R v Oncu; R v Dogan; R v Unver; R v Bassi-Anstee - [2018] NSWDC 106 - NSWDC 2018 case summary — Zoe

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R v Oncu; R v Dogan; R v Unver; R v Bassi-Anstee

[2018] NSWDC 106

District Court of NSW|2018-04-24|Before: Gregory J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2018-04-24

Before

Gregory J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Solicitors: Director of Public Prosecutions - The Crown Zahr Partners - Offender Oncu Mitchell & Co. Lawyers - Offender Dogan Hajjar Legal - Offender Unver Gregory J Goold Solicitors- Offender Bassi-Anstee File Number(s): 2014/356774; 2014/356775; 2014/356773; 2015/120253

[2]

Introduction

You don't have to be a District Court judge, although of course it helps, to understand how prevalent drug related crime is in New South Wales. Drug addicts commit offences to get money to fund their drug habits. They rob and they steal and they cheat people out of their money because they can't afford to pay for the drugs to which they are addicted in any legitimate way.
Then there are crimes committed by people who act irrationally, often violently, and do criminal things they would not normally do were they not under the influence of drugs.
And then there are offences where, simply for their own personal gain, offenders are willing to satisfy the demand for such drugs by importing them, supplying them or manufacturing them, apparently not caring at all that their criminal activities cause harm to the individual drug users and the community in general. The offences I am dealing with today fall into that category.
The offences for which the current offenders must be sentenced are harmful because they lead to innocent members of the community being defrauded of their legitimately earned income, having their homes broken into, being robbed and being assaulted. Indeed the harm which drug manufacture causes spreads widely amongst members of the community and the community itself.

[3]

Facts

Way back in 2014 a property at Kenthurst was purchased. In the second half of the year a large concrete slab was laid and a metal shed constructed on it. This shed appears to have had one purpose and one purpose alone, the manufacture of significant quantities of methylamphetamine.
Police were aware of what was going on and had been conducting surveillance of a number of people, including some of those who appear for sentence. In June Mr Bassi-Anstee and Mr Dogan were seen at a Bunnings shop where some PVC piping and a tool bag was purchased. The Crown suggests that some of that PVC piping may have been used in the setting up of equipment within the shed to manufacture methylamphetamine but it could also have been used in the construction of the shed itself.
In August a trailer which had been hired by Mr Bassi-Anstee was towed away from the premises and later, on 25 October and 29 October respectively Mr Oncu and Mr Unver were first seen by police at the premises.
From 24 October until police intervened on 3 December they watched some of the comings and goings from the premises. The surveillance was not complete however as while there were two entrances to the premises only one of those was watched. All four men appear to have been attending the premises from late October until they were arrested.
More information as to what was going on inside the shed was obtained when police conducted a covert search on 28 November 2014. At that time police discovered evidence of methylamphetamine manufacture and installed a covert video camera. Unfortunately this video camera required re-positioning before it could provide video coverage of what was going on inside the shed. This re-positioning occurred in the early hours of 3 December 2014 when a further covert search was carried out. At this time an analytical chemist also attended with police officers and testing revealed the presence of methylamphetamine.
Police brought the operation to a close after this by arresting Mr Oncu, Mr Dogan and Mr Unver, Mr Bassi-Anstee being arrested sometime later. Once the arrests had taken place a more comprehensive examination of the shed could be undertaken. It is an agreed fact that 30.5 kilograms of methylamphetamine had been manufactured in the shed. Taking into account the equipment that was there the chemist formed the opinion that there had been at least eight separate batches of methylamphetamine manufactured, each producing about four kilograms of pure methylamphetamine. It would have taken a minimum of four days to produce the quantity of pure methylamphetamine found in the shed. A number of pre-cursor chemicals were found as well.
Forensic analysis of some items found in the shed was carried out. Two green spiral notebooks were found. The first contained multiple references which are consistent with the manufacture of methylamphetamine in quantities that far exceeded a total of one kilogram. Mr Dogan's fingerprints were found on multiple pages of that note book. The second green spiral notebook appeared to have been a work diary, Mr Unver's DNA was found on the first page of that notebook as part of a mixed DNA profile.
A black Spirex notebook referred to a method of manufacture, the setting out of equipment and some research and development notes. Mr Bassi-Anstee's fingerprints were found on the notebook. Inside the notebook was a loose sheet of A4 paper, it had Mr Dogan's fingerprints on it.
A lecture pad had further instructions regarding the manufacture of methylamphetamine but no forensic material linking that pad to any of the four offenders before me today was found.
As far as items of equipment are concerned the fingerprints of each of the offenders as well as their DNA were found on various items consistent with them having an involvement in the manufacture of methylamphetamine, something each offender has admitted by his plea of guilty.
As well as these four offenders a man by the name of Nazioglu was also observed to be involved. He was last seen at the property on 3 December. He has fled the jurisdiction.
When Mr Oncu was arrested and his premises were searched police found a firearm, a .357 magnum revolver. The serial number on the revolver had been obliterated. A single round of ammunition suitable for that weapon was also found. That has led to the Mr Oncu pleading guilty to an offence of unauthorised possession of a pistol. It has a maximum penalty of imprisonment for 14 years with a standard non-parole period of four years.
When I sentence him for that matter he asks that I take into account an offence of possessing ammunition without a licence or permit, that relating to the single round discovered by police. In assessing the effect that that Form 1 offence will have on the sentence for possessing a pistol I note that the offence of possessing ammunition without a licence or a permit has a maximum penalty of only a fine.
It is clear as well that others apart from the four offenders and Mr Nazioglu were involved in the operation, indeed one of the police officers who had investigated these matters gave evidence that none of the four offenders could be regarded as the "boss" of the operation. That is consistent with the way the Courts understand how drug supply and drug manufacturing operations are usually conducted. Those in charge are rarely caught because they rarely put themselves in a position where they can be caught and identified as the Mr Bigs in the drug world.
That consideration is important to bear in mind when looking at other sentences involving those who manufacture drugs. The sentencing statistics, and what are said to be comparative cases, show sentences which at first blush appear not to reflect the maximum penalty and standard non-parole period provided by Parliament. Allied to that is the repeated finding by sentencing judges, and appellate judges as well, that offenders are objectively at or below the middle of the range of objective conduct. It is rare to see an offender being described as above the middle of the range of objective conduct but that is, as I have identified, because people in that category are rarely caught.

[4]

Role

Each offender is to be sentenced after taking into account his role and the extent of his involvement in the manufacture of the more than 30 kilograms of methylamphetamine found by police. Assessing the role played by each offender is not without difficulty. What was going on in the shed where the manufacture took place before police covertly installed surveillance devices is largely unknown. As I mentioned, police maintained surveillance on only one of the two entrances to the property, so any of the offenders could have arrived and left undetected.
Forensic evidence such as DNA and fingerprints may suggest that an offender touched an item but says nothing about the circumstances in which that occurred. Whether it was because the offender was following written instructions in a document or simply flicking through the document out of curiosity cannot be determined by any forensic evidence. And anyone who touched a document may have been wearing gloves anyway, something we know were present in the shed and used by the offenders.
The task is not made any easier by the circumstance that none of the four offenders gave evidence. This means that they did not expose themselves to cross-examination by the Crown or, perhaps more importantly, any of the other offenders who might have wished to suggest that his role was subservient to that of the offender giving evidence. Each offender has told others, friends, family and psychologists for example, about his role but I have to recognise at least the possibility that in doing so the offender has falsely minimised the role he played in the offence. It is necessary that I view the out of Court statements to third parties by each offender with some circumspection.
Of course I have to do the best that I can on the material available to me. So, doing the best I can, I make the following findings.
None of the four offenders for sentence today could be described as one of the bosses of this operation. Others, who may or may not ever face justice, played that role. But within the four offenders the roles played, while clearly at the direction of those higher up in the operation, were not identical.
Ulas Dogan and Koray Unver appeared to be at the bottom of the organisational hierarchy as far as the activities in the shed were concerned. They largely did what they were directed to do by others.
I find beyond reasonable doubt that Emrah Oncu played a more important role, at times demonstrating an ability to direct and instruct Mr Dogan and Mr Unver.
I am satisfied beyond reasonable doubt that Dion Bassi-Anstee was the leader and the director of the activities which were observed by police through their surveillance. His role was not limited to weighing and packaging alone, he being present and assisting in such things as the mixing of chemicals. He gave direction to others. Certainly he was responsible for some aspects of quality control and seemed to accept responsibility for the final product.
I should emphasise that the findings that Mr Oncu and Mr Bassi-Anstee performed more important roles than Messers Dogan and Unver is a finding I make beyond reasonable doubt based primarily on the surveillance by police, both physical and electronic. In particular I note the following from surveillance on 3 December:

Mr Oncu and Mr Nazioglu work independently of the others from just after midday with the latter being instructed by the former on one aspect of the process;
After Mr Unver arrives, Mr Oncu tells Mr Unver something concerning the quality of what had been done, saying "It's fucking crap bro";
Mr Unver accepts direction from Mr Oncu about what items can be discarded, and carries things to him which he asks for;
Mr Unver is seen to be sweeping the floor;
Mr Oncu is seen to be working on the product directing Mr Unver as to what to do;
Mr Oncu answers Mr Nazioglu when he asks "how does this turn into crystal" by giving an explanation of the process involved;
After the others arrive Mr Oncu directs Mr Unver and Mr Dogan to "do it the way I did yesterday…";
When Mr Nazioglu is saying goodbye to Mr Oncu he says "See you later bro, don't cook too hard";
Mr Bassi-Anstee directs Mr Unver and Mr Dogan about the order in which things should be done, saying "This work comes first because it's got to go" and says that leads should be taken from the lights;
When Mr Unver asks "How many do we need" it is Mr Bassi-Anstee who answers him;
Mr Bassi-Anstee explains that he is responsible for quality control when he tells Mr Unver "I inspect everyone that goes out";
Mr Bassi-Anstee asks for a new pair of gloves which are brought to him by Mr Unver. Mr Bassi-Anstee later tells someone to "double up on those gloves" before asking Mr Unver to weigh something.

Of course, with the exception of Mr Bassi-Anstee's statement that he inspects everything which goes out, none of these matters says much by itself about the different roles played by the four offenders. After all even a factory manager may pick up a broom from time to time. However when the results of the surveillance are considered as a whole I am satisfied that they justify the findings I have made as to the various roles played by each of these men.

[5]

Bassi-Anstee

Of all four offenders, the difference between Mr Bassi-Anstee as the person he was before he became involved in this offence and the person he was when he was involved in this offence is the greatest. He has no previous convictions. He comes from a stable and loving family. He has hard working and well respected parents and a brother. He had not caused any trouble to them in adolescence and he did much that would make them proud of him. He didn't abuse drugs or alcohol and focused instead on sport where health and fitness were important. He completed his Higher School Certificate in Canberra and then got a job in IT. He helped others regularly and was a fine upstanding member of the community.
There is absolutely nothing in his history as I have recounted it so far which would explain his serious offending. What appears to have gone wrong is that he began to use drugs after he left Canberra in 2014, moved to Sydney and began associating with the Comancheros.
As I discussed with Mr Odgers SC in the course of his submissions, such a history demonstrates just how harmful drugs can be. They have the power to completely alter a person's life and morals.
Mr Bassi-Anstee, who had no involvement in the criminal law at all until he committed an offence which carries a maximum penalty of life imprisonment, went from being a person who cared about others to a person who had only one thing in mind - the use of drugs, which led to his involvement in the manufacture of drugs.
The offender has been in custody since 29 April 2015. Consistent with him having the respect of others as he grew up, he has been supported by many people who visit him in gaol, many of whom have provided written references to me in which they speak of how he appears to them whilst he is incarcerated. He has expressed his remorse to them. He acknowledges not only that he has caused pain and grief to his parents, but also the harmful consequences to the community of his wrongdoing.
When interviewed for the purpose of a Pre- Sentence Report he said that at the time of his offending "I was oblivious to community impact, only thinking about getting high". However now that he is in gaol he can apparently see how many other of his fellow inmates are there because of drugs, the report noting "upon incarceration he has seen the impacts methamphetamine had on others and is 'ashamed' for his involvement."
Despite the seriousness of his offending the Pre-Sentence Report assesses him as having a "low risk of re-offending", that he is motivated to abstain from illicit substances and wants to cease contact with the Comancheros.
It is always difficult to assess a person's prospects of rehabilitation when they are in custody but I note in Mr Bassi-Anstee's favour that there are no prison disciplinary matters recorded on his custodial history and that he is a hard-working and valuable member in the engineering workshop at Parklea Correctional Centre.
I would assess his prospects of rehabilitation as good, provided of course that he is given assistance in dealing with the obvious risk that he will resume taking drugs upon his release. I will make a finding of special circumstances in his favour. As with all others this is not done as a favour to him but as a means of promoting his rehabilitation so that he doesn't commit offences capable of causing harm in the future.

[6]

Oncu

A number of psychological reports relating to the offender were tendered in Mr Oncu's case. It seems that the Crown does not challenge the psychologist's findings that at the time of offending Mr Oncu was suffering from a gambling disorder and depressive disorder. He now also suffers from an adjustment disorder due to the consequences of his offending.
He was born in Turkey and came to Australia with his family at the age of 10. After he left High School he studied building and has worked hard since then. He started a company which was apparently successful. It appears that he was recruited by Nazioglu to work in the drug manufacturing endeavour and at least part of his motivation for doing so was to make money in order to repay debts he had accrued.
As well as psychological reports concerning the offender, similar reports were tendered regarding members of his family. He is married with two children aged six and three. Since the birth of his second child in 2015, whilst Mr Oncu was released on bail, his wife has suffered post-natal depression. She has been treated for depression and anxiety. As well, the offender's eldest daughter has recently been diagnosed with autism spectrum disorder. On top of that the family home is at risk because of debts the family owe.
It cannot be said however that the hardship the offender's family is experiencing as a result of his incarceration is exceptional. Sadly, such consequences are relatively commonplace when bread-winners and husbands and fathers go to gaol.
On the other hand I will take the hardship to the offender's family into account as part of the general mix of subjective factors. In particular he knows that his offending has caused harm to his wife and children and may lead to them having to sell the family home.
Mr Oncu's previous involvement with the criminal law is relatively minor, he has a minor driving offence as well as one of common assault on his criminal history.
Other indications of his character are to be found in the many references tendered on his behalf including documents from the Smith Family. It appears that he has given generously of his time, as well as financially, to support others in need.
The drug manufacture offence appears to have been completely out of character. And there is an explanation for it, unlike the other offence which Mr Oncu must be sentenced. Mr Oncu's gambling led of course to financial problems and when Mr Oncu was offered the opportunity of participating in the manufacture of drugs for financial reward he foolishly accepted the offer.
As I have just hinted, there is no explanation at all as to what he doing with a serious weapon, one with its serial number obliterated. There is no suggestion that it was used or intended to be used in connection with the manufacture of methylamphetamine, but nor is there any suggestion that it was possessed for some innocuous purpose. No reasons why Mr Oncu decided that he would come into possession of a lethal weapon together with ammunition for it were advanced during the sentencing hearing. A person who possesses such items must at least be aware of the risk that they will be used in the future, with the consequent risk of injury or even death to another human being.
In assessing Mr Oncu's prospects for rehabilitation I have looked at the Corrective Services case notes tendered on sentence by the offender. He seems to be a hard-working and well respected inmate. I also read a letter written by him in which he expresses his remorse and shame. Whilst such expressions are more easily accepted when an offender gives evidence of them rather than simply writes me a letter, I am prepared to accept on the balance of probabilities that the offender's expressions of shame and remorse are genuine.
What will happen when he is released from custody of course remains to be seen but he was on bail for more than two years and there is no suggestion that he offended in any way in that time. On top of that the sentence I will ultimately impose upon him will act as a specific deterrent to him ever offending again.
Because of the likely connection between his gambling and depression on the one hand and his offending on the other I will make a finding of special circumstances in his favour.

[8]

Dogan

Mr Dogan is now 28 years old. His parents separated five years ago and are now divorced. They apparently get on better now that they are separated and visit their son in custody together.
Mr Dogan had a poor relationship with his father and suggests that in an effort to please him he started to hang around with the Comancheros because his father always spoke highly of the them and seemed to respect them. He became a member in 2013.
Things started to go wrong for Mr Dogan while he was still at school. He had some behaviour problems there and began looking for a peer group with whom to associate, settling on friends who wagged school, drank alcohol and smoked cannabis. It was in this context that he began using drugs at about 15 years of age, his drug use ultimately progressing to methylamphetmine use in 2013.
He was able to cease methylamphetamine use when he cared for his mother who was diagnosed with breast cancer a few years ago, but when her condition improved he went back to drug use, using about half a gram of methylamphetamine per day.
The offender was a drug user at the time he got involved in this manufacture of methylamphetamine. He was attracted to the lifestyle that appeared to be lived by his co-offenders and so accepted an offer to become involved in their criminal activities. Mr Dogan told a psychologist that his reward for his involvement was drugs and not money.
Mr Dogan also spent a substantial period of time on bail in which he committed no offences and got married. His wife is a positive influence upon him. She is studying midwifery at university and has made it quite clear that she would leave him if he started using drugs or committed another crime.
He expressed his remorse but in common with all other offenders didn't give evidence to that effect during the sentencing proceedings. Once again, the fact that he was able to spend more than two years out of gaol without committing another offence is a good indication that his prospects for rehabilitation are good.
Given the context in which this offending occurred, his own use of drugs, I am satisfied that there are special circumstances in this case. He will benefit from an extended period of supervision on parole and of course so will the community.

[9]

Assessment of criminality

This was a drug dealing operation of a substantial scale. The shed appears to have been constructed solely for the purpose of manufacturing drugs. It is impossible to say that the offenders were all present for every stage of the manufacturing process but I am satisfied that they were each involved in the manufacture of a quantity of methylamphetamine significantly greater than one kilogram.
It is fortunate indeed that the particular drugs which were manufactured in the shed didn't make their way to drug users but of course each of the offenders intended that that would happen.
Further, there is no suggestion that the offenders would have given up their illegal activities on 3 December 2014 were it not for the intervention of police. The manufacturing operation was clearly an ongoing one and it was not suggested on behalf of any offender that he planned to cease his involvement any time soon.
These offenders can have been under no illusion as to the scale of the operation they were involved in. Anyone performing any work in that shed, whether it was quality control or mixing chemicals or sweeping the floors, must have known that they were engaged in very serious criminal conduct. This was not some pathetic amateur endeavour at all. On the contrary it was a sophisticated operation carried out by people who knew what they were doing and knew that they were engaged in a substantial drug making enterprise.
In making a finding that Mr Bassi-Anstee's role was the most important of the four offenders I do not mean to suggest that there was no one more important in the operation than him. The surveillance evidence clearly demonstrated that he was performing the very important role of quality control and that only he had the skills necessary to ensure a consistent product. Mr Oncu performed a slightly less responsible role but it was more important than that of the two other offenders, Messers Dogan and Unver. The surveillance evidence suggests that they largely performed menial roles consistent with the "todo list" that Mr Dogan wrote in a notebook.
In making a finding as to the level of objective seriousness of each offender's conduct I refer back to what I said early on in these remarks on sentence. There were others who are not before me today who were performing roles of much greater objective gravity than these four.
I would assess the objective gravity of Mr Bassi-Anstee's conduct as being slightly below the middle of the range, the objective gravity of what Messers Unver and Dogan did as being towards the bottom of the range and the objective gravity of Mr Oncu's drug manufacturing offence as being between them. If I can put it this way, and it seems that the Court of Criminal Appeal encourages such attempts, Mr Oncu's conduct was in the middle of the bottom half on the scale of objective seriousness.
I have to assess the objective gravity of Mr Oncu's firearm offence as well. I find that that is in the middle of the range of objective seriousness.

[10]

General remarks

General deterrence is of course of great importance. There is, regrettably, a demand for methylamphetamine which people like these four offenders are willing to fulfil. Whether that be for monetary reward or free drugs, significant sentences need to be imposed even where, as in this case, none of the offenders can be described as one of the bosses of the operation.
Personal deterrence also has a part to play as well despite my finding that each of the offenders has good prospects of rehabilitation. Indeed I have taken into account the personal deterrent effect of the sentences I will shortly announce in finding that each offender is unlikely to re-offend in such a substantial way in the future.
The principle of parity applies and I have to ensure that no offender has a justifiable sense of grievance when he compares the sentence imposed upon him with the sentence I impose upon his co-offenders. The primary reason for the differing sentences I will eventually announce is because of the differing roles played by each of the offenders as well as, in Mr Oncu's case, the extra offence for which he must be sentenced.
All offenders pleaded guilty, three at the earliest opportunity deserving of a 25% or thereabouts discount on sentence to reflect the utilitarian value of their pleas. Mr Oncu's pleas were not early so his discount will be approximately 20%.
A number of what was said to be comparative cases were referred to. In some cases there were significant differences between the offences and the offenders in those cases and the present. I was also provided with sentencing statistics.
I found all the comparative cases and the sentencing statistics to have been of assistance to me. Even those cases where there were significant differences were helpful as I was able to make allowances for those differences. As far as the sentencing statistics are concerned I do note that the number of sentences included in the statistics is relatively low and, as I have mentioned more than once, it would not be surprising to find that most of them involved offences at the middle of the range of objective gravity or below.