R v Tran

District Court of NSW|2023-12-04|Before: Spiegelman CJ

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) KPT Defence Lawyers (Offender) File Number(s): 2022/00190063

INTRODUCTION

Van Toan Tran appears for sentence charged with three offences:

Sequence 1

Between 10 June 2022 and 29 June 2022, at Greenacre in the State of New South Wales, manufactured a prohibited drug, namely methylamphetamine, in an amount of 2,689.4 grams, being an amount not less than the large commercial quantity, contrary to s 24(2) Drug Misuse and Trafficking Act 1985 (NSW).

Sequence 3

On 17 June 2022, at Greenacre in the State of New South Wales, supplied a prohibited, drug namely methylamphetamine, in an amount of 1,000 grams, being an amount not less than the large commercial quantity for that drug, contrary to s 25(2) Drug Misuse and Trafficking Act 1985.

Sequence 4

On 20 June 2022, at Greenacre in the State of New South Wales, supplied a prohibited drug, namely methylamphetamine, in an amount of 561.8 grams, being an amount not less than the large commercial quantity applicable for that drug, contrary to s 25(2) Drug Misuse and Trafficking Act 1985.

ADDITIONAL OFFENCES

When sentence is determined for the offence charged to sequence 1, the offender asks the Court to consider six additional offences. The offender must be sentenced to a term of imprisonment that will provide appropriate punishment for the principal offence to which he has pleaded guilty, with an unspecified increase in the sentence synthesised upon the facts, the circumstances relevant to the principal offence and the conduct in the commission of the offences on the Form 1, the sentences thus to be determined without arithmetical precision or a specified period whereby the sentences are increased.
Having availed himself of this arrangement the offender has the benefit of not facing sentences of imprisonment for the additional offences. However, by clearing the slate in this way as it is described he has provided utility which must be brought to account. I do not overlook that it could not be said that the offender would not have been inculpated in these additional offences but for his acknowledgement that he committed them.
The relevant principles are found in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1991 No 1 of 2000 [2002] NSWCCA 518, specifically, the judgment of Spiegelman CJ.
The additional offences should impinge upon the sentence for the principal offence requiring an appropriate increase in the sentence that would otherwise be applied to the principal offence standing alone to reflect the aspects of deterrence and the community's entitlement to an appropriate response from the Court to the extent of the criminal behaviour upon which he engaged.
The additional offences are:

Sequence 2

On 10 June 2022, at Blacktown, supply of 105 grams of methylamphetamine to Feifei Luo, contrary to s 25(1) Drug Misuse and Trafficking Act 1985.

Sequence 5

On 29 June 2022 at Belmore, supply of 119.2 grams of methylamphetamine to Phatsakon Pannao, contrary to s 25(1) Drug Misuse and Trafficking Act 1985.

Sequence 7

On 29 June 2022 at Greenacre, possession of 10.5 grams of pseudoephedrine, a pre-cursor intended to be used in the manufacture of methylamphetamine, contrary to s 24A(1)(a) Drug Misuse and Trafficking Act 1985.

Sequence 8

On 29 June 2022 at Greenacre, possession of 578 grams of ephedrine, a pre-cursor intended to be used in the manufacture of methylamphetamine, contrary to s 24(1)(a) Drug Misuse and Trafficking Act 1985.

Sequence 9

On 29 June 2022 at Greenacre, possession of 125,437 grams of hypo-phosphorous acid, a pre-cursor intended to be used in the manufacture of methylamphetamine, contrary to 24A(1)(a) Drug Misuse and Trafficking Act 1985.

Sequence 10

On 29 June 2022 in Greenacre, possession of 61,478 grams of iodine, a pre-cursor intended to be used in the manufacture of methylamphetamine, contrary to s 24A(1)(a) Drug Misuse and Trafficking Act 1985.

PENALTIES

The maximum penalty for the offences charged as sequences 1, 3 and 4, is imprisonment for life and a fine represented by 5,000 penalty units with a standard non-parole period for the purposes of Part 4, Division 1A, Crimes (Sentencing Procedure Act) 1999 of 15 years.
The maximum penalties for the offences charged as sequences 2 and 5 is imprisonment of 15 years and a fine represented by 2,000 penalty units.
The maximum penalty specified for the additional offences charged as sequences 7, 8, 9, and 10 is imprisonment for 10 years and a fine represented by 2,000 penalty units.

PLEAS OF GUILTY

The pleas of guilty were on 9 August 2023 in the Local Court from which the offender was committed for sentence to this Court. His decision attracts a discount of 25% applied to the sentences he would have otherwise suffered for the utility of the pleas of guilty at that stage of the proceedings upon the application of s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999 (NSW).

PRE-SENTENCE CUSTODY

The offender was arrested on 29 June 2022 and has been in custody since. I shall in due course impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 backdated to then.

THE FACTS

The quantities specified in Schedule One, Drug Misuse and Trafficking Act 1985, for methylamphetamine are:
Trafficable quantity, three grams.
Small quantity, one gram.
Indictable quantity, five grams.
Commercial quantity, 0.25 kilograms.
Large commercial quantity, 0.5 kilograms.
There is a statement of agreed facts from which I have drawn the following summary:
The quantity of methylamphetamine manufactured was no less than 2,689.41 grams which is 5.48 times greater than the threshold for the large commercial quantity.
There is an overlap between the offence charged in sequence 1 and the offences charged in sequences 3 and 4 upon which sentence is to be imposed and the additional offences charged in sequences 2 and 5.
The methylamphetamine, the subject of those supply offences is part of the product with which the offender is charged as manufacturer. Thus, the total quantity of 2,689.41 grams is comprised of: 1. 780 grams of the drugs seized after the supplies to Luo, Husseini and Phatsakon Pannao; 2. 1,000 grams of the drug supplied to Pannao according to the offender's admissions to police; 3. 420.41 grams of the refined drug in solid state located at premises in Juno Parade Greenacre; and 4. 483 grams of the pure drug located in liquids at the premises in Juno Parade, Greenacre.

The Primary Sources of the Agreed Facts

The conduct of the persons mentioned was observed in the course of physical surveillance by police and by way of strategically located devices, closed circuit television security systems, and telephone intercepts.

The Premises at June Parade, Greenacre

The Greenacre premises were leased on 16 December 2021 in the name of Mohamad El Hassan.
On 18 January 2022, Pannao had four door lock cylinders replaced at the premises for which he paid $230.
On 23 January 2022, Pannao communicated with Muhammad El Hayek to have the grass at the property cut the following day before the afternoon because people were moving in.
On 27 January 2022, the offender rented a truck which he returned on 28 January 2022 at 11.34am. He told police that he helped Pannao move into the vacant property.

Mai Bao Nguyen

On 5 January 2022 and 2 February 2022 under the authority of warrants, communications between Mai Bao Nguyen and Pannao were intercepted.
On 4 February 2023, Nguyen arranged to meet Pannao at Canley Vale.
On 7 February 2022, Nguyen arranged to meet Pannao at "his" house. I do not know whether this refers to Nguyen's house or Pannao's house.
On 9 February 2022, using code, Nguyen complained to Pannao that the drug supplied was underweight.
11 February 2022, using code, Nguyen asked Pannao about a large amount of drugs in response to which Pannao said he had run out but would have some in a few days.
On 14 February 2022 using code, Nguyen organised the purchase of two ounces of drugs from Pannao, later arranged for 15 February 2022.
On 15 February 2022, Nguyen told Pannao to open up. At 8.32pm using code he complained to Pannao that the drugs were short‑weighted again. They should have weighed 58 grams and Pannao said next time he would attend to the preparation in front of Nguyen.
On 22 February 2022, Nguyen's vehicle was tracked to a carpark behind the Chester Hill Hotel where it arrived at 3.48pm. At 3.46pm Nguyen called Pannao and told him to come out. Thereafter the vehicle was tracked to the address of one of Nguyen's customers.

The Premises at Juno Parade, Greenacre

Between 10 and 17 March 2022, Pannao organised Muhammed El Hayek to mow the lawns.
Between 5 and 7 April 2022, an inspection of the property was arranged for 25 April 2022 with the communication from the property manager including that the grass was to be cut and the property made clean and tidy.
13 and 20 April 2022, Pannao organised Muhammed El Hayek to mow the lawns, to be completed before the following Wednesday and to be done properly as someone was coming to look at the place. The phone number for the tenant was confirmed; this was the offender's phone number.
25 April 2022, Pannao contacted the offender regarding the state of the premises. The conversation is included at para eleven in the agreed statement of facts. The offender told police that Pannao asked him to clean the house and he did. The tone of that conversation was consistent with Pannao exercising a measure of control or supervision over the offender in what he required of him at that point.
13 May 2022, closed circuit television captured the offender walking towards the premises.
19 May 2022 police saw three chemical drums, two chest freezers, a commercial size esky and hosing in the rear yard.
26 May 2022, the offender exited the property about 7.45am and returned about 1.34pm with a gas bottle.
26 and 27 May 2022, Pannao contacted Muhammed El Hayek to have him mow the lawns.

Meetings Between the Offender and Pannao

27 April 2022, Pannao organised to meet the offender at Canley Vale to deliver something. The conversation is included at para 17 of the agreed statement of facts. In that conversation the offender said amongst other things, "you got something there for me." Pannao said, "Yeah, I'll see you there. I'll be there soon."
26 May 2022 about 7.04pm, a hired van was tracked to Pannao's address in Woodland Road, Chester Hill.
27 May 2022: 1. About 4.30am, the offender attended the Juno Parade property. He left at about 8.57am and returned 5.56pm. 2. About 7.12pm, the offender travelled by taxi from near the Juno Parade premises. Security recordings from the vehicle captured the offender using three mobile phones including for a call with Pannao confirming that he was on the way and discussing where they will meet. That conversation is recorded at para 20 of the agreed statement of facts. 3. At 7.24pm, in a call from Pannao to the offender, they discussed where they are to meet and a delay in his arrival that was caused by traffic. 4. About 7.30pm, the offender left the taxi, Pannao left the Twin Willows Hotel, both walked through the carpark. About one minute later Pannao returned to the hotel. About 7.31pm, the offender entered the taxi carrying a white plastic bag. He later told police this contained a jar of liquid which Pannao instructed him to take to the Juno Parade property but it was not good and he threw it away.
28 May 2022, the offender drove a hired van from the Juno Parade property to Byloss Street, Chester Hill. At 4.30pm, Pannao travelled from his home to the same address, stopped opposite the van and entered it for about six minutes after which he drove away in his vehicle and the offender returned to Juno Parade where he remained until 8.35pm.
30 May 2022, a hired van was parked in the rear of the property at Juno Parade.
7, 8 and 9 June 2022, the offender's BMW motor vehicle travelled to and stopped in the vicinity of the Juno Parade property.
31 May 2022, Pannao purchased from a Bunnings store three 4 litre bottles of solvent, the receipt for which was found in the van when Pannao was arrested.

Covert Search Warrant at June Parade, Greenacre

10 June 2022 at 12.05am, the police located a clandestine laboratory in the Juno Parade property which included items and equipment for the manufacture of methylamphetamine. Samples tested included crystalline and liquid methylamphetamine. The police installed surveillance devices. The agreed facts include images of what was seen as equipment and product. Those images are on p 6 of 12 in the agreed statement. There is one depicting a pot with what appears to be fluid in it on a stove hotplate and another image depicts some of the other items observed by the police.

Supplies to Feifei Luo

27 May 2022, the offender arranged to meet Luo at an address in Baulkham Hills. After a message from her at 5.12pm, he attended there at 10.49pm. Her message is included at para 28. She said; "Hi brother I am so hungry and waiting for letter you all day three smiling emojis could you please let me know when you have arrived."
10 June 2022, the offender organised to supply Luo with methylamphetamine. About 6.02pm he drove from Juno Parade to an address in Blacktown and met Luo. He supplied her with 105 grams of methylamphetamine (Sequence 2 - additional offence). Luo was arrested. The offender told police he supplied the drug for $14,000; he had cooked the drug at Juno Parade; this was left over and Pannao did not know of it.

Meetings Between the Offender and Pannao

15 June 2022: 1. At 6.18pm, the offender's vehicle drove near the Juno Parade property and stopped. 2. About 7.36pm, Pannao travelled to the vicinity of the premises in a van from which he carried a weighted enviro bag to the side gate entrance of the property. I understand the phrase weighted enviro bag is meant to represent that the bag had something of significant weight in it. 3. The van was registered to Fatima El Makrai who was paid $500 about two years before by Ahmed Soukani to register the vehicle in her name. 4. At 7.52pm, Pannao returned to the vehicle with a small plastic bag and left. 5. When inside the premises at Juno Parade, the offender and Pannao were captured speaking, as was the sound of the offender's manufacture of methylamphetamine.
16 June 2022, Pannao called the offender and organised to meet the following day.
17 June 2022: 1. About 12.29pm, the offender entered the Juno Parade property. 2. Pannao drove from his home to the vicinity of the Juno Parade property in a white van. The offender approached the vehicle with a weighted green enviro bag and then returned to the property empty handed. 3. The offender told police that he handed Pannao about one kilogram or more of crystal methylamphetamine (Sequence 3 - for sentence).
Between 18 and 23 June 2022, Pannao communicated with Carrasco to attend the Juno Parade property to repair the fence.

Covert Entry of June Parade Property

On 19 June 2022, the police returned to enter the property and saw a number of items had been moved with two further items in place not seen previously. Images are included. These appear at p 7 of 12: 1. One is of a plastic measuring jug containing "1.2 litres of a brown liquid product of methylamphetamine." I do not understand what this means but it appears to be represented as a by-product of the processes. 2. One of the bedrooms which appeared to have been used to weigh and package the product, a large resealable bag with a large amount of crystalline substance on a set of scales which were not switched on.

Supply to Malak Husseini

20 June 2022: 1. Between 1.45pm and 6.26pm the offender was at the Juno Parade premises engaged upon methylamphetamine manufacture. 2. At 4.38pm, Malak Husseini walked from his vehicle to the side gate of a property, entered and spoke with the offender, and returned to his vehicle with a weighted green and black enviro bag. 3. The offender thus supplied 561.8 grams of methylamphetamine, 78.5% purity (Sequence 4 - for sentence).
The police arrested Husseini. The offender admitted the supply of half a kilo or more for which he was not paid.

Meetings Between the Offender and Pannao

28 June 2022: 1. About 3.56pm, the offender drove to the Juno Parade property. About 4.00pm, he drove in a van from near there to Pannao's home. 2. About 4.31pm, Pannao drove from his home and stopped beside the offender's vehicle which he entered before returning to his vehicle and driving off. 3. The offender returned to the Juno Parade property. He told police that Pannao provided him with a bag of pseudo powder which was not good and he left it on the table. Audio surveillance detected sounds consistent with methylamphetamine manufacture.
29 June 2022: 1. About 3.00pm, the offender attended Juno Parade and about 3.13pm, he carried a plastic bag from the bedroom. About 3.14pm, he left the premises with a black shoulder bag and travelled in a van to park in Allan Avenue, Belmore. 2. About 3.51pm, Pannao drove another van to park in front of the offender's van. He entered Pannao's van with a white plastic bag and thereafter returned to his van and they both drove off. The offender told police he provided Pannao with methylamphetamine that he had manufactured (Sequence 5 - additional offence). 3. Pannao was stopped by police.

Pannao's Arrest

Pannao was arrested at Belmore on 29 June 2022. The van in which he was travelling, was fitted with a hidden compartment within a fitted toolbox situated directly behind the driver's seat, opened by a remote key which was within the fabric on the driver's side next to the centre console. The hidden compartment extended the entire length of the van with a false floor and also a drawer at the back of the van. Police located and seized the following items: 1. A brown paper bag containing a knotted plastic sandwich bag which contained a large amount of crystalline substance contained in a hidden compartment. This was found to be 119.2 grams of methylamphetamine. 2. Two mobile phones on the shelf behind the centre console. 3. Multiple phones with phone boxes and further empty plastic bags contained in the hidden compartment. 4. Receipts for: 1. Sydney Solvent (20 litre container of Toluene), 2. Bunnings (three bottles of Diggers Solvent), and 3. R and D Automotive Supplies (acetone). 4. I earlier referred to the receipt found from Bunnings upon the arrest of Pannao. 1. A Diggers acetone bottle with about 100 millilitres of yellow liquid inside. 2. A plastic container labelled universal primer with an unknown liquid. 3. Sets of keys and a single key. One of the keys was labelled Witco and opened and locked the wooden front door, flyscreen door and rear wooden door of the premises at Juno Parade, Greenacre.
On 9 September 2022, police located and searched a secondary electronically activated concealment directly underneath the first hidden compartment containing, amongst other things, $105,650 cash. This is charged as sequence 5 against Pannao, knowingly deal with the proceeds of crime. It is included on a Form 1 in his proceedings.
On 29 June 2022, Pannao participated in an electronically recorded interview and consented to a forensic procedure by way of a buccal swab. About 9.15pm, police executed a search warrant at his house and seized a number of items.
On 21 July 2022, the police attended his residence and spoke to his wife in relation to a hidden compartment in the top section of the bedside table which contained a bundle of $100 notes and a bundle of $50 totalling $15,000. She told the police it belonged to her mother-in-law, that she had won $100,000 in the Lotto and that they were looking after it for her because they look after her money. The police seized the cash. Bank records for Pannao's wife indicate a deposit from NSW Lotteries of $100,000 on 22 March 2022 slowly used until the account was closed on 19 August 2022.

The Arrest of the Offence

About 3.54pm on 29 June 2022, police followed the offender in a vehicle into the Ashfield Leagues Club underground carpark. About 4.00pm the police stopped and arrested the offender and located and seized from him the following items: 1. A key to another vehicle, a HiAce van; 2. A car key and then assorted keys in one fob; one silver key opened and locked the front wooden door and flyscreen door of the premises at Juno Parade, Greenacre; 3. Three mobile phones; and 4. One 4 litre Diggers acetone tin.
The offender was arrested and transported to Campsie Police Station. He consented to a forensic procedure by way of a buccal swab. He participated in an electronically recorded interview and stated, amongst other things: 1. He will do what Mickey says or anyone says to make money. 2. "I cooking sometime. They teach me how to do. And, and I do that." 3. Regarding his knowledge of how to cook methylamphetamine, "I not know, only they tell me what to do, step, I do, yeah." 4. The accused admitted to cooking oil (methylamphetamine oil) using the beer keg at instruction. He said there was less than one litre of oil, or 7 or 800 or 500mls sometime. He said "they tell me I have to tell them how much. I come I have to tell him and they teach me how to make one, yeah." 5. More than two weeks ago near Greenacre, Pannao gave him powder rather than oil to manufacture methylamphetamine. 6. He adds powder (reformed methylamphetamine) to boiling water to make crystal methylamphetamine. 7. Pannao gave him two kilograms of powder which he used to make two kilograms or more of methylamphetamine which he gave back to Pannao, contained in a white bag near Juno Parade; Pannao was driving a van. 8. He has given methylamphetamine back to Pannao a couple of times, not one time, one kilo or more. 9. The process of recrystallising methylamphetamine takes about four days. 10. Two kilograms of power make close to two kilograms of methylamphetamine, "1.9." 11. He has made methylamphetamine from powder twice, one-time one kilogram and one time over two kilograms. 12. He explained the process: add powder to a pot, add boiling water, medium boil, take it off the heat, put the contents in a bucket, the next day separate the liquid from the crystals via a sieve, use acetone to wash the crystals, use a fan to dry the crystals, repeat the process with leftover liquid. 13. He has not used the keg in months or more. 14. He received $1,000 per kilogram of methylamphetamine manufactured from reform. 15. There would be an amount of methylamphetamine in his home which he smokes himself.
He signed a witness statement adopting the interviews stating, amongst other things: "Once the evidence was explained to me I told the truth about my involvement and manufacturing and supply prohibited drugs and I told the truth about the role of other people involved in the operation and manufacture and supply the prohibited drugs."
About 10.00pm on 29 June 2022, the police accessed premises at unit 908/36 Shoreline Drive, Rhodes, and seized a clear cigarette outer packet containing a white crystalline substance and a clear freezer bag containing a white crystalline substance. This substance was 9.47 grams in weight and 10.22 grams in weight, methylamphetamine in each case, with a total of 19.69 grams. Police also seized a mobile telephone. Although it is not stated clearly in the facts, when I look to the court attendance notices the offender's address is 36 Shoreline Drive, Rhodes.

Search Warrant at 130 Juno Parade, Greenacre

On 29 June 2022 about 10.00pm, the police executed a search warrant for the premises and located the following: 1. Clothing in the two wardrobes in the front bedroom and the bedroom, the majority of shirts appeared to be unworn and still had the clothing tags. 2. Items consistent with methylamphetamine manufacture by process of refinement. 3. A distillation setup including an improvised reaction vessel, the beer keg. 4. Approximately 45 litres of acetone with an additional combined volume of 342 litres of empty containers labelled to have contained acetone. 5. Approximately 145 kilograms of caustic soda with additional empty packaging for another 50 kilograms. 6. Approximately 42 litres of Toluene. 7. Approximately 62 litres of ethanol present as methylated spirits. 8. 42.41 grams successfully refined solid methylamphetamine hydrochloride. 9. 483 grams of methylamphetamine contained within liquid. It is noted that any liquid with assessed purity under 1% is considered waste and not counted towards the total. 10. 10.5 grams of pseudoephedrine, sequence 7, possess precursor, an additional offence, 578 grams of ephedrine, sequence 8, possess precursor, an additional offence. 11. 125,437 grams of hypo-phosphorous acid, sequence 9, possess precursor, an additional offence. 12. 61,478 grams of iodine, sequence 10, possess precursor, an additional offence.
An opinion was sought from an expert regarding the items found: 1. A commercial quantity of methylamphetamine was manufactured by refinement at the premises at 130 Juno Parade, namely the 420.41 grams successfully refined solid methylamphetamine. 2. A further commercial quantity of methylamphetamine could be refined from liquids located at the premises. 3. A further commercial quantity of methylamphetamine could be synthesised using the precursors and equipment present at the premises.
The opinion offered is a significant one in the circumstances where the offender acknowledges that he was "the cook" preparing this substance for ultimate supply. His acknowledgment that he was engaged in the refinement process puts his activity at somewhere less than manufacturing methylamphetamines in the process of synthesis using the precursors and equipment that were found at the premises.
There are questions that arise in relation to the extent to which he was taught how to manufacture the substance with which he is charged. The manufacture of methamphetamine is an activity fraught with risk. It is not unknown for a premises in which this activity is undertaken to suffer fire or explosion. The material before me is such that I am unable to conclude to the criminal standard that the activities of the offender extended to the necessary skills and experience one would require to successfully manufacture this drug using the precursors and equipment, although it is an inference which I find available. In the circumstances I would not conclude that it is the only rational inference to draw from what is before me.
This said, I note that the definition of manufacture provided in the Drug Misuse and Trafficking Act 1985 in s 3 is expressed in the following terms, "Manufacture, in relation to a prohibited drug, includes the process of extracting or refining the prohibited drug."
Regardless of the precise role the offender played in the production of this drug, I find he was engaged in a joint criminal enterprise with Pannao in the production by way of manufacture of this poison for commercial purposes.

The Offender's Evidence

The offender gave evidence on 17 November 2023 followed by further evidence in response to cross‑examination on 4 December 2023. In further examination-in-chief he was taken to facts as they appear in para 57 of the statement of facts, the part of the document which refers to events at or about 10.00pm on 29 June 2022 when the police attended his premises in Shoreline Drive, Rhodes, and found the cigarette outer packet containing a white crystalline substance and the clear freezer bag containing a white crystalline substance of a total weight of 19.69 grams and the mobile phone.
He said in response to questions that he was living there when he was arrested. He acknowledged the methylamphetamine described in para 57, to which I referred. He said it had belonged to his boss and he asked for it from him so that he could take it home and use it himself.
In cross‑examination he acknowledged he was interviewed when arrested. At first he did not admit the offending, but when they showed him their evidence he did. He did not tell them of his debt. He did not tell them of his debt because the police did not ask him. This is relevant to what I shall discuss when I come to his evidence‑in‑chief.
He acknowledged there was no record of his debt. He acknowledged that he was paid $1,000 per kilo that he manufactured so that he could spend it. They would deduct from his return expenses and the rest would be provided. He spoke of having embarked upon this sometime in 2017 for three years to 2020, and he worked for them in this role when they needed him. He said that he did not ever pay off the debt which he claims that he owed, and when he was arrested the debt continued at the level of $70,000, perhaps even more than that.
He last borrowed money from them during the COVID-19 epidemic in 2020. He acknowledged that he continued to work until his arrest in 2022. When COVID-19 eased he said they came back to him and hence his participation once again. He was asked questions about Feifei, a friend. There was discussion at that point about his need for a certificate pursuant to s 128 Evidence Act 1995 (NSW), which was not granted. Counsel raised the issue, but at no point did the offender object to answering the questions. I was satisfied that in light of the decision in Kalid Kaddour v R [2013] NSWCCA 243 it would not have been appropriate to grant a certificate in any event.
The evidence‑in‑chief included his description of his past employment as a carpenter for a building company, which he started in 2003. He spoke of his three children aged respectively 18, 17 and 15 years. He has been married twice. The children are from his first marriage. He separated from his first wife about six or seven years ago and his second wife returned to China because of her visa expiring. He communicates with her by telephone every day he said. He met her in Australia. Once matters are resolved he will restore their relationship because she will be the last woman in his life he said.
He spoke of them having a marriage contract. The evidence was not entirely clear as to whether or not they had formalised their relationship, but one way or another I accept that he is committed to her and hopes in the future to make his life with her.
He spoke of the affection he has for his children. He contacted them often when he was at large in the community, but since his arrest he cannot contact them and he misses them terribly. At that point he became distressed and I adjourned shortly to allow him to recompose.
He then spoke about his drug problem, his use of methylamphetamine. He said he was introduced to that by other work colleagues because it would make him strong for his work activity.
He also engaged in gambling, by poker machines, and increased his use of the drug which led to him borrowing money to the point where he had a constant debt, in the nature of a line of credit, extending to $70,000. He said at p 4 line 30 that he was forced to work for them in manufacturing. I do not accept that to be any suggestion or evidence of coercion, but rather his choice to embark upon this enterprise to defray whatever the debt might have been. The difficulty for him is that whenever he made progress toward discharging the debt he would borrow more, he would gamble more, and maintain a constant debt level of about $70,000 as I understood his evidence.
He then spoke of having concern about being in custody, which I found implausible. He discovered he said, beginning at p 5, that there was a person in custody known as a gang leader, who was known to him as Big Brother. He said that he was really scared and worried about him, and he had asked his barrister to do what he could to get him moved from the gaol so he would be far away from this person. He said that he bought ice but not much, 1 or 2 grams from that person. This was about ten years ago.
This person's house was broken into while he was in custody and other people told him that the offender was the one who had broken into the house. He said he tried to explain to him that he was not the one responsible for that, but in the offender's words "He couldn't hear me." I understand that to mean that the person would not listen to him; he kept saying to him that he had to return all his stolen things.
This was examined in more detail after I expressed my concern about the inadequacy in the information and as it turned out this predicate event leading to his alleged present concerns was some six years ago. It is not evidence that causes me to consider that he is at any risk in custody from this person who is not further described in the evidence before me.
He has been able to rid himself of the scourge of the methylamphetamine to which he said he was addicted without the intervention of any healthcare facility. He spoke of having gone cold turkey, that it tortured him, that he had pain all over his body, that he lost ten kilograms, but after that he did some exercise, played sport, and got better. He said he will not touch drugs again.
There was discussion that then followed between the bench and the representatives of the parties, including the request by counsel that the Evidence Act 1995 be applied to the proceedings so that he could then, if he wished, pursue a certificate pursuant to s 128. I commented that that was unnecessary, that if there was a certificate to be granted it did not depend upon an order of the Court attracting the application of the Evidence Act 1995 to the proceedings in accordance with s 4. I discussed the case of Kaddour ibid.
There was further discussion about questions that were asked by counsel which gave the indication that he was not entirely sure what the responses might be when I sought information or alerted to him as to information that appeared to be absent from the material and might cause concern in findings of fact that I was called upon to make. I granted the opportunity to allow counsel to clarify his instructions before he proceeded further to deal with those matters that were in my perception inadequately dealt with.
The opportunity was taken and hence the adjournment on 4 December 2023 when evidence resumed.
The fact that these offences are standard non-parole offences requires reference to the principles that have evolved including by way of the decision of Johnson J in Tepania v R [2018] NSW CCA 247. These three offences carry standard non-parole periods. Consideration of those benchmarks requires advertence to Part 4 Division 1A, Crimes (Sentencing Procedure) Act 1999, where s 54A (1) provides that the standard non‑parole of an offence is that which is included in the table to the provisions. I have already referred to what period is specified for these each of these offences.
Section 54A (2) provides the standard non-parole period represents a non-parole period for an offence in the table within the middle of the range of objective seriousness considering only the objective factors affecting its relative seriousness.
Section 54B (2) provides the standard non-parole period is to be taken into account when determining sentence without limiting the matters that are otherwise required or permitted to be taken into account.
Section 54B (3) requires the Court to record its reasons for setting a longer or shorter non-parole period identifying each factor considered.
Objective gravity of the offence is assessed upon consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but by reference to the nature of the offending, bringing to account relevant factors provided in s 21A of the Crimes (Sentencing Procedure) Act 1999, except for those that are essential elements of integral characteristics of the offence.
Fixing the non-parole period is but part of the task, whereby the Court determines sentence whether guilt is admitted or established after trial and whether the offences within the low, middle, or high range of objective seriousness. The Court must identify all relevant matter bearing upon the sentence in the process of intuitive synthesis, discussed for example by McHugh J in Markarian v R [2005] HCA 25.
The standard non-parole period and maximum penalty are legislative guide posts for the sentencing Court with other established sentencing practices and by reference to matters identified were relevant in s 3A, 21A, 22 and 23 of the Act. Johnson J provided guidance regarding the assessment of objective seriousness for all offences, whether or not standard non-parole period offences. After discussing the provisions for standard non-parole period offences with reference to the second reading speech and explanatory memoranda upon amendment of the provisions, his Honour continued at para 111. "111 In sentencing for an offence (whether or not standard non-parole period of offence), a court should make an assessment of the objective gravity of the offence supplying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account, (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress maybe taken into account in this way. Regard maybe had to factors personal to the offender that are causally connected with all material contributed to the commission of the offences, including (if it be the case) a mental disorder or a mental impairment. It was recognised at Common Law that motive or emotional stress which comes from criminal conduct there is always material for the consideration of an appropriate sentence."
His Honour then referred to well-known authorities such as Veen v The Queen (No 2) (1988) HCA 14 and Muldrock v The Queen [2011] HCA 39.
Mental abnormality might diminish moral culpability and an antecedent criminal record may illuminate moral culpability. If there is limited moral culpability it might mean that retribution and denunciation do not require significant emphasis. Accordingly, the Court must in all offences including standard non-parole period offences assess the objective seriousness of the offence and the offender's moral culpability in the commission in the process of intuitive synthesis of all relevant factors and with reference to the maximum penalty and standard non-parole period.
Assessment of objective seriousness is a matter of judgment upon which minds might differ; it is often difficult to be precise. However, upon my assessment of the material, I agree with what the Crown has offered in its submissions regarding the offender's conduct in the commission of these offences and where they fit on the scale of objective seriousness.
The motivation that is offered by the offender, is that he was burdened by drug use for which he had incurred debt and to which he added when he borrowed further money to accommodate his gambling propensity. I shall deal with that in a moment.
Where I place these offences on the scale of seriousness, does not lead inevitably to the point that a non-parole period will be calculated according to a corresponding percentage of the periods specified, for this would be to ignore the required intuitive synthesis of all the relevant factors, which usually have the effect of reducing the sentence and the non-parole period below that which would otherwise result from such an impermissible calculation.
Turning to the question of motive and whether it impacts upon the moral culpability of the offender and his commission of these crimes, I am not persuaded that he may rely upon his propensity for gambling and drug use to mitigate the moral culpability that has been demonstrated in the behaviour that has brought him before the Court.
In R v Henry, Barber, Trans, Silva Tsaukatos, Kyroglou, Jenkins [1999] NSW CCA 111 revised, Spigelman CJ wrote at para 197: 197 In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made. 198 First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences. 199 Secondly, the submissions in this Court were in error in identifying the relevant conduct as the craving associated with withdrawal. The material presented to the Court did not suggest that the choice faced by addicts was between this negative feeling and the need for money to allay it. Rather the choice may often be the desire for the positive feeling said to be associated with a drug induced euphoria. The desire to bring about that state of "well-being" is, relevantly, a moral choice. 200 Thirdly, nothing in either the process of addiction or its neuro-biological and physiological basis, leads ineluctably to the commission of crime, let alone the commission of crimes of violence against persons, such as armed robbery. Not all persons who suffer from addiction behave in this way. Those that do so, make a choice. 201 Finally, individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice. 202 There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money.
Wood CJ at CL wrote at para 268; 268 While it may be accepted that the rehabilitative aspect of sentencing is not an unimportant consideration: Osenkowski (1982) 30 SASR 21; Douglas (Court of Criminal Appeal New South Wales 4 March 1997); Eastway (Court of Criminal Appeal New South Wales 19 May 1992); Fabian (1993) 64 A Crim R 365; and Halewyn , I am not persuaded that the offender, whose criminality was directly influenced by drug addiction, should be placed into a special category for sentencing purposes.
His Honour went on at paras 269 through to and including 274 to discuss his reasoning leading to the view expressed at 274; 274 To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case.
The case was concerned with an armed robbery offence but the commentary has application to the present matter. Justice Wood spoke at 272 of how an offence motivated by a need for drugs may be taken into account when assessing objective criminality, in so far as it might throw light on matters such as impulsivity or as an alternative reason that might have operated in aggravation of the offence and the state of mind, or of the capacity of the offender to exercise judgment, none of which has been demonstrated in my opinion in this case to the benefit of the offender.

CO-OFFENDER

The only co-offender of whom I am aware is a person arrested in this investigation, Phatsakon Pannao. His prosecution is pending in the District Court of New South Wales, expected to continue in 2024.
The submissions made on behalf of the offender, included that a discount of 15% ought to be employed in mitigation of the sentence, in addition to the discount provided for the utility of the pleas of guilty. There is no evidence before me that would attract the application of this provision; there is no evidence of assistance or undertaking to assist in the prevention, detection of or investigation of, or in proceedings relating to the offences charged or any other offences pursuant to s 23, Crime (Sentencing Procedure) Act 1999.
The offender made admissions in which he nominated his co-offender with whom he was engaged in a joint criminal enterprise and he has the benefit of the contrition and remorse thereby demonstrated and the value it has as an indication of rehabilitation. I am not persuaded that it attracts any other benefit to the offender.
Pursuant to s 21A (3) Crime (Sentencing Procedure) Act 1999, if there was assistance by the offender to law and enforcement authorities as provided in s 23, it is to be taken into account as a mitigating factor upon application of the various statements of principle that have fallen in appellate proceedings where s 23 considerations are raised.
However, s 23(1) confers on the Court not an obligation but a discretion to proffer a discount having regard to the degree to which the offender has assisted law and enforcement authorities in the detection of the offence concerned or in proceedings relating to the offence concerned.
Relevant authority includes R v XX [2017] NSWCCA 90, which discussed the meaning of the term 'assistance,' where Beech-Jones J with whom Bathurst CJ and R A Hulme J agreed, determined that a relatively expansive view should be adopted, having outlined at paras 31 to 32 the following; 1. "The provision only concerns the manner of the exercise of the power conferred by the provision, there being no definition of assistance." 2. Nothing of the provision purports to limit the type of assistance. The only circumstance which a provision has been read narrowly is the construction that s 23(1) excludes unwitting assistance: R v Fabrizo Calderoni [2000] NSW CCA 551 at para 9. 3. Although not determinative and not exhaustive, the only mandatory conditions of the application of s 23 (1) are contained in s 23 (2) (b) - (i) being factors of the Court must take into account when making the determination whether to impose a lesser penalty by a quantifiable amount.
If I am incorrect in the view that I am about to express, having turned my mind to those provisions in s 23 (2) I am not satisfied that there is anything there that assists the offender.
Basten J said in RJT v R [2012] NSWCCA 280 that, "… the correct perception in point of law is that unwitting assistance given to authorities cannot, as a matter of commonsense come within the purview of section 23."
At para 71 through to and including 73, he wrote that; 71 Notwithstanding the seemingly broad scope of s 23, its provisions have been found not to operate in two respects. 72 In R v Calderoni [2000] NSWCCA 511, they were held not to apply to unwitting assistance. In that case the offender gave evidence in his trial for murder that inculpated him in respect of a charge of robbery in company. He was acquitted of the murder and subsequently prosecuted, and sentenced, for the robbery. The sentencing judge was held to have erred by allowing a reduction of sentence pursuant to s 23 in its then form (which was not materially different for present purposes to its current incarnation). Sully J, with whom Bell and Whealy JJ agreed, gave as an example a burglar unwittingly leaving behind at the crime scene a set of fingerprints and later claiming an entitlement to a reduction of sentence for assistance. His Honour said: [13] It is trite that a statute is not to be construed in a fashion that imputes to the Legislature an intention to bring about so transparently absurd a result. 73 In R v Fernando [2004] NSWCCA 147 the applicant had provided assistance in relation to the investigation of his own offence. He had voluntarily supplied police with a DNA sample which ultimately assisted police in identifying him as the offender. A ground of appeal asserted that the sentencing judge "erred in failing to give an appropriate allowance for the applicant's assistance to authorities by way of the supply of a DNA sample". It was noted (at [42]) that the judge had acknowledged the applicant's co-operation and said that she took it into account. There was no error in her failure to elaborate or quantify a discount. Kirby J (with the concurrence of Tobias JA and Bell J) additionally observed: [41] ... Where an offender unwittingly assists the police, whether by making statements which he does not recognise as incriminating, or providing a sample of his handwriting or DNA, not fully appreciating its evidentiary significance, it is difficult to see why any discount is justified unless it can be seen as evidence of contrition."
I intend to approach the responses by the offender to the police and information he provided regarding his misconduct and the extent of his joint criminal enterprise in that light and I shall do so regardless of the circumspection which I hold over the extent of the truth and accuracy of his assertions as to precisely what he did in the manufacturing process.

THE OFFENDER

Documents tendered on behalf of the offender include an apology letter that he wrote on 15 November 2023 and a document publishing his attendance at the Remand Addictions Program, Hunter Correctional Centre on one occasion. I do not intend to hold him to account by reason of that, bearing in mind that he is a remand prisoner and I understand that he has had some difficulty getting access to whatever processes are available to assist with rehabilitation.
In the document that he wrote to the Court he included representations regarding his gambling and drug problems, his financial difficulty that arose as a consequence, the accumulation of debt that he could not pay and his regrettable decision, as he describes it, to participate in the offending, so that he might pay off his gambling and drug debt that he could not otherwise pay off. According to his evidence, any effort he made to pay off his debt in this manner was qualified because of his tendency to go back for more money and continue in his activities.
He expresses regret for his actions and being involved with the people with whom he was concerned. He said it is completely out of his character and does not reflect his values and beliefs. The period in custody has been salutary, according to him, and he has heavily reflected on his actions and come to understand better the gravity of the situation and the implications of his actions. I always find such a representation to be worthy of comment, bearing in mind that he told me in his evidence of his addiction to methylamphetamine and the need to go cold turkey and the pain that he experienced, why it is that it took his arrest and incarceration to provide him with the enlightenment that he now purports to have.
All of that said, I note that he is without blemish otherwise but for these offences. He is 47 years of age, is facing a significant period of time in gaol, has lost a great deal, and will lose a great deal more without access to his intended wife or his children, none of which of course is sufficient to amount to exceptional circumstances to require other than the custodial sentence.
All of the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act 1999 are engaged here. There must be punishment. General and specific deterrence must be addressed. It is necessary for the Court to denounce the manufacture and supply of this poison because of the damage it does do in the community. The sentence I am going to impose needs to recognise the harm that the offender caused by reason of his participation in this joint criminal enterprise. There must be adequate punishment.

SUBMISSIONS

There were written submissions provided by the parties to which I have had access and read.
The Crown refers to these events evolving over the time of the acquisition of the property in January 2022 through to the arrest on 29 June 2022, a total of just over five months. Counsel for the offender truncated that period significantly, looking only at the facts of the misconduct which is before the Court. It would be implausible to think that there was nothing occurring up until the point when the police became active in their surveillance of these offenders, bearing in mind the activities upon which they were engaged in the period the surveillance was conducted. Whether or not they were engaged as and from January 2022 though is difficult to find beyond reasonable doubt, but it is certain that the period extends beyond that which is covered by the periods in the charges. Although he is not to be punished for what might have gone before, the context of the offending has to be understood in that broader time range, in my assessment.
Accumulation is required, although I note that the substance he manufactured is the substance which was supplied, both for the sentence offences and the additional offences, and the precursors in the additional offences were intrinsically bound to the manufacture charged in sequence 1.
I agree with the Crown's submission that the manufacture of the drug is above midrange for such offences but not by a great deal. I agree with the Crown's assessment that the large commercial quantity supply in sequences 3 and 4, fall below midrange.
The offender was part of a joint criminal enterprise with the co-offender. It was but for the surveillance of which they were not aware, a successful enterprise and without the work of the police officers no doubt could have continued with significant returns for them.
The Crown concedes that he was primarily involved in the manufacturing at the premises in Greenacre under direction from Pannao, who upon the material before me must have been the more significant player in the enterprise giving direction to this offender.
The Crown highlighted the differences between each of the offenders but submits that they are not so significant as to warrant a sentence significantly lower than that that might be suffered by Pannao when he is finally brought to account. Pannao's role is discussed, including that he provided substances and directions for the manufacture process. But with reference to Kurniawan v R [2017] NSWCCA 171 and Roberts (a pseudonym) v R [2019] NSWCCA 102, the Crown notes that the Court does not need to precisely find the role of the offender.
On the material I have, I find they are both equally liable for the manufacture of the methylamphetamine. It would seem to me that in the circumstances, although this offender was the instrument by means of which the manufacture was undertaken, he was at least to some extent acting at the behest of direction of Pannao and his planning and organisation in the enterprise, including the preservation of the premises so as to avoid detection during routine inspections. The lack of criminal convictions is noted as a mitigating factor, and I am reminded of what s 3A provides.
The Crown correctly observes that methylamphetamine is an extremely addictive drug with dire consequences for individuals in the community. Manufacturing the drug is serious. It involves high level criminality, requiring appropriate punishment reflecting the objective seriousness of the offence and the moral culpability exhibited by the offender. There can be no doubt that the offender was aware of the risk he faced from this enterprise.
Submissions on behalf of the offender refer to him as the mere cook and was no higher placed in the organisation. I do not accept that proposition. My assessment is that he was integral to the enterprise in the role he played, I would particularly note that if he were a mere cook and merely engaged upon refinement, one might wonder why he was needed in the enterprise at all, bearing in mind the extent of the activities in which Pannao engaged. It could not be said that Pannao was conducting himself so as to distance himself from the premises and what was going on there.
I do not agree that one should assess the offender as a mere cook, under the control and direction of Pannao. I do not agree that sequence 1 is below middle range. I note that there is a degree of overlap so that there will be appropriate concurrence in the assessment of the aggregate sentence and I have already dealt with the proposition that s 23 Crimes (Sentencing Procedure) Act 1999 should be brought to account. I have noted what was said about totality and I note that he has only recently began his treatment for drug addiction. I note that he has challenges in gaol because of his language barrier that I also brought back to account in the assessment of the sentence I am about to impose which now is my task.

THE SENTENCE

The offender is convicted of each of the three offences to which he has pleaded guilty. I note that he adhered to the pleas of guilty to those charges in this Court after they were entered in the Local Court, he confirmed that he is guilty of the Form 1 offences and confirmed that he wished that they be taken into account. I have the Form 1 in the bundle provided to me signed on behalf of the Crown and by the offender upon which I will certify that I have taken the additional offences into account.
Because these are standard non-parole period offences I am obliged to specify the non-parole period for each of the indicative sentences which I find to be appropriate.
To repeat, the offender is convicted of each of the three offences. Sequences 1, 3 and 4 respectively, I have allowed a discount of 25% for utility to be applied to the sentences for the individual offences.
The offence charged in sequence 1 of manufacture, I specify as appropriate a sentence of seven years and six months with a non-parole period of five years.
For sequence 3 the charge of supply, I specify as appropriate a sentence of six years with a non-parole period of four years.
For sequence 4, the offence of supply, I specify a sentence of four years and six months with a non-parole period of three years and three months.
I have decided to impose an aggregate sentence. The aggregate sentence I impose consists of a non-parole period of eight years commencing from 29 June 2022 with a head sentence of 12 years and eligible to be released on parole on 28 June 2030.
To repeat those figures, for sequence 1, 7 years 6 months with a non-parole period of 5 years. Sequence 3 sentence of 6 years with a non-parole period of 4 years and for sequence 4, a sentence of 4 years and 6 months with a non-parole period of 3 years and 3 months. For the aggregate sentence, it is one of a non-parole period of 8 years from 29 June 2022. The non-parole period will expire on 28 June 2030

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: 05 February 2024

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