Hitchen v R

1. [1]

   SIMPSON AJA: On 3 August 2020 the applicant (Ross Hitchen) was sentenced in the District Court at Penrith following his pleas of guilty to three counts of offences in respect of which he had been committed for sentence. The offences were:

2. [2]

   A further offence, of knowingly dealing with the proceeds of crime, an offence against s 193B(2) of the Crimes Act 1900 (NSW) (“the money laundering offence”), was, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure Act 1999 NSW (“Sentencing Procedure Act”), taken into account for sentencing purposes.

3. [3]

   An offence against s 193B of the Crimes Act, if charged separately, carries a maximum penalty of imprisonment for 15 years. Manufacturing the commercial quantity of a prohibited drug is an offence against s 24(2) of the DMT Act (located in Div 2 of Pt 2 thereof) and is (except where the drug is cannabis plant or cannabis leaf) subject to a maximum penalty of imprisonment for 20 years and, pursuant to Pt 4 Div 1A of the Sentencing Procedure Act, subject to a standard non-parole period of imprisonment for 10 years. Conspiracy to commit an offence under Div 2 of Pt 2 of the DMT Act is, by s 26 thereof, subject to the same punishment as the offence the subject of the conspiracy.

4. [4]

   The sentencing judge, Bourke DCJ, sentenced the applicant, pursuant to s 53A(1) of the Sentencing Procedure Act, to an aggregate term of imprisonment for 10 years and 6 months commencing on 11 October 2018 with a non-parole period of 6 years and 9 months, which will expire on 10 July 2025. In doing so, as required by subs (2) of s 53A, his Honour specified the sentences that he would, if sentencing separately for the three offences, have imposed. The specified sentences were:

5. [5]

   Pursuant to s 25D of the Sentencing Procedure Act, the sentencing judge reduced by 25% the indicative sentence he otherwise would have imposed, and found special circumstances justifying, in the aggregate sentence, departure from the ratio between the non-parole period and the head sentence prescribed by s 44(2) of the Sentencing Procedure Act.

6. [6]

   The applicant sought leave, on seven proposed grounds, to appeal against the sentence. On 14 December 2022 the following orders were made, with reasons reserved:

7. [7]

   The following are my reasons for joining in the orders.

The relevant facts

1. [8]

   Having regard to the grounds of appeal, and the conclusions to which I have come, it is necessary to set out in some detail the facts of the offences.

2. [9]

   The conspiracy offence was committed over a period commencing on 17 August 2017 and concluding on the arrest of the applicant on 11 October 2018 (although the Charge Certificate specified 31 October 2018 as the end date) in circumstances to be outlined below. All other offences were committed on 11 October 2018.

3. [10]

   The relevant facts were put before the sentencing judge by way of an agreed Statement of Facts. The Statement of Facts established that the applicant was engaged in a criminal enterprise with three others – his brother Geoffrey Hitchen, Christian Meis and Craig Bloom (although, as will be seen, different charges were brought against the participants). The participants had, since 2017, been under surveillance. Surveillance included electronic monitoring of conversations that took place in the applicant’s motor vehicle, and telephone intercepts. The product of the visual and electronic surveillance was a substantial component of the Statement of Facts.

4. [11]

   The manufacturing enterprise was centred in a clandestine laboratory in the south-western Sydney home of Christian Meis (“the Meis premises”). The Statement of Facts shows that the applicant was actively involved with the co-offenders. His role, so far as can be gleaned from the Statement of Facts, appears to have involved:

5. [12]

   On 16 November 2017, the applicant and Bloom spent 5 hours at the Meis premises. On 30 January 2018 they spent about 8 hours at the Meis premises, leaving on two occasions to make purchases of items used in the manufacture of methylamphetamine. On 20 March they spent about 12 hours at the Meis premises. On 10 April they spent about 8 hours at the Meis premises.

6. [13]

   On 22 January 2018, a somewhat obscure conversation took place between the applicant and his brother. The applicant asked why “the step was left open”; Geoffrey Hitchen said that it had been open when he parked the car, and that he “ran the car over it”, to which the applicant replied:

7. [14]

   On one occasion (23 January 2018), in a conversation with his brother, the applicant was recorded saying:

8. [15]

   On another occasion (15 February 2018) the applicant was recorded saying to his brother:

9. [16]

   On 29 June 2018 Bloom was recorded saying to the applicant:

10. [17]

    On the same day the following conversation between the applicant and Bloom was recorded:

11. [18]

    On 10 October 2018 the applicant and his brother were recorded, while they were travelling in a motor vehicle, as follows (as transcribed for the purposes of the Statement of Facts):

12. [19]

    On 11 October 2018 a covert search warrant was executed at the applicant’s home. Chemicals and equipment used in the manufacture of methylamphetamine were located in a garage, and in a spare bedroom. 179.8 grams of methylamphetamine was found in two bottles and a plastic bag in the garage. Also located in the garage were various quantities, in all amounting to 1386.54 grams, of methylamphetamine. The applicant’s possession of the drug (deemed by s 29 of the DMT Act to have been for the purpose of supply) was the principal foundation for the supply offence, together with some of the applicant’s recorded conversations.

13. [20]

    Under the bed in the bedroom used by the applicant was located a .177 calibre Baikal single shot air rifle, and other chemistry equipment (a flask, a 10 litre glass beaker and a white plastic filter funnel). The air rifle gave rise to the firearms offence.

14. [21]

    On the same day the applicant and his brother were stopped by police while travelling together in a motor vehicle. The applicant was in possession of $15,250 in cash, concealed in his underwear. This was the foundation for the money laundering count, taken into account for sentencing purposes, but ultimately not separately prosecuted.

15. [22]

    The applicant took part in an electronically recorded interview with police. He gave an exculpatory explanation for his possession of acetone, one of the many chemicals purchased by him and one used in the manufacture of methylamphetamine (the explanation being that he had used acetone in a mirror-importing business 7 years previously), said that he had put the cash in his pants the night before (without, apparently, disclosing its source or the reason for his possession of such a sum) and said that he had forgotten about the air rifle, which had been his father’s. The remainder of the interview was not provided to this Court.

16. [23]

    On 31 October 2018 a crime scene warrant was executed at the Meis premises. Numerous items indicating that the garage was being used as a laboratory were located. A small amount of methylamphetamine and substances known to be precursors to methylamphetamine manufacture were also located.

The applicant’s personal circumstances

1. [24]

   The applicant did not give evidence in the sentencing proceedings. Evidence of his personal circumstances was put before the court, in hearsay fashion, from two sources – a Sentencing Assessment Report dated 30 April 2020, prepared by a Community Corrections Officer (Christopher Baker), and a psychological report by Dr Mark Milic. From these sources the following emerged.

2. [25]

   The applicant was born in April 1974. He was 44 years of age at the time of the offences. He had a relatively minor criminal history, which included no fewer than 3 instances of driving whilst his licence was cancelled or suspended (once in 1997 and twice in 2010), one offence (in 1997) of having custody or control of a false instrument, and a Commonwealth offence (in 2014) of failing to report the transfer of currency out of Australia, with respect to which he was fined $5,000. None of his previous offences resulted in a sentence of imprisonment.

3. [26]

   The applicant described to Mr Baker a “good upbringing” with his brother. He had had regular employment of various kinds, including conducting an importation business, and has qualifications as a carpenter.

4. [27]

   Information given to Mr Baker by the applicant appears to have been somewhat equivocal with respect to his acknowledgment of his participation in the criminal enterprise. He is recorded as saying that he “was looking after goods left at his house by a friend” and that the money he had was owed to and belonged to his brother (although he was in the company of his brother when apprehended in possession of the money). He also maintained that “he was not an illicit drug manufacturer”. The applicant told Mr Baker that he had, with his co-offenders, been a social user of amphetamines for a short period leading up to his apprehension.

5. [28]

   Dr Milic provided a more detailed history, following two telephone conferences with the applicant in July 2020. Dr Milic recorded that the applicant presented as:

6. [29]

   The applicant told Dr Milic that his father died in 2016 from cancer, and his mother in 2000 from lymphoma at the age of 56. She was first diagnosed when the applicant was about 8 years of age.

7. [30]

   The applicant was married until 2009 or 2010 when the marriage came to an end because his wife, who was Chilean, became homesick and returned to Chile. During the marriage the couple had suffered three miscarriages. The applicant is now in a relationship with a woman who lives in Thailand.

8. [31]

   The applicant had experienced health issues. He suffered from a serious spinal infection while in Thailand in 2013. He told Dr Milic that a number of circumstances in the years before his offending affected his mental health. These included concerns about his brother’s alcoholism, some estrangement from his father during his illness, and distress about financial matters that resulted in the loss of a house in Sydney that he had renovated. In the period leading up to the offences he had been severely depressed. Dr Milic thought it likely that at the time of the offending the applicant was suffering from “major depression”.

9. [32]

   Dr Milic recorded that the applicant accepted responsibility for his offending, explaining that he had become involved after using alcohol to excess, and amphetamines. It may here be observed that his acceptance of responsibility to Dr Milic was a significant departure from his apparent denial to Mr Baker, only 3 months earlier.

10. [33]

    Dr Milic considered that the applicant’s offences “have taken a high emotional toll on him” and that:

11. [34]

    The bank had taken possession of the house in which the applicant and his brother had lived due to their inability to meet mortgage repayments.

The remarks on sentence

1. [35]

   The sentencing judge recorded in some detail the facts as put before him in the agreed statement. No issue was taken with the account of facts given by the sentencing judge.

2. [36]

   His Honour observed, uncontroversially, that the drug offences were very serious. He accepted a submission made on behalf of the applicant that he was not the “manufacturer” in the sense that he was not shown to have had the technical knowledge or expertise to carry out the chemical processes, but found, nevertheless, by reference to the evidence of the various attendances by the applicant at the Meis premises, that the applicant “occupied a central role in the drug manufacturing conspiracy and the supply business”. His Honour went on to say that the applicant “had a close knowledge of and involvement in the manufacturing processes that were carried out in the house”. He said:

3. [37]

   His Honour gave some weight to the length of time (more than 12 months) over which the conspiracy existed, and took into account (expressly not as an aggravating feature) the fact that drugs were successfully manufactured before the police intervention. His Honour found the objective seriousness of the conspiracy offence to be “around the mid range”, and of the supply offence to be “below the mid range but not in the lowest range of objective seriousness”. In reaching this latter assessment, the sentencing judge said:

4. [38]

   His Honour went on to refer to evidence of conversations between the applicant and Bloom and others, including his brother, and including the conversation about the “step” (see [13] above).

5. [39]

   The sentencing judge rejected an argument advanced on behalf of the applicant that, because of the relatively low purity of the drug located, the supply offence should be regarded as at “the very bottom of the range of objective seriousness”. He said:

6. [40]

   His Honour then dealt briefly with the money laundering offence (taken into account in the specified sentence for the supply offence); he considered that the cash found on the applicant ($15,250) was appropriately to be treated as part of the profits of the supply offence and therefore did not merit more than a moderate increase in the punishment for the supply offence.

7. [41]

   Finally, the sentencing judge considered the firearms offence to be “of some seriousness”, noting a concession by the Crown that there was no evidence that the firearm was connected in any way with the drug offending. He assessed the objective seriousness of that offence as “low”.

8. [42]

   Overall, however, his Honour considered that the applicant’s moral culpability in relation to the conspiracy and supply offences was high.

9. [43]

   His Honour then turned to consider the applicant’s personal circumstances. He noted evidence of the applicant’s conduct whilst in custody and assessed his prospects of rehabilitation as reasonable.

10. [44]

    His Honour went on to impose the sentence set out above.

Sentences of co-offenders

1. [45]

   The applicant was the first of the participants in the enterprise to be sentenced. Each of the co-offenders came before the same judge for sentence, although at different times. Notably, all were charged with different offences. Geoffrey Hitchen was charged with possession of an unauthorised firearm, and with knowingly taking part in the supply of not less than the commercial quantity of a prohibited drug (s 25(2) of the DMT Act). He was sentenced on 12 October 2020 to an aggregate term of imprisonment of 6 years with a non-parole period of 3 years and 10 months. The sentencing judge indicated that, if sentencing separately for the offences, he would have imposed a fixed term of imprisonment for 6 months with respect to the firearms offence, and imprisonment for 5 years with a non-parole period of 3 years and 9 months for the drug supply offence. The latter indicative sentence took into account a money laundering offence under s 193B(2) of the Crimes Act. An appeal against sentence was dismissed: Hitchen v R [2021] NSWCCA 293. One of the unsuccessful grounds of appeal raised issues of parity with the sentence imposed on the applicant.

2. [46]

   Christian Meis and Craig Bloom were sentenced on 12 February 2021, six months after the applicant was sentenced. Bloom was charged with a single offence against s 24(1) of the DMT Act of knowingly taking part in the manufacture of a prohibited drug (methylamphetamine), an offence subject to a maximum penalty of imprisonment for 15 years, and with failing to keep a firearm safely, an offence against s 39(1)(a) of the Firearms Act, carrying a maximum penalty of imprisonment for 12 months. After a reduction of 25% in recognition of his plea of guilty, the sentencing judge imposed a sentence of imprisonment for 22 months. Hs Honour directed that a report be prepared for assessment of Bloom’s suitability for an order under s 7 of the Sentencing Procedure Act (as it then stood), that the sentence be served in home detention. The material before this Court does not disclose the outcome of that investigation.

3. [47]

   Meis was also charged, under s 24(1) of the DMT Act, with an offence of manufacturing a prohibited drug (methylamphetamine), being less than or equal to the small quantity, and, under s 25(1), for supplying in excess of the indictable quantity of the same drug (24.58 grams). The maximum penalty applicable to each of those offences was imprisonment for 15 years. Meis also admitted his guilt of two offences against s 24A(1)(a) of the DMT Act (offences of possession of precursors intended for use in the manufacture or production of a prohibited drug); one offence involved 5 kilograms of iodine, and the other 5 kilograms of hypophosphorus. Each of these offences is subject to a maximum penalty of imprisonment for 10 years, but, because they came before the court from the Local Court on a certificate under s 166 of the Sentencing Procedure Act, the maximum custodial penalty that could be imposed was 2 years.

4. [48]

   After a successful appeal Meis was sentenced to imprisonment for 3 years with a non-parole period of 1 year and 6 months: Meis v R [2022] NSWCCA 118.

The application for leave to appeal

1. [49]

   As indicated above, the applicant identified seven separate grounds on which he sought to appeal. The grounds were stated as follows:

Ground 1: taking into account an inapplicable standard non-parole period on the conspiracy count.

1. [50]

   The sentencing judge opened his sentencing remarks by observing that the maximum sentence applicable to the conspiracy offence is imprisonment for 20 years, and that “a standard non-parole period of 10 years is specified”. Later in his remarks, when addressing the issue of objective seriousness, his Honour said:

2. [51]

   It is apparent from these passages, in combination, that the sentencing judge took into account, in determining the appropriate sentence for the conspiracy offence, that a standard non-parole period of 10 years was applicable. The applicant contended that that was erroneous, because, he maintained, no standard non-parole period is applicable to the conspiracy offence. The Crown conceded the asserted error. Accordingly, no argument was addressed to whether a standard non-parole period applies to an offence against s 26 of the DMT Act, of conspiring to manufacture a prohibited drug.

3. [52]

   Section 26 of the DMT Act is located in Div 2 (Indictable Offences) of Pt 2 (Offences) of the DMT Act. Section 26 is in the following terms:

4. [53]

   The charge to which the applicant pleaded guilty was that he:

5. [54]

   Manufacturing not less than the commercial quantity of a prohibited drug is an offence against s 24(2) of the DMT Act, also located in Div 2 of Pt 2 thereof. Accordingly, by s 26, the applicant was liable to the same punishment as he would have been had he committed the s 24(2) offence. The question that arises under ground 1 of the proposed appeal is what that punishment was.

6. [55]

   Section 33 of the DMT Act relevantly provides:

7. [56]

   Having regard to the terms of s 26 it is difficult to see why it was necessary to include par (1)(b); that section already makes the sentence applicable to any of the offences identified in par (1)(a) applicable to a conspiracy offence. In any event, it is clear that, on his plea of guilty to the conspiracy charge, the applicant became liable to imprisonment for 20 years.

8. [57]

   That, however, is not the only sentencing provision relevant to an offence against s 24(2). Division 1A of Pt 4 of the Sentencing Procedure Act (introduced into that Act by cl 4 of Schedule 1 of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Terms) Act 2002 (NSW), with effect from 1 February 2003) provides for “standard non-parole periods”. A Table to Div 1A identifies certain offences and specifies a standard non-parole period applicable to each. Section 54A(2) of the Sentencing Procedure Act provides:

9. [58]

   Section 54B(2) (substituted from its original form following the decision of the High Court in Muldrock v The Queen (2011) 244 CR 120; [2011] HCA 39 (“Muldrock”)) provides:

10. [59]

    The standard non-parole period, like the maximum prescribed sentence, operates as a “legislative guidepost”: Muldrock at [27]. The likely outcome, in practical terms, of taking into account a standard non-parole period will be, at least in some cases, “a move upwards in the length of the non-parole period” specified: Muldrock at [31]. An applicable standard non-parole period may thus affect, adversely to the offender, the sentencing outcome.

11. [60]

    It follows that, taking into account a standard non-parole period that is inapplicable will constitute error in the sentencing process: see R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83 (“Ohar”) at [84]-[85] per James J (Studdert and Dunford JJ concurring); D A C v R [2006] NSWCCA 265 (“D A C”) at [9]-[10] per Howie J (Tobias JA and Rothman J concurring).

12. [61]

    Included in the Table to Div 1A are offences against s 24(2) of the DMT Act. The standard non-parole period specified (where the offence does not relate to cannabis leaf) is 10 years.

13. [62]

    Not expressly included in the Table are offences against s 26 of the DMT Act. For this reason, the applicant contends (and the Crown accepts) that, in taking into account, as he undoubtedly did, the standard non-parole period applicable to offences against s 24(2), the sentencing judge erred.

14. [63]

    It is arguable that the “punishment” referred to in s 26 includes the standard non-parole period applicable to the substantive offence the subject of the conspiracy. The contrary proposition is that s 26 does no more than render an offender liable to the maximum penalty provided for the offence the subject of the conspiracy, without regard to provisions, such as s 54B(2) of the Sentencing Procedure Act, that governs the determination of the sentence to be imposed. However, the question was not argued in this Court, the Crown conceded the asserted error, and, having regard to the view to which I came with respect to Grounds 6 and 7, it is unnecessary to spend more time on the question.

Ground 2: Drug Misuse and Trafficking Act, s 4

1. [64]

   This ground arises in the following circumstances.

2. [65]

   In the Statement of Facts (at [33]) it was asserted that, in an area under the staircase in the garage of the applicant’s home, methylamphetamine was found in the following quantities:

3. [66]

   During the course of the sentencing proceedings the Crown Prosecutor advised the sentencing judge that an analyst’s certificate showed that the purity of each of those quantities was, respectively:

4. [67]

   It was submitted on behalf of the applicant that, having regard to what was said to be the low purity of the substances, the actual commercial value was “ameliorated”. It was acknowledged that 83.2 grams (item (i)) in a soft drink bottle, with 70.5% purity “was a substance that had commercial value” but that 1078.5 grams (item (ii)) in a soft drink bottle, with a purity of 13.5%, had “substantially less value” and that, overall:

5. [68]

   The sentencing judge acknowledged this submission, but said:

6. [69]

   The reference to the DMT Act was a reference to s 4 thereof which provides:

7. [70]

   On behalf of the applicant it was contended in this Court that the sentencing judge misconstrued s 4 and therefore acted on a wrong principle. It was submitted that the sentencing judge assessed the objective seriousness of the supply offence on the basis of the “admixed quantity to the exclusion of the significance of the purity”. The submission went on:

8. [71]

   It was next submitted that the sentencing judge failed to take into account other relevant considerations, such as the low commercial value of the substances, the smaller financial reward potentially available from their distribution and the reduced potential harm of the drug being released into the community.

9. [72]

   The Crown made essentially two responses to the applicant’s submissions. First, it maintained that the passage of the remarks on sentence extracted established that the sentencing judge had in fact taken the purity of the drug into account, by saying, expressly, “while I take this fact into account …” and adding that “this fact” did not “reduce the objective seriousness to any substantial degree”.

10. [73]

    The second part of the Crown’s response concerned the applicant’s criticisms that the sentencing judge failed to take into account other material circumstances, such as commercial value, financial reward or potential harm. The point made by the Crown was that there was no evidence to support the suppositions underlying the applicant’s submissions in this respect.

11. [74]

    It is established that, notwithstanding s 4 of the DMT Act, the purity of a prohibited drug is a relevant consideration. Section 21A of the Sentencing Procedure Act, which specifies aggravating, mitigating and other factors to be taken into account in sentencing, expressly nominates, in subs (1)(c), “any other objective or subjective factor that affects the relative seriousness of the offence” as a matter the sentencing court is required to take into account.

12. [75]

    This very question was dealt with at some length by Leeming JA (with whom Hoeben CJ at CL and Lonergan J agreed) in El Kheir v R [2019] NSWCCA 288. It is worth extracting passages from his Honour’s reasons. After setting out the terms of s 4 and dealing with some other matters, his Honour said:

13. [76]

    The first question, therefore, was whether the sentencing judge did misinterpret s 4 of the DMT Act and fail to take into account the purity of the admixture, particularly as relevant to the commercial value of the drug and the potential harm to the community. After consideration, I was not persuaded that he did commit those errors. He expressly said that he took into account the applicant’s submission. He made it plain, however, that he gave limited weight to that circumstance. It is well established that the weight to be given to relevant circumstances is very much a matter for the sentencing judge.

14. [77]

    That led to another consideration. The submission made on behalf of the applicant emphasised what was repeatedly called “the very low purity of the vast majority of the admixture” (or words to similar effect). It is true that the largest single quantity of the admixture (1078.5 grams, item (ii) above) was of low purity (13.5%). However, as was acknowledged in the sentencing proceedings, a significant quantity (83.2 grams, item (i)) was of 70% purity; and 27.88 grams and 17.16 grams (items (iv) and (v) respectively) were of 54.5% and 42.7% purity.

15. [78]

    Moreover, as the Crown pointed out, there was no evidence before the court as to what is or may be a standard or accepted purity of methylamphetamine on the market. It is not possible to accept, as the applicant submitted, that the overall quantity of the drug the subject of the supply offence was of low purity.

16. [79]

    It was not erroneous for the sentencing judge to place little weight on the purity of the drug.

17. [80]

    I therefore concluded that Ground 2 of the proposed appeal should be rejected.

Ground 3: the objective seriousness of the supply and money laundering offences

1. [81]

   This ground arose out of that part of the sentencing remarks in which the sentencing judge said:

2. [82]

   Two complaints were made about these observations. First, it was said that there was no agreed fact that the applicant was “actively involved in the supply [as distinct from manufacture] of methylamphetamine for profit”. Second, it was said that the sentencing judge failed to take into account evidence that the applicant was holding the drugs at his home for another person.

3. [83]

   As to the first of these asserted errors, it is correct that there was no explicit statement in the Statement of Facts that the applicant was “actively involved” in the supply (of methylamphetamine for profit). To that extent the point was well made. However, the applicant’s next proposition was that the evidence did not support any inference that he had “more than a peripheral role in the supply operation, limited to storing drugs at his house”. I considered that proposition should be rejected. There was ample evidence in the detail of the facts that were agreed to support the conclusion that the applicant was actively involved in the supply enterprise.

4. [84]

   For example, on 29 June 2018 the applicant was recorded in a conversation with Bloom which was plainly to do with supply; on 10 October 2018 the applicant was recorded advising his brother to conceal cash (of an unspecified quantity) in his pants; 1.38 kilograms of methylamphetamine was stored at his home; and, when arrested on 11 October 2018, he was in possession of $15,250 in cash concealed in his pants.

5. [85]

   As to the second point, no evidence was identified that was capable of establishing (on the balance of probabilities) that the applicant was merely holding, or storing, the drugs for another person. Such a proposition is quite contrary to the evidence overall. The proposition appears to derive from the Sentencing Assessment Report in which the applicant was recorded as saying that he was looking after goods left at his home by a friend and from the conversation in which the applicant referred to “my mate’s money or drugs”. That is an inadequate basis for a finding of fact of the kind proposed. The proposition is unsupported by any other evidence. The applicant was clearly part of an enterprise that both manufactured and supplied (or intended to supply) methylamphetamine.

6. [86]

   I considered that ground 3 of the proposed appeal should be rejected.

Ground 4: the objective seriousness of the conspiracy offence

1. [87]

   This ground derives from the finding that the applicant:

2. [88]

   It was submitted on behalf of the applicant that, while it was accepted (and established by his plea of guilty) that the applicant:

3. [89]

   There was, it was submitted, evidence to the contrary of the finding that the applicant had a central role in the conspiracy, and was an equal partner with Bloom and Meis, that being:

4. [90]

   None of these persuaded me that the sentencing judge’s conclusion as to the role played by the applicant was erroneous. The last mentioned matter (no evidence of actual manufacture) is entirely irrelevant to the applicant’s role – it may well suggest that the enterprise was ineptly conducted, but it does not diminish the applicant’s participation as a conspirator. Actual manufacture of the drug is not an element of the offence charged – conspiracy. Whether the drug was successfully manufactured does not bear upon the applicant’s role in the conspiracy alleged.

5. [91]

   It is correct that the laboratory was located at the Meis premises, and that multiple items used in drug manufacture were there located. However, it is also the fact that the only manufactured drug was located at the applicant’s premises. The Statement of Facts demonstrates an ongoing involvement by the applicant in the purchase of chemicals and equipment, ongoing involvement with Bloom and Meis, and lengthy attendances at the Meis premises on at least three occasions (30 January 2018 for 8 hours, 20 March 2018 for 12 hours, and 10 April 2018 for 8 hours). (Respectively, pars 17, 23 and 24 of the Statement of Facts).

6. [92]

   In my opinion the evidence amply justified the findings made by the sentencing judge. I therefore considered that ground 4 of the proposed appeal should be rejected.

Ground 5: credit for remorse and contrition

1. [93]

   Section 21A(3) of the Sentencing Procedure Act states mitigating factors that a sentencing court is required to take into account in determining the appropriate sentence for an offence. Relevantly, par (i) specifies that one such factor is:

2. [94]

   With respect to remorse and contrition the sentencing judge said:

3. [95]

   Two propositions are well established. The first is that it is not necessary, in order to satisfy s 21A(3)(i), that an offender give evidence of remorse or contrition in the proceedings. Remorse or contrition may be established by means other than the direct evidence of the offender: Butters v R [2010] NSWCCA 1 at [17] per Fullerton J, with whom McClellan CJ at CL and McCallum J agreed.

4. [96]

   The second proposition is that a sentencing judge is not obliged to accept evidence of remorse and/or contrition even if given on oath or affirmation (R v Stafrace (1997) 96 A Crim R 452; Alvares v R [2011] NSWCCA 33 at [65]) and may be justified in not accepting that evidence where the evidence is given via a third party such as a psychiatrist, psychologist or Community Corrections Officer, or through family or friends: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]; TS v R [2007] NSWCCA 194 at [30]; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40]-[41]; Pfitzner v R [2010] NSWCCA 314; Imbormone v R [2017] NSWCCA 144 at [57]; IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107.

5. [97]

   Presumably in recognition of these decisions, on behalf of the applicant it was submitted that:

6. [98]

   If it be correct that there is such a distinction, it is a narrow one. On a fair reading of the passage in the remarks on sentence, the sentencing judge did no more than, as he was entitled to do, give limited weight to the applicant’s expressions, such as they were, of remorse and contrition.

7. [99]

   I considered that ground 5 of the proposed appeal should be rejected.

Ground 7: parity

1. [100]

   These grounds may conveniently be addressed together.

2. [101]

   It was accepted on behalf of the applicant that the principles applicable to a ground of manifest excess were uncontroversially stated in Vaiusu v R [2017] NSWCCA 71 at [28] by R A Hulme J with whom Bathurst CJ and Beech-Jones J (as the Chief Judge then was) agreed. Those principles are:

3. [102]

   While acknowledging that, where an aggregate sentence has been imposed, the indicative sentences required to be specified by s 53A(2) of the Sentencing Procedure Act in respect of individual offences are not amenable to appeal, the applicant contended that latent error could be inferred by the indicative sentence (8 years and 6 months, non-parole period 5 years and 6 months) applicable to the conspiracy offence. That was because, by reference to sentencing statistics provided by the Judicial Commission of NSW, it could be seen that only one sentence equal to or higher than 8 years and 6 months had been imposed in respect of s 26 conspiracy offences, where the substantive offence the subject of the conspiracy was a s 24(2) offence, involving the manufacture of not less than the commercial quantity of a drug other than cannabis leaf. That may be so. But that is not the question for this Court. The question for this Court is whether an aggregate sentence of imprisonment for 10 years and 6 months with a non-parole period of 6 years and 9 months, imposed in relation to –

4. [103]

   It is, of course, relevant that the aggregate sentence was based upon indicative sentences that comprehended a reduction of 25% referable to the pleas of guilty. Implicitly, without the 25% reduction in the indicative sentences, the aggregate would have been imprisonment for 14 years.

5. [104]

   In support of this ground the applicant relied on the errors asserted in relation to the assessment of the objective seriousness of the conspiracy and supply offences. The argument, as I understand it, was that those erroneous assessments resulted in a manifestly excessive aggregate sentence. That argument must meet the same fate as the grounds on which it was based.

6. [105]

   Essentially, the submissions finally advanced on behalf of the applicant under this ground relied on his age (46 at sentencing), his relatively limited criminal history (somewhat optimistically described as “unblemished”), the finding that he had reasonable prospects of rehabilitation, and the evidence of remorse and acceptance of responsibility.

7. [106]

   I confess to some hesitation over this ground. Ultimately, I came to the view that the ground is made good. Manifest excess is most clearly evidenced by reference to the fact that it is implicit in the aggregate sentence that, had the applicant been convicted after trial and not received the reduction on the indicative sentences, the objective and subjective features of the case would have resulted in an aggregate sentence of 14 years. I was satisfied that that was outside the available sentencing range and was unreasonable or plainly unjust: Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25. The aggregate sentence arrived at after allowing the reduction to the indicative sentences must therefore also be treated as unreasonable or plainly unjust. It therefore became necessary to set aside the sentence imposed, and re-exercise the sentencing discretion.

8. [107]

   The view that the sentence imposed is manifestly excessive is independent of, but reinforced by, parity considerations to which I will shortly come. For resentencing purpose, I adopted the following findings of the sentencing judge, at which I arrived independently:

9. [108]

   It then became necessary to consider the sentences imposed on the co-offenders, Bloom and Meis. I have set out above the charges against each of them, and the sentences imposed. To repeat:

10. [109]

    Bloom was charged under s 24(1) of the DMT Act with an offence of knowingly taking part in the manufacture of a prohibited drug (falling short of the commercial quantity), carrying a maximum penalty of imprisonment for 15 years, and an offence of failing to keep a firearm safely, carrying a maximum penalty of imprisonment for 12 months. The sentence imposed on him was imprisonment for 22 months, although the final form of the sentence (to be served in custody or by way of home detention) was not known.

11. [110]

    Meis was charged with an offence against s 24(1) of the DMT Act, of manufacturing a prohibited drug in a quantity less than or equal to the small quantity; and an offence against s 25(1) of the DMT Act, of supplying not less than the indictable quantity of the same drug. He admitted his guilt to two further offences under s 24A(1), each carrying a maximum penalty of imprisonment of 10 years, of possessing precursors intended to be used in the manufacture of a prohibited drug, which (because they were brought on a certificate under s 166 of the Sentencing Procedure Act) carried a maximum penalty of imprisonment for 2 years. After appeal Meis was sentenced to imprisonment for 3 years with a non-parole period of 1 year and 6 months.

12. [111]

    In sentencing Meis and Bloom, the sentencing judge set out at length the agreed facts. It is quite apparent that the facts in respect of each of those offenders were, essentially, the same facts as were given in the Statement of Facts in the applicant’s case, a circumstance upon which the sentencing judge commented in sentencing Meis. Significantly, in Meis’ case, the Crown expressly acknowledged (in submissions) that no more than 1 gram of methylamphetamine had in fact been manufactured. The facts in relation to the supply count (noting that this was charged as supply of not less than the indictable quantity, by contrast with the charge against the applicant, of supplying not less than the large commercial quantity) implicate Meis to a much greater extent in the activities of actual supply. In relation to Bloom, the sentencing judge recorded a powerful subjective case, centred on family circumstances. He did not, however, consider that those circumstances reached the level of “exceptional circumstances” required before the sentence could be mitigated for that reason: R v Edwards (1996) 90 A Crim R 510.

13. [112]

    Parity considerations are difficult to apply where co-offenders face different charges. In this case, the differences in charging could be called dramatic. On the facts stated in the Statement of Facts in the present case, and recorded in the remarks on sentence in respect of Meis and Bloom, and the judgment of this Court in Meis, there is little to distinguish the participation of the offenders. If anything, the fact that Meis provided the premises for the manufacturing enterprise could be seen to elevate his level of participation. There is nothing in the materials before this Court to explain the different charges, and therefore the different sentencing outcomes.

14. [113]

    The discrepancy in the outcomes for the three participants is stark. While there are significant differences in the personal circumstances of Bloom and Meis compared those of the applicant, no real basis of distinction in the respective participation of the offenders is discernible in the material before this Court. The different outcomes are plainly, in large measure, attributable to different prosecutorial decisions, which are ordinarily beyond the reach of this Court. That does not mean, however, as the Crown fairly accepted in this case, that some amelioration of the apparent unfairness cannot be effected. This is an appropriate case in which to take that course.

15. [114]

    I took into account evidence presented on behalf of the applicant, establishing that his conduct whilst in custody has been satisfactory, even exemplary. He has completed an educational course, and has held responsible employment positions. He has, as have all prisoners in 2020, 2021 and 2022, suffered the effects of restrictions made necessary by the Covid 19 pandemic. This last factor in particular has resulted in slightly lower indicative sentences (and therefore a slightly lower aggregate sentence) than I otherwise would have proposed.

16. [115]

    The sentence I proposed was, pursuant to s 53A of the Crimes (Sentencing Procedure) Act, an aggregate sentence of 6 years and 6 months commencing on 11 October 2018, with a non-parole period of four years and 2 months, which expired on 10 December 2022. I indicate that the sentences I would have imposed, if sentencing separately for the three offences, are as follows:

17. [116]

    The orders I proposed (and that were made with concurrence of Harrison J and Fagan J) were, accordingly:

    1. (1)

       leave to appeal against sentence granted;

    2. (2)

       appeal allowed, sentence imposed in the District Court on 3 August 2020 quashed;

    3. (3)

       the applicant be sentenced to an aggregate term of imprisonment for 6 years and 6 months commencing on 11 October 2018 and expiring on 10 April 2025 with a non-parole period of 4 years and 2 months which expired on 10 December 2022.

    4. (4)

       The applicant is eligible for release on parole.

18. [117]

    HARRISON J: I agree with the reasons of Simpson AJA.