The manufacture offence
6The offence charged in count one of the indictment is self-evidently an extremely serious offence. The precise role played in the commission of the offence by the offender is not clear. Plainly, the jury rejected the version of events provided by her in evidence. However certain aspects of the conduct are clear based on the undisputed evidence led by the Crown, from reasonable inferences arising from that evidence and from those parts of the offender's evidence which were not disputed or which I accept and are not inconsistent with the verdicts of the jury.
7The premises in Ryde were owned by the offender. The offender permitted the deceased man Lan to use those premises in the process of manufacture.
8That process is described more fully in my earlier judgment at [58]. It involved the final stage of manufacture whereby the purity level of the methylamphetamine was increased to a very marked degree by means of an evaporation process in which the raw product was placed in a solvent (acetone) and boiled to allow impurities to be extracted as the substance vaporised. The evidence showed that the process resulted in methylamphetamine with a purity level of less than 20% being refined or converted into methylamphetamine with a purity of well over 80%. Items found at the premises in the aftermath of the fire showed various quantities of methylamphetamine in varying degrees of purity. This indicated that in some instances the process had been completed whereas in other instances it had either just commenced or was in preparation.
9There was well in excess of 6 kg of methylamphetamine at the premises. The forensic chemist provided a calculation of the amount of solid methylamphetamine (salts, powder or crystal) found at the premises but in doing this calculation he took into account the purity level. Without any great precision, it is clear that if the admixture provision had been applied to the calculation, the amount of the drug was well in excess of 6 kg: see s 4 Drug Misuse and Trafficking Act 1985 (NSW). Whatever be the precise amount, it was far in excess of the large commercial quantity proscribed by the schedule to the Drug Misuse and Trafficking Act (ie 1 kg).
10The raw product was not produced at the Ryde premises. The forensic chemist gave evidence that all that was occurring at the Ryde premises was the refining or evaporation process and that the raw methylamphetamine had produced being produced elsewhere (T 360).
11While the manufacturing process at Ryde was not particularly sophisticated, it was obviously a serious and commercial venture. There were pots and other items containing solids and liquids which tested positive for methylamphetamine throughout the house and in particular within the kitchen and bathroom of the premises. The bathroom had been set up with a gas burner, LPG gas bottle and large cooking pot for the purpose of using the bathroom as well as the kitchen to undertake the refining of methylamphetamine. The obvious purpose of this was to maximise the amount of methylamphetamine able to be produced in a short period of time.
12There were many items at the house plainly used or designed to be used in the process of manufacture and these included a number of large pots and other vessels used to heat or store the product at various stages of the purification process. There were items used to separate the solid from the liquid after the evaporation process including sieves, a Buchner funnel and associated vacuum flask and pump. There were plastic buckets, latex gloves, thermometers, the gas burner and gas bottle used to convert the suburban bathroom into an ad hoc meth lab. There were also chopsticks, which can be used to control the boiling process. There was nothing else in the house that suggested that it was being used for any purpose other than the manufacture of methylamphetamine.
13From that evidence it is clear that, at the very least, the offender was involved in the manufacture by permitting Lan to use her premises for the singular purpose of manufacturing methylamphetamines in very large quantities.
14But the offender's criminality and role was more extensive than that. Again, because her evidence was obviously rejected by the jury, the precise scope of her involvement is unclear. However the evidence at trial proved that she had purchased 8 litres of acetone on 1 January 2014 (see Ex W). The offender also gave evidence in the trial that she had taken two gas bottles to a service station and filled them. She said those gas bottles were similar to one found in the bathroom. The offender also gave evidence at the trial that at some time early in the morning on 4 January 2014 she stirred a pot in the kitchen which contained a substance which plainly was methylamphetamine in the process of extraction. While her account was that she did not know what she was stirring, the jury rejected that suggestion.
15Apart from the activities at Ryde, the police also located relevant evidence at the offender' home in South Hurstville. This included a sum of around $16,900 in cash along with around 15.1 grams of methylamphetamine. It is difficult to know precisely what is to be drawn from that but I think it is safe to assume that most of the $16,900 in cash was not innocently obtained as the offender told the jury in her evidence but was in some way connected with the criminal enterprise in which she was engaged in with Lan. A substantial portion is likely to have been payment for the use of the premises. Similarly, it is unclear precisely what to make of the relatively small quantity of methylamphetamine found at her premises, but it is safe to assume that the jury rejected her assertion that this was the property of Lan and that she did not know that the drugs were there. As the Crown Prosecutor put to the jury, the fact that her bedroom door at Hurstville was generally kept locked indicated that some form of illegal activity was taking place there.
16Precisely what was to happen to the 15.1 grams of methylamphetamine found at the offender's Hurstville home is unclear, but it provided further evidence of her criminal association with Lan and of her connection to the manufacturing process that was taking place at Ryde.
17In terms of the length of time during which the offender was involved in the manufacturing process, there is some evidence that she and Lan set up a safety deposit box on 2 December 2012. However, there is no evidence of its use and, while I accept that the safety deposit box was probably set up for the purpose of secretly storing money and perhaps drugs associated with the ultimate enterprise, I am unable to conclude that the manufacturing process itself commenced as early as the date that the safety deposit box was opened or that the offender was knowingly involved in the drug activity at that earlier date. There was other evidence in the trial that suggested that the offender and Lan had some legitimate plans to go into business together.
18An important piece of evidence on the subject of the length of time over which the process was occurring at the Ryde premises came from a defence witness called Allen Tang. The verdicts of the jury did not necessarily involve the rejection of Mr Tang's evidence and, while he was cross-examined, there was no suggestion that Mr Tang was lying. I found Mr Tang to be an impressive witness and I accept the submission made by counsel for the offender in his address to the jury that his evidence should be accepted in its entirety.
19Mr Tang gave evidence that on Boxing Day of 2012 the offender called him and asked him to assist her in moving a wardrobe and to look at the electrical wiring and lighting at the premises. Mr Tang attended the premises and observed that the premises were for the most part vacant. I accept that evidence. He was asked to move one or two pieces of furniture and to check the lighting and the wiring and he gave certain advice to the offender in that regard.
20Mr Tang's evidence gives rise to two inferences, one favourable to the offender and the other unfavourable to her. I am satisfied, based on Mr Tang's evidence that no manufacturing process had occurred or was occurring on or before 26 December 2012. Any activity that took place in the premises at Ryde for which the offender is to be a sentenced therefore occurred over a relatively short period, namely the seven or eight days between 26 December 2012 until 4 January 2013. However, I also draw the inference from Mr Tang's evidence that the offender was at that stage having the premises prepared for the manufacturing process that she knew was to occur in the following days or weeks.
21Apart from Mr Tang's evidence and the opening of the safety deposit box, the first clear evidence of the offender's involvement came with her purchasing the acetone at Bunnings on 1 January 2013. However based on Mr Tang's observations of the house being almost completely vacant on 26 December 2012, I am satisfied beyond reasonable doubt that on that date, or by that date, the offender had agreed to provide her premises to Lan for the criminal purpose of manufacturing a large commercial quantity of methylamphetamine and had taken steps to prepare the premises for that purpose.
22As the High Court pointed out in Olbrich v The Queen [1999] HCA 54 at [19] the relevant inquiry is to determine "what the offender did". To summarise, I am satisfied beyond reasonable doubt that:
(i)The offender agreed to allow Lan to use her premises at Ryde for the sole purpose of manufacturing a large commercial quantity of methylamphetamine.
(ii)A quantity in excess of 6 kg of methylamphetamine was in fact refined at those premises in accordance with that agreement.
(iii)The offender was to receive financial reward for her involvement and had received around $16,900 already. Precisely how much she would ultimately have received is not clear on the evidence but based on the finding of in excess of $300,000 at the Ryde premises I am satisfied that the profits to be made were substantial.
(iv)The offender's involvement was more than simply providing the premises. She actively arranged for and purchased some of the solvent (acetone) which was used in the manufacturing process and refilled gas bottles which were used for the purpose of heating the items necessary to conduct the evaporation process. She was present at the premises for at least part of the time that the evaporation process was taking place and actively assisted Lan by stirring the mixture as it evaporated.
23The things that I have just set out other things that I am able to find on the evidence that the offender actually did. While the majority in Olbrich said that it is not always useful or possible to determine precisely where in a hierarchy an offender stands, there is evidence in the present case that leads me to the conclusion that the offender was less involved in the enterprise than Lan and was subordinate to him. In particular, the $328,000 in cash found at Ryde was located in circumstances that clearly indicate that it was Lan's money. The cash was found in three locations. LI's property (clothing, handbag etc) was found in a particular bedroom at the back of the house. None of the cash was found there. The first amount was found in a leather bag that also containd Lan's passport. The balance of the cash was found in two shopping bags found in a room in the house not connected with LI. Both of those bags were analysed and found to have DNA consistent with than of Lan.
24The fact that the offender had a substantially smaller amount of money in her premises at Hurstville persuades me that she was subordinate to Lan in this enterprise. She was being paid in consideration of her allowing the premises to be used and she undertook at least two errands (filling the gas bottle and purchasing some of the acetone) at Lan's request or direction.
25I am prepared to accept that part of the offender's evidence where she said that she and Lan were involved in some kind of a relationship and that she considered him to be her boyfriend. From that, I am also prepared to sentence her on the basis that her involvement in the criminal enterprise arose as a result of her relationship with Lan and that he somehow persuaded her, probably by the offer of substantial financial rewards, to allow him to use her residential premises at Ryde for the purpose of manufacturing the drug.
26By reference to the maximum penalties and standard non-parole period, and considering the amount of drugs involved and the offender's financial motivation and essential role in the enterprise, the criminality in this case is substantial. On the other hand her involvement was over a relatively short period of time and seems to have been the result of her unfortunate connection with Lan. That latter matter does not mitigate her criminality very much, but it places it in a different context to that of a person who is simply involved in a criminal organisation or activity.
27One of the reasons that I have come to that somewhat benign view of her involvement is the strong and uncontested evidence of her previous good character and work ethic. Whilst the jury was obviously not persuaded that her prior good character was such that it had a reasonable doubt about her involvement, the evidence remains relevant in a proper assessment of her level of involvement and the reasons that she may have become involved. Whilst the jury obviously rejected large parts of the offender's evidence, an acceptance of those parts of her evidence where she described her relationship with Lan is not inconsistent with the verdicts.
28The seriousness of the drug offence is also highlighted and exacerbated by two other factors. The first is the fact that there were three pistols present at the premises. As the Crown submitted to the jury, the presence of these pistols along with the large sum of cash, underscored the commercial and criminal nature of what was taking place. The other matter concerns the dangerousness of the activity itself. It is notorious that methylamphetamine is a extremely addictive drug which has dire consequences on end users and on their lives and the lives of their loved ones. This case also demonstrates in a graphic way the risks and dangers involved in the manufacturing process itself. It is fortuitous that the fire was contained within the bathroom and that it did not spread to surrounding premises where innocent members of the community were no doubt asleep in the early hours of the morning. The dangerous activity took the life of one of the perpetrators of this offence. Of course, the death of Mr Lan is not to be taken into account as some form of aggravating feature in assessing the offender's criminality or moral culpability, but it highlights the dangers involved in producing drugs in the method here employed.
29I was told by the Crown prosecutor in an application for a discharge of the jury after the directed verdict that there is an increase in prevalence of these kinds of clandestine laboratories. That is a matter that highlights the need for general deterrence. The sentence that will be imposed on the offender will take that matter into account in a meaningful way.