also influenced by the uncertainty in the offender's life in the context of the present proceedings.
7. Based on his previous ineffective means of coping, Ms Cowdery opines that the offender is highly vulnerable to rash and impaired decision-making. However the offender also presented with sincere feelings of personal shame, remorse and regret over the alleged offence and appeared open and willing to address his behaviour about the decisions leading up to the offence.
8. The offender has seen Ms Cowdery on 7 occasions, including two psychological assessment sessions and five therapy sessions. The offender gave evidence that he found the sessions helpful.
9. I am satisfied that the offender is remorseful for his actions. He impressed me as genuinely remorseful when he gave evidence before me. He said that he struggles to look in the mirror sometimes, acknowledging the seriousness of his conduct. He has not used illicit drugs since his arrest.
10. As a result of the injury sustained in the car accident, the offender cannot sit for more than 10 to 15 minutes in a chair before he needs to stand or stretch. I accept this is the case having witnessed him in Court during the course of the proceedings. His counsel submits that as a result of his physical injuries, his time in custody will be more burdensome. A number of medical documents were tendered in this regard. I have read all of them and I am satisfied that they evidence the offender's injury and ongoing symptoms, as described by the offender in Court.
11. The offender has seen Dr Tuan-Anh Nguyen, a rehabilitative medicine physician, intermittently since at least June 2013 and Dean Katselas for physical therapy at the beginning and end of 2015. He has also been seeing a massage therapist.
12. From those reports I gather that since his accident in 2012, the offender has had times where he has been progressing quite well and his general function has been improving. However there have been periods where his pain symptoms have flared up. A note from the physical therapist from December 2015 reports that the offender had been attending the gym again without complaint.
13. Neurologist Dr Paul F Teychenne, in his report dated 1 February 2015, gave a guarded prognosis in relation to the offender's lumbar spine, cervical spine and bilateral lumbosacral and bilateral cervical radiculopathy. He stated that the offender would be restricted from any form of employment requiring normal strength in the legs or any form of activity requiring him to persistently walk, walk up or down stairs or require rapid or excess movement of the lumbar spine. Dr Teychenne was of the view that the offender would need 40% domestic assistance, particularly with heavy duties.
14. Whilst the offender's medical condition will make his time in custody more onerous, I am satisfied that he will be provided with medication and treatment necessary for the maintenance of his overall comfort.
15. As indicated above I am satisfied in his case that his use of methylamphetamine commenced about six months after the car accident and resulted from ongoing pain that was not successfully treated with prescribed pain medication.
16. The offender comes before the Court with no prior criminal convictions. Since his arrest he has abstained from illicit drug use. He continues to work on a restricted basis and has not reoffended. I am satisfied that he has good prospects of rehabilitation. Having regard to these matters, I also find that the weight to be given to specific deterrence can be moderated in his case.
17. Although this offender played a lesser role than Gaetano Vitale, became involved in the manufacture so as to source drugs for personal use, and has a compelling subjective case, the seriousness of the offence warrants a term of full-time imprisonment.
18. I find special circumstances warranting a significant variation of the statutory ratio for the following reasons: this is the first time that he is to serve a term of imprisonment; he will require a longer than usual additional term to receive treatment and supervision to avoid relapse into drug use and occupational counselling to assist him to manage his future directions either through expanding his education or redirecting his career into other areas.

DELAY & BAIL CONDITIONS

1. There has been a period of nearly three years between each offender's arrest in June 2013 and sentence. It has been nearly a year since the trial first proceeded before me.
2. Counsel on behalf of each offender submitted that this period of delay is lengthy and I can have regard to it in the way articulated in R v Todd [1982] 2 NSWLR 517 at 519.
3. I have taken into account the delay in each case in assessing the progress that has been made by each offender. As indicated above I am satisfied that each offender has abstained from the use of illicit substances, not reoffended and demonstrated significant progress in their rehabilitation.
4. On behalf of Gaetano Vitale it was submitted that the bail conditions to which he has been subject prior to the revocation of bail were onerous, thereby constituting a form of punishment to which I should have regard. The Court of Criminal Appeal in R v Bolder; R v Zaphir [2008] NSWCCA 222 at [38] held that daily reporting conditions were not sufficiently onerous as to require any significant amelioration of the sentences. The period of time considered in that case was two years. I am not minded to take into account the fact that the offender was on conditional bail for a lengthy period of time as significantly ameliorating the sentence. I have had regard to it as demonstrating his overall positive rehabilitation.

PARITY

1. There will be a measure of difference in the sentences I impose upon these two offenders. While I bear in mind the principle of parity, I am satisfied that there are a number of factors that distinguish their respective objective and subjective cases.
2. I am satisfied that Mark Scalia played a lesser role than Gaetano Vitale. It was Gaetano Vitale who instigated the criminal enterprise and provided the raw material and original equipment that were to be used in the manufacture process. I am satisfied that he directed the activities of Mark Scalia.
3. Mark Scalia was a willing participant in the manufacture process. However, it is highly unlikely that he would have become involved had the idea not been put into action by Gaetano Vitale and Anthony Klonaris.
4. As indicated above I am satisfied that each offender was addicted to methylamphetamine at the time they engaged in the offence. Addiction does not provide an excuse or defence for criminal conduct. However, it provides an explanation for the offending conduct in each case, although in the case of Gaetano Vitale, it only provides a partial explanation. His moral culpability is higher in that he was in part motivated by an intention to obtain financial reward.
5. In sentencing Mark Scalia, I bear in mind the remarks of Basten JA in the case of Dang v R [2013] NSWCCA 246 at [30]: "a person in the grip of an addiction has less freedom of choice than would otherwise be the case."
6. In the decision of Dang a distinction was drawn between selling drugs for commercial gain and for feeding a habit. Mark Scalia's moral culpability is reduced, in my view, having regard to the fact that his use of methylamphatime was a form of self-medication in circumstances where his chronic pain was resistant to prescribed medication and he was afflicted with depression.
7. There are a number of differences between these offenders including differences in the roles they played and differences in each subjective case. I am satisfied therefore that the circumstances call for a measure of differential treatment in the sentences I impose: see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; Tsai Yu v R [2016] NSWCCA 73.

COMPARABLE CASES

1. A number of cases were provided to me during the proceedings. Some of those cases deal with sentencing for like offences (contrary to s 24(2)), others deal with sentences imposed for offences contrary to section 24 (1). I have had regard to those decisions and to the schedule of cases referred to in the case of Dang [2013] NSWCCA 246. A schedule of all the cases I have had regard to is attached to this judgment.
2. I bear in mind that information about sentences that have been passed in other cases can be of significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. But the range of sentences that have been imposed in the past does not fix the boundaries within which sentencing judges must, or even ought, to sentence: Hili v The Queen (2010) 242 CLR 520.
3. The cases provide some guidance against which to examine the proposed sentences in this case. However, the objective seriousness of the offence with which I have to deal, and the subjective circumstances relating to the offenders, are different from the cases that have been provided to me on sentence. For instance, in the present case the offenders have been found guilty of manufacture or knowingly take part in the manufacture of not less than a commercial quantity on the basis of the application, in the main, of the ad mixture rule rather than a finding that not less than 250 grams of end product was produced.
4. Furthermore, in the case of Me Scalia, I have found that his primary purpose was to manufacture methylamphatemine for personal use in light of the fact that he was using the drug to relieve physical pain.
5. Whilst I have taken the 'comparable' cases into account, they are of limited use having regard to the objective gravity and subjective circumstances relevant here.
6. Accordingly, with respect to Mark Scalia, the offender is convicted of the offence of knowingly take part in the manufacture of prohibited drug and of the offence of participate in a criminal group.
7. For the offence of knowingly take part in the manufacture of prohibited drug, taking into account the reduction in sentence by 20% for the plea of guilty and a finding of special circumstances, I impose a sentence of imprisonment consisting of a non-parole period of 21 months commencing today 6 May 2016 and expiring 5 February 2018 with a balance of term of 21 months expiring 5 November 2019. The total term is 3 years 6 months.
8. With respect to offence of participate in a criminal group being sequence 2 on the s166 Certificate I impose a sentence of 6 months to date from today 6 May 2016 and expiring on 5 November 2016.
9. On 5 February 2018 the offender is eligible for release on parole subject to the supervision of Probation and Parole.
10. With respect to Mr Gaetano Vitale the offender is convicted with respect to each offence.
11. I will proceed by way of an aggregate sentence. Before I do so I must indicate the sentences I would have imposed.
12. Taking into account a 20% discount for the plea of guilty with respect to the offence of manufacture not less than a commercial quantity of prohibited drug and a 25% discount for the plea of guilty with respect to the offence of dishonestly obtain benefit by deception, I note the following indicative sentences would have been imposed for each offence:
13. For the offence of manufacture not less than a commercial quantity of prohibited drugs, I indicate a sentence of 4 years 9 months imprisonment with a non-parole period of 2 years 6 months.
14. For the offence of knowingly direct activities of a criminal group, sequence 6, on the s 166 Certificate, I indicate a fixed term of 9 months imprisonment.
15. For the offence of dishonestly obtain benefit by deception, I indicate a fixed term of 12 months imprisonment. The offence of participate in a criminal group, sequence 2, is taken into account on a Form 1 on this offence.
16. Taking into account a finding of special circumstances, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 the offender is sentenced to an aggregate period of imprisonment consisting of a non-parole period of 2 years 9 months commencing from 16 October 2015 and expiring 15 July 2018 with a balance of term of 2 years 3 months expiring 15 October 2010. The total term is 5 years.
17. The offender is eligible for release on parole on 15 July 2018 subject to supervision by Community Corrections for as long as they deem necessary.
18. The second offence on the s166 Certificate, namely the offence of participate in a criminal group offence, sequence 3, is dismissed.
19. I order the return of the trial exhibits. YOUNES: Just one correction if I may your Honour. HER HONOUR: Yes. YOUNES: I think your Honour indicated that 2010 be the expiry of the total term of sentence. She will - 2020. HER HONOUR: Thank you. Any other corrections to the dates? CROWN PROSECUTOR: No, you said $171 at one point. HER HONOUR: $171,000, yes, all right, it's been a long judgment. CROWN PROSECUTOR: And a drug destruction order. HER HONOUR: I will order the destruction of the drugs. Yes Mr Kintominas. KINTOMINAS: Your Honour, I'm sorry, may I just-- HER HONOUR: Sorry, just one at a time, yes. KINTOMINAS: They might be needed for the next trial, your Honour, I don't think they should be destroyed actually, on reflection. HER HONOUR: All right, I will actually - I will vacate that order of destroying the drugs and actually that reminds me of something else Mr Crown. There was a non-publication order with respect to the pre-trial judgment. I can't remember now whether I made a non-publication order with respect to the verdict judgment. CROWN PROSECUTOR: I can't remember either your Honour. HER HONOUR: I should, shouldn't I? CROWN PROSECUTOR: Yes, lest there be some unwarranted inappropriate publicity that might affect the trial. HER HONOUR: And I should make a non-publication order with respect to this judgment having regard to some of the findings I've made with respect to Anthony Klonaris. CROWN PROSECUTOR: I agree with that your Honour. HER HONOUR: So I will make a non-publication order with respect to this sentence judgment and also with the verdict judgment. Yes Mr Kintominas you were saying? KINTOMINAS: Two matters your Honour. In respect of my client we'll need your Honour say the additional term expired. CROWN PROSECUTOR: The balance. HER HONOUR: The balance? KINTOMINAS: Yes, the balance. HER HONOUR: So the date was 5 November 2019, can you just check that's correct. KINTOMINAS: Yes, that's three and a half years. Your Honour, just in respect of the non-publication order in respect of Klonaris I note that his representative I think is here in Court or probably is, I'm not sure, but nevertheless I take it just for clarity's sake that your Honour is not prohibiting us from discussing what happened here with the representatives of the co-accused yet to come to trial? HER HONOUR: No, I don't think my order extends to stopping you from discussing on a counsel to counsel basis the matters that have taken place and the sentence that's been imposed. It may be that if the representatives for Mr Klonaris and Mr Fenech want to make application to have copies of the judgment that I would consider those applications but I'm not going to gag you, Mr Kintominas, with respect to having discussions with counsel of the remaining accused. Does that complete your enquiries? All right. So the file exhibits will be returned, as will, Mr Crown, the copies of those trial exhibits that were provided to me in three folders. PATCH: Thank you, your Honour They may not be able to be picked up today but contact will be made with your Honour's associate and that can be done. HER HONOUR: Yes, that's fine. SPEAKER: I hear what your Honour said in relation to Mr Kintominas. I've received a request from the other parties in relation to copies of transcripts involving this matter and I take it there's no problem with that? HER HONOUR: The transcripts, no, I don't think there would be any problem with that. If they want the judgments they can make an application. I would simply want to stress that it would be for it to be provided to the legal representatives only. SPEAKER: That's correct, thank you, your Honour. HER HONOUR: These remarks will have to be transcribed and revised and placed on the file because obviously they'll be relevant to the sentencing of your client in September or whenever the proceedings have been adjourned to. I will make an order that these remarks be transcribed and provided to me so that I can revise them and then they can be provided to the parties. That completes this matter. YOUNES: Before your Honour adjourns, Mr Vitale has brought one matter to my attention. Your Honour indicated a commencement date for his term of imprisonment as 16 October. HER HONOUR: Yes that was the date I understood that the bail was revoked, am I wrong about that? YOUNES: I'm instructed it was 27 August, perhaps if we could check the Court file. HER HONOUR: Yes, just excuse me a moment. I had my associate check this morning but I will have it checked again. Mr Crown do you have the details as to when bail was revoked or does your instructing solicitor? PATCH: I don't, your Honour, and we don't have access electronically unfortunately to the internal DVD network here. HER HONOUR: All right, well the file does indicate 27 August, you're quite right. So I will amend the commencement date. PATCH: Yes, the Crown sentence summary indeed says 27 August as well. HER HONOUR: All right. So then the aggregate sentence will be a term of imprisonment consisting of a non-parole period of two years nine months commencing on 27 August and expiring on 26 May 2018 with a balance of term of two years three months, just excuse me for a moment while I-calculate that. YOUNES: I've got 26 August 2020. HER HONOUR: Yes, so do I. Mr Crown? PATCH: Yes, your Honour. HER HONOUR: So the balance of term will expire on 26 August 2020, the total term being five years. Thank you for raising that correction. I'll adjourn now.

Amendments 22 September 2016 - catchwords added to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2016