Spaliviero v R

1. [1]

   SIMPSON J : I agree with Latham J.

2. [2]

   HISLOP J : I agree with Latham J.

3. [3]

   LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Blackmore SC DCJ on 3 December 2010 in respect of an offence of knowingly take part in the manufacture of a large commercial quantity of ecstasy (MDMA). That offence carries a maximum penalty of life imprisonment, with a standard non parole period of 15 years. Three offences of knowingly take part in the manufacture of methylamphetamine were taken into account on a Form One.

4. [4]

   The applicant pleaded guilty, although the plea came three and a half years after his arrest for the principal offence. There was a lengthy hearing in order to determine several factual issues, before an agreed statement of facts was settled. In the result, his Honour gave the applicant a combined discount of 30% to reflect the plea (12.5%) and a measure of assistance (of which 10% was attributed to future assistance). A further discount of 5% was allowed for the applicant's psychiatric condition.

5. [5]

   A sentence of 16 years and 3 months, including a non parole period of 12 years, was imposed.

6. [6]

   The applicant's grounds of appeal allege error in the judge's approach to the applicant's mental illness (Ground 1) and in the judge's approach to the applicant's assistance (Ground 2).

The Circumstances of the Offences.

1. [7]

   I begin by noting that no issue is taken with the sentencing judge's findings of fact with respect to the applicant's role in the manufacturing process. The following summary of the agreed statement of facts incorporates the judge's findings for the purposes of sentence.

2. [8]

   In the afternoon of 9 November 2005, fire brigade crews were called to a factory unit in Riverstone. The applicant called 000 in an attempt to persuade the operator to cancel the attendance of the Fire Brigade. When fire crews forced entry to the factory unit, a large clandestine drug laboratory was found. Over the following three days, a specialist police unit sampled, swabbed, fingerprinted, photographed, recorded and removed a large number of items from the factory unit, including 300 litre stainless steel pressure vessels, a 780 litre stainless steel pressure vessel, three tablet presses and various chemicals.

3. [9]

   There were 6 kg of ecstasy drying on electric blankets in a room on the mezzanine level of the factory unit. There were more than 80 litres of liquid being converted to approximately 500 g of ecstasy. There was more than 44 kg of pure ecstasy within the laboratory.

4. [10]

   Subsequent police investigations revealed that a person using the name James Walker (who was in fact a co-offender by the name of Klower) negotiated the lease on the industrial unit through a real estate agent between 4 August 2005 and 7 October 2005. On the latter date, a lease agreement was signed in respect of the factory unit on behalf of KLM Machinery Proprietary Ltd. The phone number provided by Mr Walker for the company was the same number used by the applicant when attempting to call off the Fire Brigade in November 2005. KLM Machinery Pty Ltd was registered as a business on 5 August 2005 at the request of John Walker (Klower).

5. [11]

   On 3 August 2005, the applicant registered a company in the name of Mansion Investments Proprietary Limited, nominating himself and his correct address as the relevant contact. Between 8 October and 9 November 2005 there were 15 days during which the mobile phone registered in the applicant's name was diverted to voice mail for periods of up to seven hours. The applicant was engaged during this time, at least, in carrying out the physical work necessary for the manufacture of the drug.

6. [12]

   Two stainless steel condensers which were specially ordered and purchased by the applicant in November 2004 were found in the laboratory, along with other distinctive stainless steel equipment.

7. [13]

   A water cooler and two boilers in the Riverstone laboratory were sold to a John Matthews in 2004 and early 2005. The applicant was not identified by the vendors of those items as John Matthews. However, a silver Porsche Cayenne was used by Mr Matthews to transport the two boilers in early 2005. The applicant drove such a vehicle at that time.

8. [14]

   In October 2005, the applicant, using the name Peter Gray, ordered two 100 litre containers of sodium hydroxide solution from Formula Chemicals, and 200 litres of toluene from APS Chemicals, in the name of KLM Engineering. Both 100 litre containers and a quantity of toluene were subsequently found inside the Riverstone laboratory in November 2005.

9. [15]

   On 2 November, the applicant (again using the name Peter Gray) ordered 200 litres of petroleum distillate and 200 litres of xylene from APS Chemicals on behalf of KLM Engineering. Both substances were found in the factory unit and are consistent with the manufacture of ecstasy.

10. [16]

    DNA samples taken from a respirator mask and a shoe inside the laboratory were matched to the applicant. The mask tested positive to MDMA (ecstasy) and other derivative drugs.

11. [17]

    The three offences on the Form One were committed between November 2003 and December 2004. They each consisted of knowingly taking part in the manufacture of methylamphetamine in three different locations. The facts relating to these offences indicate that the applicant, using the name John Matthews, was engaged on occasions in securing the rented premises where the manufacture took place, purchasing the chemicals used in the manufacturing process and carrying out the physical work necessary to the manufacturing process.

12. [18]

    It was accepted that the applicant was not the principal. His role in the commission of the main offence was considered significant and vital to the enterprise.

The Judge's Approach to the Applicant's Psychiatric Condition.

1. [19]

   At the time of sentence, the applicant was 45 years of age and single. He had left school at the age of 15, worked as a panel beater, and conducted a business in steel fabrication and welding, in addition to his drug-related activities.

2. [20]

   Three reports from Dr Allnutt and two reports from Dr Greenberg were before the sentencing judge. Both psychiatrists agreed that the applicant now suffers from bipolar disorder, although there was a difference of opinion as to whether the disorder was manifesting itself over the course of the offence.

3. [21]

   Dr Allnutt considered that the applicant had suffered from this condition for many years, resulting in fluctuations in mood between mania and depression, as a result of which the applicant would self medicate with amphetamines. The relevant aspects of Dr Allnutt's reports suggested that the applicant's psychiatric condition had not been appropriately diagnosed for some time.

4. [22]

   In his report of 11 May 2010, Dr Allnutt considered that the applicant "manifested a constellation of symptoms consistent with an anxiety and depressive disorder" and that there were "grounds to consider that he might have a bipolar affective disorder ; ...... his presentation is highly suggestive of bipolar affective disorder." Further, Dr Allnutt was of the opinion that "at the material time that the alleged offending occurred the applicant was suffering ongoing symptoms of a chronic depressive disorder as well as probably anxiety disorder manifesting in the form of panic attacks ; he had also developed a dependence on amphetamines ; this dependence on amphetamines, in my view, was significant and contributed to by his mood disorder."

5. [23]

   A further report of 15 June 2010 concluded :-

6. [24]

   Finally, in a report of 8 September 2010, Dr Allnutt explained that :-

7. [25]

   Dr Greenberg saw insufficient evidence to suggest that the applicant was suffering from bipolar disorder at the time of the commission of the offence. In Dr Greenberg's opinion, the applicant had a hypomanic episode in 2009. He acknowledged the possibility that the applicant may have had previous much milder periods of elevated mood and that he had periods of mild to moderate depression in 2006 and over the following years. According to Dr Greenberg, the applicant first exhibited significant clinical signs of severe hypomania while in custody in May 2010.

8. [26]

   The judge referred to the decision of R v Wright (1997) 93 A Crim R 48, wherein Hunt CJ at CL (Gleeson CJ and Hidden J agreeing) said that the means by which courts take into account a mental disorder or abnormality of an offender :-

9. [27]

   His Honour placed particular significance on this aspect of the judgment in Wright, noting that :-

10. [28]

    After noting the submission that the applicant's previous wrong diagnosis of depression was capable of explaining much of his past offending, and that his self medication with amphetamines had put him into contact with criminal elements, leaving him vulnerable to further involvement in drug manufacturing, the judge said :-

11. [29]

    Later in the course of his reasons, his Honour awarded a "specific identifiable discount in relation to the psychiatric condition" of 5%, resulting in a total reduction of 35% to the sentence otherwise appropriate. His Honour acknowledged that this was "somewhat unusual". The discount of 5% represents the slight moderation of the sentence to which the judge referred in the passage set out at [28] above.

Ground 1

1. [30]

   It is conceded by the Crown that, in the circumstances of this case, the application of a specific percentage reduction to the sentence in order to reflect the applicant's mental illness constituted an error : R v Z [2006] NSWCCA 342 ; 167 A Crim R 436. Like the respondent to the Crown appeal in Z, the applicant's case was complex because of the interplay of a number of factors, including the extent to which his mental illness affected the assessment of his culpability, the level of his assistance, his attempts to minimise his role in the offence and the objective gravity of the offence. Whilst the application of discounts for the plea of guilty and the assistance fall within recognised sentencing practice, a reduced emphasis on general and/or specific deterrence is not amenable to quantification : Markarian v R [2005] HCA 25 ; 215 ALR 213.

2. [31]

   The question arises whether this error is a material one, that is, one which is capable of infecting the exercise of the sentencing discretion and is more than trivial or immaterial : R v Baxter [2007] NSWCCA 237. I am of the view that it is material and that it did distort the sentencing outcome, for the reasons explained in R v Z.

3. [32]

   By way of further illustrating error in the sentencing exercise, the applicant relies upon certain inadequacies and inconsistencies in the judge's assessment of the relationship between his mental illness and the offending behaviour. The principal criticisms arise out of the judge's failure to relevantly distinguish between the diagnosis of depression, for which the applicant had received treatment prior to the commission of the offence, and the diagnosis of bipolar affective disorder, which was determined after the applicant was arrested and incarcerated.

4. [33]

   On the one hand, the judge recognised that the diagnosis of depression was "wrong" and that the undiagnosed bipolar disorder contributed to the offending behaviour, albeit to a minor extent. On the other hand, the judge tended to discount the applicant's prospects of rehabilitation, in favour of reliance on specific deterrence, on the basis that the applicant's past treatment for depression had failed to curtail his offending. The latter finding appears contradictory to the former. Acknowledging that the applicant's early treatment for depression was potentially ineffectual, the judge failed to recognise that the applicant's current treatment was a significant factor in favour of his prospects of rehabilitation.

5. [34]

   The extent to which the applicant's mental illness reduced the need for general deterrence to be reflected in the sentence is a discretionary judgment that ought not lightly be disturbed by this Court. I would not however characterise the applicant's mental illness (accepting that it was bipolar disorder, as the judge appeared to do) as a "relatively minor factor" in his decision to engage in the offence. The judge did not reject Dr Allnutt's opinion. That opinion went someway towards explaining the nexus between the applicant's offending and his psychiatric condition (particularly in the passage set out at [24] above). An appreciation by the applicant of the gravity of his conduct is not inconsistent with grandiose ideas and high-risk behaviour. In that regard, the applicant's mental illness was a relevant factor in the assessment of his culpability ; R v Israil [2002] NSWCCA 255.

6. [35]

   Given the fluctuating nature of his condition and the lengthy period of time over which the applicant was engaged in the offence, I regard his mental illness as a moderately significant factor. Of course, any reduced emphasis on general deterrence for this reason is but one factor in the synthesis of many factors leading to the imposition of sentence. The offence was objectively very serious.

7. [36]

   This ground has been made good. I turn to the second ground.

The Applicant's Assistance.

1. [37]

   The judge referred to the applicant's assistance in the following terms :-

2. [38]

   There is no challenge to any of these findings on the value of the applicant's assistance. The gravamen of the complaint is that his Honour was wrong to fetter his discretion by interpreting the decision in Sukkar as imposing a limit of 40% in all but exceptional cases. The applicant relies upon FS v The Queen [2009] NSWCCA 301, wherein Rothman J (Campbell JA and Howie J agreeing) pointed out that such a general limitation on the applicable discount applies in the absence of evidence that the offender's conditions of incarceration will be more onerous than the general prison population. Given his Honour's acceptance that the applicant's "time in custody will be more difficult for him" and the finding that the applicant held fears in relation to a threat to his family, it is submitted that his Honour erred by quantifying the discount on the basis of an "upper limit" of 40%.

3. [39]

   I accept that the judge omitted to refer to the qualification expressed by Howie J in Sukkar at [5], namely that "discounts for a plea and assistance of more than 40% should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population." To the extent that these remarks indicate that his Honour felt constrained by the decision in Sukkar to reject the suggested discount of 40% where the value of the assistance was not of a high order, he has fallen into error.

4. [40]

   However, it does not follow that the applicant is entitled to any greater discount. When one has regard to the evidence relating to the applicant's conditions in custody and the unimpeached findings as to the value of the assistance, I am not persuaded that the error had a material effect on the discretionary evaluation of the discount. In any event, his Honour clearly took the applicant's custodial conditions, such as they were, into account.

5. [41]

   The applicant gave evidence and was cross-examined on the subject of his anticipated conditions in custody. The applicant acknowledged that whilst on remand awaiting sentence he was being treated consistently with all other prisoners in that position. He also acknowledged that his future custodial conditions were dependent upon his classification, once sentenced. He knew that his classification could change over time. He also accepted that he did not fall into category E, the most secure form of custody reserved for those who had convictions for escaping lawful custody. At the time of sentence he was a category A prisoner.

6. [42]

   As a prisoner who had offered to give assistance, the applicant knew that he would be going to a C classification gaol, namely a "pure protection gaol." He acknowledged that he would not be locked in a cell 22 hours a day and that there was no prospect of being threatened by other inmates. The applicant acknowledged that, for that reason, his time in custody would be safer than in the mainstream gaol system. The principal hardship was occasioned by the possibility that the applicant would not be regarded as suitable for work release. The only evidence of any restriction relating to educational opportunities was confined to the applicant's period of remand. There was no evidence that relevant facilities and/or courses would be unavailable following his classification. The applicant understood that he would be permitted to move to a less restrictive category C gaol in the last two to three years of his sentence.

7. [43]

   The Court received evidence relating to the applicant's psychiatric treatment which disclosed that he is serving his sentence at Cooma Correctional Centre. That evidence also discloses that the applicant has completed a number of therapeutic programmes, including a TAFE programme that ran over a period of six months consisting of twice-weekly sessions. The applicant is also currently enrolled in a TAFE course relating to alcohol, drugs and mental health which will be completed over the next two years. The applicant has also been assessed as suitable for further therapeutic programmes which have been offered to him by the acting manager, Offender Services and Programmes.

8. [44]

   This feature of the appeal brings to mind the following observation by James J (Sheller JA and O'Keefe J agreeing) in R v Totten [2003] NSWCCA 207 at [43] :-

9. [45]

   In the light of this evidence, the applicant's limited assistance, and the very late entry of the plea, I would not depart from a combined discount of 30%. Accordingly, while I would grant leave to appeal on this ground, I would dismiss this ground of the appeal.

RE- SENTENCING

1. [46]

   An affidavit by the applicant's solicitor, admitted for the purposes of re-sentencing, asserts that the applicant has not been given access to appropriate psychiatric treatment, consistent with the remarks made by the judge on sentence. Documents from Justice Health obtained on 26 July 2011 establish that the applicant was prescribed Lithium on 5 October 2010. He was seen by a psychiatrist on 2 February 2011 and the following day, a referral form was faxed to a psychologist. As at 7 December 2011, the applicant had not been seen by a psychologist.

2. [47]

   On 26 April 2011 the applicant was again seen by a psychiatrist, with changes to his medication. A further psychiatric consultation took place on 9 November 2011. A letter under the hand of the nurse unit manager at Cooma Correctional Centre states that the visiting psychiatrist is contracted to attend the clinic eight hours every second month and to conduct a telelink consultation for eight hours in the alternate month. However, due to demands on his time, it is not always possible that patients, including the applicant, will be seen on each occasion. The letter confirms that the applicant has a significant history of bipolar disorder.

3. [48]

   It may be readily acknowledged that the applicant is not receiving optimum treatment. However, there is nothing to suggest that his condition is deteriorating or that he is not receiving adequate medication. The fresh material reinforces the fact that the applicant's bipolar disorder is amenable to effective treatment and that its role in the applicant's offending was a material factor.

4. [49]

   Primarily for the reasons set out in [34] above, I am of the view that a lesser sentence is warranted in law. The reduction in sentence cannot however result in the imposition of a sentence which, in all the circumstances, fails to adequately reflect the objective gravity of the offence. This was a manufacturing undertaking of a sophisticated kind that produced in excess of 50kg of MDMA of a very high quality. The applicant's role was crucial to that yield and he committed the offence while on bail for a drug-related offence in Victoria. The three offences on the Form 1 were themselves very serious offences and all of them overlapped with the commission of the principal offence. In effect, between November 2003 and November 2005, the applicant was involved in the manufacture of illegal drugs in four separate laboratories. He was convicted of conspiracy to manufacture and supply a commercial quantity of a prohibited drug in 1993.

5. [50]

   Taking these matters into account, I propose the following orders :-