R v Rostami

District Court of NSW|2023-09-29

REMARKS ON SENTENCE

The offender is to be sentenced in respect of one count of manufacture prohibited drug greater than large commercial quantity, an offence pursuant to s 24(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The maximum penalty prescribed for the offence is life imprisonment, and there is a standard non-parole period prescribed of 15 years imprisonment.
The offending occurred between 15 January 2020 and 29 June 2020 and the prohibited drug was 1,793g of methylamphetamine. The large commercial quantity proscribed for methylamphetamine is 0.5kg.
The offender entered a late plea of guilty after the matter had been listed for trial and at the time of the sentence hearing had spent 2 years 7 months and 22 days in custody.
There were three co-offenders involved in the criminal enterprise. Vahid Saeidi, the partner of the offender who was sentenced on 16 December 2022 to 8 years imprisonment with a non-parole period of 5 years commencing on 29 June 2020. Hamid Heidari was sentenced on the same day to an Intensive Corrections Order for 2 years, commencing on 16 December 2022 and Saia Fapuiaki was sentenced on 4 August 2023 to an Intensive Corrections Order for 2 years, commencing on 4 August 2023. Principles of parity in sentencing therefore are applicable to the sentencing of the offender.

The sentence hearing

The sentence hearing took place on 29 September 2023. The Crown Sentence Summary became Exhibit A and it included an agreed statement of facts relating not only to the involvement of the offender but extending to the whole criminal enterprise. So far as those facts apply to the offender, they may be summarised as follows.
The offender who was born on 13 September 1996 was in a relationship with Saeidi who was born on 9 December 1990. The offender had a daughter who was 6 years of age at the time of the offending. The Crown accepts that the offender acted at all times under the direction of Saeidi and also that she may not have known the exact quantity of prohibited drugs produced within the large commercial range.
The agreed facts described a process by which bulk methylamphetamine is mixed with other materials in salt form and may be subject to a process of extraction where the solid material is broken into smaller pieces and pulverised into powder form. The methylamphetamine is then extracted by soaking the material in an appropriate solvent.
In January 2020, Saeidi and Fapuiaki jointly imported furniture which was stored at a storage unit rented by Saeidi at St Marys. The furniture was broken up into pieces on 31 January 2020 and loaded into the rear of the offender's vehicle.
On 31 March 2020 Saeidi and Fapuiaki imported another consignment of furniture which was prepaid in the sum of $87,780 and sent via airline from Dubai.
On 6 April 2020 Saeidi and the offender were captured on CCTV receiving a delivery of a dining room table from a courier. On 3 June 2020 the offender and Saeidi had several telephone conversations in which he told the offender that he was trying to organise money to send to Iran "to see if they will give them the merchandise or not". He said he was about to get the money together and she asked, "Why didn't Hamid bring the money today?" to which he replied, "that we give 2 kilos and we keep half a kilo for ourselves".
On 16 June 2020 Saeidi and Fapuiaki imported a further consignment with eight pieces of furniture from United Arab Emirates. The consignment had a gross weight of 3,435kg and was prepaid in the sum of $182,942. On 17 June 2020 police and Australian Border Force officers examined the furniture and extracted a white/brown coloured crystal from within it. Forensic testing demonstrated the crystal was methylamphetamine with a purity of 69% to 70%.
On 16 March 2020 Saeidi and the offender attended Bunnings Warehouse at Minchinbury and purchased eleven 1kg tubs of caustic soda. On 14 April 2020 they attended another Bunnings Warehouse and purchased a security camera, a storage barrel, batteries, an imitation camera, hoses and an extension. On numerous other occasions Saeidi had purchased chemicals and equipment to be used in the extraction of methylamphetamine. Prior to 6 April 2020 Saeidi had rented a storage unit at St Marys and on 6 April 2020 was captured on CCTV receiving delivery of a dining room table from a courier and placing it in that storage unit.
On 9 April 2020 Saeidi vacated the St Marys storage unit, however on the same day Fapuiaki rented a different storage unit at St Marys. On 26 April 2020, Saeidi and Fapuiaki were observed to be mixing a number of items in those premises and then placing the contents of the bucket into white plastic bags. On 7 May 2020 Saeidi and Heidari were observed to be extracting materials in the same premises. On 9 May 2020 the offender, together with Saeidi and Heidari, brought 20L drums and a gas bottle to those premises where they burnt an object and mixed substances using power tools. They were observed to put powder into sieves and poor water into steel pots in a process that took place for three hours. Saeidi and Heidari continued that process on 10 May 2020 over a period of 4 hours. The offender joined them half an hour before they finished and assisted in removing all of the equipment from the unit. They then swept and hosed down the unit.
On 10 May 2020 the offender and Saeidi discussed a fire, and had a further conversation where the offender asked Saeidi whether she should take the tools and place them in a garage. She told him to "remove all the risky stuff out of the area that contained the fire." She called him and told him that she heard sirens and that he should "get the hell out of there". Saeidi then told Heidari that they should leave.
Further telephone conversations took place between Saeidi and the offender on 11 May 2020 in which he told her that he had "dumped it all in the garage" and that he had "lost $20,000 worth of stuff which had been burned".
On 22 May 2020 police executed a covert search warrant at the premises. Several samples were seized and were found to contain methylamphetamines.
On 16 February 2022 a forensic chemist provided the following expert opinion in relation to those premises:- "a. That activities observed in covert surveillance video from the premises are consistent with actions to manufacture methylamphetamine by extraction. b. That items found at the premises are associated with actions to manufacture methylamphetamine by extraction."
At all relevant times the offender and Saeidi rented premises in Ultimo, being a two bedroom apartment. On 10 May 2020 they were observed with Heidari entering the lift from the carpark of the premises with the two men carrying a gas bottle and garbage bag and a gas burner hot plate in a garbage bag.
On 12 May 2020 the offender and Saeidi had a telephone conversation in which she asked if he was "filtering", to which he said, "no I am still boiling".
On 20 May 2020 a further telephone conversation took place between the offender and Saeidi in which he told her about "the blue ones" and asked her if he should bring them to her. The offender told him to bring them to her to boil them outside. On the same day, Saeidi called the offender and told her about a process for extracting the methylamphetamine. Further telephone conversations took place between the offender and Saeidi on 21 May 2020 and 26 May 2020 about the extraction process. On 31 May 2020 Saeidi was observed to take two drums of chemicals and other items into the apartment. He was also observed to carry a white bucket containing a hotplate and a bottle of acetone to the unit and later loaded three 20L drums of chemicals into a push trolley and a white bucket which were taken into the unit.
On 31 May 2020 Saeidi sent the offender an SMS giving her instructions for use of the acetone in the extraction process. On the same day Saeidi told Fapuiaki in a telephone call to help his wife. He also told Fapuiaki that he would tell the offender to pay him on time.
On 1 June 2020 the offender and Saeidi had a telephone conversation in which she told him she had spilt something on the floor and it appeared to be frothing. He gave her instructions as to the extraction process. On the same day the offender sent Saeidi a photograph depicting a clear plastic bag with a large amount of a clear crystal substance within a set of electronic scales. The weight was 424g.
On 2 June 2020 the offender and Saeidi had several telephone conversations in which she told him what she had done with the mixtures and he gave her further instructions.
On 6 June 2020 the offender and Saeidi had a telephone conversation in which he told her to buy acetone and that she was doing the process incorrectly. She said that she was "so high".
On 7 June 2020 the offender and Saeidi entered the apartment complex and Saeidi took white buckets with blue lids and drill bits from the boot of their vehicle to the apartment. He also took two boxes containing bottles of isopropyl alcohol into the apartment.
On 14 June 2020 the offender and Saeidi were observed to enter the carpark where Saeidi loaded eight 20L drums of chemicals from one car to another. They were also observed at the unit on 16 June 2020 with various items including white buckets with blue lids and smaller white buckets of liquid. On the same day they had a telephone conversation in which Saeidi asked the offender if there were a few left, he told her to dry them and add the solution.
On 17 June 2020 Saeidi and the offender were observed to leave the apartment and transfer two 20L drums of chemicals and two white buckets between vehicles before they left the premises.
On 20 June 2020 the offender and Saeidi were observed to take seven 20L drums of clear chemicals to the unit. Some four and a half hours later they left the unit.
On 30 June 2020 police executed a search warrant at the apartment and located buckets containing liquids ranging from clear to blue in colour. They located LPG bottles attached to portable cooktops sitting on the floors of the foyer and lounge room. The toilet contained several plastic buckets containing various liquids. Police observed a single bedroom containing a sheet on the floor with a quilt and a couple of pillows together with a child's toy. Police seized multiple Bunnings' receipts, a female wallet, paperwork in the name of Saeidi, an invoice and correspondence concerning damage to the storage rental units. Also seized were various quantities of methylamphetamine (1.03g, 97g and 1.5g) together with $10,050 in Australian currency in the living room and $75.10 in the female wallet.
Various other items were seized on 16 June 2020.
Forensic evidence implicating the offender was located as follows:- 1. Her DNA was located in a mixed DNA profile taken from a tape lift from the interior of various dust masks. 2. Her DNA was located in a mixed DNA profile located on pillows, a jumper and jeans. 3. Her DNA was located in a mixed DNA profile taken from a swab of the interior of a glove.
On 8 October 2021 expert opinion was obtained to the following effect:- "a. Items found are associated with actions to manufacture methylamphetamine by extraction and/or refinement. b. That a considerable amount of waste related to the manufacture of methylamphetamine by extraction and/or refinement was present. c. A large commercial quantity of methylamphetamine had been manufactured."
It was an agreed fact that the total net weight of pure methylamphetamine manufactured at the premises at Ultimo was 1,793g.
In addition, the offender and Saeidi were observed to attend premises at Werrington on 6 and 7 April 2020. On 29 June 2020 police executed a search warrant at those premises which was a two storey townhouse with an attached garage. Amongst other things, police seized invoices to the offender for various items. Police seized a total of 33 samples from the site which were tested and found to contain methylamphetamine and several other chemicals. On 8 October 2021 expert opinion was obtained that the premises contained items associated with actions to manufacture methylamphetamine.
Exhibit A included the criminal antecedents of the offender which referred to a number of historical matters but no previous similar offending.
Exhibit A also included a Sentencing Assessment Report ("SAR") under the hand of Ms A Pereira dated 17 July 2023. The author noted that the offender intends to reside with her mother and step-father upon her release from custody. Her daughter was currently in the custody of her paternal grandmother. She also described having a supportive and close friendship with Saeidi whom she had married in 2019. The author noted that the offender reported that two weeks prior to her arrest her husband was "gone and that he had left her."
The author noted that the offender had incurred no less than 15 institutional misconduct charges whilst in custody. Under the heading "Attitudes" the offender had stated "I do not agree with manufacture, I agree with extraction as it was extraction." She also disputed the weights of the drugs found and alleged that it was all made by her co-offenders. She had claimed that her husband could not secure employment due to not having a visa, that he was in a lot of debt and in danger from their co-offenders. She also claimed that he worked in construction and when they went to Bunnings together, she was "oblivious" and assumed he purchased items for work.
The offender also alleged that she was involved for four weeks; "two weeks of awareness and two weeks of assistance and prior to this, she was aware her husband was "up to no good" but did not know what it was."
The author noted that on numerous occasions the offender argued that she did not know what she was doing, she was unsuccessful in the drug extraction and her husband would "tell her off" for doing it wrong. She was adamant that she did not get involved for financial gain but made an irrational and impulsive decision to help her husband as she would "do anything to make him happy". She claimed that she was not thinking at the time, she did not consider the consequences and that this was out of character for her.
The author noted that the offender claimed she had been diagnosed with Complex Borderline Personality Disorder ("CBPD"), however Justice Health were unable to confirm this. It was confirmed that she had been diagnosed with Post-Traumatic Stress Disorder ("PTSD"), anxiety and Attention-Deficit Hyperactivity Disorder ("ADHD"). The offender reported that at the time of the offending she was anxious and not sleeping.
Under the heading "Insight into impact of offending" the offender had stated, "I hate drugs and I was concerned about the impact it would have on the community" and that "people get hurt, lives get hurt and lives fall apart". The author opined that the offender appeared to have little insight into the impact of her offending, attributing it to the importance of her relationship with her husband and her mental health. She acknowledged that she has hurt her family and her daughter.
The author noted that the offender was willing to undertake any required intervention to address her offending behaviour. She was assessed as a low-medium risk of reoffending.
Exhibit A also contained the agreed facts and criminal history for the three co-offenders together with the remarks on sentence of Saeidi and Heidari on 16 December 2022.

The offender's evidence

The offender relied on a bundle of documents which became Exhibit 1.1 to 1.16. Exhibit 1.1 was the draft agreed facts signed by the offender, as summarised above.
Exhibit 1.2 was a report from Mr T Watson-Munro dated 26 September 2023. Mr Watson-Munro is a psychologist who first interviewed the offender on 1 September 2020 in respect of a pending bail application which was unsuccessful. The offender was eventually released to bail in October 2021 but returned to custody in May 2022. She was reviewed by Mr Watson-Munro on 5 July 2023.
The offender alleged that she had been assaulted by a prison officer whilst in custody following which she had been diagnosed with Complex PTSD which related to exposure to numerous traumatic events since her childhood, including domestic violence, childhood abuse and being the victim of a violent rape at the age of 16 years. Her symptoms of anxiety, depression and hyper-vigilance had escalated while she has been custody. Her daughter is now in the care of her paternal grandmother however she has not had any physical contact with her. She gave a history that at the time of the offending that she was abusing alcohol but she had no history of illicit drug abuse.
Mr Watson-Munro noted that she had been prescribed psychotropic medication including Catapres, Olanzapine and Sertraline. He opined that "her fragile mental state impacted upon her judgment and overall cognition with her tending to interpret her environment in a subjective fashion according to her emotional state and underlying insecurities." He opined that it was consequently arguable that there was a connection between her mental health history and her involvement in the offences.
Mr Watson-Munro set out a treatment plan, including a combination of Cognitive Behaviour Therapy ("CBT") and supportive and motivational psychotherapy. He opined that her risk of recidivism will continue to trend from moderate to low.
Exhibit 1.3 was Mr Watson-Munro's earlier report dated 2 September 2020 in which he set out her exposure at a young and vulnerable age to a range of traumas. She was assessed at that time as suffering symptoms of a Depressive Disorder.
Exhibit 1.4 was a letter to the Court from the offender's mother who confirmed that the offender had been exposed to domestic violence at a young age. The offender's mother suffers from a severe visual impairment. Following their move to Australia in 2009, when the offender was 12 years of age, their relationship deteriorated and her mother acknowledged numerous layers of trauma sustained by the offender throughout her formative years and her undiagnosed BPD. Her mother described the offender's period in custody as a "profound learning experience" for both of them and expressed optimism that with the right medical treatment and unwavering community support the offender can make a positive contribution to the community upon her release from custody.
Exhibit 1.5 was a letter to the Court from the offender's mother's partner Mr R Silberer. He described in detail the assistance provided by the offender to both her mother and himself, having been diagnosed with Multiple Sclerosis.
Exhibit 1.6 was a letter from the chaplain at Silverwater Women's Correctional Centre who described the offender as being exemplary in her attitude towards herself and other inmates. She had taken part in programs to deal with her grief and was described as a very caring person who was willing to help other inmates.
Exhibit 1.7 was a letter from Ms H Goltzoff from the Justice Advocacy Service confirming that the offender had been a client of that service since 31 July 2020.
Exhibit 1.8 was a letter from Ms M Vaifale, caseworker from the Salvation Army, which outlined support for the offender in assisting her with rental assistance.
Exhibit 1.9 was a letter from Mr P Nichols from Silverwater Women's Correctional Centre confirming the offender's completion of the Addiction Support Program and describing her participation as "of a high standard". Exhibit 1.9.1 was a letter certifying that the offender had been attending weekly counselling sessions by Victims Services since 19 April 2023.
Exhibit 1.10 was a letter from Ms B Reader confirming that the offender had, since August 2023, been attending weekly counselling sessions to assist her in dealing with childhood trauma. The offender was described as having suffered "ruptures in attachment throughout her childhood as well as abandonment by significant others".
Exhibit 1.11 to 1.13 comprised various certificates of attainment together with a transcript of a TAFE Academic Record for a 2022 course for Certificate I in Skills for Vocational Pathways.
Exhibit 1.14 was a bundle of Justice Health Clinical Notes, a number of which are referred to below.
Exhibit 1.15 was a letter of apology from the offender in which she took full responsibility for her criminal conduct. She acknowledged the damage done to the community by the drug ice and described her participation by stating, "I have been a complete fool". She also acknowledged the suffering that she had caused to her loved ones and expressed her shame for that. The offender also expressed that she had done courses to better herself and had plans to continue her studies and get back to work as a dental nurse following her release from custody.
Exhibit 1.16 was an affidavit sworn by the offender's solicitor Mr D Velcic setting out the offender's various periods of time in custody, the fact that she had been located in four separate correctional centres and subject to COVID-19 lockdowns with limited provision for family visits and restrictions on the use of AVL tablets for communication with family and friends.
Exhibit 2 comprised a CT scan of the offender's head dated 17 January 2022. The report concluded:- "There is a small cluster of subcortical calcification in the right frontal lobe which can be related to prior traumatic injury, infection or haemorrhage."
Also included in Exhibit 2 was an MRI scan of the offender's brain dated 4 February 2022 which concluded:- "Area of a dephasing of right frontal white matter corresponding to the area of calcification seen on the CT dated 17/01/2022. Likely cause is a small vascular malformation or possibly the sequela of prior infection or haemorrhage."

The Crown submissions

The Crown relied on a detailed written outline of submissions which noted that the offender was entitled to a utilitarian discount of 10% for her plea of guilty.
The Crown submitted that the criminal enterprise as a whole was a sophisticated one involving significant amounts of money. By her plea the offender accepted that she knew she was participating in a joint criminal enterprise to produce a large commercial quantity of methylamphetamine. Whilst she may not have known the exact quantity of the methylamphetamine that was produced (within the large commercial range) the offender was aware that she was participating in a significant and sophisticated criminal enterprise. The Crown submitted that because of her relationship with Saeidi there could be no reasonable doubt that the offender was fully aware of the scale of the enterprise. The offender was actively involved in the drug manufacturing process on numerous occasions between 31 January and 30 June 2020. The Crown noted that the offender had sufficient knowledge of the extraction process to be left alone without supervision to carry it out.
The Crown submitted that the offender was in a position of trust in respect of Saeidi and that she was in effect his "number two". She was trusted enough to know the details of the financial transactions. The phone calls referred to in the agreed facts indicated the level of Saeidi's trust in the offender.
The Crown referred to the photograph sent by the offender to Saeidi on 1 June 2020 of a clear plastic bag with a large amount of clear crystal substance on a set of scales showing a weight of 424g as proof that the offender was fully aware of the large-scale criminal enterprise.
The Crown referred to well established sentencing principles for drug manufacture offences, in which general deterrence and the protection of the community are important, referring to Parente v R (2017) 270 A Crim R 412 [2017] NSWCCA 284 at [72].
In his oral submissions, the Crown submitted that in assessing the objective seriousness of the offence the Court would take into account that the offender was involved to a very significant degree in the process of extraction of the drugs. The Crown submitted that the offender has attempted to downplay her role in the criminal enterprise, to the author of the SAR, to her psychologist and to Justice Health. It was submitted that she was prepared to manipulate those people about her involvement, which was not consistent with the agreed facts. For example, she told the author of the SAR that she had been involved for a period of 4 weeks. She also downplayed the scope of the enterprise.
The Crown rehearsed its submissions that the offender knew the extent of the criminal enterprise, that she knew others were involved, and that she knew the items were imported because she was there when they were delivered. She also discussed the financial aspects of the operation with Saeidi, and knew the number of premises used. In her telephone conversation with Saeidi on 3 June 2020 they had discussed past and future importations and the very large scale of the enterprise. Further, she was trusted by Saeidi to pay one of the others involved in the extraction process. By telling Justice Health employees that she was "just there when it was being cooked" she misstated the evidence that she was actively involved in the extraction process. It demonstrated a willingness to be untruthful about her role.
The Crown further submitted that by telling the author of the SAR that she was worried that Saeidi would leave her was a lie. She had also lied about her understanding of the purchase of chemicals at Bunnings on 16 March and 14 April 2020. On 6 June 2020 in a telephone call from Saeidi, he had told her to bring acetone, a chemical used in the extraction process. The Crown submitted it was an untenable position that she didn't know what the chemicals were for. By telling the author of the SAR that she initially thought the purposes were for Saeidi's work in construction, the Crown submitted that she was lying. Similarly, her characterising of her involvement as "impulsive and irrational" was not borne out by the fact that the process took place over a period of months and there were multiple opportunities for her to consider her position. In the multiple phone calls with Saeidi she was aware of the illegalities and no doubt the significant role she had in actively furthering the criminal enterprise. The Crown submitted that she knew exactly what she was doing.
With respect to the subjective case of the offender, the Crown submitted that the Bugmy factors relied on by the offender of her deprived background did not amount to profound childhood deprivation. Rather the evidence demonstrated that she was a high achiever and had excelled in Years 11 and 12 at school. Whilst the Crown did not dispute that she suffered some hardship in her life, it submitted that the Bugmy principles were not enlivened.
The Crown submitted that the offender was willing to leverage her mental health issues to enable a better outcome of the sentencing process. The Court would be guarded in its assessment of the psychological evidence, particularly in relation to the history she had given to Mr Watson-Munro of being stabbed by a cellmate, whereas in fact she had been punched in the face.
The Crown submitted that there was no causal connection between her mental health issues and her offending conduct. In fact she was working as a dental nurse and studying at the time of the offending. She had excelled at school and had led a perfectly normal life. There was therefore no supporting evidence for a nexus to be established between any mental health issues and the offending. Rather, the offender was very influenced by Saeidi, a matter that did not give rise to a causal connection, nor did it diminish her moral culpability. The Crown submitted general and specific deterrence still had a significant role to play in sentencing here. Further, the Court would be guarded as to her prospects of rehabilitation given her lack of insight and remorse, her attempts to downplay her role in the organisation and also the infractions she incurred whilst in custody.
The Crown referred to the testimonials relied on by the offender and submitted that she will have some support in the community when she will be released from custody. In respect of special circumstances, the Crown submitted that there must be some purpose for a finding of special circumstances so that the extra time under supervision will assist. That was not the case here. Even the impact of the COVID pandemic on the prison population has changed in the last year. The Crown submitted the Court would also treat with some caution the evidence of the offender's solicitor as to the conditions of her custody. General and specific deterrence have an important role to play, particularly as the offender was willing to act at the behest of Saeidi which the Crown submitted will resume upon her release. Denunciation of her role was also important. The Crown conceded the time spent in custody means that her sentence will commence on 6 February 2021.

The offender's submissions

Counsel for the offender submitted that the objective seriousness of the offending was below mid-range and at the lower end because of the following factors:- "(a) Limited duration (5 months) (b) Limited participation amongst other people involved in the enterprise (c) Not motivated by financial gain (d) No financial benefit received by offender (her wallet contained $75.10 at the time of arrest) (e) The offender acted at all times at the direction of her partner, Saeidi, a principal offender in charge of the manufacturing enterprise (f) The offender was unaware of the amount of the quantities being manufactured by extraction (g) The offender's motivation was driven by the marital context of her relationship with principal offender Saeidi (h) There was a lack of sophistication in the manner of offending being an extraction process which did not require high technical skills or equipment and that the offenders were captured on CCTV and engaged in regular telephone discussion openly."
Counsel submitted that the offender's plea of guilty was indicative of remorse and acceptance of responsibility together with a willingness to facilitate the course of justice. It was submitted that the plea was worthy of greater weight in mitigation and amelioration of sentence given that it was entered during the currency of the pandemic, relying on Perrin v R [2021] NSWDC 408 at [120].
Counsel relied on the offender's diagnosis of a severe and recurring depressive disorder as well as developing symptoms of PTSD as outlined by Mr Watson-Munro. The offender had also been diagnosed in March 2023 with BPD and was accordingly a less appropriate vehicle for general deterrence. It was also submitted that reduced weight should be given to the objects of denunciation and punishment and that a custodial sentence may weigh more heavily upon her.
Counsel referred to the offender's deprived background which had compromised her capacity to mature and learn from experience. The Court should give full weight to the application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and reduce her moral responsibility, relying on R v Millwood [2012] NSWCCA 2 per Simpson J at [69].
Counsel submitted that the offender has reasonable prospects of rehabilitation. She was now 27 years of age and had expressed remorse and acknowledged responsibility for her offending. She was motivated to improve her lifestyle and relationship with her family and expressed a willingness to undertake interventions to address her offending behaviour and mental health issues. She had already undertaken steps towards self-improvement and rehabilitation by engaging in courses and programs whilst in custody. She was assessed as a low-medium risk of reoffending.
Counsel also advocated a finding of special circumstances, having regard to a need for ongoing supervision, support services and treatment therapies so as to foster her lawful return to the community.
It was also submitted that the offender would suffer significant hardship in custody due to the impact of the COVID-19 pandemic on the prison population.
In his oral submissions counsel for the offender submitted that the offender had not minimised her role in the offending but had tried to put her best foot forward. The Court would have regard to her severe and recurring depression and diagnosis of BPD.
In assessing the objective seriousness of the offending, the Court would have regard to the range of activity undertaken in the period of five months from January to June 2020 and the offender's limited participation in the criminal enterprise. Whilst there were four offenders involved there were clearly people above the offender and her co-offenders in the criminal enterprise.
It was submitted that like the Sentencing Judge's criticism of the agreed facts in R v Drever [2022] NSWDC 563 there was very little detail in the agreed facts here of what the offender actually did. The telephone calls outlined in the agreed facts indicated that she was at a lower level than Saeidi and others. In those calls she was asking for information about the extraction process. It was submitted that there was no evidence that she had a close knowledge of the financial details of the enterprise, as submitted by the Crown. Nowhere in the agreed facts was there any evidence about monetary transactions. Further, there was no evidence of chattels or property being acquired by the offender or of a lavish lifestyle. Rather a sum of $75.10 had been found in the offender's wallet upon execution of the search warrant.
Further, it was submitted that the offender was not motivated by financial gain. Rather her participation was explained by her deprived background and psychological makeup. She was a particularly vulnerable woman with abandonment issues. In the circumstances it was not surprising that she would do what was necessary to maintain the relationship with her dominant partner, Saeidi. The Crown had conceded that she acted at all times at the direction of Saeidi. The objective seriousness of the offending of Saeidi had been found to be just below mid-range and the objective seriousness of Heidari's offending was held to be well below mid-range.
Counsel submitted that the extraction process undertaken was relatively unsophisticated. It did not for example require the sophisticated equipment to cook up methylamphetamine. The offender and co-offender's movements were regularly captured on CCTV and they had discussed their plans openly on their mobile phones. These matters justified a finding of objective seriousness below mid-range.
There was no issue that the offender was entitled to a 10% utilitarian discount in respect of her plea of guilty. That plea had facilitated the course of justice by avoiding a long trial.
It was submitted that general deterrence should be given diminished significance because of the offender's mental health issues and any custodial sentence would weigh more heavily on her than the general prison population. Further, counsel relied on the report of Mr Watson-Munro to demonstrate the offender was highly vulnerable. She had witnessed domestic violence at a very young age and family dislocation including abandonment by her mother and sexual abuse at the age of 15 years. All of these matters were sufficient to ground a finding of profound deprivation. She had since suffered ongoing domestic violence by various partners and had received a diagnosis of PTSD, requiring psychotropic medications. It was submitted there was an arguable connection between her mental health issues and her criminal offending.
Counsel rehearsed his submissions that a custodial sentence will weigh much more heavily on the offender than the general prison population. She also had reasonable prospects of rehabilitation and had expressed remorse in her letter to the Court. Counsel referred to specific notations in the Justice Health records that demonstrated she was motivated to improve herself. She had also completed some courses whilst in custody during the most difficult years of the pandemic where participation in courses was limited.
Counsel rehearsed his submissions concerning a finding of special circumstances which would enable her opportunities for supervision and treatment to assist in her productive return to the community.
Counsel emphasised that a period of almost 2 years and 8 months was a long time to serve on remand, particularly throughout the difficult years of the COVID-19 pandemic which involved exceptional hardship. Counsel submitted that any sentence would be less than that imposed on Saeidi which would warrant her early release.

Determination

S 3A of the CSPA sets out the purposes of sentencing as follows:- "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community".
In assessing the objective seriousness of the offending I have had regard to both the role of the offender and her conduct over a period of 5 months to the extent that it may be distilled from the agreed facts which recite a large amount of the evidence of the criminal enterprise. The offending occurred over a period of 5 months which could not be regarded as a short period of time. The Crown however has conceded that she acted at all times at the direction of Saeidi. I find that whilst the offender may not have known the exact quantity of methylamphetamine produced within the large commercial range, she was aware at all times that she was participating in a significant and sophisticated criminal enterprise involving three other co-offenders and taking place in different premises. Further, she was left unsupervised at times to carry out the extraction process and whilst there is no evidence that she derived financial benefit herself, she was aware of some of the financial aspects of the operation as was discussed in various telephone conversations between herself and Saeidi. It is axiomatic that offences concerning the production of large commercial quantities of prohibited drugs are carried out for financial gain, and in most cases for egregious profit. S 24(2) of the DMTA contemplates a very wide range of criminal conduct concerning the manufacture of prohibited drugs and I find the objective seriousness of the offending here fell below mid-range, and in the middle of the low range for an offence under that section. It still constituted very serious criminal offending.
It is a mitigating factor that the offender was otherwise a person of good character with no relevant criminal history which does entitle her to some leniency in the sentencing process.
General deterrence is a significant factor in sentencing for drug manufacture offences. A clear message must be sent to likeminded members of the community that Parliament has prescribed heavy maximum penalties and standard non-parole periods (for this offence life imprisonment and a standard non-parole period of 15 years imprisonment) and that the courts will impose condign punishment in appropriate cases. The manufacture of highly addictive prohibited drugs supports a culture of drug taking which causes inestimable harm and hardship in our community including under-pinning further criminal activity, undoubtedly driven by the large financial gains derived from such activity. Specific deterrence is also important, in that offenders must understand that they may face long terms of imprisonment for repeated offending.
I have taken into account the maximum penalty and standard non-parole period as set out above as a guidepost in the sentencing process.
I have also taken into account that the offender is entitled to a 10% utilitarian discount on sentence in respect of her plea of guilty.
There are significant subjective factors to be taken into account here. As a child the offender was exposed to domestic violence and dislocation which left her with abandonment issues. She was also a victim of a sexual assault at a young age and has been diagnosed with depression, PTSD and BPD. Each of these matters diminishes her moral culpability for the offending. In Hoskins v R [2021] NSWCCA 169, Brereton JA said at [57]: "There is no magic in the word 'profound', and it is not necessary to characterise an offender's childhood as one of 'profound deprivation' before the principle is engaged. The principle is that social disadvantage may reduce an offender's moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus, the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and pre-meditation is involved, such as cultivation and drug supply matters. However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending."
On the available evidence I find there is no causal connection between the offender's mental health issues and her offending conduct. The offender's mental health issues together with her history of deprivation do however provide context for her offending conduct in terms of participating in criminal conduct at the direction of Saeidi in what she acknowledges was foolish offending conduct.
In DPP (Cth) v De La Rosa [2010] NSWCCA 194, McClellan CJ at CL set out at [177] the following principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental health problems as follows:-

"Where the state of person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].
It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].
It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].
Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."

Consistent with those principles I find that the offender's moral culpability for her offending is reduced having regard to her subjugation to Saeidi. Having regard to the offender's mental health issues I find that the significance of general and specific deterrence in sentencing is somewhat diminished and that she will find incarceration more onerous than the general prison population.
I accept that the offender has expressed remorse in her letter to the Court for her offending conduct and to others. She has progressed her rehabilitation by undertaking courses in custody and has good motivation to rehabilitate so as to regain custody of her child. I therefore find that she has reasonable prospects of rehabilitation and I accept that she is a low risk of recidivism.
I find that there are special circumstances established pursuant to s 44(2) of the CSPA, as this is her first time in custody and whilst on remand she has suffered onerous custodial conditions as a result of the COVID-19 pandemic. Also relevant is her need for supervision for an extended period of time upon her return to the community.
I do not find that she is entitled to a reduction in sentence for facilitating the course of justice rather her plea was no doubt entered in the face of a strong Crown case. I do however intend to vary the ratio between head sentence and non-parole period to provide for an extended period on supervision. It is clear, given my finding of objective seriousness in the low range, that the standard non-parole period is not applicable.
The principle of parity is a principle of equal justice where like cases should be treated alike, and different cases differently - see Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. Thus in sentencing for the index offending I have taken into account the sentences imposed on the co-offenders and have identified the following differences from this offender.
The offender was 23 years of age at the time of the offending and had a six year old daughter. She acted under the direction of Saeidi who was 6 years older than the offender. Saeidi was found by the sentencing Judge to have a role in the criminal enterprise as that of the person in charge of the Australian part of the enterprise, likely working with other individuals based internationally. His role included making arrangements to facilitate the manufacturing process including receiving the consignments, leasing properties for their housing, moving the furniture to other locations, purchasing items and equipment to assist in the process of extraction, instructing and directing the co-offenders and being in regular telephone contact with them. Accordingly his role was held to be greater than that of his co-offenders and significantly so. Whilst the operation itself was not overly sophisticated, the objective seriousness of Saeidi's offending fell just below the mid-range, largely due to the lack of sophistication involved and the reasonably limited scale of the operation. The co-offender had one pre-existing conviction for an offence of breaching an AVO which occurred during the same period of time as this offending, and he received a 25% utilitarian discount on sentence for his early plea of guilty. Saeidi was sentenced for the same offence to a non-parole period of 5 years with a balance of term of 3 years commencing on 29 June 2020.

Orders

I hereby make the following orders:- 1. You are convicted of the offence of manufacture a prohibited drug greater than large commercial quantity pursuant to s 24(2) of the DMTA. 2. I sentence you to a non-parole period of imprisonment for 3 years from 6 February 2021 terminating on 5 February 2024. 3. The balance of term will be a period of 2 years and 6 months commencing on 6 February 2024 and terminating on 5 August 2026. 4. Your parole eligibility date will be 5 February 2024. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2023

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