R v PARKER

Remarks on sentence 6 In his remarks on sentence, Judge Woods said it was clear that the appellant had played a significant role in manufacturing and supplying methylamphetamine over several years. His Honour found that although the appellant had some role independent of a man called Leslie Kalache, his activities, as appeared from the material before the sentencing Judge, were mainly as a subordinate accomplice of Kalache. Judge Woods said that the role played by the appellant was by no means so extensive, complex and dominant as the role played by Kalache but nonetheless he played a significant role as lieutenant to Kalache. He was not merely a courier of drugs. A main part of his role with Kalache was storing and transporting the illegal drugs at Kalache's direction. His Honour said: "The approach I take in constructing these sentences is to take each count separately to identify an appropriate sentence reflecting the criminality of that behaviour and then subsequently to consider questions of accumulation or concurrency."

Count 1 7 On 19 September 1997 the appellant and a man called Frank Bera were arrested in a motor vehicle on their way from Kariong to Sydney. Bera had driven from Sydney at the appellant's request and direction early in the morning to the appellant's residence at 22 Vasey Close, Kariong. At about 6.50am they left together in the vehicle ferrying drugs to Sydney for Kalache. At Wahroonga the vehicle, which had been under surveillance, was stopped. A search revealed a sports bag behind a front passenger seat in which were six resealable plastic bags each containing methylamphetamine. The weight of the drugs was 1.885 kilograms. When he was arrested the appellant denied any knowledge of drugs. The appellant and Bera were subsequently charged. 8 The purpose of the exercise was to transfer the drugs to Kalache in Sydney for on-sale to buyers. Kalache had been the subject of extensive surveillance. This produced many taped telephone conversations, some between Kalache and other people but many involving the appellant. Judge Woods quoted parts of telephone conversations in which the appellant took part on 7 and 8 August and 18 and 20 September 1997. His Honour said he had no difficulty in reaching the conclusion that the trip on 19 September to Sydney involved the transportation of the methylamphetamine for and to Kalache. 9 The Crown submitted that the telephone conversation of 20 September, after the arrest, indicated that the appellant was not merely a tool of Kalache, rather an independent agent with another supply business and that "because Kalache had had trouble with the manufacture of the drugs by the chemical cooking process, [the appellant] had filled the gap and [sic] from his independent sources, supplying Kalache with enough drugs to keep his business ticking over, so to speak, until another methylamphetamine production 'cook' could be established."

However Judge Woods did not feel satisfied beyond reasonable doubt that this inference could safety be drawn. He said that whether the appellant had a large quantity of methylamphetamine stored in his backyard for Kalache or for himself, the fact was that that he had it, and had demonstrated that he was a significant drug dealer. His Honour said that the offence required a severe deterrent penalty.

Count 2 10 Judge Woods said that Kalache and the appellant had suffered a drought of supply to Kalache from his "manufacturers". Kalache got several people to obtain a large quantity of Sudafed tablets and "Chemists' Own" brand tablets containing pseudoephedrine. About 19,000 tablets were obtained from a registered pharmacist Cheng. A clandestine drugs laboratory was set up involving a person called Lyndon Marskell to extract an illegal ingredient from the otherwise lawful Sudafed tablets and the other tablets, to extract pseudoephedrine and carry out a further reaction to manufacture methylamphetamine to be sold by Kalache and others for profit. The laboratory was set up at Washpool Creek near Booral. In fact what was created was largely seized by the police executing a search warrant at 1 Jacques Street Kingsford on 2 July 1997. At that time 3.4 kilograms of methylamphetamine were seized. Analysis proved that this drug was manufactured by Marskell and others at Booral. 11 His Honour said: "The direct role which this offender played in relation to that exercise was to participate with the others in physically removing individual Sudafed or 'Chemists' Own' brand tablets from the plastic containers, an exercise which is recorded on various tapes with a 'popping' noise. On 26 June 1997, [the appellant] was recorded as saying, or lamenting: 'All, you know, is we've been going for three hours and it feels like we've done nothing'. Anyway, they did in fact continue 'popping' the tablets from their pockets and a lot was produced and seized. But the full scope of [the appellant's] involvement is not reflected entirely in the mere physical exercise that I have described. The conversations in which he is captured on tape indicate his intimate knowledge of the exercise. For example, on 21 January 1997 in a telephone conversation with the Watkins, [the appellant] says: '8 kilos of pseudo, 8 litres of acid, 800 grams of red phosphorus, put it in a 20 litre bowl and you cook it for 24 hours (something indecipherable) 36 hours, then you cool it down, right, that's what I'm telling you.' Then he goes on further to explain his knowledge of this exercise. He says further: 'It's a simple process, but the thing is, if you make one mistake and you don't know what you're doing, you've got to go back three stages and find out the one, basically, you know what I mean? Like that stupid Roland he used cold water, he didn't use hot water, he didn't know why he stuffed it. Little things like that.' His knowledge of this criminal business was substantial. It is further demonstrated in a conversation of 21 January 1997 when he says: '40, after cutting 4 to 1 you'd finish with an average cook, well, a bag cooked about 40 now should be about 44 and (something indecipherable) cost about 48.' Then he goes on to discuss the production of this product by the illegal cooking method. Nonetheless, despite that knowledge, the only physical act in which he seems to be involved here is in the popping of the Sudafed tablets. Nonetheless, this is a vital part of the exercise and is essential in this particular form of illegal manufacturing. There is no doubt that it produced a quantity of drugs which was very substantial indeed, 3.4 kilograms at least."

Counts 4 and 5 12 The sentencing Judge said that both these charges derived from the involvement of Kalache and a man called Arthur Launt, an industrial chemist from Queensland, "who went wrong". Launt had deviated from legitimate business into the profitable business of supplying precursor drugs for the production of unlawful methylamphetamine tablets. In December 1995 Kalache contacted Launt by telephone. The sentencing Judge had no doubt that he did so with the appellant's knowledge and acquiescence. Kalache requested Launt to supply 7.5 litres of hydriodic acid for $7,400. This product was one of the essential precursors for the cooking process of methylamphetamine. Other products were obtained from Launt paid for by Kalache. Launt had a man called Dolman, a skilled industrial chemist, who assisted in the manufacture of phenylacetic acid and other compounds. The sentencing Judge said: "After the acquisition of these various chemicals, Lyndon Marskell, working essentially for Kalache, established a clandestine drug laboratory at Wollombi in New South Wales. Marskell had difficulties producing methylamphetamine using Launt's phenylacetic acid. That property was found by police in April 1996 and ultimately it was seized." 13 Through the agency of a person called Richard Simpson a further laboratory using materials derived from Launt was established at Dooralong. This laboratory was subsequently moved to premises at Sylvania Waters which were owned by a person called Robert Proctor. It seemed to the sentencing Judge that the appellant played some role in relation to both these exercises. His Honour said: "One of the problems was, it turns out, that Launt had produced defective material which was being used in these various exercises. The Wollombi illicit laboratory site was demonstrated to have produced methylamphetamine using pseudoephedrine, red phosphorus and hydriodic acid. The Sylvania Waters laboratory revealed evidence of an attempt to make methylamphetamine using a phenylacetic acid conversion process. The likelihood of actually producing large quantities of methylamphetamine was limited by the deficiency of the chemicals supplied by Launt." 14 To understand what is then recorded on the remarks on sentence it is necessary to refer to the 61 page facts sheet (the facts sheet) dated 12 December 1999 which was before the sentencing Judge. Reference was made to the police discovery of the clandestine drug laboratory site and storage area of precursor chemicals at Wollombi on 3 April 1996. In March 1996 the appellant and another person met Launt twice to establish future supplies of precursor chemicals which Launt supplied with similar faults to compounds previously supplied. On 15 April 1996 police discovered the illicit laboratory active in the bathroom of the house at Dooralong. The process used a 20 litre reaction flask, a stainless steel pot with oil and an electric hot plate and condenser, mounted in the shower recess with garden hoses. The chemical analysis of the process indicated that phenylacetic acid was converted through to P-2-P to methylamphetamine. Phenylacetic acid and benzoic acid were identified in the laboratory. Similarly a large quantity of black 20 litre drums containing labelled reducing agents, consistent with Launt's misrepresented chemicals, were seized. Premises were found at Glenfield to be used for the next manufacture process by another person. A clandestine laboratory was established there. It was not suggested the appellant played any part in this. Although this laboratory was not detected it was decided on 23 April 1996 to move the reaction chemicals and equipment to new premises at Sylvania Waters where "the syndicate" established a clandestine drug laboratory. William El Azzi was employed as a cook at Dooralong and Sylvania Waters. In or about June 1996 Robert McCoy was recruited to stay at the Sylvania Waters premises and operate and clean the laboratory site. 15 At some time in July or August 1996 Kalache told Launt that the chemicals he supplied, "were not any good and they couldn't do anything with it". This related to the quality of chemicals Launt was supplying to Kalache, the appellant and Haeusler. Later in 1996, as a result of slow payments by Kalache, Launt, who was supplying hydriodic acid, diluted it. This had the effect of making pseudoephedrine reduction reactions to methylamphetamine very inefficient. 16 The last five paragraphs of the facts sheet at page 61 were as follows: "The Wollombi laboratory site analysis reveal evidence of methylamphetamine being produced by the reduction of pseudoephedrine through red phosphorous and hydriodic acid and evidence of alternate attempts to manufacture methylamphetamine using a phenylacetic acid conversion. The quantity of precursors on site indicated the forensic evidence taken indicated that commercial quantities of methylamphetamine had been produced in the past. The stockpile of chemicals, solvents, reagents and apparatus would have allowed for large quantities of methylamphetamine produced in the future [sic]. The Dooralong laboratory site analysis revealed evidence of methylamphetamine being produced using a phenylacetic conversion. The volume of reaction mixture located was 21.45kg (containing a mixture of benzoic acid, phenylacetic acid, sodium acetate, acetic acid). The Sylvania Waters laboratory revealed evidence of an attempted methylamphetamine process using a phenylacetic acid conversion. However the integrity of the starting precursor materials would have prevented this reaction to proceed successfully. The volume of reaction mixture located was approximately 17ltrs (containing a mixture of benzoic acid, sodium acetate, acetic acid). A statement from Mr Murtagh of the Australian Government Analytical Laboratory demonstrates the consistency in methodology and chemicals used in these laboratory sites." 17 Investigations conducted during 1998 involved lawfully obtained Telephone Intercepts on services used by the accused and Haeusler, and provide direct corroboration of the activities and facts as detailed. 18 At the point in his remarks on sentence which I had reached, Judge Woods raised with the Crown his concern about count 5 and said: "at either Dooralong or Sylvania Waters was any quantity of the prohibited drug and specifically an amount not less than the commercial quantity? If you look at page 61 of the facts it is the third last paragraph. It suggested it was rather an attempt."

Questioned by the Judge about whether that paragraph meant that the charge should be one of taking part in the attempt to manufacture, the Crown responded: "No because the charge does not only involve the failed process at Sylvania Waters, it also involves the Dooralong part of it and there was …"

His Honour interrupted counsel. A little later his Honour said: "Is it not the case that the Dooralong laboratory site produced no actual methylamphetamine?"

The Crown replied: "I think that it was discovered in the process by the police when the manufacturing process was in train. The police arrived and effectively shut down that laboratory."

The sentencing Judge said: "I think that would strictly be an attempt rather than - I do not know. I know it is not a point taken by Mr Young [who appeared for the appellant] in those terms but I should not sentence if it is not right."

The Crown said: "Your Honour, to knowingly take part in the manufacture you can take a step in the process. The process does not have to result in the production of an actual product."

Asked for authority the Crown referred to Thomas v R (1993) 67 A Crim R 308. The Crown said that in Thomas the quantity was not manufactured, all that was manufactured was a precursor. "It was not even at that point a prohibited drug itself. All that Thomas manufactured was P2P and I think that was the same in Louden and his associates too. But the case of Thomas is the authority for the proposition that taking a step in the process of manufacture and that is what is the basis of the charge anyway: Knowingly take part." 19 After reference to s6 of the Act, the sentencing Judge said "[t]he fact the process is interrupted at an intermediate stage does not take the case outside section six is the Court of Criminal Appeal decision" to which the Crown replied "Yes". The sentencing Judge said that he found that surprising. "Obviously that is the law and obviously Mr Young has gone through the exercise in his mind anyway." Mr Young said: "I do not think they had a couple of P2P. They said it was for another reason but they ended up convicted of manufacturing methylamphetamine having only reached that stage."

The sentencing Judge thanked counsel and said that he had raised the matter because it struck him as being a possible problem. Mr Young said: 'It is fairly significant in terms of potential success of the operation. If you look at the Dooralong laboratory it was interrupted during the actual process and there is the amount. It does not appear over the page where your Honour has already observed. The fourth last paragraph on 61 refers to 21.45 of the reaction mixture located. That refers back to the second one on 59 when it talks about the process being interrupted. And because of what is being used they can say these chemicals having come from x, y, z but the bottom line is no product came out at Sylvania Waters."

Judge Woods said that he understood that and would take it into account. He continued to deal with counts 4 and 5. 20 His Honour said: "The role played by the offender in this exercise in counts four and five is less significant than in the role played by Kalache [sic]. Nonetheless in each case he did have a hand in getting together the chemicals which were used in both operations. It would seem likely that the captured telephone conversations in 1997 where he was to speak with knowledge about the cooking processes, derived from the contact he had in the earlier years 1995 and 1996 and 1997 which gave rise to charges in counts four and five. There is no evidence that the offender actually himself participated in either, or any, of the cooking operations by Marskell or Simpson or others. Nonetheless, his role in assisting in getting the chemicals together for the purposes of the exercise was nonetheless significant. I have said before in relation to count one that gaol sentences are called for. Courts have repeatedly said in relation to all of these kinds of matters that there must be a gaol sentence and there is no other appropriate penalty. I take into account the subjective matters which have been put before me through his brother-in-law who gave evidence that 'He's a good family man and he's a loving father'. I take that into account. And I take into account the plea of guilty. It is significant and in my view; it demonstrates contrition as well as providing a practical benefit to the court system by reducing court time. This is not one of those cases where the criminality is so gross and overwhelming that the plea of guilty has no particular significance. In fact, the plea of guilty has reduced by some two or three years the overall sentence which I would have imposed but for the plea. Counts four and five were generated, as I understand it, by further inquiries being made following on the telephonic interceptions at the Kalache house. They extend the period of this man's criminality over a longer period. Nonetheless all the offences it appear to me to be generally related [sic]. If he were an independent agent having a role in drugs separately from Kalache, it has not been demonstrated to me beyond reasonable doubt. Generally he had a role, as I see it, as a subordinate to Kalache, but as a significant subordinate." 21 Following discussion with counsel the sentencing Judge said: "I intend to regard the sequence of events encompassing all of these counts as being in a related period in this man's life. The common factors of associates, the nature of the drug and continuing involvement makes concurrent sentencing appropriate. NO SPECIAL CIRCUMSTANCES I do not see this as a case where there are any special circumstances justifying any variation from the norm between the overall sentence and the minimum sentence in the light of any particular circumstance of the offender's background or of the offences. I repeat my observation that I see his role as being one of a subordinate associate of Kalache and that his criminality is by no means so extensive and complex as that of Kalache. Nonetheless, he played a significant role as lieutenant. He was not merely a courier but a main part of his work was with Kalache in storing and transporting drug at Kalache's direction. I take into account the subjective features advanced by Mr Young, the probation and parole report and what his brother-in-law said." 22 Judge Woods convicted the appellant on all five counts and imposed the sentences I have already set out. 23 The Crown conceded that, even though looked at overall, the total of the sentences imposed on the five counts was not disproportionate to the criminality of the appellant's conduct, the length of the sentence imposed for the offence charged in count 1 to be served concurrently with the sentences on the other four counts was excessive and demonstrated a sentencing structure which did not accord with what the High Court had said in Pearce v The Queen (1998) 194 CLR 610 particularly at 624 and 629. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality. The High Court pointed out that a failure to do this may give rise to artificial claims of disparity between co-offenders, as indeed has happened in this case when the sentence imposed on Bera is compared with the sentence imposed on the appellant on the first count. Before dealing with this error in sentencing it is convenient to turn to the appellant's submissions in respect of counts 2, 4 and 5.

Change of pleas 24 The appellant's pleas of guilty constituted an admission of the essential elements of the offences charged. His guilt of those offences was determined when Judge Woods passed sentence. The pleas must be considered final subject only to the judge's discretion to grant leave to change the plea to one of not guilty before the matter is disposed of by sentence; Maxwell v The Queen (1996) 184 CLR 501. At 511 Dawson and McHugh JJ said: "The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty." 25 Before an appellant should be permitted to reopen his pleas of guilty on counts 2, 4 and 5 he must demonstrate that a miscarriage of justice has occurred; see the judgment of Wood CJ at CL in R v Kouroumalos [2000] NSWCCA 453. The Chief Judge pointed out that this may occur where in offering a plea, the appellant did not appreciate the nature of the charges or where on the admitted facts the appellant could not in law have been convicted of the offences. However, as Kirby P said in Liberti (1991) 55 A Crim R 120 at 122: "For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence."

Later decisions of the Court of Criminal Appeal 26 The problems about the pleas of guilty to these three counts come about because of two decisions of this Court; R v BD [2001] NSWCCA 184 and R v McCoy [2001] NSWCCA 255, both given after the appellant was sentenced on 17 March 2000. 27 In BD the Court considered a question for determination under s5A(2) of the Criminal Appeal Act 1912. The question was whether a trial judge in trying a case alone had erred in law in concluding that the obtaining and transporting of ingredients (namely Sudafed, phosphorus powder and orthophosphoric acid) and implements to be used in the manufacture of methylamphetamine could not constitute taking a step in the process of manufacture within the meaning of s6 of the Act. In that case the accused had been stopped by police while driving a motor vehicle. A search of the vehicle revealed a number of carry bags in one of which there was a substantial quantity of Sudafed tablets, some loose and some in blister packs. The other ingredients were also found together with items of chemistry glassware which appeared to be new. There was evidence that Sudafed tablets contained pseudoephedrine, a precursor for the making of methylamphetamine. The method of doing this illicitly by the reduction of pseudoephedrine was referred to. There was also evidence that the first thing done at the beginning of the extraction process was the removal of the Sudafed tablets from their blister packets. The next step was to crush the tablets and add a solvent. 28 The Crown contended that the acquisition and transportation of chemicals and equipment necessary for the manufacture of methylamphetamine was a step in the process of manufacture. The Crown also relied on the removal of the Sudafed tablets from their blister packs as a discrete step in the process of manufacture. 29 Bell J, with whose reasons for judgment Stein JA and Greg James J agreed, said: "17 Judge Graham accepted that a step, being an intermediate stage in the process of manufacturing a prohibited drug, would fall within the terms of s6(a). In this respect his Honour accepted that it would not be necessary, at the time of taking the intermediate step, for the person to have possession of (or access to) all of the equipment and all of the chemicals necessary to complete the process. The question his Honour identified was 'whether the acquisition of the wherewithal and its transportation to another place amounted to a step in the process of manufacture.' His Honour considered that a distinction should be drawn between preparatory acts and acts which, in truth, represented steps in the process of manufacture. It followed that acts which were merely preparatory did not fall within the statutory prohibition. 18 In Judge Graham's view the acquisition and transportation of the chemicals amounted to no more than the respondent equipping himself with materials necessary to undertake the process of manufacture at a future time. In similar vein the removal of the Sudafed tablets from their blister packs could not be described as anything more than preparation for a future process of manufacture. 19 In submissions before this Court the Crown contended that Judge Graham erred in drawing the distinction between acts which are merely preparatory to the process of manufacture and steps in a process of manufacture." 30 Thomas and Kouroumalos were referred to together with other cases. In Kouroumalos the appellant pleaded guilty to a charge of "knowingly taking part in the manufacture of methylamphetamine in an amount not less than the commercial quantity". The sentencing judge had before him a statement of facts including, relevantly, that the appellant had removed a very large quantity of Sudafed tablets from their foil containers. Bell J said: "27 … The facts further alleged that the appellant had paid for and collected Ph papers, vacuum grease and drums of acetone each being substances required for the manufacture of methylamphetamine. He had kept at his home vacuum flasks and other utensils used in the manufacturing process and he had engaged in testing the glucose content of some methylamphetamine supplied to him by the organisation and reported back on his findings." 31 The following passage from the judgment of Wood CJ at CL in Kouroumalos was quoted: "Its case in relation to the first count was that, being aware that the Sudafed tablets he popped, and the other items he fetched, were required for the manufacture of the prohibited drugs, he 'knowingly participated in their manufacture' by carrying out those activities. They were necessary steps in the operation, as was the provision of his premises as a place to pop the Sudafed tablets from which the required pseudoephedrine was recovered, and to store the chemical flasks needed for a cook. It was in that sense he knowingly participated in the manufacture of the drugs. That was sufficient as a matter of law: see s6 Drug Misuse and Trafficking Act 1985: Thomas (1993) 67 A Crim R 308 at 310." 32 Bell J continued: "30 I do not consider that the passage set out above in Kouroumalos should be seen as supporting the construction of s6 of the Act for which the Crown contends in this case. As noted above, the applicant in Kouroumalos pleaded guilty to the offence of knowingly take part in the manufacture of methylamphetamine. He thereby admitted all the legal ingredients of the offence. The evidence disclosed that the organisation of which he was a part was engaged in manufacturing methylamphetamine. His role in 'popping' the Sudafed tablets and in carrying out the other activities, including reporting on the glucose content of the methylamphetamine produced by the syndicate, needs to be seen in this light." 33 Based on that decision the appellant submitted that the finding central to the sentencing Judge's reasoning on count 2 was that the only physical act in which the appellant seemed to be involved was the popping of the Sudafed tablets. Even though this was a vital part of the exercise and was essential in this particular form of illegal manufacturing, it was not a fact capable in law of founding his conviction. His Honour had earlier said that the direct role which the appellant played was to participate with others in physically removing individual Sudafed or "Chemist's Own" brand tablets from the plastic containers. Similarly the sentencing Judge's statement that there was no evidence that the appellant actually himself participated in either, or any, of the cooking operations by Marskell or Simpson or others and that his role was in assisting in getting the chemicals together for the purposes of the exercise meant that on the same principle there was no foundation for a finding of his guilt on counts 4 and 5. There was evidence that the appellant had been advised to plead guilty by his legal advisers because of their belief that these preparatory activities were steps in the manufacture. 34 At the hearing of the appeal the appellant filed an affidavit of Michael Anthony Croke, the appellant's solicitor, sworn on 22 July 2002 in which he said: "2. In relation to Count 2 it was the view of both myself and Counsel appearing at the sentence hearing that the act of 'popping' the Sudafed tablets from its packaging constituted all elements of the offence of knowingly take part in the manufacture of prohibited drugs. Consequently, Mr Parker was given, and accepted advice that he should plead guilty to that particular matter. 3. I have subsequently been advised that in R v BD [2001] NSWCCA 184 the New South Wales Court of Criminal Appeal has decided that the mere removal of tablets from its packaging is insufficient to ground the offence of knowingly take part in the manufacture of prohibited drugs. 4. Similarly, in relation to Counts 4 and 5 it was the view of both myself and Counsel appearing at the sentence hearing that the mere attempt to manufacture prohibited drugs founded the offence in question, notwithstanding the fact that the chemicals used by the appellant rendered it impossible for him to do so." 35 After the Court had reserved its decision and with its leave, further affidavits were filed. In an affidavit of 28 July 2002, Mr Croke said: "2. In relation to paragraph 4 of my affidavit sworn on 23 July 2002 I add the following: a. Mr Parker was sentenced before the decision of R v McCoy [2001] NSWCCA 255 (4 July 2001) was handed down. Until I became aware of that decision I believed that an attempt to manufacture large commercial quantity of methylamphetamine satisfied the offence even though it was physically impossible to produce a large commercial quantity of methylamphetamine. b. I was aware that Mr Parker had acquired chemicals but until the decision in R v BD [2001] NSWCCA 184 (15 May 2001) I believed that that limited role satisfied the elements of the offence. I therefore advised Mr Parker to plead guilty." 36 In an affidavit of 29 July 2002, the appellant said: "2. With respect to Count 2 of the indictment I physically removed Sudafed tablets from their containers. I was not aware of any manufacturing process taking place at that time. I was not involved in the cooking process. I believed on legal advice that my role of removing Sudafed tablets meant that I was guilty. It has since been explained to me that that is not the case. I am therefore not guilty of the Second Count on the indictment. 3. With respect to Counts 4 & 5 of the indictment I was involved in the acquiring of chemicals. I was not involved in the cooking process. I was not aware of any manufacturing process taking place at the time I acquired the chemicals. On legal advice I believed that an attempt to produce large commercial quantity of methylamphetamine meant that I was guilty even though it was impossible to produce a large commercial quantity of methylamphetamine. It has since been explained to me that that is not the case. On this advice I am therefore not guilty of Counts 4 & 5 on the indictment." 4. I have read the two affidavits of Michael Anthony Croke sworn on 23 July 2002 and 28 July 2002. I agree with those affidavits." 37 In Thomas a quantity of P-2-P was found in the appellant's possession. He was convicted of taking part in the manufacture of methylamphetamine. There was evidence that P-2-P was a raw material used in the manufacture of the drug. In that case the police gained access to premises occupied by the appellant in which they found a fully operational laboratory. They found in his possession a substantial quantity of P-2-P which had been produced by the appellant in his laboratory. There was no dispute that methylamphetamine may be produced by a process which uses P-2-P as a raw material. The contest at trial was whether, as the Crown claimed, the appellant intended to use the P-2-P in the manufacture of methylamphetamine or whether, as the defence claimed, for some other purpose such as the manufacture of opals. In that context Gleeson CJ said at 311: "Where, as the Crown alleged to be the case here, a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the manufacture in the end product. The fact that the process is interrupted at an intermediate stage does not take the case outside the terms of s6 of the Act." 38 Earlier at 310-1 the Chief Justice had said: "Activity which may properly be described as the manufacture of a certain product might, in various cases, commence with materials which are themselves in various stages of production or refinement. The end product of a given industry activity, assuming it to be a marketable commodity, might be something which is itself capable of being used as a material in a process of manufacture. However, depending upon the facts and circumstances of the individual case, the production of such a commodity might merely be an intermediate step in a manufacturer's more extensive process of manufacture. What for one manufacturer is an end product might, for another, be an intermediate, product. Conversely, what might, for one manufacturer, be acquired as a raw material prior to any manufacturing activity might, for another, be a product of a step in the process of manufacture." 39 In this case it seems clear enough that the appellant was removing the Sudafed and other similar tablets from their plastic containers with a view to going on to use them in the manufacture of methylamphetamine. In my opinion, BD should not be treated as determining that a person removing Sudafed or other similar tablets from their containers with the intention of using the contents to manufacture methylamphetamine can never be said to be taking a step in the process of manufacture of methylamphetamine. In Kouroumalos Wood CJ at CL said that the popping of Sudafed tablets and the fetching of other items required for the manufacture of methylamphetamine, aware that the tablets and such items were required for that manufacture, were necessary steps in the operation. 40 In BD the tablets, taken from their packs, were found in the boot of a car being driven along the Hume Highway. The question posed under s5A(2) of the Criminal Appeal Act was whether the trial Judge had erred in law in concluding that "the obtaining and transporting of ingredients" including Sudafed and implements to be used in the manufacture of methylamphetamine could not constitute taking a step in the process of manufacture. The case was directed to that question. A decision on those facts does not establish a binding principle that in a case such as the present removal of an ingredient from its packet with a view to its use in the production of a prohibited drug is not a step in that process. There is nothing about the factual statement relating to the second, fourth or fifth counts that puts them on all fours with the facts in BD. In my opinion, that decision is no ground for permitting the appellant to change his plea of guilty to the second count. 41 Robert Ellis McCoy, whose presence at the Sylvania Waters premises has already been referred to, was convicted on 3 April 2000 before his Honour Judge Shillington and a jury of a charge that between 1 December 1995 and 30 June 1996 he did knowingly take part in the manufacture of a prohibited drug namely methylamphetamine. On 9 June 2000 he was given a suspended sentence of imprisonment for a period of 1 year. He appealed against his conviction on grounds which included the ground that the learned trial Judge erred in determining that the evidence was capable of proving the offence charged notwithstanding that there was evidence to establish that the offence was incapable of being committed by the appellant in the manner alleged. The Court of Criminal Appeal upheld that appeal. 42 Hulme J gave the principal judgement. In the course of it his Honour remarked that despite the extent of the period encompassed by the charge, the matter was put to the jury on the basis of activities being carried on at, and just prior to, the time of the appellant's arrest on 13 June 1996. The foundation of the appeal lay in the undisputed evidence at the trial that the chemicals being used in the course of an attempt to produce methylamphetamine were incapable of leading to that result. His Honour said: "15 On those provisions, there must be a process of manufacture of a prohibited drug, here methylamphetamine, in which the offender takes part. The key issue for present purposes is the width of the concept of a process. At its widest, it may begin with the germination of an intention to produce the prohibited drug and ends, perhaps after numerous false starts and failures, with successful production. Narrowly, it may look to a particular attempt to produce the prohibited drug, involving for example the taking of chemicals, their combination and the result of the chemical reaction. 16 I do not think it necessary to address in the abstract where in the spectrum a process of manufacture of a prohibited drug lies for the purposes of the Act. It is sufficient that in this case the matter was put to the jury on a narrow basis, whereby the process was that under way at and just prior to the time of the Appellant's arrest. It was at all times impossible for manufacture of methylamphetamine to occur in the course of the attempt at manufacture in which the Appellant was then involved. Those directing the enterprise could have made another attempt using different chemicals, but that would have been a different process of manufacture of methylamphetamine from that put before the jury. It would not have been the process of manufacture of methylamphetamine being carried on at, and just prior to, the time of the Appellant's arrest. It was not put to the jury that the process in this case extended to the use of different chemicals if the initial attempt was not successful. 17 In the process as the matter was put to the jury, however genuinely the Appellant may have thought that the chemicals being used when combined made methylamphetamine, it could not realistically be said that the attempt to combine those chemicals was the taking of a step in the process of manufacture of methylamphetamine. To illustrate the point, however genuinely the appellant may have thought that hydrogen and oxygen when combined made methylamphetamine (rather than water) it could not realistically be said that an attempt to combine those elements was the taking of a step in the process of manufacture of methylamphetamine. The chemicals in the present case were just not appropriate for the purpose, and there was no process of manufacture of methylamphetamine." 43 Based principally on the Crown concession that the chemicals being used during the short and discreet time that McCoy was present were incapable of producing methylamphetamine, Mr Thangaraj, who put the appellant's case in a commendably determined and clear fashion, submitted that the appellant should be permitted to change his pleas on counts 4 and 5. 44 In R v El Azzi [2001] NSWCCA 397 the appellant, the person already referred to in the facts sheet, was alleged to be involved in an enterprise relating to the manufacture of amphetamine. Howie J, who gave the judgment with which Mason P and Levine J agreed, said: "10 The second count relates to what is alleged by the Crown to be an attempt to manufacture at Dooralong. Generally the Crown case is that the applicant organised and supervised the manufacture of the drug using a man named Simpson to carry out the manufacturing process. The Crown alleges that, amongst other things, the applicant secured the premises where the manufacture was to take place and obtained the precursors from which the drug was to be manufactured. The venture was interrupted when on 15 April 1996 police raided the premises being used for the manufacture and arrested two alleged co-conspirators, Knight and Phillips. 11 The allegation in respect of the third count concerns a further attempt by the applicant and others to manufacture methylamphetamine after the police frustrated the attempt at Dooralong. This enterprise commenced at premises in Glenfield but, because of suspected police activity in the area, was moved to Sylvania Waters. The Crown case is that the applicant arranged the premises for the manufacturing of the drug process and supervised the process that was carried out by Simpson. Once again the venture was cut short by the intervention of police. On 13 June 1996 police raided the premises at Sylvania Waters and the applicant was arrested along with Simpson, Hearne, the owner of the premises, and Robert McCoy. 12 The applicant was initially charged with three counts of knowingly take part in the manufacture of methylamphetamine but, for reasons which will become apparent, those charges were withdrawn in the Local Court on 14 August 1996. There has been some indecision by the Crown since that time as to the charges that should be laid against the applicant. It was not until 7 August of this year that the indictment, which is the subject of these proceedings, was presented to the District Court. The difficulty, which the Crown faces in proving the charges initially laid in respect of Dooralong and Sylvania Waters, is that methylamphetamine could not have been manufactured using the chemicals found at those sites." 45 No concession about the impossibility of manufacture is made by the Crown in this case except so far as one can derive it from page 61 of the stated facts. So far as the Wollombi laboratory site was concerned, which founded the fourth count, it was said that the forensic evidence taken indicated that commercial quantities of methylamphetamine had been produced in the past. So far as the Dooralong site was concerned analysis revealed evidence of methylamphetamine being produced using phenylacetic conversion. Search of the Sylvania Waters laboratory revealed evidence of an attempted methylamphetamine process using a phenylacetic acid conversion. In that case it was said the integrity of the starting precursor material would have prevented this reaction proceeding successfully. 46 By his pleas the appellant admitted the essential ingredients of the offences charged. It was plain that so far as Sylvania Waters was concerned there was no more than an attempt, unsuccessful, to manufacture methylamphetamine. The sentencing Judge raised this with the Crown and counsel for the appellant took no exception to the facts sheet as supporting the charges. 47 In count 4 the offence was alleged to have been committed between 1 December 1995 and 31 January 1997. In count 5 the offence was alleged to have been committed between 1 December 1995 and 30 June 1996. At the beginning of the facts sheet it was said: "The accused and his close associates, Dennis and Tracie Watkins and Frank Bera, all from the Central Coast, were identified as being intricately involved in the manufacture and distribution of prohibited drugs with Kalache. Their criminal activities were based in Kariong where they resided, and both their premises were monitored by lawfully obtained listening devices and telephone interception at different times during the investigation. Although the accused and the Watkins' were closely aligned with Kalache, they supplied prohibited drugs separate to the Kalache network." 48 About the fourth and fifth counts it was said that Launt established his backyard hydriodic acid laboratory near Maclean during 1994 and 1995. Hydriodic acid is a reportable substance commonly used to reduce pseudoephedrine to methylamphetamine. In December 1995 Kalache and the appellant contacted Launt and arranged for him to supply 7.5 litres of hydriodic acid for $7,500. In the middle of December 1995 Launt and Kalache arranged for a large supply of further precursor chemicals and reagents for the amount of $35,000. The consignment consisted of the precursor, Phenylacetic acid (40 kilograms), Mannitol (20 kilograms), hydriodic acid (30 litres), sodium acetate (40 kilograms) and caustic soda (40 kilograms). In January 1996 Launt met the appellant and Kalache in Sydney to discuss further supplies and pay some outstanding moneys for the initial supply in December 1995. In February 1996 a further 30 litres of hydriodic acid was supplied and transported to Sydney by commercial carriers. Further requests were made by Kalache to Launt for phenylacetic acid and other reducing agents. Launt and Dolman produced methylammonium chloride, formic acid, acetic anhydride and N-methyl formamide. These products were sold to Kalache, the appellant and Heausler. Additional products supplied included common authentic materials legitimately bought and on-sold by Launt including hydrochloric acid and sodium acetate in their original packaging. 49 During March 1996 Kalache and the appellant purchased 75 kilograms of phenylacetic acid, 40 kilograms of sodium acetate, 80 litres of acetic anhydride and 100 litres of hydrochloric acid. This was delivered to Kalache's house in Sydney. It was stored at Smithfield in a storeroom rented by the appellant from his neighbour, Joe Vocisano. The appellant also stored a pill press at this address. About the same time the appellant ordered a further identical consignment from Launt of 50 kilograms of phenylacetic acid, 40 kilograms of sodium acetate, 80 litres of acetic anhydride and 100 litres of hydrochloric acid. This was delivered to unknown persons working for Kalache at Peats Ridge. About this time the Wollombi clandestine drug laboratory was established. On 3 April 1996 police discovered the clandestine drug laboratory site and storage area of precursor chemicals at Wollombi. The chemicals located on this property were consistent with the order that was delivered to Peats Ridge. 50 In March 1996 the appellant and Haeusler met Launt twice to establish future supplies of precursor chemicals. Haeusler and the appellant ordered 40 kilograms of phenylacetic acid, 40 litres of acetic anhydride, 20 litres of hydriodic acid and 40 litres of N-methyl formamide. The consignment was transported and arrangements made for the appellant to collect the consignment for Haeusler. 51 Simpson and El Azzi established a clandestine laboratory at a house at Dooralong. On 15 April 1996 police discovered the illicit laboratory active in the bathroom of the premises. This was described in the remarks on sentence. As a result of this seizure, Haeusler, the appellant and Simpson met and an agreement was reached for the further supply of chemicals for another manufacture process to begin. Premises at Glenfield were arranged for use. On 23 April 1996 the local police visited this laboratory site but the laboratory was not detected. It was then decided to move to Sylvania Waters, where the syndicate re-established the clandestine drug laboratory. 52 During July/August 1996 Launt attempted to recover moneys outstanding to him from the appellant and Haeusler. The appellant told him that they had been raided by the police and lost all the phenylacetic acid. Launt was also told he was not being paid because the chemicals supplied "were not any good and they couldn't do anything with it". During the rest of 1996 Kalache and the appellant purchased approximately 100 litres of hydriodic acid from Launt at $500 a litre. 53 On 12 May 1998 Launt's property was searched. There were seized empty imported 40 kilogram phenylacetic acid that contained the product supplied to Kalache in 1995, various drums of home-made phenylacetic acid labelled "PAA" that actually contained benzoic acid, black 20 litre plastic drums of reducing agents with home-made labels and spare printed labels of similar compounds previously supplied by Launt to Kalache, the appellant and Haeusler during 1996. 54 It is in the context of this material that the appellant pleaded guilty to counts 4 and 5. The facts sheet was not challenged. The appellant in his affidavit of 29 July 2002 concedes that he was involved in the acquiring of chemicals but said he was not involved in the cooking process. He said further that he was not aware of any manufacturing process taking place at the time he acquired the chemicals. This last statement by the appellant in his affidavit defies belief and is entirely inconsistent with those parts of the facts sheet that I have set out. I have no hesitation in rejecting it. In my opinion, Judge Woods correctly concluded in his remarks on sentence that the appellant played a significant role in manufacturing and supplying methylamphetamine over several years. The application to change the pleas to counts 4 and 5 should be rejected.

Sentence 55 In my opinion, the sentence of 13 years imprisonment imposed for the offence charged in count 1 is excessive and should be quashed. It is appropriate that the Court re-sentence the appellant on this count. Judge Woods sentenced the appellant pursuant to the provisions of the Sentencing Act 1989 as then in force. When this Court re-sentences it is obliged to do so in accordance with s44 of the Crimes (Sentencing Procedure) Act 1999; see R v Carrion (2000) 49 NSWLR 149. In doing so I am conscious of the seriousness of the charge but take account of the fact that the appellant pleaded guilty to it. I also take account of the seriousness of the charge on the Form 1. This requires that the sentence imposed reflects both the seriousness of the charge for which the appellant is to be sentenced and of the offence to be taken into account; R v Bavadra (2000) 115 A Crim R 152. In this case the seriousness of the Form 1 charge requires that the sentence passed be greater than that which would have been appropriate for the offence charged in count 1 standing alone; compare Vougdis & Rossides v R (1989) 41 A Crim R 125 and see generally R v Perese [2001] NSWCCA 478. I accept that the appellant is entitled to expect that the sentence imposed for the offence taken into account would be less than if it had been separately prosecuted. I take account of the subjective matters related in Judge Woods' remarks on sentence. As has often been said, such matters are not of high significance in sentencing for an offence of this character. In my opinion, taking account of these matters the appropriate sentence is 9 years imprisonment. 56 Judge Woods said that he had regard to the sequence of events encompassing all the counts as being in a related period in the appellant's life. He said: "The common factors of associates, the nature of the drug and continuing involvement makes concurrent sentencing appropriate." I do not regard it as so. In my opinion, in approaching each offence separately and fixing an appropriate sentence for that offence, the question of whether the sentences should be concurrent or cumulative or partially cumulative must take account of the totality of the sentence for all the offences charged. The offence charged in count 1 was for supply of a large commercial quantity. The offences charged in counts 2, 4 and 5 were for manufacture of a large commercial quantity and in count 3 for supply. None of those sentences is challenged. The appropriate overall sentence is achieved by a partial cumulation so that the term of 9 years imprisonment imposed for the offence charged in the first count commences on 10 November 2002, the expiry date of the shortest of the fixed terms imposed, that is to say the term imposed for the offence charged under count 3. It will expire on 9 November 2011. 57 Judge Woods was of the opinion that there were no special circumstances. No reason was given for extending the minimum term beyond 9 years and 9 months to 10 years. The fact that the sentence is now partially cumulative is a special circumstance, which enables the non-parole period to be less than three-quarters of the term of the sentence. It is appropriate that the Court impose a non-parole period of 6 years to expire on 9 November 2008.

Orders 58 I propose the following orders: 1. Refuse leave to the appellant to change his pleas to counts 2, 4 and 5; 2. Quash the sentence imposed on count 1. In lieu thereof sentence the appellant on count 1 to a term of 9 years imprisonment to commence on 10 November 2002 and to expire on 9 November 2011 with a non-parole period of 6 years to commence on 10 November 2002 and expire on 9 November 2008. 59 HIDDEN J: I agree with Sheller JA. 60 HOWIE J: I agree with Sheller JA. **********

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