Regina v Walsh and Little [2005] NSWSC 125 | Case summary

On 24 September, 2001 at Sandgate did possess a prohibited weapon, namely an Australian manufactured silencer, without being authorised to do so by a permit. 5 The offences in relation to the firearms were breaches of s 7(1) of the Firearms Act and each carries a maximum penalty of imprisonment for 14 years. The offences in relation to the silencer were a breach of s 7(1) of the Weapons Prohibition Act for which the maximum penalty on conviction on indictment is imprisonment for 14 years. 6 On 14 February last Mr Walsh pleaded guilty to two further charges on an indictment. The first alleged that on 25 April 2000 at Medowie he did break and enter an office building with intent to commit a serious indictable offence therein, namely to steal an automatic teller machine and the contents thereof in circumstances of aggravation namely that he was in the company of other persons. 7 The second count on that indictment alleged that on 3 December 2000 at Tomago he stole a motor vehicle, namely a Freightliner prime mover truck and attached articulated trailer, the property of Boral Transport. 8 The first offence being an aggravated break and enter is an offence contrary to s 113(2) of the Crimes Act for which the maximum penalty is imprisonment for 20 years. The second offence in relation to the prime mover and trailer is a breach of s 154AA(1) of the Crimes Act for which a maximum penalty of 10 years imprisonment is prescribed. 9 In addition he asked me to take into account offences on two form 1 documents in accordance with s 32 of the Crimes (Sentencing Procedure) Act. The first of those documents contains 25 matters relating to the offender's possession of a large number of firearms and ammunition discovered when he was arrested on 24 September 2001. I am to take those matters into account when sentencing him on the charge in the first indictment relating to the .303 machine gun that is the third count. The other form 1 document contains 14 matters alleging his involvement in acts of dishonesty relating to the theft and disposal of motor vehicles. I am to take those matters into account when sentencing him for the offence of aggravated break and enter with intent to steal being the first count on the second indictment. 10 Mr Little was before me on 5 February 2004 and pleaded guilty to five counts on an indictment which contained 38 charges. The Crown thereafter determined not to proceed on the balance of the charges. The first count to which he pleaded guilty was that between 8 March 1997 and 24 September 2001 at Murwillumbah and Tweed Heads he manufactured a prohibited drug, namely methylamphetamine, in an amount which was not less than the large commercial quantity for such drug. This is an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act and for which the maximum penalty prescribed is life imprisonment. 11 The second count was that between 8 March 1997 and 24 September 2001 at Terranora and Newcastle he supplied a prohibited drug, namely methylamphetamine, in an amount that was not less than the large commercial quantity for such drug. This is an offence contrary to s 25(2) of the Drugs Misuse and Trafficking Act and again carries a maximum penalty of life imprisonment. 12 The third count to which he pleaded guilty alleged that on 4 October 2001 at Tweed Heads he possessed a firearm namely a Daewoo 12 gauge self loading gun, without being authorised to do so by licence or permit. This is an offence contrary to s 7(1) of the Firearms Act for which the maximum penalty prescribed is imprisonment for 14 years. 13 The fourth count to which he pleaded guilty alleged that on 4 October 2001 at Tweed Heads he possessed a firearm, not being a pistol, namely a 9 mm Lithgow submachine gun that had been shortened, without being authorised to do so by licence or permit. This offence is contrary to s 62(1)(b) of the Firearms Act and for which the maximum penalty prescribed is imprisonment for 10 years. 14 The fifth count to which Mr Little pleaded guilty alleged that on 4 October 2001 at Tweed Heads he possessed a prohibited weapon, namely an alloy tube silencer, without being authorised to do so by a permit. That is an offence contrary to s 7(1) of the Weapons Prohibition Act for which the maximum penalty prescribed for conviction on an indictment is imprisonment for 14 years. 15 In addition he asked me to take into account on a form 1 19 matters each of which alleged the possession by him of an unlicensed or unregistered firearm, prohibited weapons or ammunition. These matters all arose when the firearms and other items were found on 4 October 2001 in storage sheds used by him. 16 Each of the offenders is to be sentenced on the basis of an agreed statement of facts. Apart from some photographs of weapons and other items, no other material was placed before me to prove the allegations made by the Crown. It is unnecessary to set out the facts in full and I summarise briefly the material contained in the statements tendered. 17 The offences for which Mr Walsh is to be sentenced arose from his involvement with the Newcastle Chapter of the Nomad Outlaw Motor Cycle Club. He joined that organisation in 1995. Up until this time he had apparently been living as an honest and worthwhile member of the community and carried on a legitimate business as a concreter. The members of the Club, or a large majority of them, were users of methylamphetamine supplied to them by a member of the Club named Johnny Skyrus. This person was in business with another member of the Club, Tony Vizl, who supplied Skyrus with pure drug that he then cut and sold to his customers. At some stage Mr Walsh began to assist Skyrus in the distribution of the methylamphetamine, which was generally referred to by members of the Club as "gas". 18 In March 1997 Skyrus was killed in a motorcycle accident and Mr Walsh took over his role in the distribution of the drug. He obtained his supplies from Vizl, who by that stage was living in Queensland. With the assistance of his defacto partner, Melinda Love, he began to distribute the drug to members of the Club and other persons in the Newcastle area. 19 By March 1998 Ms Love was carrying out the day-to-day business of cutting the drug and selling it. Involved in the distribution were two persons, Paul and Anne Chapman. Ms Chapman, who was initially employed as a cleaner in the premises kept by Walsh and Love, began to assist Ms Love by testing the quality of the amphetamine so that Ms Love could determine whether she had the right proportion of pure drug and cutting agent. Her husband, Paul Chapman was used by Mr Walsh as a courier of the drug, including obtaining the pure drug from Mr Little in northern New South Wales, and for other criminal activities. 20 However, following a dispute between Mr Walsh and Chapman, the latter was replaced as courier by a man named Quinnell, an associate of the offender Little. On 15 May 2001 Mr Quinnell died in a motor vehicle accident and thereafter Mr Walsh himself collected the pure methylamphetamine that he required for his business. For this purpose he would drive a hire car some eight hours to Mr Little's premises and immediately return to Newcastle with the drug. He was usually accompanied by a member of the Club or some other associate on this journey. 21 Mr Walsh had commenced to obtain his methylamphetamine solely from Mr Little in September 1999. The agreed facts are that between that time and 24 September 2001, Mr Little had manufactured and supplied to Mr Walsh 19 kilograms of methylamphetamine at a price of somewhere between $50,000 and $60,000 per pound. 22 On 16 January 2001 Paul Chapman was arrested for an armed robbery offence. While in custody on this charge he contacted police and provided them with information as to the criminal activities of Mr Walsh, Ms Love and other persons with whom he had come into contact through them. From this time, that is March 2001, until 24 September 2001 police were investigating Mr Walsh, Ms Love and their associates by using telephone intercepts, surveillance, listening devices and controlled purchases of drugs by Ms Chapman. 23 On the morning of 23 September Mr Walsh was arrested on the Pacific Highway at Murwillumbah shortly after having left Mr Little's property. Police found 510 grams of methylamphetamine hidden in the panel of the driver's door of the vehicle. When analysed it was found to be 77.6% pure. Shortly after the arrest police executed a search warrant at his home in Maryland and found items used in the distribution of methylamphetamine. Ms Love was arrested and almost immediately began to assist police by telling them what she knew about Mr Walsh's activities and her part in them. She informed police of a rented storage unit used by Mr Walsh in which police found a large number of firearms and weapons. 24 The agreed facts indicate that during the period of his involvement in supplying methylamphetamine after the death of Mr Skyrus until his arrest, Mr Walsh and Ms Love supplied drugs to about 75 customers. Mr Walsh accepts for the purposes of sentencing that between March 1997 and September 2001 he purchased about 50 kilograms of pure methylamphetamine and as a result supplied about 450 kilograms of the drug to members of the Nomads and other associates of him and Ms Love. The seriousness of this offending can be appreciated when it is noted that the large commercial quantity for methylamphetamine is 1 kilogram. 25 In relation to the two matters on the second indictment that is aggravated break and enter and larceny of a motor vehicle and the form 1 matters relating to offences of dishonesty there was also an agreed statement of facts tendered. Again for present purposes it is necessary only to briefly summarise them. During the period when Mr Walsh was involved in his business of supplying amphetamine, he was also conducting an apparently legitimate business of concreting and excavating. However, as a result of information supplied by Chapman to police, they became aware that Mr Walsh had organised the theft of a number of vehicles in the course of carrying out his legitimate business activities. 26 The first count on the second indictment concerns the attempt by Mr Walsh and others, including Chapman, to steal an automatic teller machine from premises used by a real estate agency. Sometime between 19 and 22 April 2000 in order to carry out this enterprise Mr Walsh organised the theft of two trucks, one with a crane mounted on it. The theft of these vehicles gives rise to two of the matters on the form 1. Shortly after the second vehicle was stolen Chapman met up with the offender Walsh and another person for the purpose of stealing the ATM. Chapman was driving one of the stolen trucks, Mr Walsh was using his own vehicle and a man named Griffin was driving the stolen truck with the crane attached. Griffin reversed the truck into the premises smashing the teller machine and destroying much of the furniture in the office. Mr Chapman with the help of another person pulled the ATM to the front of the premises so that it could be hoisted with the crane on to the stolen truck. However, during the course of this manoeuvre the ATM fell from the sling. No doubt fearing that police had been notified, they left the scene in Mr Walsh's vehicle abandoning the ATM and the two stolen trucks outside the real estate office. At the time of the attempted theft of the ATM it contained $53,000 in cash. 27 The offences on the form 1 were committed between March 1999 and November 2000. They involved the theft of trucks by persons associated with Mr Walsh and at his direction so that he could use them in his business or use parts of the stolen vehicles to replace damaged parts in his own vehicles. There are also offences concerned with obtaining insurance money for vehicles on the basis that they had been stolen whereas in truth Mr Walsh had arranged for the vehicles to be taken by an associate. The stolen vehicles were altered in order to disguise their appearance involving at times the vehicle being resprayed and identifying numbers removed. There is also a charge relating to the theft of a wheel chair used by Mr Walsh when he was recovering after a motor vehicle accident. 28 In relation to Mr Little I have already made reference to the fact that he was manufacturing methylamphetamine at his property in the north of NSW and supplying it to Mr Walsh who would distribute it with the assistance of Ms Love in the Newcastle area. It should be noted that although Mr Walsh and Ms Love were in a business of supplying amphetamine from March 1997, they did not utilise the services of Mr Little until September 1999. But from Christmas 1999 until September 2001, when they were both arrested, Mr Little was the sole supplier to Mr Walsh. 29 I have already noted that Mr Walsh was arrested on 23 September 2001 shortly after picking up a quantity of drug from Mr Little. Mr Little was arrested at his property in Terranora in the early hours of the next day, that is 24 September. Located at those premises were items related to the manufacture of methylamphetamine including precursors of the drug, 590 grams of methylamphetamine, over $145,000 in cash and a loaded semi-automatic handgun with a silencer. Police also searched a storage shed used by Mr Little at Tweed Heads and found that it contained a number of firearms. There were also 4 bags of Sudafed tablets weighing 11.5 kilograms from which about 3 kilograms of pseudoephedrine, a precursor in the manufacture of methylamphetamine, could be obtained. 30 Police also searched storage sheds in Murwillumbah where they found large amounts of chemicals for the manufacture of methylamphetamine, scientific glassware and other items required for the manufacture of drugs in large quantities. There was DNA material found in these premises that matched the DNA of Mr Little. Police also seized a number of objects containing residues and liquids that related to the various stages in the production of methylamphetamine. The contents of these premises revealed that Mr Little was conducting a laboratory for the manufacture of methylamphetamine. 31 It has been estimated that from September 1999 to September 2001 he manufactured 19 kilograms of methylamphetamine for Mr Walsh for which he was paid about $2,500,000. 32 I will now deal with the offenders' subjective matters. Mr Walsh is aged 33 years and has no prior convictions of any kind. I am prepared to sentence him on the basis that before he joined the Nomads in 1995 he was an honest and productive member of the community. His subjective case is largely found in a psychological report prepared by Ms Robilliard the contents of which are based upon her interview with him and the results she obtained from various tests she administered to him. There is, however, little in that report which assists Mr Walsh in light of the seriousness of the criminal conduct in which he was involved over the years from 1997 to 2001. 33 However, the report indicates that Mr Walsh began using amphetamine in 1997 shortly after the death of Johnny Skyrus. He used the drug, he said, in order to be able to work long hours during the week and to engage in club activities on the weekends. He told the psychologist that he estimated he was using $5,000 to $6,000 worth of amphetamine per week in the period prior to his arrest. He also reported that over the same period he was subject to a "voracious gambling habit" as a result of which it was not unusual for him to lose between $10,000 and $20,000 on a weekend of gambling in Sydney or in Queensland. 34 An intelligence test administered by the psychologist revealed that he was in the Below Average range. Personality testing showed that he was depressed but otherwise there is no evidence to suggest there is any brain injury as a result of his prolonged drug usage. Although the report sets out Mr Walsh's background in some detail, there is nothing in this material that, in my view, has any relevance to a determination of the sentence to be imposed upon him. 35 Mr Walsh told the psychologist that since his arrest he has become drug free and is profoundly remorseful for his criminal conduct. He says that he deeply regrets that he ever began using drugs or that he joined a motorcycle club. He is apparently determined to use his time in custody productively and I accept that he has been undertaking courses in Anger Management, Drug and Alcohol Education and Peer Support. Apparently he has the benefit of strong family support. 36 Mr Little is aged 38 years. His criminal record contains mainly traffic matters and minor assaults dealt with in the Local Court. It can be disregarded for present purposes and I am prepared to sentence him on the basis that he is generally of good character as is asserted in testimonials that have been placed before the Court in his support. He did not give evidence before me and the subjective matters relevant to sentencing arise largely from reports prepared by a psychologist and by a general practitioner who has at times treated Mr Little. 37 There is, in my view, nothing in his background of significance in sentencing him for the offences for which he is before the Court. There is certainly nothing that in anyway explains his decision to embark upon a criminal career as a drug manufacturer or that indicates his criminal responsibility for that activity is in any way diminished. It may well be the case that experiences he suffered as a child or as an adolescent at least contributed to his use of drugs later in life in order to ameliorate the psychological effects of those experiences upon him. But once it is accepted, as I do, that he was himself a user of illegal drugs of the type he was manufacturing, these matters in his past assume little importance having regard to the seriousness of his conduct with which I am concerned. He told the psychologist that because of depression following the death of a friend about six months before his arrest he was abusing drugs and alcohol to a greater degree than he had in the past. He was also, like Mr Walsh, apparently a heavy gambler. 38 He told the psychologist that he was at the time of his arrest intending to open a shop selling motorbikes and had been lent a large amount of money from friends for that purpose. He stated that since his arrest he has no longer been using drugs on a regular basis and that his general health had improved markedly as a result. Psychological testing reveals that he has traits of depression and anxiety in his personality. The latter manifests itself in somatic complaints and over-reactive conditions. The psychologist concluded that, while Mr Little found support in his lifestyle as a member of a motorcycle club, it also led to him indulging in drugs and alcohol to a degree that threatened his health. 39 Mr Little has apparently made a commitment to improve himself while in gaol and has attended a number of courses during the period that he has been on remand. He hopes that he might obtain skills to assist him in operating a business selling motorbikes when he is eventually released. The psychologist expresses the view that he might be assisted by further counselling both in custody and after his release to parole. 40 Dr Buckland, a general practitioner, provided two reports mainly concerned with Mr Little's fear of confined places, as a result of an incident in his late teens, and his almost obsessive concern about his physical health. The first report notes that Mr Little had made 70 visits to the prison health service between September 2001 and July 2004. He suffers from severe asthma and other ailments such as sleep apnoea and a chronic cough. Investigations carried out of other complaints he has made as to pain in various areas of his body have not revealed any physiological cause. It seems that many of his complaints arise from his anxiety disorder. The second and later report of Dr Buckland indicates that this disorder may have resulted in other disturbed conduct by the offender while on remand including paranoid thoughts. Whether these later incidents are a result of increased anxiety as the date for sentencing approached or indicate that there is some more substantial disorder present is a matter of conjecture at this time. 41 This material of course is relevant to a submission that prison may be more burdensome for Mr Little because of his anxiety disorder and its effect upon him and, therefore, that some mitigation should be made of the otherwise appropriate sentence. Of course the weight that can be given to such a matter depends upon the seriousness of the conduct for which punishment is to be imposed and the importance of other sentencing considerations such as denunciation and general deterrence. In my view it can be given little weight in the present case. 42 It is not difficult to appreciate the seriousness of the conduct in which both offenders were engaged for a significant period of time. It was basically a commercial criminal enterprise regardless of the fact that they were both drug users to a very substantial degree. The maximum penalty faced by both of them is life imprisonment and this in itself indicates the seriousness with which this type of conduct is considered by Parliament, the courts and decent members of society. 43 In the case of Mr Walsh a realistic assessment of the objective gravity of his conduct requires very serious consideration being given to imposing the maximum penalty notwithstanding that it is the harshest sentence that is available to the courts of this State. This is not simply because of the amount of drug involved in the offence, which was very great indeed, but because of the commercial nature of the enterprise and the period over which it was conducted. It is rare in my experience for a criminal at the top of the hierarchy of a drug supply organisation to come before the courts. The organisation over which the offender Walsh presided was not particularly large and there were not many tiers between him and the users he supplied. It could be described as a family business but it was a very profitable one and a very criminal one. 44 I do not know of any case of supplying amphetamine as serious as this. Certainly in the cases, to which the Crown has referred me, the amounts of drug supplied are a mere fraction of that in the present case. As I have already noted Mr Walsh's offence was a continuing one over a period of more than four years. The only case that may be comparable is R v Kalache [2000] NSWCCA 2 a Crown appeal against sentences imposed in the District Court. I do not know whether there is any great assistance to be gained by comparing that case and those presently before me, so different are the facts. But Kalache might be taken as being the most serious case of this type of offence to come before the courts. 45 The offender in that case was the head of a network of supplying and manufacturing of drugs far more extensive and insidious than that controlled by Mr Walsh. He was also involved in the distribution of a range of unlawful substances including cocaine and cannabis and was financing drug manufacturing plants. The period over which Kalache was offending was about 2 years and it seems that he was supplying drugs at a much larger volume than Mr Walsh, but of course over a considerably lesser period of time. There were also two aggravating factors that are not present in Mr Walsh's case: Kalache was not a user of drugs and he had a criminal record for similar activity. Indeed some of the offences for which he was sentenced were committed while he was on parole. 46 In allowing the Crown appeal, Mr Justice Sully at [111] indicated that an offence involved the supply of 20 kilograms of methylamphetamine was, in Mr Kalache's case one that "must entail, at the very least, the giving of serious consideration to the imposition of the statutory maximum penalty", that is life imprisonment. Sully J went on to find that on the facts of that case life imprisonment should have been imposed upon Kalache for that offence. However, because it was a Crown appeal, his Honour proposed that the sentence should not be life imprisonment but one totalling 23 years. Mr Justice Hulme would have allowed the Crown appeal and sentenced Kalache to life imprisonment for that offence notwithstanding the principles of double jeopardy that normally apply on a Crown appeal against sentence. Justice Hidden agreed with Mr Justice Sully. The sentence imposed for the supply of 20 kilograms of methylamphetamine was 23 years with a non-parole period of 20 years. It should be noted, of course, that was a sentence imposed on a Crown appeal and was a sentence that was reduced by reasons of double jeopardy. 47 As I have indicated there are matters that can distinguish the offender Kalache from both of the offenders before me. They are principally his criminal record, the extent of the network that he operated and the fact that he was not himself a user of drugs. The sheer enormity of the amount of drug supplied by Mr Walsh, his role in that distribution and the period over which the distribution took place indicates to me that a life sentence would have been warranted having regard only to the objective seriousness of his conduct and the harm occasioned to the community in general and those to whom he supplied in particular. Denunciation of this grossly criminal conduct and general deterrence alone would make that sentence an appropriate one. 48 However, the Crown has submitted that a life sentence is not warranted for either of the offenders. In the case of Mr Walsh that concession is based upon the following matters: that the offender was a user of the drug, that he had no prior convictions and the utilitarian value of the plea of guilty. In the case of Mr Little the Crown bases the concession on the fact that he has no previous record for drug-related offences and the utilitarian value of the plea. There is, however, evidence before me that he was also a user of drugs. 49 Of course, I am not bound by the Crown's concessions but the fact that I am informed that it is made on instructions received from the Director of Public Prosecutions is highly significant and has been highly persuasive. In my view in the case of Mr Walsh the most significant factor calling for leniency is the very substantial utilitarian value of the plea of guilty. I come to this view notwithstanding the opinions expressed by the members of the Court in Kalache about the weight to be given to the utilitarian value of a plea of guilty in a case where the offending is so serious that it otherwise calls for the maximum. In the present case the fact that both offenders pleaded guilty meant that this Court was saved the cost and effort of conducting a trial expected to take up to six months and involving a number of accused persons. As a result of the pleas of guilty, a number of very short trials took place and the time taken to dispose of the matters could be measured in days rather than months. However, in each case it was not an early plea and a discount of about 15 per cent would be appropriate. 50 In Mr Walsh's case, had the offence been one to which s 61(2) of the Crimes (Sentencing Procedure) Act applied I would have felt myself obliged by the terms of that section to have imposed a life sentence on him notwithstanding any Crown concession and notwithstanding the plea of guilty. But in the present case I am prepared to accept the Director's concession and for the reasons that the concession was made that a sentence other than life imprisonment does fulfil the purpose of sentencing in the protection of the public. I do so despite some very substantial initial misgivings. I also take into account what evidence there is of Mr Walsh's remorse and contrition for his criminal conduct while a member of the Nomads. I want to make it perfectly clear that had it not been for the plea of guilty I would have imposed upon him a sentence of imprisonment for life. 51 But having determined that the three factors relied upon by the Director and evidence of remorse allow me to impose a sentence on Mr Walsh of less than life imprisonment, I do not intend to give those factors substantial weight in determining the appropriate determinate sentence to impose upon him. They have mitigated the sentence from life imprisonment. If I took them into account again as reducing the objective seriousness of the offence or as justifying a further discount of the appropriate sentence, they would be given disproportionate weight by double counting. I make it perfectly clear that in Mr Walsh's case in respect of the offence of supply I am giving no further discount for the plea of guilty. The fact that he was a user of drugs and that he had no prior criminal record when he joined the motorcycle club are, however, relevant to a finding that he may be rehabilitated. 52 In Mr Walsh's case I have considered the matters of aggravation set out in s 21A of the Crimes (Sentencing Procedure) Act. Two of those matters seem to be relevant: that the offence involved a series of criminal acts and that it was organised criminal activity. The Crown submitted that there was a third matter of aggravation being that the offence was committed in disregard of public safety. However, the supply of prohibited drugs is an offence premised on the basis that such conduct is carried out in disregard of public safety and that factor cannot be a separate matter of aggravation: see R v McMillan [2005] NSWCCA 28. I have already referred to the matters in mitigation arising from the plea, his lack of record and good character. I cannot form any view about his likelihood of re-offending such was the seriousness of his conduct over the period of the offending. I assume that, if on his release he avoids drugs, gambling and the Nomads, he may again live the life of a worthwhile citizen. The problem with making predictions about his future conduct is frankly the length of time he will be in custody before he will be eligible for release. I do not deny, however, that he has good prospects for rehabilitation on the material presently before me. 53 In addition to his criminal conduct in the supply of drugs, Mr Walsh was also engaged in serious crimes against property and he had a large number of firearms in his possession. The offence in relation to the attempt to steal the ATM machine is itself an offence warranting a substantial prison sentence even without taking into account the matters on the form 1. The firearms and associated offences are also serious and would standing alone require the imposition of significant gaol sentence regardless of the purpose for which he had them in his possession. The simple fact is that for a period of over four years and presumably by reason of his immunity as a member of the Nomads, Mr Walsh believed that he was above the law and could act with impunity. 54 The Crown submitted that at least partly cumulative sentences should be imposed for the three groups of offences represented by the charges before the court. That is a submission that would normally have considerable merit notwithstanding that all the offences arose from the one period of criminality. Whether it should be acceded to in the present case really depends upon an assessment of whether the appropriate sentence for the supply offence leaves any room for cumulation, partially or otherwise, of sentences for the other offences. 55 The difficulty in sentencing Mr Walsh is not in determining how long the sentence should be to reflect the total criminality before me but that any such sentence would in effect be the equivalent of a life sentence or be a sentence so crushing that there would be little difference in reality between the sentence imposed and life imprisonment. 56 This problem was recognised by the Court of Criminal Appeal recently in R v Folbigg [2005] NSWCCA 23. The Court held that although the sentencing judge had determined not to impose a "life meaning life" sentence on the offender, the sentence imposed in effect amounted to a life sentence because of its length. In that case the sentence imposed at first instance would have meant that the offender could not have been released to parole until she was aged 66 and, had she been required to serve the total sentence without parole, she would not have been released until she was aged 77. The court held that the sentences were therefore excessive. 57 In the case of Mr Walsh a sentence appropriate to denunciate his conduct as a person operating a commercial business involving the supply of 450 kilograms of amphetamine over a period of four and a half years could well have the same result as did the sentence imposed upon Ms Folbigg: the sentence would be too close to a life sentence and not sufficiently give effect to the concession made by the director and accepted by me that such a sentence was not appropriate. But it must be a sentence that truly reflects the enormity of the criminal activity in which he was involved in distributing such a large amount of drug over such a lengthy period of time. I will moderate the sentence to sufficiently distinguish it from a life sentence. However I cannot reduce it to such a degree that I can appropriately make the sentences for the property and firearms offences even partially cumulative. To impose a sentence which does not accurately reflect the seriousness of the supply offence would reduce its denunciatory and deterrent effect. I do not intend to reduce the otherwise appropriate sentence simply so that it can appear that I am punishing him for other offences by imposing cumulative or partially accumulative sentences upon it. 58 I understand that if sentences are made concurrent it appears that the offender is getting "the other offences for free". Generally speaking the failure to cumulate sentences for separate and serious criminal offences will result in a sentence that is manifestly inadequate. I am also appreciative of the fact that I can reduce the otherwise appropriate sentence for an offence because I am ordering that the sentence for another offence be served cumulatively upon it: see Johnson v The Queen (2004) 205 ALR 346. However I do not believe that course would be an appropriate one to adopt in the present case. Put simply any sentence that would appropriately punish the offence of supply leaves no room for any further punishment for other offences committed by the offender regardless of how serious they might be. 59 If I am wrong in my assessment of the appropriate sentence for the supply offence, then it should be understood that the sentence I imposed for that offence is the total sentence I would have imposed to reflect the total criminality before me limited by the consideration referred to in Folbigg. I should also note that it appears from the statistics that no sentence of more than imprisonment for 10 years has been imposed for this type of offence. This is notwithstanding that the maximum penalty is life imprisonment. But as I have already noted there does not appear to have been a case, except Kalache, approaching anywhere near the seriousness of the offence committed by Mr Walsh. The sentence I intend to impose is well outside the range of sentences that have been imposed for that reason. 60 In Mr Little's case I doubt that I would have found that the offence warranted a life sentence even had there been no concession to that effect by the Director. This is not in any way to under value the seriousness of his criminality in setting up a commercial business in manufacturing amphetamine for supply. The amount supplied to Mr Walsh is 19 times the quantity that brings a manufacture within the large commercial quantity and exposes the offender to a life sentence. The business was operating over a period of two years. The criminality of the person who manufactures a drug so that it can be distributed is probably greater, generally speaking, than the person who distributes the drug. This is because the manufacturer has created the evil that is then spread into the community. His criminality is similar to the person who imports drugs into the community from abroad. 61 As with Mr Walsh, I know of no other case where the offence before the court was so serious. Although it may not have been in the worst category of offence so as to warrant life imprisonment it was only just outside that category. The aggravating features are obvious and I have already referred to the mitigating factors. I am willing to make the same assumptions I made in the case of Mr Walsh that Mr Little is unlikely to offend if he avoids those circumstances that are said to account for the present offending and further that, as far as I can see into the distant future, he has good prospects of rehabilitation. 62 I have already indicated that he should receive a discount of 15 per cent on each offence for the utilitarian value of his plea. I am willing to accept that he was at the relevant time a user of the drug but he was in the business of manufacturing methylamphetamine on a commercial basis. It was an offence which was serious both by reason of the amount of drug involved, the period of time over which the offence was committed, and the sophisticated nature of the operation. In my view it is one that comes towards the top of the range notwithstanding those matters which I have mentioned by way of mitigation. 63 I have already noted the range of sentences imposed for the supply offence with which Mr Little has been charged. The same comment applies with respect to the manufacturing offence: there appears to be no case approaching the seriousness of that committed by Mr Little other than Kalache. There are only two cases recorded in the JIRS statistics for an offence of manufacturing a large commercial quantity of amphetamine and they cannot assist in determining the range. In respect of the offence of knowingly take part in the manufacture of a large commercial quantity the highest sentence appears to be one of 10 years. Again the sentence I intend to impose on Mr Little is well outside that range because I do not believe there is any offence in that range that approaches the seriousness of the present offence. In so far as some of those cases may have arisen from the Kalache enterprise, the sentences would have been infected by parity with the manifestly inadequate sentence imposed upon the principal. 64 In neither case are there special circumstances warranting a reduction in the non-parole period. I accept that there is material in the subjective cases of both offenders that might in an appropriate case give rise to a finding of special circumstances where a longer parole period was warranted than would have been provided by the statutory formula. But the sentences I am about to impose will be so lengthy that the normal proportion between the non-parole period and the term of the overall sentence results in a parole period that is more than adequate for rehabilitative purposes. There is no other consideration that would warrant a reduction in the non-parole period. I have reached this view notwithstanding the evidence as to Mr Little's anxiety disorder and the consequences for him of a long term of prison confinement. 65 I appreciate that the sentences to be imposed on both men are more than are sometimes imposed on a person convicted of one or more murders. But Parliament has determined that there can be cases involving the supply or manufacturing of drugs that are so heinous that they are as serious as murder and justify the harshest sentence that can be imposed. I note in passing that the only offences for which any person receives the maximum penalty prescribed seems to be murder or the importation of drugs. Would-be manufacturers and suppliers of methylamphetamine should take note that they are not immune from such a sentence in an appropriate case. 66 In Mr Little's case, as in the case of Mr Walsh, the drug offences are so serious and the sentences must be of such a length to punish that criminality that there is no room to impose cumulative sentences for the other matters notwithstanding their seriousness. 67 Both offenders are convicted. In respect of each of the offences other than the supply of prohibited drug in respect to Mr Walsh I have deducted 15 per cent on account of the plea of guilty. 68 Mr Little in respect of the offence of manufacturing a prohibited drug you are sentenced to imprisonment for 22 years to commence from 24 September 2001. There is to be a non-parole period of 16 years 6 months that is to commence on the same date and to expire on 23 March 2018 the date upon which you are eligible to be released to parole. 69 In respect of the offence relating to the possession of the submachine gun, being count 19, and taking into account the matters on the form 1 you are sentenced to a fixed term of 3 years and 6 months to commence on 24 September 2001 and to expire on 23 March 2005. 70 In respect of the other offences to which you pleaded guilty in each case you are sentenced to a fixed term of 15 months to commence on 24 September 2001 and that expired on 22 December 2002. 71 Mr Walsh on the offence of supplying prohibited drugs you are sentenced to imprisonment for 32 years. That sentence is to date from 23 September 2001. There is to be a non-parole period of 24 years which is to date from the same date and is to expire on 22 September 2025 and you are eligible to be released to parole on that date. 72 In respect of the offence of aggravated break and steal and taking into account the matters on the form 1 you are sentenced to imprisonment for 6 years 9 months to commence from 23 September 2001. I specify a non-parole period of 5 years to commence on the same date and to expire on 22 September 2006. 73 In respect of the larceny offence you are sentenced to a fixed term of imprisonment of 2 years and 2 months to date from 23 September 2001 and that expired on 22 November 2003. 74 In respect of the offence of possession of the .303 machine gun and taking into account the matters on the form 1 you are sentenced to imprisonment for a fixed term of 3 years 6 months from 23 September 2001 and to expire on 22 March 2005. I have imposed a fixed term by reason of the sentences otherwise imposed upon you 75 In respect of the two remaining offences, that is the possession of the revolver and the possession of the silencer you are sentenced to a fixed term of 15 months to commence on 23 September 2001 and that expired on 22 December 2002. 76 The parties agreed that I should dismiss two summary offences which are referred in a certificate under s 166 of the Criminal Procedure Act 1986. This is a procedural step merely to dispose of these matters which were minor offences of being in possession of drugs at Murwillumbah and Terranora on the day of Mr Little's arrest. Therefore these two summary offences set out in the certificate are dismissed.

Regina v Walsh and Little

At a glance

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Before

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Catchwords

Judgment (18 paragraphs)

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Cases Cited (5)

Cited By (4)