Salafia v R

The proceedings in the District Court

1. The applicant was jointly arraigned with his co-accused on 27 August 2013, and entered a plea of guilty. The plea was entered after extensive negotiations between the Crown and the applicant, and several days after the date on which the applicant's trial was due to commence.
2. The sentencing judge awarded a 10% discount in recognition of the utilitarian value of the plea.
3. The sentence proceedings with respect to the applicant were heard over two separate days before he was ultimately sentenced on 21 February 2014, together with two of his co-offenders, Stefano and Rocco Romeo.
4. The applicant was on bail at the time of the sentence proceedings, having spent 19 days in pre-sentence custody prior to entering bail.

The facts of the offence

1. A statement of facts, signed by all of those co-offenders who had entered a plea of guilty, was tendered in the Crown case on sentence. Although the statement was termed an "agreed" statement of facts, and bore the applicant's signature, there were in fact discrete passages of the document with which the applicant (alone of the offenders) took issue. Her Honour was accordingly required to resolve that dispute. In large part, the dispute fell away after the applicant gave evidence before her Honour. Nothing turns on the factual dispute for present purposes, since there is no complaint as to any of her Honour's conclusions in that regard.
2. The facts set out below have been taken from the outline of the facts as they were found to be by the sentencing judge.
3. Between May and August 2011 the applicant became the focus of a police investigation involving both electronic and physical surveillance, which exposed a joint criminal enterprise between the applicant and a number of others to manufacture methylamphetamine. The manufacturing process was undertaken at a rural property belonging to, Stefano Romeo, at Putty, near Singleton, in New South Wales.
4. The applicant was responsible, in early May 2011, for obtaining a sample of pseudoephedrine that he provided to Ross Lentini for testing. The plan was to manufacture methylamphetamine via a process utilising liquid pseudoephedrine. There followed a number of telephone conversations over ensuing days, and the eventual testing of the sample by, Peters-Fyfe. Lentini subsequently informed the applicant that the sample was "hundred per cent ridge didge". (This was not actually correct; the sample was of poor quality.) Having been informed of the test results, the applicant made arrangements with one of his associates to "bring that thing" [pseudoephedrine] the following day, on 1 June 2011.
5. A meeting took place between the applicant and a number of others at two locations in western Sydney, in furtherance of the agreement to manufacture methylamphetamine.
6. After the meeting, the applicant contacted another one of his associates, Ned Whelan, and asked Whelan to set up a meeting with the "big fella" in Canberra. They discussed the prospect of the applicant leaving his car and a motor bike as a security in exchange for obtaining "them" to do a "twenty of them." The applicant and Whelan met at Gundagai on 2 June 2011.
7. On 3 June 2011, in a number of intercepted conversations, the applicant and Lentini discussed laying five metres of tiles and tilers wanting to start the job "up there" the following day. The applicant expressed reservations as to whether he would make it back from Canberra in time. However, he contacted Whelan and asked him to "just grab the five" as he would come the following day to collect it.
8. There is no dispute that these conversations related to the manufacture of methylamphetamine, and the terms "five" and "twenty" referred to amounts. In evidence on sentence proceedings the applicant agreed he obtained pseudoephedrine through Whelan, and discussed the manufacturing process with Lentini, who knew the people who could conduct the "cook".
9. The applicant acknowledged in his evidence that, subsequent to this discussion with Whelan on 3 June 2011, he endeavoured to obtain $20,000 to purchase more pseudoephedrine to provide to Lentini. He was unsuccessful.
10. The applicant was observed in the company of some of his associates on 7 and 8 June 2011. On 7 June 2011 the applicant travelled to Wagga Wagga where the conversations about obtaining the necessary $20,000 continued. By the end of the following day, 8 June 2011, the applicant had obtained a quantity of pseudoephedrine, in an amount not established by the evidence.
11. A number of telephone calls were made in the days following between the applicant, Lentini and Stefano Romeo, discussing future plans, with the applicant and Lentini ultimately meeting on 15 June 2011. The applicant provided the liquid pseudoephedrine to Lentini that day.
12. The two subsequently met with other of the co-offenders, Lentini, Stefano and Rocco Romeo, Talia and Peters-Fyfe, with one of the group making a purchase from a hardware store before the discussions continued.
13. The following days were marked by telephone conversations between various of the offenders, in which arrangements for the manufacture of methylamphetamine, including the purchase of necessary equipment was discussed.
14. On 21 June 2011 Lentini told the applicant that everything was fine but that he did not think "it" would be ready by the following day.
15. That asserted optimism was not borne out since, by 29 June 2011, conversations between the applicant and the other offenders centred on the lack of progress. Lentini informed Stefano Romeo that the applicant was concerned about the delay, since he had lost his car, and the person who had provided the precursor wanted it back.
16. At a meeting between Stefano Romeo, Lentini, Talia and the applicant on 1 July 2011, Stefano Romeo told the others that the manufacture was "harder than what they thought." Further meetings followed between various parties, discussing the lack of progress and anticipated payments.
17. Lentini and the applicant met a number of times on 6 July 2011.
18. On 9 July 2011, the applicant informed Lentini that the deadline was 13 July and that he wanted his money or there would be trouble. He said he could not continue to lie to the people who had provided the pseudoephedrine.
19. The following day Lentini told Stefano Romeo to find the money to pay the applicant. On 11 July 2011 Lentini told the applicant that he had delivered the "mixer" to Stefano Romeo, but the applicant continued to express considerable frustration at the delay [in the manufacture], saying that he would "splatter" Stefano Romeo "all over the car park". Later the same day Stefano Romeo conveyed the deadline to Talia.
20. On 13 July 2011 in conversation with Lentini, the applicant queried whether the other parties were "fair dinkum". He was assured that they were, and was invited to come to Sydney and speak to Talia. The applicant asked for a loan, saying that he was broke, because he had "put everything into this." On 16 July the applicant told Lentini that he had spoken to "them" - the suppliers of the pseudoephedrine - and reassured them that he had been truthful about the manufacturing process. He said that his car had been returned, but that his "Harley" had been taken.
21. Contact and discussions about progress and when the "tilers" would be ready continued between the offenders. On 18 July 2011 Lentini told the applicant that he wanted someone to be present to watch over the manufacture on his behalf. The applicant contacted one of his associates and told him he would have to "go out to Ross"' [the site] for the day. However the plans were further delayed due to some "outstanding things".
22. The following day, Lentini met with the other co-offenders at Campbelltown. After this meeting he spoke with the applicant. Lentini confirmed that the preparations were being made. The applicant said he wanted to get "money back in the bank" and urged Lentini "just tell him before you do the second stage bro you want a bit of fuckin' gold stuff'."
23. By 22 July 2011 the manufacturing of the drug had still not commenced. There were further discussions between the group about the "materials" and "wall glue" not arriving at the "tile shop". There were also difficulties with access to the site due to rain, which meant that a four wheel drive was required. Stefano Romeo spoke with Talia that day and discussed how to collect the "material" and commence some preparatory work. Romeo told Talia that the "builder" [the applicant] was "spewing" at the "tradesman" [Lentini].
24. That same day the applicant informed Lentini that his mates in Wagga '"want to know how long we reckon?". On 24 July 2011, having been informed that "all is under control and not to worry", the applicant expressed his frustration over the lack of notice from the Romeos, stating that he had told them that they would have to wait until he had organised his materials.
25. The following day, 25 July 2011, [1] the applicant spoke to his brother and said that he had "just rung the lads" and told them "if it's not done by tomorrow, youse can get fucked I'm coming down to kill ya". Some detailed conversations took place between Lentini and Stefano Romeo about travelling to the site and commencing the manufacture that day. Later in the day Lentini told the applicant that Stefano and Rocco Romeo had left to go to the site.
26. The site referred to was a rural property located in a valley surrounded by steep hills and dense foliage. The only structure at the property had a tin roof but no proper door. There was a garage with a roller door beside the structure. There was no mobile telephone coverage or electricity. Access was via an unsealed road.
27. Police entered the site on the evening of 25 July 2011, at a time when none of the offenders were present.
28. By 26 July 2011, the "outstanding item" was obtained and transported to the site. At 11.15am Rocco Romeo drove to the site bringing a 44 litre drum. He was joined by Stefano Romeo, Talia, Peters-Fyfe, and later Finau and Sheldon. Neither the applicant nor Lentini attended the site on this day.
29. Police commenced surveillance at 12.30pm and observed the offenders busy at work. This extensive activity produced solid pseudoephedrine from the liquid form. That evening, Stefano Romeo sent a text message to Lentini referring to the applicant, which read "I feel very sorry for Mick". The sentencing judge found that this message arose from Stefano Romeo's awareness of the likely failure of the operation, due to the low quality of the liquid pseudoephedrine.
30. On 27 July 2011, Talia, Finau and Sheldon were involved in manufacturing methylamphetamine from the pseudoephedrine obtained the previous day. Stefano Romeo sent a message to Lentini saying "I wouldn't even worry about it. Poor Mick got ripped bad" [a reference to the poor quality precursor obtained by the applicant]. Around the same time Rocco Romeo told Lentini to arrange for the applicant to come and see them. The applicant called Stefano Romeo but told him he couldn't meet up for personal reasons. Romeo said "I feel very sorry for you. I feel very sorry, that's all I've got to say. All right?" This too appears to have related to the likely failure of the manufacturing undertaking.
31. The applicant spoke to Lentini and said that he believed that Stefano and Rocco Romeo had lied about the results of the manufacture. He said that he needed to go and speak to them stating "we have to do this together" and "whatever happens...I got other things for you and me man ...whatever I do I'll fuckin include you". There were further discussions between Lentini and the applicant concerning whether the applicant was being given accurate information about what had really occurred in relation to the manufacture. The applicant said he was not getting stuck with "this bill on me own" and was not leaving Sydney "without something in my hands." Lentini asked the applicant what he was going to do with "the rest of the materials", to which the applicant replied "I can get rid of that."
32. The applicant spoke to Stefano Romeo shortly after, challenging him as to who was lying to him and why. Romeo explained there were problems with the quality of the materials, specifically, the purity of the pseudoephedrine that had been provided by the applicant. It was decided that they would attempt to manufacture as much methylamphetamine as was possible from the available material, rather than to aim for a specific amount. Stefano Romeo explained that the "tiles", that is, pseudoephedrine, was not 75% pure but only 12 or 15%. Nonetheless, he assured the applicant, "we're still going to help you ... we'll do what we can".
33. Police arrested Finau, Sheldon, Rocco and Stefano Romeo later that day. Lentini and the applicant were arrested on 28 July 2011.
34. The applicant declined to be interviewed. Talia was arrested on 4 August 2011. Having affected the first arrests, police entered and searched the site. They located items related to the manufacture of methylamphetamine including laboratory glassware, chemicals, an ice making machine, a generator, heating apparatus, jars, containers, respirators, gloves, and a condenser.
35. A forensic chemist, Mr John Hugel, inspected the site, the equipment, and the materials located at the scene. His report of 24 February 2012 was tendered without objection during the sentence proceedings.
36. Mr Hugel opined that methylamphetamine had been manufactured at the site using a method involving the synthesis of pseudoephedrine, hydrophosphorous acid, iodine, and reflux apparatus. Waste product containing low concentrations of methylamphetamine, consistent with the manufacture process, was detected in various substances at the site.
37. Manufactured methylamphetamine was found in four items, in each case in a liquid form. The combined weight of the liquid containing methylamphetamine was 1409.29 grams with an estimated purity of between 1.7% and 3.5%. The combined weight of pure methylamphetamine was 31.6 grams. The approximate wholesale value of 31.6 grams in July 2011 was $7,550.
38. Police located a number of precursors including caustic soda and hydrochloric acid. Also located at the site were containers with 2,590 grams of iodine and 884 grams of hydrophosphorous acid, chemicals which in combination with pseudoephedrine are used to manufacture methylamphetamine. The amount of methylamphetamine that could theoretically be derived from these chemicals was calculated in Mr Hugel's report, and referred to by her Honour in her remarks on sentence.

The applicant's evidence

1. The applicant gave evidence before the sentencing judge, who ultimately found him to be "evasive, vague and not convincing in aspects of his evidence."
2. He asserted that he became involved in the enterprise to manufacture methylamphetamine to recover a debt of $5,000 that Whelan owed him. He claimed that, in lieu of payment of the debt, Whelan had suggested that, if the applicant contributed a further $5,000, he could obtain a litre of pseudoephedrine at a cost of $10,000. Whelan told the applicant that, in addition to cancelling his debt, the applicant could also "make some money back".
3. The applicant said that he made some inquiries to find a person to manufacture the methylamphetamine, and approached Lentini, a childhood friend. Lentini informed him that he might know of someone, and, in the applicant's words "we just went on from there".
4. The applicant stated he first obtained a 100ml sample and asked Lentini to have it tested before he committed to purchasing the full amount. Having been informed the sample was good, the applicant proceeded with the purchase of the litre of pseudoephedrine.
5. The applicant attempted, unsuccessfully, to raise $20,000 to obtain more pseudoephedrine once more was requested by Lentini. He claimed he only attempted to obtain two extra litres, denying a suggestion he was trying to acquire five litres at a cost of $4,000 per litre. As he was unsuccessful in raising the funds, he discussed offering a car and motorbike as security, but claimed that was just brainstorming as he had no such vehicles to offer, and the supplier was not interested in any event. The Crown ultimately accepted that the applicant was unsuccessful in obtaining these additional funds.
6. The applicant acknowledged that he had become very angry about the lack of progress, the inconsistent information he was receiving, and the delay in getting his money back. He claimed that he "didn't think about the consequences" of becoming involved with drug manufacture and was thinking that he would "probably get back 10 grand and double my money and walk away ...or get my money back for starters".
7. In cross examination the applicant agreed that he had some $7,000 in savings at the time and was not in dire need of money with an urgent requirement that he recover the outstanding debt. He acknowledged that his motivation went beyond obtaining payment of the debt owed to him, and extended to obtaining a financial benefit.

Applicant's subjective case

1. A pre-sentence report was tendered on sentence, supplemented by the applicant's oral evidence.
2. Born in 1974 to an Italian father and an Aboriginal mother the applicant was 39 at the time of the sentence proceedings. He had had an impressive football career from the age of 15. He has one child from a previous relationship and two children to his current partner who remains supportive of him. He had a good working history and was employed at the time of the offence in an abalone business. He had moved his family back to his home town to ensure a better quality of life in a small, drug-free community.
3. The applicant had only one matter on his criminal record, being an ex parte conviction for affray for which he was fined $800, a record which her Honour found did not disentitle him to leniency.
4. There was nothing before the Court to suggest any mental illness or cognitive impairment. There was no evidence of drug use or addiction.
5. Her Honour found some evidence of remorse, but, noting the applicant's initial tendency to justify and minimize his involvement in the offence, found it was in part directed to his own legal predicament rather than to his offending behavior and its possible consequences. Nevertheless, her Honour found the applicant has "reasonable to good" prospects of rehabilitation.

Ground 1: The sentencing judge erred in the way in which she dealt with the pre-sentence custody

1. Following his arrest on 28 July 2011 the applicant was remanded in custody until bail was granted to him on 16 August 2011. He entered bail that day. This represented a period of nineteen days pre-sentence custody referable solely to this matter.
2. As noted above, when sentence was imposed upon the applicant on 21 February 2014, her Honour directed that it commence that day. She did not back-date it by nineteen days.
3. The applicant complains that in doing so her Honour either, failed to take into account the nineteen days of pre-sentence custody he had served; or, if she did, she failed to provide reasons for not back-dating the sentence.
4. Section 24(a) of the Crimes (Sentencing Procedure) Act 1999 requires a court to take into account "any time for which the offender has been held in custody in relation to the offence". Section 47(2)(a) of the same Act provides that a court may direct that a sentence commence "on a day occurring before the day on which the sentence is imposed", and s 47(3) requires that a court take into account the time an offender is held in custody when deciding the date on which sentence is to commence.
5. Whilst there is no absolute rule as to how such pre-sentence custody is to be taken into account by a sentencing court, backdating the commencement of a sentence to directly reflect the period of pre-sentence custody is the usual course adopted. This approach has generally been held by this Court to be preferred, since it readily demonstrates that the sentencing court has given an offender credit for time served.
6. In Wiggins v R [2010] NSWCCA 30 Howie J said (at [3]), "This Court has repeatedly stated that the preferable course to adopt, where an offender has served a period of pre-sentence custody, is to backdate the sentence imposed by a period equivalent to the pre-sentence custody. In R v English [2000] NSWCCA 245, Giles JA stated (my underlining): This Court has on a number of occasions said that it is desirable that a sentencing judge back-date a sentence to take into account pre-sentence custody. It is not necessary to go further back than R v McHugh (1985) 1 NSWLR 588 and what may be regarded as the definitive decision in R v Deeble (19 September 1991, unreported), in which the reasons for the practice are outlined: they need not be repeated here. Subsequent cases included R v Reid (26 March 1997, unreported) and R v Foster (30 October 1996, unreported). The desirability is put not as something which is mandatory, but as a rule of practice of importance, and in my view the importance should be emphasised once again. If a sentence is not back-dated to take into account pre-sentence custody the reason or reasons for not doing so should be clearly stated." (emphasis in Wiggins)
7. Backdating a sentence in this way avoids the possibility of an offender feeling that he or she has been unjustly dealt with on sentence by a perceived failure to reflect pre-sentence custody: Wiggins, at [2], per McClellan CJ at CL. It is, as was noted in Wiggins (at [8]), "simple, transparent, and does not result in an apparently lesser sentence being imposed than was actually served by the offender".
8. Whilst the latter benefit is more apparent when an offender has served a lengthy period in custody on remand, there is much to be said for the regularisation of the use of backdated sentences in most cases where there has been pre-sentence custody.
9. In imposing sentence on the offender, her Honour specifically referred to the period of nineteen days pre-sentence custody that the applicant had served. "Taking into account your plea of guilty and the 19 days served in custody to date, I impose a sentence of three years six months imprisonment, with a non-parole period of two years two months to date from 21 February 2014 and to expire on 20 April 2016 […]"
10. As can be seen, the reference to the period of pre-sentence custody prefaced both the term of imprisonment imposed and its commencement date. Although the manner in which her Honour took the nineteen days into account is not made explicit in that reference, it is clear that her Honour did not overlook the period of nineteen days, or otherwise omit to take it into account as required by s.24.
11. Whilst the applicant submits that it is open to conclude that her Honour in fact overlooked the period of pre-sentence custody, I would not draw that conclusion. That is particularly so in circumstances where her Honour stated clearly that she had taken it into account. For my part, I would not do other than take her Honour at her word.
12. Although the applicant contends that the expression of the sentence "in round terms" suggests that the sentencing judge did not give him credit for nineteen days served, that contention assumes that the pre-sentence custody could only have been taken into account as a direct deduction from the sentence that would otherwise be imposed. That is, because the sentence ultimately imposed was not expressed as including a number of days, her Honour must have failed to take the nineteen day period properly into account.
13. Whilst the process of sentencing an offender should not be permitted to be reduced to an analysis of calculus, as is suggested by the applicant's approach, looking at the sentence in just that way can readily demonstrate one process by which it is likely that her Honour took pre-sentence custody into account.
14. The sentence her Honour imposed incorporated a discount of 10% to reflect the plea. The starting point for the sentence of 3 years and 6 months, prior to the application of the discount, would have been 3 years, 10 months and 21 days imprisonment. It is very unlikely that a sentence of a term incorporating days could in fact have been the starting point.
15. Although in the absence of specific reasons for not back-dating the sentence it cannot be certain, it is more likely that the starting point for the sentence was one of 4 years. If one subtracts 19 days from that starting point, then applies the 10% discount, then rounds the sentence down, the sentence reached is 3 years and 6 months. The (rounded down) sentence is the same if the discount of 10% is applied to the starting point, and the nineteen days is deducted thereafter.
16. In undertaking that exercise, I do not mean to endorse a process of calculation as underpinning the sentencing exercise. Too frequently are such arguments advanced by appellants and complaints of that nature should not, in my view, be entertained without some specific error of the type referred to in House v The King [1936] 55 CLR 499 at [505] having been identified.
17. The process of sentencing an offender is, as has been repeatedly stressed, an intuitive one. Sentencing cannot be a purely logical exercise of adding or subtracting from a penalty dependent upon the presence or absence of specific features: R v Engert (1995) 84 A Crim R 67 at 68; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476.
18. Sentencing is very much a discretionary process. In Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600, it was noted (at [59] in the joint judgment of French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ), "In Markarian Gleeson CJ, Gummow, Hayne and Callinan JJ adopted the explanation of the sentencing discretion given by Gaudron, Gummow and Hayne JJ in Wong v The Queen that the description of the balance struck by a sentence as an "instinctive synthesis" is not used "to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features [footnotes omitted]."
19. The applicant here contends that, even if her Honour did take into account the nineteen days of pre-sentence custody, she fell into error in failing to give reasons for not adopting the approach of backdating the sentence.
20. Whilst that failure could perhaps be characterised as error, it cannot amount to error of the kind requiring this Court to intervene and re-sentence an appellant.
21. Accepting that her Honour took the pre-sentence custody into account as she was required to by s.24 and as she said she did, failing to record reasons for not adopting the approach of backdating a sentence does not establish that she acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts, or did not take into account some material consideration.
22. A failure to record reasons of that nature may lead to some lack of clarity, as Howie J (somewhat cholerically) commented in Wiggins at [7]. "Despite the repeated endorsement of this Court for the preferable course of backdating a sentence to reflect the period of pre-sentence custody, this is yet another case where the sentencing judge has not taken that course and yet given no reasons for not having done so. The result is an application for leave to appeal that could have been avoided by the simple expedient of commencing the sentences imposed upon the applicant six months earlier than the date of sentencing."
23. Similarly, had her Honour stated her reasons for not adopting the usual procedure of a backdated commencement date, the applicant could not have advanced the present ground 1. However, that oversight is not error in the House v The King sense.
24. Oversight of that nature has not been treated as error requiring the intervention of the appellate Court in other cases where reasons were similarly not given by the sentencing judge for commencing a sentence at an earlier date: English [2000] NSWCCA 245 at [22] - [24]; R v Starmer [2008] NSWCCA 27 at [12]; and Kaminic v R [2014] NSWCCA 116 at [32] - [34], for example.
25. Despite the departure from the practice of stating reasons for not commencing the sentence at an earlier date, there is no occasion for interference with the sentence imposed by her Honour.
26. Error has not been established.

Ground 2: The sentencing judge erred in her consideration of the objective seriousness of the offending.

1. In advancing this ground the applicant argues for three errors which he contends undermine the correctness of her Honour's assessment of the objective gravity of the crime, namely: 1. That her Honour erred in the assessment of the applicant's role in the enterprise; 2. That her Honour erred in the way she considered the amount and purity of the manufactured drug; and 3. That her Honour placed too much emphasis on Mr Hugel's opinion as to the theoretical amounts of methylamphetamine to be manufactured from some of the material located at the site.
2. Complaints concerning error in the assessment of objective seriousness cannot be made good simply by pointing to some differing assessment that could arguably have been made. The question is whether or not the characterization of the gravity of the crime was open to the sentencing judge
3. In Ali v R [2010] NSWCCA 35, this Court said at [33]: "This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R, at [37], [46]-[47]."
4. A ground of appeal asserting error in the assessment of objective seriousness should be advanced only where specific error of the sort referred to in House v The King can be identified rather than, as seems to be commonly the case, a complaint routinely made. Assessment of gravity by a first instance judge is a process involving the application of principle to facts established by the evidence. It is a discretionary process that relies upon a judicial officer considering all relevant features, and making what in many regards is a value judgment. The conclusion reached is a discretionary one in a process where there is no definitively "correct" answer. Opinions can reasonably differ, but the availability of other differing assessments is not a basis upon which to discern error. There will be appealable error only where there has been a failure in the proper application of principle in making the assessment.
5. The ubiquity of a ground of appeal such as this does not suggest that the breadth of the discretion is well understood or, if it is, that it is properly acknowledged.
6. Since his complaint, reduced to essentials, concerns the weight that her Honour gave to different aspects of the assessment she made, the applicant's task is no easy one. That is particularly so when regard is had to the care with which her Honour considered all relevant features of the offence when assessing its gravity.
7. The applicant relied upon the fact that he was not himself involved in the "cook" that resulted in the production of methylamphetamine, and that he suffered considerable financial loss through the failure of the process, a process over which he had no personal control. He argued that these features should have led to a conclusion that the applicant's role was not as significant as the sentencing judge found it to be.
8. The sentencing judge correctly noted that the objective seriousness of the applicant's offending conduct stands to be assessed by the quantity and the purity of the manufactured drug, the degree of sophistication and planning involved, the applicant's individual role and involvement, as well as his intention and motivation for committing the offence.
9. As for the applicant's individual culpability in the context of the joint criminal enterprise, she noted that it was to be assessed by reference to his actual conduct and involvement within the enterprise. She concluded that his role had been a significant one. "I am satisfied beyond reasonable doubt his role was a vital and significant one and can be characterised as upper management. While I cannot be satisfied to the requisite standard that his role was higher than Lentini's role, I am satisfied his role was greater to varying degrees than those of the other persons arrested by the police. Notwithstanding his absence from [the site] on 26 and 27 July 2011, I am satisfied that Salafia knew that the manufacture process was occurring and that others were being utilised in the actual labour process. Salafia provided the pseudoephedrine for the enterprise, albeit in an unqualified amount, and in doing so he intended it to be used to manufacture methylamphetamine as successfully as possible given the amount and quality of the agreed ingredients available and the skills of the actual cooks. Salafia admitted in his evidence that he was motivated by making money by providing pseudoephedrine for use in the manufacture of methylamphetamine. Salafia was of the understanding that the sample he had provided was both "ridgy didge" and "very good". After this he, Salafia, continued to participate in discussions with significant participants in the enterprise which I have no doubt related to the intended manufacture of methylamphetamine using pseudoephedrine that he had provided. At times Salafia expressed his frustration at the delays and the consequent effect they were having on him, for example at 17:58 on 29 June 2011 to Lentini. I have no doubt Salafia's continued participation in the enterprise was because having provided a further quantity of pseudoephedrine, in an amount which cannot be quantified, he was anticipating a financial gain. I make these findings based individually and collectively on all of the material in the Agreed Facts as I have found them proved against Salafia including the following matters: He provided a sample of pseudoephedrine in liquid form; He represented to at least Simpson that the sample was "100% all good"; He participated in numerous meetings over several weeks directly related to the proposed manufacture of methylamphetamine using liquid pseudoephedrine; He participated in numerous coded conversations over several weeks directly related to the proposed manufacture of methylamphetamine using liquid pseudoephedrine; • He obtained an unquantified amount of liquid pseudoephedrine which he delivered to Lentini knowing it was to be used to manufacture methylamphetamine; • He delivered a "mixer" to Stefano Romeo, that being an item required to be used in the manufacture of methylamphetamine from pseudoephedrine; • He set deadlines regarding the timing for the proposed manufacture expressing frustration and concern at times over delays and its consequent effect upon him; • He requested a loan from Lentini stating he had put everything into the enterprise to manufacture; • He issued demands to Lentini for "his money" stating that otherwise there would be trouble; • He participated in communications on 27 July 2011 regarding the success or lack thereof of the manufacture and the fact that steps were being taken to see what might be able to be produced from the available pseudoephedrine."
10. None of her Honour's findings of fact were challenged in oral submissions, nor was it argued that her conclusion that the applicant was "upper management" with Lentini was not open to her. Her Honour's consideration of this aspect of the matter was careful and thorough, and she set out all relevant matters. No error has been demonstrated in his regard.
11. With respect to the second point, the applicant sought to draw a distinction between pure methylamphetamine readily available to be further diluted or "cut", and the situation in the present case where the drug was already diluted in another liquid, and the amount of pure drug was derived from a calculation of the percentage of the drug in the liquid.
12. In her remarks her Honour carefully identified the form in which the prohibited drug was located by investigating police, as follows: "(1) Item A03, a 600 millilitre plastic water bottle containing a quantity of cloudy liquid with a total weight of 2.29 grams, a purity of 1.7% methylamphetamine and a pure methylamphetamine weight of 0.0389 grams; (2) Item A04, a 600 millilitre plastic water bottle approximately 30% full with a total weight of 206 grams, a purity of 3.5% methylamphetamine and a pure methylamphetamine weight of 7.21 grams; (3) Item A05, a 600 millilitre plastic water bottle approximately 20% full with a total weight of 161 grams, a purity of 3.5% methylamphetamine and with a pure methylamphetamine weight of 5.635 grams; (4) Item A09, a 1 litre measuring jug containing approximately 1 litre of brown cloudy liquid with a total weight of 1040 grams, apurity of 1.8% methylamphetamine and with a pure methylamphetamine weight of 18.72 grams."
13. She went on to note the total combined weight of pure methylamphetamine from the four discrete amounts as 31.6 grams. As to the interrelationship between weight and purity with objective seriousness, her Honour said: "The quantity of drug manufactured is a material consideration in assessing the seriousness of a manufacture offence. It is not, however, the sole, chief or determinative factor in assessing objective seriousness. It is a factor that will be relevant to such a determination, the relevance of which will depend on the circumstances of each case. The quantity of methylamphetamine, the subject of the present offence was 31.6 grams. The indictable threshold is reached at 250 grams. Within that range such quantity cannot be described as being large. Again, although not decisive as to objective seriousness, the purity of the substance in question is a very relevant consideration. The 31.6 grams of methylamphetamine the subject of the present offence had a purity of 100%. Such a purity increases the objective seriousness of this offence. Pure methylamphetamine has the capacity to be cut with other substances to increase its quantity. Cut or diluted methylamphetamine can be distributed at street level. Illicit drugs have the capacity to cause considerable harm within the community in many different ways. Fortunately, the methylamphetamine the subject of the present offence was fully recovered by police."
14. The applicant contends that, in these comments, her Honour overlooked the fact that, to derive 31.6 grams of pure methylamphetamine, a further process of distillation was required. Having regard to her Honours remarks as a whole, this submission cannot be made good. Her Honour outlined the factual circumstances in considerable detail, including the chemical status of the methylamphetamine. There is nothing to support the suggestion that she "overlooked" this aspect of the evidence.
15. As her Honour noted, the amount and the purity of the drug is a consideration relevant to the assessment of objective seriousness. So much is accepted by the applicant. In circumstances where the applicant pleaded guilty to the manufacturing of 31.6 grams of methylamphetamine of 100% purity, taking no issue with those particulars, it is difficult to see how her Honour's analysis can now reasonably be asserted to be incorrect.
16. Indeed, on one view, the fact that the amount of methylamphetamine particularised by the indictment and referred to by her Honour was limited to its pure weight may have been to the applicant's benefit. Had the admixture rule in s.4 of the Drug Misuse and Trafficking Act 1985 been relied upon, the overall weight of prohibited drug would have been much greater.
17. The third part of the applicant's complaint under this ground is that her Honour placed too great an emphasis on the report of the forensic chemist, Mr Hugel.
18. Although her Honour referred to the opinions expressed by Mr. Hugel as to the quantity of methylamphetamine that could theoretically be produced from the chemicals found on site - opinions with which the applicant took no issue at first instance - the applicant's complaint is readily negated by considering the whole of what was said on that aspect of the matter. The sentencing judge repeatedly noted that the capacity to produce particular amounts of prohibited drug was "theoretical" only. Significantly, she additionally recognised that there was no evidence that, either, all necessary ingredients were present for any larger quantities to be manufactured, or that those involved possessed the necessary knowledge or expertise to make any larger quantities.
19. In considering those factors relevant to the assessment of the objective seriousness of the crime, her Honour stated that the quantity of methylamphetamine manufactured for which the applicant stood to be sentenced was 31.6 grams. Indeed she concluded that, in a range where the upper threshold of the indictable quantity is represented by an amount of 250 grams of methylamphetamine, the amount manufactured by the applicant "cannot be described as large."
20. Taken as a whole, her Honour's remarks cannot demonstrate that she lost sight of that fact or gave undue weight to Mr Hugel's opinion.
21. This ground has not been made out and I would not grant leave to advance it.

Ground 3: The sentence was manifestly excessive.

1. In support of this ground the applicant argues that the sentence is excessive having regard to the fact that he was not personally involved in the manufacturing process; only a small amount of the drug was produced; the pseudoephedrine provided by the applicant was limited in quantity and of poor quality; and that he suffered financial loss as a result of the enterprise.
2. None of those features in my opinion can greatly mitigate the seriousness of this offence. That an offence is incompetently executed, and therefore makes a loss, can be relevant to objective gravity, but that is always a question to be determined in light of the particular circumstances of an individual case. Ordinarily, the sentencing judge will be in the best position to assess the various features.
3. For my part, I do not accept that the fact that an offence was less successful than intended or that an offender made a loss rather than the hoped for profit, should necessarily diminish its gravity and alleviate against the penalty imposed. The applicant provided what he thought was good quality pseudoephedrine to his associates to further the manufacture of methylamphetamine, and then took all steps that he could to facilitate the efforts of his co-offenders. His role was a senior one, and his crime was committed out of greed and for financial gain. That he ultimately made a loss rather than the money he hoped to gain does not make his crime less serious or ameliorate the penalty to be imposed.
4. Whilst the applicant also highlighted in support of this ground his subjective case, being his "reasonable to good" prospects of rehabilitation, the absence of any chromogenic needs, his minor record, remorse, good employment history, and positive family circumstances, these were all features taken into account by her Honour in fixing the penalty. Some of the latter aspects of the matter figured in the finding of special circumstances made by the sentencing judge, a finding very much in the applicant's favour, and which introduced an additional element of leniency to the sentence imposed upon him.
5. To establish a complaint of manifest excess the applicant must demonstrate that a sentence was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [325]. That burden has to be discharged in circumstances where there is no "correct" sentence and the discretion that reposes in sentencing judges in this regard is a broad one: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
6. The question for this Court is whether the length of the sentence is demonstrated to be outside the range of a sound sentencing discretion. In determining whether a sentence is manifestly excessive it is necessary to examine the result from the perspective of the maximum prescribed penalty, which in this case is fifteen years imprisonment plus a monetary penalty, and considering the gravity of the offence and the personal circumstances of the offender.
7. Having considered the evidence that was before the sentencing court, and her Honour's remarks, I can detect no error in the approach taken, and no departure from the application of relevant principles.
8. This ground cannot be made good.

Conclusion

1. The applicant's complaints have not been made good and I would not grant leave to appeal.

Endnote

1. In what is a typographical error, the Remarks on Sentence refer to this conversation taking place on 14 July 2011. Both the Statement of Facts and the transcript of the conversation indicate it occurred on 25 July. 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: 17 June 2015