HIS HONOUR: Mark Brett Lewis stands for sentence as a consequence of having been convicted by a jury of a charge to which he pleaded not guilty. The charge was that between 27 December 2015 and 30 December 2015 at East Kurrajong in this State he did manufacture 13.059 kilograms of methylamphetamine which was not less than the large commercial quantity applicable to that prohibited drug. The jury was empanelled and the trial commenced on Monday, 10 September 2018. The first evidence was given on the following day. The jury returned its verdict on Friday, 21 September 2018. A note sent by the jury to me telling me that they had reached their verdict, was received by me at 5.01pm. The Crown then made a detention application which was not opposed by the offender. The offender has been in custody since that time.
The salient facts are fairly clear. The offender was employed by the Hawkesbury City Council at its waste water depot at South Windsor. His supervisor was Michael Patrick Stewart. Mr Stewart was the owner and occupier at all relevant times of a property known as 744 East Kurrajong Road, East Kurrajong. That is a large residential landholding slightly less than 1 acre. It contains a three bedroom conventional single storey bungalow with a carport annexed to it. Erected elsewhere on the property was what has been described as a shed but was more properly described as a double steel garage. It appears not to have been used by Mr Stewart as a garage but as a shed for storage of items and for use, for example, as a place in which pool could be played on a pool table which was found in it.
The offender and Mr Stewart had worked together at the Hawkesbury City Council from approximately 2010. Not only were they work colleagues but they had a social relationship. According to Mr Stewart, he was asked by the offender whether he would lend his shed to enable a friend or mate of the offender to store some equipment. In his evidence Mr Stewart was asked what the arrangement was about the material to be stored in his shed. He said this:
"They were just going to bring it up. Apparently the bloke had a warehouse and there was no room, so he needed to put it in there and just going to keep it in the shed."
This friend of the offender was Raymond John Bell. Mr Bell's trial continues.
R v Lewis [2018] NSWDC 522 | Case summary | Zoe
Mr Stewart was unsure as to how long it was before an explosion at his property that the material was brought to his property. It was delivered when he was at work. According to Mr Stewart's evidence, the delivery of the material was "a couple of months" or later after the initial conversation with the offender about the storage of the property. When asked whether the offender told Mr Stewart what the gear to be stored was about, Mr Stewart said this:
"He said there's a, there's a delivery there that's been loaded there and then want to do a, want to do a cook-up, which I took to be like, cook up some speed or something like that, and yep."
Mr Stewart went on to say that he thought that "speed" was a common name for methamphetamine. However, it is a common name in fact for amphetamine. When asked whether the offender had told him anything else about the "cook up", Mr Stewart said this:
"That it would only be a small thing and go for a couple of hours and once it's done, it - everything will be taken away and gone in the morning."
It appeared that the actual delivery of the material to Mr Stewart's property was in September or October, 2015. Again there is no dispute that the delivery occurred. The delivery was in fact of two very large reaction vessels, each with a capacity of about 220 litres, and the associated "hardware" to enable the reaction vessels to be used to manufacture methylamphetamine. The "hardware" included steam injection tubes, funnels and condensers, lantern sight glasses and stoppers to plug up the apertures at the top of each reaction vessel so that the initial synthesis of the ingredients of methylamphetamine could take place under pressure. The apertures at the top of each reaction vessel were firstly for the affixing of a lantern sight glass and a condenser and also for the introduction of the steam injection tubes to separate the methylamphetamine when initially produced, from wastes.
According to Mr Stewart on the morning of Monday, 28 December 2015 he went to work about 6 or 6.30am. That Monday was a public holiday in lieu of the Boxing Day holiday, Boxing Day being on the previous Saturday. Both Mr Stewart and the offender were rostered on duty. According to Mr Stewart, the offender said to him at work on 28 December 2015 words to the effect that "Looks like the cook-up's going to be on tonight". It is not necessary for either Mr Stewart or the offender to put in a full eight hours' labour in the service of the Hawkesbury City Council at the work depot at South Windsor or elsewhere. Essentially they were on call to attend to any emergencies.
After Mr Stewart left work he went home and mowed his lawns and did some cleaning up as Christmas Day and Boxing Day had been celebrated at his home. He said that about 8pm that evening two vehicles arrived. Mr Stewart, as the supervisor of the waste water depot at South Windsor, was given by his employer a white Isuzu D-MAX twin cab. Because he was on call, the offender had been given the use of another white Isuzu D-MAX twin cab. According to Mr Stewart one of the two vehicles that were driven to his home at about 8pm was the white council utility which was being used by the offender. In his evidence Mr Stewart detailed items which he saw in the back tray of the offender's utility. He said that in the tray were a number of gas bottles, seven or eight in number, a pump, and some blue hose, and what he thought were empty boxes that may have contained presents or toys that had been given as Christmas presents. At one place in the transcript Mr Stewart described "Christmas presents or empty boxes from Christmastime". The other vehicle which turned up was a white Toyota Hiace van which was the property of Mr Bill Tsimingos' wife and which DNA evidence established had carried Mr Bill Tsimingos and Mr Raymond Bell to Mr Stewart's property. Mr Stewart was then introduced to Ray Bell and Bill Tsimingos but he knew them only by their first names.
The two new vehicles were parked near the entrance to Mr Stewart's shed and the group started unloading material from the back of the offender's council utility. They also rearranged the contents of the shed, for example, by moving the pool table into one back corner of the shed. Mr Stewart said that the new comers started to tape up the windows of the shed and also started unwrapping at least one of the reaction vessels which, up until then, had been swathed in black plastic. Mr Stewart admitted that he assisted in the covering up of the windows of the shed. Mr Stewart also gave evidence of tools which had been brought either originally a number of months earlier or on 28 December which were used to assemble the "kit" that was to be used to manufacture methylamphetamine. He said that the men assembling the kit were Bell and Tsimingos but not the current offender.
Mr Stewart then said that he took a beer from a fridge that was contained in the shed and went outside the shed and over into his house. He had some food left over from Christmas and he decided to prepare a barbecue for the three men who had joined him. Between Mr Stewart's house and this shed was a barbecue cabana which is referred to in the evidence as the pergola and Mr Stewart said that it was around about 9.30 when he went into the pergola and started cleaning the barbecue area, in particular the barbecue plate, so that he could cook the barbecue dinner.
Whilst he was doing that he went back into the shed on one further occasion to obtain another beer from the fridge in the shed. When he went into the shed, he saw Bill Tsimingos using a red funnel and Tsimingos asked Mr Stewart whether he had anything which Tsimingos might use to break a blockage in the funnel. At this time he observed Bell had a 20 litre bucket which Stewart thought contained crystals of a "bluey-purply colour" doing something with the crystals. Mr Stewart then went underneath his house and found an aluminium rod which he brought back to the shed to give to Tsimingos. When Mr Stewart went back into the shed to hand over the rod to Tsimingos he saw the present offender "breaking up the ... crystals". He indicated a repeated downward stabbing motion and thought that the offender was holding some steel object in his hand which he was using on the crystals in the bucket.
Stewart left the shed. He went back to the barbecue area and commenced cooking food. He had prepared by the food by about 10.30pm. After he cooked the food, he covered the meats on the barbecue plate then had a meal himself and he left plates in the pergola with bread and other foodstuffs which could be consumed by the three visitors to his property. He gave evidence that about 11pm the offender, Tsimingos and Bell came out of the shed and that Tsimingos and Bell went into the pergola area. The offender was behind them, but he had sunk to the ground to his hands and knees and had a coughing attack. Either Tsimingos or Bell told Stewart the offender had "sucked in a mouthful" by which the jury may have inferred that he inhaled fumes from the manufacturing process.
It appeared, according to the evidence of Mr Stewart, that the offender was badly affected in his chest, in his lungs, by what might otherwise be described as a very bad asthma attack. At some stage the offender was able to get up from the area between the shed and the pergola and move towards the back of Mr Stewart's property. After saying that the offender coughed for 10 or 20 minutes, he went on to say this:
"After that, I said to him that I have a - like it just wasn't getting any better, so I said, 'Mate, I've got ... nebuliser that you use for sleep apnoea.' So I took - we went up inside - inside the house, and I said, 'We'll give this a go,' and we put him - I put him into the - I grabbed it out of my bedroom and put it into what we call the lounge room, or the ... spare lounge room and put it ... on him. He said - then he laid down on a bean bag or sat on a bean bag and put it on him. I don't think he was real comfortable with it at ... the time but it may have been - I think it was helping him."
He went on to say that the coughing of the offender was reduced after the offender started using the nebuliser. Mr Stewart went into his lounge room and commenced watching television. He fell asleep whilst watching television and he woke up at about 2am and at that time he saw Bell walking towards the back door of his home and it appeared likely that he had entered the home to use the toilet in the laundry near the kitchen. Mr Stewart then got up from his lounge and walked past the offender and the offender was sleeping and was not coughing. He believed that he still had the nebuliser in use but he was not one hundred per cent sure of that.
The evidence from Mr Stewart was that at about 6am he woke up because he was due to go to work. He went outside to see what was going on, again going through the kitchen and out the back door. He went out the back door towards the shed. In that short journey, he walked past the offender who was still asleep in the spare lounge room. He did not think the offender was still using the nebuliser at that time. Before Mr Stewart reached the shed, Tsimingos came out of the shed wearing a mask which was probably a respiratory mask. Bell appeared in view and Tsimingos went over to Bell and he thought he heard words to the effect of, "It's too hot. It's not cooling down." Tsimingos then put the respirator on again and walked back into the shed. Mr Stewart then turned around and commenced walking back to his house.
About 10 seconds later he heard what he described as "a massive explosion". There is no doubt that the large reaction vessel exploded. It had a glass observation window and that very thick glass shattered and propelled the reaction vessel through the roller door of the shed to land just outside the roller door. The roller door may have actually contained the flight of the reaction vessel. As the roller door was blown out, it may have caught the reaction vessel and dropped it just outside the shed. The chemical which was within the reaction vessel splattered everywhere. It splattered throughout the shed, over the white Hiace utility van that belonged to Tsimingos' wife and over the white council utility that was being driven by the offender. According to Mr Stewart, his utility was parked further on, just outside the boundary of his property, but it also was affected by chemical fallout from the explosion. The explosion also shattered a glass window at the back of the shed. There was a large amount of video recording and still-image recording of the effects of the explosion.
The explosion injured Tsimingos who stood for sentence before her Honour Judge Noman on 24 May 2017. Noman DCJ described Tsimingos' injuries as "significant". In her judgment, her Honour said this:
"The offender suffered significant physical injuries. It was submitted, and I accept, that these physical injuries amount to extra curial punishment. The report of 28 April 2017, Dr Zoumaras, plastic and reconstruction surgeon, documents those injuries. The explosion caused substantial burns, lacerations to a nerve in the knee, shrapnel punctures and multiple glass fragments. The offender underwent four operations on his injuries between 31 December 2015 and 15 January 2016 to repair nerve damage, perform skin grafts and address other injuries. He remained in hospital for a period of eight weeks. The ... nerve damage continues to improve during that 12 to 18 month period of nerve regeneration. Other injuries may require further management and treatment.
I accept that the offender continues to have ongoing issues. I do not accept that these physical injuries cannot be addressed by Justice Health. I accept, however, that they will have a moderate impact on rendering his incarceration more difficult. I accept that the medical outcome should mitigate sentence.
The offender has told others he considers he sustained fertility issues. There was no medical evidence supportive of a physical cause. Dr Zoumaras specifically discounts it. It was suggested there may be a psychological aetiology for this. It is difficult to source a basis that informs the offender's belief. I do, however, accept that the offender holds this belief even though there is no evidentiary basis for this belief. I do not consider this aspect to be of anything other than minimal import."
Shortly described, Mr Tsimingos suffered burns from methylamphetamine acid from above his groin to below his knees as the same area of his body was peppered with shrapnel from the exploding window of the reaction vessel and that shrapnel affected Mr Tsimingos' groin, genitals, thighs and knees.
When Mr Stewart turned around immediately after the explosion he saw smoke coming out of all areas of the shed, through the roof, the windows and the front door, and that the smoke went up over the exterior roof of the shed. He also heard a voice yelling, "Help, help, help." That was Tsimingos calling for assistance. Mr Stewart walked towards the side door of the shed. He went on to say this:
"As I got closer I could see Bill, so he was sort of just outside the door and there's like a bit of a - a - there's some gravel there ... just off the concrete and he was there ... All his skin was like burnt and all that sort of stuff and his eyes were just sort of looking at me and has going, 'Help' ... there was a hose that was coming from the back tap on ... the shed, going in through the door [of the shed] so I grabbed that. I could see that Bill was trying to grab it as well, so I just grabbed it, pulled it out and when I got it, the water was still running. So I just started spraying, like hosing him down trying to you know, calm him down and he actually - after a while he grabbed the hose and poured it down his throat."
A little later Mr Stewart said that all the skin of Tsimingos' legs had been burnt.
Shortly thereafter Bell and the offender put Tsimingos on the back seat of the offender's council utility and drove off. Later on 29 December, the offender's council utility was taken to a car wash at Mt Druitt with the intention of it being thoroughly cleaned. On CCTV taken at the car wash the offender is seen at one stage. He is accompanied by a lady whose identity is not established in the evidence adduced against Mr Lewis.
At one stage a large bag of rubbish is removed from the vehicle and was deposited or abandoned nearby. Police eventually found that bag and its contents were the subject of video film which clearly showed that it contained Christmas wrapping paper and boxes and other forms of packaging that are usually associated with toys and could be broadly described as the detritus which most parents pick up after Christmas morning from the lounge room floor after the children have discovered their presents. That matter is important because it corroborates evidence given by Mr Stewart about what he saw in the back of the offender's utility truck when it arrived at his home at about 8pm on 28 December 2015.
The evidence Mr Stewart gave about his interaction with the offender and the use of the sleep apnoea machine is corroborated by real evidence, that is, video film and still images, taken by police on 28 December 2015 at Mr Stewart's home. For example, the empty container for Mr Stewart's sleep apnoea nebuliser is found in his bedroom. However, the nebuliser itself is found next to a bean bag in the room referred to as the "spare lounge room" of his house. In other words, what he said about the nebuliser is confirmed by where it was found on the day following the explosion which occurred some time between 6am and 6.30am on 29 December 2015.
Of course I am not finding the facts. The facts have been found by the jury. I must do my best to replicate the facts that the jury must have found in convicting the offender. Much of the sentencing hearing which was conducted on 30 November concerned whether the evidence of Mr Stewart was reliable. I have no hesitation in stating that in my view the jury accepted the reliability of Mr Stewart's evidence. Quite frankly he made admissions which could have been used to implicate him in this manufacture of a large commercial quantity of methylamphetamine. It is clear that he initially lied to the police about his involvement in the manufacture but later, after being bailed from custody, agreed to turn Queen's evidence and made statements to the police implicating this offender, Tsimingos and Bell in the manufacture of the large commercial quantity of methylamphetamine.
One thing which will not be clear from what I have said, or indeed from the transcript, is this. The jury sent a note to me which I received at 4.13pm on 21 September 2018. The jury asked two questions. The second question was this:
"Does the accused need to be proven of being involved in the manufacturing in a physical, hands-on way?"
The emphasis was made by the jury, not by me, in the note. The note is MFI J9. When directing the jury as to their duty, I pointed out to them the evidence which I have quoted already, that Mr Stewart saw the offender breaking up crystals in a bucket at the time that he re-entered the shed to hand over the length of aluminium rod to Tsimingos. The jury, as I said earlier, sent me a note saying that they had reached their verdict shortly thereafter at 5.01pm.
Other aspects of Mr Stewart's evidence were corroborated. For example, evidence concerning the use of the house or motor vehicles which I sought to summarise in an aide memoire to the jury which was MFI J8. DNA evidence was obtained from bloodstains or blood residue from the back of the offender's council utility which were positive for Bill Tsimingos. Despite the earnest attempts to have the offender's council utility "detailed", chemical residue of iodine, an ingredient of methylamphetamine, was still found in the offender's council utility when its whereabouts were ascertained.
One of the submissions put to me about the corroborative value of the sleep apnoea nebuliser was that the DNA of the offender was not found on the face mask which was used with the nebuliser. However, the nebuliser was only submitted to the police about a week or a fortnight after the explosion, a period of time in which it could have been cleaned or it could have been used by Mr Stewart or both and no cross-examination of Mr Stewart was directed to that very issue. In other words, the evidence was silent, there was only speculation. The fact that there was no DNA evidence of the offender on the face mask of the sleep apnoea nebuliser does not mean that it was not used by the offender as the evidence of Mr Stewart establishes.
Clearly there was a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine. The amount of methylamphetamine referred to in the indictment was in fact the residue found in the exploded reaction vessel on 29 December 2015. Prior to the explosion and the scattering of most of the contents of the vessel, the vessel would have then contained a much larger quantity of methylamphetamine. In any event, the amount of pure methylamphetamine contained in the 13.059 kilograms found in the exploded reaction vessel was still greater than the large commercial quantity of methylamphetamine fixed by the Drug Misuse and Trafficking Act 1985. There is no dispute that there was a large commercial quantity of methylamphetamine.
What was this offender's role? He clearly persuaded Mr Stewart to lend to the enterprise Mr Stewart's property so that the cooking "kit" could be stored there and the "cook" carried out there. He knew what the kit was for because he told Mr Stewart it was for the purpose of a "cook-up". He knew when the "cook-up" was to occur because he told Mr Stewart of it on the morning of the evening on which it commenced. He took to Mr Stewart's property items which were used in the cook or were needed for a continuation of the cook, namely the blue hosing, the pump and the gas bottles. The gas bottles and a pump were found in a shed after the explosion. He was not seen by Mr Stewart to be assembling the reaction vessel but he was seen actively engaged in crushing material, which may well have been iodine, that was used in the manufacture of the methylamphetamine.
He appears to have been overcome by fumes from the process at some stage, probably around 11pm, and took no further part in the cook-up. He assisted Bell in placing Lewis in his vehicle and taking him away from the site of the explosion from the property at East Kurrajong. Eventually Mr Tsimingos was taken to hospital at Mt Druitt on the night of 29 December 2015. He was transferred thence to Westmead Hospital and thence to Royal North Shore Hospital. The offender sought to cover his tracks by having his council utility detailed to try to remove evidence that it had been splattered by the contents of the exploded reaction vessel. Having said that, there is no evidence that this "cook-up" was planned by this offender or that he stood to gain a large amount of money from it. If I categorise the offender as a "worker" in some other person's scheme, one would expect him to obtain some reward of a financial nature, but one would not expect him to obtain what could be described as "profit" from the venture.
The role of Tsimingos was addressed by her Honour Judge Noman when she sentenced him. That was based on agreed facts which clearly cannot bind this offender. The evidence establishes that it was Bell who manufactured the "kit" that was used in the production of the large commercial quantity of methylamphetamine, which kit failed and lead to Tsimingos' injuries. However, there is no evidence that Tsimingos was the principal nor is there any evidence that Bell was the principal, although he appears to have some familiarity with the process from having manufactured the "kit". At p 3 of her reasons, Judge Noman said this:
"The facts include some concessions that were raised with the parties. At paragraph 33, it is said that the offender's role is not at the top of the hierarchy and that his involvement was the same or less than the co-accused. It was clarified that this did not extend to Stewart."
It appeared to have been accepted at Tsimingos' sentencing hearing that the roles of the current offender and Tsimingos and Bell were similar.
Evidence was given that Bell had been a friend of this offender for some time prior to the explosion. It was submitted by counsel for the offender at the sentencing hearing that the offender relied upon Bell as a role model and may have been led astray by him and that his role may have been and was certainly less than that of Bell. However, I must point out that the offender gave no evidence at trial and no evidence at the sentencing hearing. What actually occurred is unestablished. For the purpose of the sentencing hearing, the offender was interviewed by Dr Stephen Allnutt on 16 November 2018. Part of the history given by the offender to the doctor was this:
"He said his co-offenders were friends. Bell was a long-term friend and Stewart was his boss at the council. He said he helped Bell store some machine parts that were overloaded from Bell's factory. On behalf of Bell, he asked Stewart to store it at Stewart's property. At the time he thought that they were machine parts. They were meant to remain there for a few weeks, but they ended up being stored there for a few months.
One night he was meant to help Bell pick up the machine parts. Unknown to him, a "manufacture" had taken place at Stewart's shed. Your client was at the premises, waiting to pick up machine parts to take them away. He had driven to Stewart's house to help Bell and Stewart. He understood his role was to load a pallet onto a truck and move it with some other men who were expected to come and help. He did not know these men.
He arrived there and waited for these people to turn up, spending time in Stewart's backyard. Stewart was making a barbecue but your client did not feel very hungry and felt unwell so he went into the lounge room and told them that when they needed him, he would help. Sitting in the lounge room, he fell asleep. At some point Stewart woke him up and checked if he was okay. He asked Stewart if the parts had been moved yet and Stewart said this had not happened, so your client went back to sleep. He woke in the morning to the sound of a large bang and heard his name being called. He went out and saw an injured man on the ground. He picked him up and put him in the back of the ute and took him home. He then went in search of Bell and found him at his home. He told Bell about the explosion at Stewart's house and they both jumped into his ute and went to Stewart's. They drove past but did not get out because Bell did not want to stop. Stewart's ute was not there and they went home. He said he did not take the injured man to hospital because he did not want to go to the hospital."
Clearly that is a denial of the facts accepted by the jury which found the offender guilty. I can give no credence whatever to that history.
In his formulation, Dr Allnutt believed that the offender's father's death had been a significant event in the offender's life and the offender was still suffering from unresolved grief at the time of the offence. Dr Allnutt's formulation continues thus:
"Based on the information given to me, your client developed a paternal relationship with his older co-offenders and, in the context of that, describes himself as being naïve in trusting them, and in the context became involved in the offending."
On the evidence accepted by the jury, it was this offender who involved Mr Stewart in the scheme rather than vice versa. The offender may have felt some affection for Bell but he was an adult male who could form his own views and opinions.
The offender's father died when the offender was 23 years old. The offender was 23 years old in the years 1990 and 2000. According to the history given to Dr Allnutt, the offender saw somebody after his father died in the year 2000. That person was a psychologist. A "few years later" he saw a psychiatrist because he still was not coping with his father's death. He saw the psychiatrist in 2001 and was prescribed Avanza which he took for a "short while" but gave up because of the side effects of that drug. There was no further contact with any mental health professional. In other words, some 14 years elapsed between the offender's being treated for his father's death and the offender's involvement in this manufacture of a large commercial quantity of methylamphetamine. During that 14 year period, the offender required no psychiatric treatment. It is extremely difficult to draw any inference that because of some psychological vulnerability the offender was seduced into participating in this "cook-up" at the behest of Bell.
Again I come back to the question of what was the role of the offender in this joint criminal enterprise. The only thing I can do is to put him on the same basis as Mr Tsimingos, that is, as a "worker" in the project that may have been overseen by Mr Bell but may well have been somebody else's project. The only rational inference to draw is that there was some promise of material reward to the offender because of his involvement in the enterprise. The offender was not a user of illicit drugs so it was not to obtain illicit drugs or money to support an illicit drug habit. That money which would probably not be taxed would be used to support his own lifestyle and his own financial interests.
In my view, parity plays a major role in this case. Her Honour allowed to Tsimingos a discount of 25% for the utilitarian value of his plea of guilty. Her Honour fixed a head sentence of nine years imprisonment. That means that if Tsimingos had not pleaded guilty her Honour would have sentenced him to imprisonment for 12 years. This offender finds himself in that position. Indeed, this offender finds himself in a worse position. Tsimingos clearly had his sentence reduced because of the injuries he received which her Honour described as "extra curial punishment". Had he not received the injuries he did, he would have received a higher sentence than 12 years imprisonment. On the other hand, this offender stopped his involvement because of a medical issue at about 11pm on 28 December 2015 and it appears that Mr Tsimingos and Mr Bell may have continued their involvement for a further seven hours until the explosion. Those considerations may cancel each other out. Subject to considering the personal circumstances of the offender, it appears to me that a head sentence of 12 years is appropriate.
In essence, the offender was a man of prior good character. He committed two offences on 18 March 2005 when he was, if my mathematics be correct, 28 years old. Those were entering a vehicle without the consent of its owner and possessing implements to enter or drive a conveyance. For the first offence he was fined $250. For the second offence the offender entered into a good behaviour bond for a period of 12 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 as it then was. More than ten years passed between those offences and the current offence and I approach this man as having in essence been one of prior good character.
The background history recorded by Dr Allnutt is this:
"He was born at Nepean Hospital by caesarean section. He said he had always had bad lungs as a child and spent multiple periods in hospital as a result. Other than that, his milestones were normal.
He achieved Year 12 but had learning problems in the form of concentration difficulties. He tended to be somewhat restless and was a daydreamer, at times impulsive. He had never been diagnosed with attention deficit hyperactivity disorder. He was never expelled or suspended and there were no behavioural problems at school. He was a high-performing rugby league player. He got a sports scholarship and repeated Year 12 while training with the Balmain Tigers and attended the Holy Cross College at that stage.
He had worked as a roof tiler with his father for three or four years and worked with his uncle as a builder. He had done a few odd jobs and then worked for Woolworths in the distribution centre. He went back to being a builder's labourer and had worked for the council since 2010.
He had two serious relationships, the longest being with his wife. His first relationship lasted three years from 1996 to 1999 and then he was single for a long time before he started a de facto relationship with his current partner in 2009. The intimate relationship with his de facto ceased some time ago but they still were residing together in their former 'matrimonial' home with their two children. They were residing together as friends bent upon bringing up their two children."
There is nothing in the offender's history which indicates that he had a propensity to perform criminal acts or to be involved in the criminal world. There is nothing to explain why he became involved in this joint criminal enterprise and the only logical inference is that it was for the purpose of gain which is why many involve themselves in the manufacture and indeed in the trafficking of illicit drugs where much money is to be gained often for very little effort.
One must feel great sympathy for the offender's former partner and friend and for the offender's two children. However, the law does not permit me to take any difficulty that they might have with the absence of their friend and father from the family home as some form of mitigating factor or as something which ought reduce the term of any gaol sentence. It is only, for example, if an offender is a nursing mother with a very young child that family circumstances can be taken into account.
I have mentioned the sentence passed upon the co-offender, Bill Tsimingos, to point to the matters to which I have referred. Passing a sentence of less than 12 years imprisonment upon this offender would cause Mr Tsimingos to complain that there was no point in his pleading guilty because in effect his reward for pleading guilty was not as great as he had been led to believe. At the time of the offence now in question the offender was 39 years old. He is now 42 years old. According to Judge Noman's remarks, Tsimingos suffered "no disadvantage prior to offending". Neither did the current offender. According to her Honour, Tsimingos had experienced "financial pressures, although it is observed that the offender was 'reasonably stable in terms of career and housing'." Even if the current offender perceived himself to be under financial pressure, there are other ways of increasing one's income than turning to the manufacture of illicit drugs. Her Honour accepted that Tsimingos was remorseful. There is no evidence that the current offender is remorseful. The history which he gave to Dr Allnutt indicates that does not accept the validity of the jury's verdict. Remorse is a mitigating factor but the current offender shows no remorse. There is nothing to differentiate this offender from Mr Tsimingos other than Mr Tsimingos' injuries and his remorse
Her Honour found that the prospects of rehabilitation of Mr Tsimingos were "highly favourable". If the offender admitted to his guilt I would make the same finding, but I believe that the gaol sentence that the offender must serve will deter him monumentally from involving himself again in anything of this nature.
It has to be borne in mind that the maximum penalty for this offence is imprisonment for life. Parliament has prescribed a standard non-parole period of 15 years imprisonment. That standard non-parole period is to be applied where an offender pleads not guilty but is convicted, which is this offender's position, and where the crime is objectively in the midrange of objective seriousness. However, I agree with the finding made by Judge Noman that this crime falls below the midrange of objective seriousness. Accordingly, I do not have to impose the standard non-parole period. Were I to do so, the head sentence would be 20 years imprisonment. This is a very serious crime which requires a lengthy gaol sentence. There can be no escaping that fact. The offender is of course entitled to maintain his innocence but I have to approach the case on the basis that he is guilty because of the verdict of 12 of his fellow citizens.
I have come to the view that the appropriate head sentence is 12 years imprisonment. The statute requires that the non-parole period be three quarters of the head sentence. That means a non-parole period of nine years. There is no reason to find special circumstances. Her Honour made the same finding in respect of Tsimingos. Her Honour said this:
"I decline to make a finding of special circumstances. Other than this being the first time in custody [,] I have already considered the other factors to the extent they exist in determining an appropriate term.
I have made highly favourable findings on the offender's prospects upon release. Those findings support a determination that the offender will not require any assistance reintegrating into society. His non-parole period will more than adequately provide for a suitable period to address his post-traumatic stress disorder symptoms. Also the proposed sentence will adequately allow for support if it is needed upon release to parole."
The concept of special circumstances is one of need for the purposes of rehabilitation. Often a prisoner when released back into the community requires assistance to reintegrate into society and to readjust to life out of gaol and, for example, to maintain a determination to overcome a prior drug addiction or alcohol addiction or gambling addiction. There was no evidence that the current offender has any such addiction or any need for rehabilitation. Even if one could be established, three years is an adequate period in which the offender can rely upon the services of Community Corrections for assistance to overcome any problem that he suffers.
Do you want any further findings Mr Crown?
METCALFE: No your Honour.
HIS HONOUR: Do you need any further findings Ms Quinn?
QUINN: No your Honour.
HIS HONOUR: Thank you. The only remaining question is when should the sentence commence. The offender was held in custody between 20 January 2016 and 10 June 2016 when he was admitted to bail. As I said at the commencement of these reasons, his bail was revoked by me after his conviction on 21 September this year. The parties have agreed that the sentence should be backdated to commence on 1 May 2018 to account for the offender's custody between January and June, 2016.
I sentence you to imprisonment. I set a non-parole period of nine years commencing on 1 May 2018 and expiring on 30 April 2027. I impose a further period of imprisonment of three years to commence upon the expiration of the non-parole and expiring on 30 April 2030. The total sentence therefore is 12 years comprising the non-parole period and the balance of the sentence. You are eligible to be considered for release to parole at the expiration of the non-parole period.
[2]
Amendments
26 September 2022 - Par [1]: "April" amended to "September"
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Decision last updated: 26 September 2022