R v James

BATHURST CJ: I agree with Hoeben CJ at CL.

HOEBEN CJ at CL:

The sentencing judge also took into account the following five offences on a Form 1:

On 31 July 2017 at the Parramatta District Court Delaney ADCJ imposed the following sentences:

The total effective sentence imposed was imprisonment for 10 years with a non-parole period of 5 years and 9 months.

The Director of Public Prosecutions has appealed pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against those sentences. A Notice of Appeal, signed by the Deputy Director of Public Prosecutions on 14 August 2017, was filed on 15 August 2017 and served upon the respondent on 24 August 2017.

In August 2015 a police strike force was established to investigate the manufacture and supply of prohibited drugs in John Street, Merrylands. Physical surveillance established that the respondent occupied the premises. In November 2015, surveillance indicated that the respondent was involved in a manufacturing process at the premises. On 18 and 19 November 2015, police executed a lawfully obtained search warrant in respect of the premises.

During the search, police located a large scale active clandestine drug laboratory in the garage area of the premises. Examinations by forensic chemists from the Forensic and Analytical Science Services (FASS) revealed two separate processes of manufacture within the garage.

The first manufacturing process comprised a distillation set-up located on a bench in the garage. It involved a 20000ml reaction flask that contained a brown liquid, with a condenser that was attached to the centre neck of the flask in a horizontal direction with a glass elbow joint. There was liquid inside the water jacket of the condenser, with tubing attached from the condenser to a water pump located inside a blue cooler.

Inside the other neck of the reaction flask was a glass gas inlet tube attached with black tubing as part of a “Wagner” wallpaper steamer. Underneath the receiving arm was a 1L measuring jug full of two-phase liquid. It appeared that liquid from the measuring jug had been sucked up into the receiving arm. Another measuring jug containing two phase liquid was located next to the 1L measuring jug. There were several other jugs present on the bench.

The second manufacturing process was on an adjacent bench. It involved a 20000ml reaction flask containing a dark liquid, with a coil condenser attached to the centre neck of the flask in a vertical direction. There was liquid running through the water jacket of the condenser using tubing attached to a water pump located inside a blue cooler. Suspended from the ceiling above the set-up was a separating funnel wrapped in grey and green tape and containing a liquid. The end of the separating funnel was sitting inside the top of the condenser. A reaction flask set-up in a reflux arrangement was also located. There was water running through the water jacket of the condenser. A further distillation set up was located at the premises.

A total of 12.84kg of methylamphetamine was found to be present in various apparatuses found in the garage. In most cases the purity level was high – in the order of 70 per cent. These were the facts giving rise to Sequence 1.

Police also located quantities of methylamphetamine in various containers in the front of the house, which were separate to the manufacture that occurred in the garage at the rear end of the house. A total of 208.36g of methylamphetamine was found in the house (offence 5 on the Form 1).

It was an agreed fact that “a common method in NSW for the manufacture of methylamphetamine involved the reaction of the following precursors pseudoephedrine, hypophosphorous acid and iodine”. A total of 2.088 kg of pseudoephedrine was found on the premises in plastic bags (offence 2 on the Form 1). 30kg of hypophosphorous acid was found in the premises (offence 3 on the Form 1). This was located in three white plastic cubes containing a clear colourless liquid. A total of 20.23kg of iodine was found on the premises in two white plastic buckets (offence 4 on the Form 1).

Expert opinion was that 887g of methylamphetamine could be produced from the pure pseudoephedrine located. This would require 1.4kg of 50% hypophosphorous acid and 1.44kg of iodine. Expert opinion was that 12.4kg of methylamphetamine could be produced from the 20.2kg of iodine located. This would require 16.6kg of pure pseudoephedrine and 20.2kg of 50% hypophosphorous acid. The actual amount obtained would depend on the skill of the operator and the quality of the ingredients used.

In addition to the above substances, police located items of scientific equipment used in the manufacture of methylamphetamine and various commonly available chemicals, such as acetone, caustic soda and hydrochloric acid.

Police found three firearms during the search of the premises. In the garage, police located a Colt .45 calibre pistol with a magazine containing seven live ammunition rounds (Count 1).

Two small safes were located by police in the respondent's bedroom. The first safe was opened using keys found on the respondent. Inside, police found a wallet containing personal identification in the name of the respondent, numerous containers of methylamphetamine, numerous mobile phones wrapped in a shopping bag and $9,410 cash (offence 1 on the Form 1).

The second safe was located directly below the first. Inside, police found a .22 calibre pistol (“Phoenix .22 pistol”) (Count 2) and a 6 millimetre Airsoft calibre KHC repeating rifle (“air rifle”) (Count 3). Also contained in the safe was ammunition for the Colt .45 pistol.

Ballistics testing determined that the Phoenix .22 pistol was self-loading, in working order and capable of being held in one hand. Its serial number was obliterated. It had a detachable magazine that had a capacity to hold nine .22 long rifle cartridges and was a prohibited pistol. Ballistics testing determined that the Colt .45 pistol was self-loading, in working order, and capable of being fired by one hand. The air-rifle was not in working order due to an internal fault.

At the time of the search, the respondent was in the kitchen area of the property. He was removed from the premises and arrested along with his brother and another person who was subsequently released. The respondent participated in an electronically recorded interview with police in which he stated:

The respondent had prior convictions in New South Wales and Queensland which included offences of possession of a prohibited drug, larceny and assault.

Following the respondent’s plea of guilty in the Local Court to one count of manufacture not less than a large commercial quantity of a prohibited drug, and one count of possess more than three firearms, the Crown subsequently determined that in accordance with the admixture provisions, disregarding trace or waste amounts and reaction liquid not referrable to manufacture, the appropriate figure was 12.84kg of manufactured methylamphetamine. The defence accepted the accuracy of the amended quantity on the indictment. As three (and not more than three) firearms charges had been laid, a charge under s 51D of the Firearms Act was withdrawn and the three Firearms Act offences contained on a s 166 certificate, were placed on an ex-officio indictment.

The respondent was arraigned on that indictment before the sentencing judge on 14 June 2017. On the same date, the Court Attendance Notice for sequence 1, manufacture not less than a large commercial quantity of methylamphetamine, was amended by hand to reflect the quantity of 12.84kg.

The sentencing proceedings were heard on 14 June 2017. On behalf of the respondent, there was tendered a report by John Machlin, a Clinical Psychologist, dated 6 March 2017, together with three character references. The respondent did not give evidence or call any witnesses to give oral evidence. Written submissions on sentence, on behalf of the respondent, were handed up and both the Crown and defence counsel made oral submissions on sentence.

The sentencing judge delivered the sentencing judgment on 31 July 2017.

The sentencing judge allowed a discount of 25 per cent in respect of each charge because of the respondent’s pleas of guilty in the Local Court. His Honour found that the respondent’s criminal history disentitled him to any leniency.

His Honour considered the respondent’s subjective circumstances at length. His Honour noted that while the respondent said that he enjoyed his childhood, he told the psychologist that his home life was characterised by conflict between his parents who had a history of alcohol abuse and fighting. He was the second youngest of seven children. His performance at school was poor and he described himself as being almost illiterate. His employment was intermittent and the longest job which he held was cutting grass for Queensland Railways for a year and a half. His last job was in 2011 and involved stacking pallets.

The respondent started drinking and smoking cannabis at the age of 15 and using amphetamines later in his teens. He began using methylamphetamine about a year before his arrest on the current charges and was injecting several times a day.

The psychologist had access to Justice Health records which indicated that the respondent had a history of heart valve difficulties and had been diagnosed with Bell’s Palsy. He was taking antidepressant medication at the time of the consultation with Mr Machlin. Mr Machlin said that the respondent had experienced major adjustment problems throughout his life, having been raised in an atmosphere of domestic violence and general disorder.

Mr Machlin concluded that the respondent had become involved in the drug manufacturing operation at a time when he was depressed, was in financial need and was dependent on the drug itself. Mr Machlin noted that the respondent claimed that he was doing somebody a favour and that the drug operation was not his initiative. Mr Machlin thought there were good prospects of rehabilitation because the respondent had family support and a strong determination to rebuild his relationship with his children.

The sentencing judge set out his conclusions in relation to the respondent’s subjective case as follows:

As to the objective circumstances of the offences, his Honour observed that while the quantity of the drug particularised in Sequence 1 was 12.84kg, that quantity was assessed by reference to the admixture provisions of the Drug Misuse and Trafficking Act. His Honour accepted that the pure weight of the methylamphetamine, which was the subject of the manufacture charge, was 2.69kg. His Honour accepted that “a substantial proportion of the 12.84kg … would have been waste and would not have had any commercial value”. His Honour also accepted that there was no evidence that the laboratory had equipment available to complete the “salting out process” by which methylamphetamine is refined to powder or crystals to be sold to users.

His Honour nevertheless found that the manufacturing was “a significant undertaking”. In the absence of any evidence from the respondent explaining the manufacturing operation, his Honour concluded that it was a “serious criminal act”. His Honour was unable to make a finding as to whether the respondent was likely to have benefited financially as a result of the manufacture and assessed the objective criminality in respect of the manufacturing charge at “just below mid-range”. His Honour assessed the offences in relation to the possession of the Colt .45 pistol as “just below mid-range” and the possession of the Phoenix .22 pistol and the air-rifle as “below mid-range”. The Crown did not challenge those assessments of objective seriousness.

His Honour found that the respondent was remorseful and that he had good prospects of rehabilitation. His Honour accepted that the reason that the respondent had entered into the manufacturing enterprise was to satisfy a debt that arose in the context of his drug addiction. In making that finding, his Honour acknowledged that this was no excuse but that it explained some of his “activity potentially”.

His Honour set out his conclusions as follows:

His Honour referred in general terms to the Form 1 offences and the need to take those into account when sentencing in respect of Sequence 1. In fixing the sentence for that offence, his Honour took as his starting point imprisonment for 14 years before applying the 25 per cent discount. It was common ground that arithmetical error occurred when his Honour applied that discount so that the head sentence for that offence became 9 years and 6 months, rather than 10 years and 6 months.

His Honour made a finding of special circumstances. On that issue, his Honour said:

Before setting out the competing submissions, it is useful to state the principles which apply to Crown appeals.

A claim of manifest inadequacy requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58]; Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41 at [7].

Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question, but also in the general public. Inadequate sentences are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crime. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice (Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306 per McHugh J).

In bringing an appeal pursuant to s 5D of the Criminal Appeal Act the Crown must demonstrate three matters:

It was common ground that patent error had occurred in relation to the sentence imposed for the offence in Sequence 1 in that the sentencing judge had incorrectly calculated the result of the 25 per cent discount being applied to a starting point of 14 years imprisonment. His Honour used a figure of 9 years and 6 months instead of the correct figure of 10 years and 6 months, i.e. the head sentence was 1 year less than that which his Honour intended to impose.

The erroneous calculation of the post discounted head sentence for Sequence 1 inevitably resulted in error in the non-parole period for that count. Effectively, the structure of the sentence ultimately imposed by his Honour was not that which, in accordance with his reasons, he intended. The Crown submitted that this patent error had resulted in a manifestly inadequate sentence for the offence in Sequence 1. In the course of oral argument, however, the Crown made it clear that it regarded the starting point of 14 years as lenient but within the available range for offending of that kind.

The Crown submitted that the mathematical error had resulted in an inadequate sentence because two separate manufacturing activities were occurring on the premises, the manufacturing process was extensive and significant planning and organisation had gone into the establishment and carrying out of the manufacturing process. Even allowing for the reduction in the methylamphetamine actually produced, because of the admixture of other substances, the quantity was very substantial and well over a large commercial quantity. The Crown referred to the matters on the Form 1 document as indicating the ongoing and significant nature of the manufacturing process.

The Crown relied upon his Honour’s finding that the offending was serious and deserved condign punishment. In that regard, the Crown referred to the observations of Basten JA in Dang v R [2013] NSWCCA 246; 237 A Crim R 522 at [28] where his Honour said:

The Crown submitted that considerable planning and organisation had gone into the offending and it could not be properly characterised as “an offence that could sensibly be regarded as flowing from dysfunctional tendencies subconsciously absorbed from experiences in early childhood” (Taysavang v R; Lee v R [2017] NSWCCA 146 at [42]). The Crown submitted that the extent to which the respondent had suffered a disadvantaged background did not detract from the objective seriousness of the offending. The Crown submitted that in accordance with the reasons of the sentencing judge, the respondent’s prime motivation for the offending was financial gain, i.e. that he needed funds to pay off debts which he had incurred. The Crown noted the importance of general deterrence in offences of this kind and in the case of the respondent, specific deterrence given his previous criminal history.

The Crown submitted that the respondent’s explanation when arrested that this was a one-off manufacture to clear his drug debts, sat uneasily with the substantial nature of the operation and the finding of almost $10,000 in a safe belonging to him.

The Crown relied upon the two significant guideposts provided by the maximum sentence of life imprisonment for this offence and the standard non-parole period of 15 years. In doing so, the Crown did not challenge his Honour’s finding as to the objective seriousness of the offending at just below the mid range for offences of this kind. The Crown noted that in sentencing for Sequence 1, the matters on the Form 1 had to be taken into account.

The respondent relied upon the sentence actually imposed by his Honour in that his Honour clearly did not regard it as inadequate, even though mathematical error had occurred. He submitted that his Honour had taken into account both objective matters and subjective matters and that the Crown had not established error in his Honour’s approach. The respondent relied upon what was said in DPP v Dalgleish at [7]:

The respondent submitted that in those circumstances the Court would not alter the sentence imposed in respect of Sequence 1 or if it did, would simply correct the mathematical error so as to reflect his Honour’s intention as expressed in his reasons.

The factual findings made by his Honour were generally favourable to the respondent. Even so, those findings made it clear that this was a sophisticated and large manufacturing operation, which almost certainly was not a one-off manufacture and supply but something intended to be more permanent. For the reasons identified by the Crown, the sentence actually imposed by his Honour, incorporating as it did the mathematical error, was manifestly inadequate.

This becomes more apparent when one has regard to the basis for the finding of special circumstances and the significant reduction in the statutory ratio between the non-parole period and the head sentence which that finding brought about.

The only reason put forward by his Honour for the finding of special circumstances was the need for the respondent to reintegrate into society upon his release. His Honour did not, however, identify why such a need would exist and why such a long period would be required. In that regard, the observation of R A Hulme J in Caristo v R [2011] NSWCCA 7 at [27] is apposite:

Quite clearly, even on the somewhat generous findings by his Honour, a non-parole period of 5 years and 3 months in respect of this offending does not reflect the minimum period of actual incarceration that the respondent should spend in custody having regard to all of the elements of the offending, particularly when one has regard to the substantial matters on the Form 1 which had to be taken into account when sentencing for Sequence 1.

It follows that I have concluded that the sentence imposed by his Honour in respect of Sequence 1 was manifestly inadequate. For the reasons set out in Lehn v R [2016] NSWCCA 255 it is not sufficient to merely adjust that sentence to correct the mathematical error of his Honour. It is necessary to carry out the process mandated by Kentwell v The Queen [2014] HCA 37; 252 CLR 601 and resentence the respondent.

The Crown submitted that there was an inconsistency of reasoning in the way in which the sentencing judge approached the sentencing for Counts 1 and 2. In relation to Count1, which involved the .45 calibre Colt pistol, the sentence imposed was imprisonment for 3 years with a non-parole period of 1 year and 8 months after a 25 per cent discount. In respect of Count 2, which involved the Phoenix .22 self-loading pistol, the sentence imposed was imprisonment for 1 year and 6 months with a non-parole period of 1 year.

The Crown submitted that there was little to distinguish the offending in Counts 1 and 2 in that both pistols were associated with the manufacture of drugs and both were clearly to be used to defend the respondent should there be any interference with that manufacturing process.

In addition, the Crown relied upon the important guideposts of the maximum sentence (14 years) and standard non-parole period (4 years) which were relevant to Count 2. The Crown submitted that just like the Colt .45 pistol, the offence relating to the Phoenix .22 pistol also involved a significant level of criminality. General deterrence was just as relevant to that offence as it was to that involving the Colt .45 pistol. The Crown submitted that the possession of both pistols in the context of the manufacture and supply of drugs increased the objective seriousness of each offence.

The respondent submitted that there was no illogicality in his Honour’s approach. He pointed out that unlike the Colt pistol which was unsecured, the Phoenix pistol was kept in one of the safes and so was less likely to be found or stolen by others than an accessible firearm such as the Colt pistol. The respondent noted that this was a point of distinction frequently raised in firearms cases.

While the point of distinction raised by the respondent is valid, it by no means provides an explanation for the difference between the two sentences for what was, in essence, essentially the same type of offence. What cannot be ignored is the prevalence in the community of the misuse of firearms in the context of drug supply and manufacture. One of the significant concerns of the community in relation to such weapons is their ability to be easily concealed and the risk that innocent persons will be injured or killed in any shooting contest between persons involved in the drug industry.

Importantly, his Honour in his reasons said nothing to explain the difference between the sentence imposed for Count 1 and that imposed for Count 2. The offending was serious in relation to both offences and the difference in sentences does require some explanation. I am satisfied that error, as asserted by the Crown in relation to this ground, has been established.

The Crown submitted that as well as the patent error identified in Ground 1, the sentence imposed by his Honour was further compounded by a number of latent errors, including:

The Crown submitted that the effect of accumulating the firearms offences on Sequence 1 by six months was indicative of the overall sentence being manifestly inadequate. The effect of that accumulation offended the principle of totality in that the serious offending in Counts 1 and 2 was to be punished by a mere six months imprisonment. The Crown submitted that this was clearly an inadequate and unjust result.

The Crown relied upon the observations by Howie J in Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 at [27] where his Honour said:

The Crown submitted that the offences relating to the possession of the two pistols were each objectively serious. The Crown submitted that in those circumstances, the firearms offences required accumulation as between themselves and as between them and the sentence for the manufacturing offence.

The Crown submitted that the effect given to the finding of special circumstances further compounded the manifest inadequacy of the effective non-parole period. The Crown submitted that there was no proper reason given by his Honour for such a substantial reduction in the non-parole period. On that issue, the Crown relied upon the statement of principles to be applied in respect of the determination of a non-parole period following a finding of special circumstances as set out by Johnson J (with whom McClellan CJ at CL and Bellew J agreed) in R v GWM [2012] NSWCCA 240 at [118]:

In summary, the Crown submitted that the respondent was being sentenced for conducting a significant large scale manufacture of methylamphetamine in residential premises, as well as his possession of three firearms, two of which were pistols in working order, with significant quantities of ammunition. Each of the offences was objectively serious and difficult to detect. Each offence required that significant weight be afforded to the need for personal deterrence, general deterrence, denunciation and the recognition of the harm that is done to the community by the manufacture and supply of prohibited drugs: s 3A of the Crimes (Sentencing Procedure) Act 1999. The Crown also relied upon the significant offending set out on the Form 1.

The respondent submitted that if one looked at his Honour’s nominated starting point of 14 years for Sequence 1, less the discount for early pleas and even allowed for the admittedly modest accumulation for the firearms offences, the overall outcome was within an acceptable range. The respondent submitted that the Crown had failed to establish that the sentence imposed was unreasonable or plainly unjust. The respondent submitted that the Crown’s approach failed to have adequate regard to the broad discretion which is reposed in a sentencing judge.

I am satisfied that the Crown has established that the overall sentence is manifestly inadequate. Not only has patent error been established in respect of the sentencing for Sequence 1 but the principle of totality has not been observed when one has regard to the inadequate level of accumulation between the supply offence and the two pistol offences. Six months accumulation for both the pistol offences does not have proper regard to the principle of totality as set out in Cahyardi and more recent cases.

This, however, does not end the matter. There remains the question of the residual discretion and whether the Crown has established that the residual discretion should not be exercised by this Court.

The respondent submitted that the Crown should have brought the arithmetical error to his Honour’s attention when sentence was imposed but it failed to do so. The respondent submitted that in that regard the Crown had contributed to the error which occurred. The respondent also relied upon the genuine distress which the filing of the appeal had brought about for him and which he deposed to in his affidavit. The respondent submitted that this was not a case where “hypothetical” distress was relied upon but one where there was clear and actual evidence of distress and upset on his part.

The respondent submitted that his heart condition was such that stress of this kind had the potential to aggravate it.

The Crown submitted that the following matters were relevant to whether the residual discretion ought be exercised by the Court:

The Crown acknowledged that the erroneous calculation of the post discount sentence for the manufacturing charge, should have been brought to the attention of the trial judge at the time of sentencing. By way of explanation, the Crown noted that different sentences were imposed for different offences and that the final form of the sentence was affected by accumulation and different commencement dates for the sentences. There were also some other minor mistakes made by his Honour when pronouncing the sentence which were in fact brought to his Honour’s attention by the Crown. Given that his Honour made only one mention of the commencement date of 14 years, which was then followed by other sentences, the failure by the Crown to bring the arithmetical error to the attention of his Honour is in the circumstances understandable. It is not without significance that the respondent’s representatives also failed to bring that error to the attention of his Honour.

In all the circumstances, I have concluded that the Crown has established that the residual discretion should not be exercised and that this Court should intervene and resentence the respondent. This is particularly so because the sentences arise from offences which are currently having significantly adverse effects on Australian society, i.e. the manufacture and supply of the insidious substance known as “ice” and the proliferation of firearms, in particular handguns, within the criminal milieu. It is important that, as much as possible, uniformity of sentencing in relation to these matters is maintained and that the public have confidence that the courts are imposing adequate sentences for such serious offences.

Apart from the respondent’s affidavit as to the effect of the Crown appeal on him, and his experiences in the prison system, there is no additional material before the Court which was not before the sentencing judge. Because none of his Honour’s findings of fact were challenged in this appeal, I have taken those into account in my independent re-exercise of the sentencing discretion. In resentencing the respondent, I propose to impose an aggregate sentence.

In carrying out that exercise I find special circumstances for the reasons identified by his Honour but I have increased the ratio between the non-parole period and the head sentence for the reasons set out in the above analysis. I have also allowed accumulation between Counts 1 and 2 and some further accumulation between Sequence 1 and those counts. I have included the 25 per cent discount for the early plea in the indicative sentences. The indicative sentences which I have taken into account are as follows:

I impose an aggregate sentence of imprisonment for 12 years and 3 months commencing 18 November 2015 and expiring 17 February 2028, with a non-parole period of 8 years expiring 17 November 2023.

The orders which I propose are:

BUTTON J: I agree with Hoeben CJ at CL.