Martin v R; Martin v R

1. [1]

   THE COURT: The applicants Jim Martin and Peter Geoffrey Martin seek leave to appeal from the sentences imposed following their guilty pleas to the offence of manufacturing a large commercial quantity of methylamphetamine, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Jim Martin is Peter Martin’s son; the men are now aged 36 and 63. The sentencing proceedings for both men took place concurrently, over some 8 days over an extended period of time between April 2016 and May 2017. Jim Martin also pleaded guilty to an offence of intentionally causing a fire and being reckless as to its spread to vegetation on public land, contrary to s 203E(1) of the Crimes Act 1900 (NSW). That sentence (which has already been served in its entirety) is outside the scope of the current applications for leave to appeal, except insofar as it impacts on the proper application of the principle of totality.

2. [2]

   Because the offence involved not merely a “commercial quantity” but a “large commercial quantity” of methylamphetamine, the maximum penalty for the drug manufacture offence is life imprisonment, with a standard non-parole period of 15 years imprisonment: see s 33(3) of the Drug Misuse and Trafficking Act and s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW). At relevant times, a “commercial quantity” was 250g, and a “large commercial quantity” was 1 kilogram: see the Schedule to that Act. In fact, the applicants admitted that their offending involved some 44 kilograms of methylamphetamine.

3. [3]

   Taken into account on a “Form 1” pursuant to s 33 of the Crimes (Sentencing Procedure) Act in the case of each man were two offences of possessing precursors with intent to manufacture, charged under s 24A(1)(a) of the Drug Misuse and Trafficking Act. The maximum penalty for each precursor offence is 10 years imprisonment. The offences were possessing slightly more than 10 kilograms of pseudoephedrine and slightly more than 2 kilograms of ephedrine.

4. [4]

   The District Court applied, in the case of Jim Martin, a discount of 20% including 15% for his plea, and imposed a sentence of 28 years imprisonment with a non-parole period of 21 years, backdated to 13 January 2015 (being 2 years after his arrest on 13 January 2013, the delay reflecting partial accumulation of a sentence of 4 years and 6 months for the fire offence). In the case of Peter Martin, a discount of 15% was applied for his plea, and the sentence imposed was a term of imprisonment of 29 years and 9 months, with a non-parole period of 22 years and 3 months, backdated to the date of his arrest on 13 January 2013.

5. [5]

   It will be seen that the starting points prior to the discounts were, in each case, 35 years.

6. [6]

   Each man seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), on identical grounds, namely:

7. [7]

   At the outset of the hearing in this Court, Mr Stratton SC who appeared for both applicants confirmed that the “primary” ground was ground 3, namely that the sentences were manifestly excessive.

Statement of Agreed Facts

1. [8]

   Although as will be seen below there were many factual matters in issue, sentencing proceeded on the basis of a lengthy statement of agreed facts. What follows is taken from that document.

2. [9]

   Peter Martin was a co-owner of land on a fire trail road in Yerranderie, a large, remote property in the Blue Mountains National Park. No one lives permanently on the land, which comprises dense bushland with various vehicle tracks.

3. [10]

   In December 2012, police located two large, sophisticated clandestine laboratories in public bushland approximately 500m from the boundary of the land. The laboratories were approximately 300m apart. Both were destroyed by fire on 9 January 2013. The Crown contended that both fires were deliberately lit. The defence contended that one of the fires was accidentally lit on the evening of 8 January 2013, with the other being deliberately lit half an hour later.

4. [11]

   Between 10 and 12 January 2013, police searched the area surrounding the laboratories and Peter Martin’s property, making 53 “finds” of methylamphetamine and items relating to its manufacture. Most had been well hidden and were covered in black plastic and bush debris. The finds were given various identifying call signs, notably “Echo Echo” and “Quebec Quebec”. The most relevant were the following:

5. [12]

   (It may be noted that the offences of possessing precursors, taken into account in imposing sentence, were based on the more than 2 kilograms of ephedrine and the more than 10 kilograms of pseudoephedrine located at “Echo Echo”, and that the largest find, by far, comprising some 75% of the methylamphetamine located, was the more than 32 kg found at “Quebec Quebec”.)

6. [13]

   On 15 May 2012, a co-accused Danny Sherry was observed driving with a trailer registered in the name of Peter Martin to a paint store where he purchased 800 litres of acetone for $5,390 in cash. It was agreed that he did so at the direction of Peter and Jim Martin. The vehicle and trailer were driven the following day to a road in the Blue Mountains National Park, where surveillance ceased because it could not continue undetected.

7. [14]

   However, images from a motion-detecting camera on a neighbour’s gate captured those entering and leaving Peter Martin’s property. The images for 16 May 2012 just after midnight showed two four-wheel drive vehicles arriving at the property. The following morning at 10.07 am, Jim Martin could be seen on camera with his sister. Danny Sherry arrived at the property around midday and delivered 800 litres of acetone to Peter and Jim Martin and left a short time later.

8. [15]

   On 17 May 2012, police attended the property pursuant to a surveillance device warrant and saw two locked shipping containers near the dwelling house. Next to one of the containers was the trailer used to deliver the acetone on the previous day. The trailer was unlocked, open and empty but for four car tires. The drums of acetone that had been in the trailer on the previous day could not be seen.

9. [16]

   On 6 July 2012, Danny Sherry was observed by police to purchase 800 litres of acetone for $5,390 in cash. That afternoon, he drove to Yerranderie with the acetone and delivered it to Peter and Jim Martin.

10. [17]

    In October 2012, a tracking device was placed on a car used at the property. On 8 October 2012, Peter and Jim Martin drove to Yerranderie and on the following day the vehicle with the tracking device drove to a location on the property. Police later attended that GPS location and found a large quantity of caustic soda concealed under camouflage netting.

11. [18]

    On 5 November 2012, police observed Danny Sherry to leave his home and drive with Peter Martin’s trailer attached to a paint store where he purchased 400 litres of acetone for $2,800 in cash. The acetone was stored at Mr Sherry’s residence until 9 November 2012 when police observed it being collected by Peter Martin. On 21 November 2012, Peter and Jim Martin drove to Yerranderie. That evening, the car with the tracking device stopped at a location in the public bushland adjoining the land. Police attended this location on 29 November and found a place where a vehicle could be turned and parked. It was from this location that the walking trails leading to the laboratories commenced which became the subject of surveillance on 4 December 2012. On 30 November 2012, police saw at the front entrance to the property a backpack which they had previously observed in Peter Martin’s vehicle on 21 September 2012. A tracking device was put into that backpack.

12. [19]

    The statement of agreed facts stated that the timeframe of 4-6 December 2012 was “particularly relevant because the backpack with the tracking device travels back and forth between the residents in both laboratories on the nights of 4, 5, and 6 December 2012, a time when Peter and Jim Martin were alone at the property”. The statement of agreed facts proceeded as follows in relation to those 3 days:

13. [20]

    On 17 and 18 December 2012, police discovered each of the two drug laboratories. Both were covered with dark green camouflage netting and stood one metre off the ground. Each laboratory contained paraphernalia associated with the manufacture of drugs, including food dehydrators, electronic food vacuum sealing devices, pails and plastic funnels, and baking trays. In the larger of the two laboratories there were 10 separate “cooking stations”, each with a source of heat and a condenser attached in distillation mode. There were more than 20 round bottom glass reaction flasks as well as chemicals used in the manufacture of methylamphetamine.

14. [21]

    The laboratory also had a television, a sink and food preparation area (and large quantities of camping style food), with lighting and electricity via a generator constructed inside a wooden box to reduce the amount of noise it would create.

15. [22]

    Police also found a motion activated “UWay” bush surveillance camera, identical to one seen in September 2012 in the backpack, which had taken pictures of police who had activated the camera by movement. Police deleted those pictures before they departed. A sample of white crystal from a food dehydrator was taken. On analysis, this turned out to be 0.5g of methylamphetamine.

16. [23]

    The statement of agreed facts then described in precise detail the large number of drug paraphernalia items discovered when police returned on 21 December 2012 at each of the laboratories. A camera installed on the gate showed a four-wheel drive vehicle arriving on 24 December 2012. An intercepted call made at 2.34am on 24 December 2012 recorded Jim Martin telling his girlfriend “I am going for a drive tomorrow to that property”.

17. [24]

    The events leading to the fires were agreed as follows:

18. [25]

    Peter and Jim Martin evaded arrest between 9 and 13 January 2013 but were seen at a boat ramp in Oatley on the evening of 13 January 2013, where they were arrested, cautioned and detained. In Jim’s pocket there were car keys of a blue Subaru, which when searched was found to contain eight mobile phones, two recently purchased SIM cards, and a large quantity of camping gear.

19. [26]

    That evening, Jim Martin participated in a police interview, and admitted that he had left the Yerranderie property on the morning of 9 January 2013. He denied any knowledge of the laboratories and denied lighting the fires. Peter Martin was also interviewed and made no comment on the allegations.

20. [27]

    A search of premises occupied by the applicants at West Hoxton on 9 January 2013 uncovered a green cooler bag with 31 pairs of white cotton gloves in a vehicle which Jim’s mother said belonged to Jim.

21. [28]

    Also on 9 January 2013, police executed a search warrant on the small house on the Yerranderie property, and recovered a backpack containing 2 empty boxes of resealable bags, with the backpack testing positive for the presence of methylamphetamine. Other backpacks tested positive for the presence of methylamphetamine and pseudoephedrine and triprolidine. One of the backpacks contained some stained cotton gloves which tested positive for methylamphetamine and a DNA profile taken from one of them was a match for Peter Martin’s profile. A pair of men’s pants with a pair of disposable gloves in the pocket was found. A swab of the inside pocket tested positive for the presence of methylamphetamine, and a mixed DNA profile inside the pocket had as a major contributor a match to Jim Martin’s DNA profile.

22. [29]

    There were also 10 tins of acetone, each of 20 litres, which were identical to what had been in the laboratory and what had been purchased by Danny Sherry.

23. [30]

    There were also two locked shipping containers on the property, which contained items which were agreed to be “strikingly similar” to items which had been observed in the laboratories, including LPG gas bottles, a red plastic jerry can labelled by hand “toll”, a roll of shade netting that if painted green would be identical to the camouflage netting at the lab sites, plastic hosing, plastic fold out tables, gas burner rings, black sheeting labelled “concreter’s underlay”, a large quantity of plastic funnels, an Abode brand blender, a pedestal fan, and an Arlec brand desk lamp.

24. [31]

    Some 20 metres north of where the main laboratory had been located, a forensic chemist located two 20 litre flange glass neck reaction flasks. One was around 33% full of a liquid, and the other was about 25% full. Both flasks were found to contain solutions of d-methylamphetamine. The total amount of methylamphetamine in oil form was 2,444g.

25. [32]

    The 53 individual “finds” were not summarised in full. What were agreed to be “the most relevant finds” were described as follows:

Disputed factual matters

1. [33]

   During the sentencing proceedings, both applicants accepted responsibility for the total amount found (the details of how this occurred give rise to ground 2). However, four matters remained in dispute. There was extensive cross-examination of each of Jim and Peter Martin. These issues were addressed by the sentencing judge at length.

2. [34]

   First, over some 42 pages of reasons delivered orally, her Honour reached the conclusion that “the offenders cannot discharge their onus on the balance of probabilities to satisfy the Court that they were acting under duress”. Her Honour found that there was no evidence of duress independent of the applicant’s evidence and that their evidence lacked credibility. The Court found that the offences were committed voluntarily in circumstances that did not give rise to mitigation for duress. One matter upon which her Honour relied was the applicants’ general reluctance to reveal any details, such as the identities of those who were subjecting them to duress.

3. [35]

   Secondly, there was a dispute as to the applicants’ role in the offending. The applicants submitted that they should not be found, and the Court could not be satisfied beyond reasonable doubt, that they were “principals”. That was based upon submissions that there was no evidence of high ranking decision-making authority, no access to substantial finance, no evidence of receipt of large amounts of money, that Peter Martin did not “possess the acumen necessary to manufacture methylamphetamine on the scale seen here”, that Jim Martin was following instructions and that the true principals could be expected to remove themselves from direct involvement. Her Honour noted that the agreed direct evidence of the involvement included ownership of the property, sourcing the materials to make the laboratories, constructing the laboratories, stocking the laboratories with chemicals and equipment and engaging in at least two stages of the manufacture of methylamphetamine. Her Honour noted that apart from the applicants’ assertions, there was no other evidence arising in the investigation that others attended to engage in the manufacturing process, with the possible exception of Danny Sherry. Her Honour also noted that although they may not have received huge amounts of money, that might be because much of the methylamphetamine had been recovered before its onsale. Her Honour also noted that it had been Jim Martin’s decision to burn down the laboratories, and that while Peter Martin did not possess great acumen for the scale of manufacture involved in this case, he had worked cooperatively with Jim. Two pages later in her reasons, her Honour expressly stated:

4. [36]

   The third and fourth matters involved the timing of the fires and whether Jim Martin deliberately set both fires or just one fire. In circumstances where the grounds of appeal do not extend to the fire offence, these matters may be passed over.

Objective seriousness

1. [37]

   Her Honour then noted evidence from a Chief Inspector that the operation was “one of the largest sized methylamphetamine manufacture processes” undertaken using that method of production he had seen. Another police officer stated that the scale of the operation and the purity of the finished product placed this operation “at the highest of the spectrum”. A forensic chemist called in the Crown case, who had participated in a covert walk-through prior to the fires, said that it was a “very sophisticated” operation and the quality of the end product was high.

2. [38]

   A police officer with expertise in drug related offending estimated that the total potential value of the methylamphetamine in powder or crystal form was between $122.5 and $245 million, and in oil form, between $55 and $110 million.

3. [39]

   Her Honour found that the objective gravity of the offending fell “at the upper range of offending”, taking into account the offenders’ role, the quantity of the drug manufactured and the scale and sophistication of the operation.

Subjective case

1. [40]

   Turning to the applicants’ subjective cases, her Honour noted that Peter Martin was 52 years old at the time of the offences and at the time of sentence aged 57, while Jim Martin was 26 years old at the time of the offences and at the time of sentence was 31. Peter was the youngest of 5 siblings in a family that lived first in a tent and then a garage, with concerns about malnutrition. His father was a boxing champion who worked as a railway guard and a Methodist minister, and who inflicted domestic violence against the mother virtually every night, in the presence of the children. The father repeatedly sexually abused Peter Martin’s sister, and Peter Martin was himself physically abused from a young age as well as being bullied at school.

2. [41]

   Peter Martin left home at 16, spent some time homeless, suffered a motorbike accident when aged 17 and was left with ongoing chronic and debilitating leg and hip pain. Aged 23, he commenced a relationship with Jim Martin’s mother, which endured until he was aged 31 and Jim was around 4 years old. They bought a share in a remote alternative community, camping in tents for the first 2 years.

3. [42]

   Jim Martin reported that both he and his older sister were abused by their mother’s new partner after Peter had separated from their mother. Peter then underwent several months of hospitalisation for mild paranoid schizophrenia, delusions and depression. After recovery he worked as a gardener and farm labourer. He obtained interim custody of Jim and his sister, but in 1991 the Family Court ordered that they reside with their mother. She took them to live in New Zealand.

4. [43]

   In 1997, Peter Martin and Danny Sherry jointly purchased the home in Toongabbie and the following year Jim’s sister moved in with them. In 2005, Jim moved there as well. In 2006, aged 21, Jim Martin was severely injured in a motorbike accident, losing the vision in his left eye.

5. [44]

   The primary judge then addressed a dispute as to the appropriate discount to be afforded to the applicants’ pleas of guilty. Her Honour ultimately concluded that a discount for its utilitarian value was 15% for each offender in relation to the manufacturing charges. This finding, and the evidence on which it turns, is the subject of the proposed second ground of the appeal and we shall return to it below. It is not necessary to address the other aspect of the discount applied to one applicant’s sentence.

6. [45]

   The primary judge noted that Jim Martin had no prior criminal history while there was no significant offending in Peter Martin’s history (which comprised relatively minor offences in the period from 1979 to 1995). Both had the advantage of ample good character references and her Honour found that, notwithstanding the rejection of the applicants’ version of duress given on oath, both had established remorse sufficient to engage s 21A(3)(i). Her Honour found that both men had positive prospects of rehabilitation and were unlikely to reoffend.

7. [46]

   Jim Martin was at high risk of losing sight in his remaining eye, and gave evidence about the difficulty in receiving treatment and delays whilst in gaol and his anxiety that the prison environment makes him more vulnerable to losing vision. Her Honour accepted that his experience in custody was on that account more burdensome. Peter Martin relied on psychological evidence to the effect that his history of abuse suggested “a psychological vulnerability”. Her Honour found that while that did not impact on the assessment of moral culpability, it was taken into account in making his experience in custody more onerous. Her Honour also relied upon the substantial delay (more than 4 years) during which time they had remained in custody on remand, with a classification that equated with maximum security, thereby reducing the courses and work options available to them. Her Honour said that the effluxion of time and the uncertainty concerning the outcome which made their custody more onerous would be taken into account.

8. [47]

   Her Honour also expressly had regard to considerations of parity and totality. Her Honour rejected applications made by both applicants for findings of special circumstances, finding that the matters relied upon had already been taken into account as part of the instinctive synthesis. This was the subject of proposed ground 4. Her Honour stated that neither counsel had been able to refer to any comparable authority, but that she had considered the cases of R v Kalache [2000] NSWCCA 2 and R v Little and Walsh [2006] NSWCCA 406, stating that those cases concerned serious offending but not on the same terms as present. Her Honour added:

9. [48]

   Sentence was imposed on 12 May 2017. Almost four years later, applications for leave to appeal were filed, on 12 April 2021, in identical terms. Those applications were heard on 1 September 2021.

Proposed ground 1 – the role of the applicants

1. [49]

   The first proposed ground of each appeal was that the primary judge “erred in assessing the role of [each] applicant”. This was directed to the finding that each was a “principal”. The applicants conceded that it had been open to the sentencing judge to find that the applicants were “principals” in the sense to which Simpson J referred in Nguyen v R [2011] NSWCCA 92 at [4], where her Honour said:

2. [50]

   This ground was directed to the proposition that if the sentencing judge found that the applicants were the sole principals, and at the apex of the operation, no such finding was open. The applicants said that any such finding would have to be established beyond reasonable doubt, in accordance with Olbrich v R [1999] 199 CLR 281 at [25]-[27]; [1999] HCA 54. It was submitted that the following evidence suggested that others had been involved: that it was a “very sophisticated” manufacturing operation, the quality of the product was “at the highest end of the spectrum”, the applicants “to say the least, were not well-educated men” without expertise in chemistry or manufacturing and in particular, the existence of “Quebec Quebec”. The defence case was that if Jim Martin had known of the existence of Quebec Quebec, he would have moved it so as to prevent its contents from being destroyed by the fires or discovered by police. No DNA or fingerprints from either applicant were found on Quebec Quebec, while the DNA of an unknown male was recovered from a swab taken from the press seal of a re-sealable bag labelled “Jelly”. The applicants also submitted that an inference could be drawn from approximately 4000 calls intercepted and recorded involving the applicants, none of which concerned distribution, which necessarily suggested that others were involved, with the further consequence that, so it was submitted, “the applicants were not at the apex of the operation”.

3. [51]

   The Crown maintained that there was no finding that the applicants were “sole” principals or at the “apex” of the operation. The Crown added that the absence of a finding that they were “sole” principals or at the “apex” was not the same thing as making a positive finding that they were not “sole” principals or at the “apex”.

4. [52]

   This proposed ground is readily resolved. Neither side contends that her Honour made a finding that the applicants were “sole” principals or at the “apex” of the operation. This proposed ground hypothesises that her Honour did make such a finding, and then contends that in that event it was not open to her to do so.

5. [53]

   Her Honour’s finding is reproduced above. Her Honour did not find that the applicants were “sole” principals or at the “apex” of the operation. Her Honour merely found that “both offenders acted as principals in the drug manufacturing process”. The finding is as to a conclusion of the character of the role of each man in the manufacturing process. There is no challenge to any of the particular matters of fact which contribute to that conclusion (including directing Danny Sherry to buy acetone, receiving it from him, involvement in the manufacturing process, possession of the methylamphetamine and the precursors). Further, it was not established (to the civil standard) that the men were acting at the direction of a superior (for completeness, it was also not established that no one was directing the men). Categorising or labelling the applicants as principals, or sole principals, or attempting to place them within some putative hierarchy “must not obscure the assessment of what the offender[s] did”: see Olbrich at [19]. This was the case where the sentencing judge had “limited and imperfect information” as to the nature and extent of this substantial manufacturing operation: see Olbrich at [16]. The position occupied by each man readily falls with the description of “principal” given in Nguyen v R.

6. [54]

   There is no basis to construe the finding by the sentencing judge as amounting to a finding that they were “sole” principals or at the “apex” of the operation. Construed in that manner, the parties are ad idem that there was no error.

7. [55]

   We would not grant leave to raise a ground which does not arise.

Ground 2 – discount for utilitarian value of the plea

1. [56]

   This ground challenged the 15% utilitarian discount applied by the primary judge for the guilty pleas to the manufacturing offence. It is expressed thus:

2. [57]

   The sentencing process was lengthy, mostly complicated by the absence of agreement as to the precise facts upon which sentence would be imposed. Both applicants were cross-examined extensively. Ultimately their evidence on the major factual issue, namely, whether they acted under duress, was not accepted. There is no challenge to that conclusion.

3. [58]

   Much earlier, on 9 July 2014, in proceedings in the Local Court at Campbelltown, guilty pleas were entered with a waiver of the committal process. However, junior counsel then appearing for both applicants made the position perfectly clear in the following exchange:

4. [59]

   That is to say, both applicants formally advised that they would plead guilty, but they would not admit any involvement in the manufacture of anything more than 1 kilogram of methylamphetamine. That proposal was not acceptable to the Director of Public Prosecutions.

5. [60]

   Eventually both applicants did plead guilty to the manufacture of some 43 kilograms of methylamphetamine. Prior to that hearing in the Local Court, by email dated 19 May 2014, the DPP had rejected an offer sent on 8 May 2014 (the details of which do not appear to have been reproduced in the appeal books), and made a counter offer, which it described as “the Crown’s final offer”, based on pleas of guilty to the manufacture and “deemed” supply of the methylamphetamine found at Quebec Quebec, namely some 36.122 kilograms.

6. [61]

   The sentencing judge addressed the question of the utilitarian value of the applicants’ pleas at pp 79-82 of her reasons.

7. [62]

   Her Honour commenced with the defence submission “that the offenders each indicated pleas of guilty in the Local Court on 9 July 2014” and that a 25% discount should be given. Her Honour then noted that the Crown referred to “a persistent disavowal by the offenders of the 33 kilograms of methylamphetamine found at the Quebec Quebec find”, although her Honour also noted the Crown’s concession that the applicants accepted responsibility for the drugs found at the Quebec Quebec find in May 2015, when the proceedings were listed to be heard in September 2015. Her Honour had regard to the fact that sentencing proceedings involved evidence taken over 7 days, ultimately resulting in factual findings made adversely to them, and concluded that the appropriate discount was 15%. Her Honour added the following:

8. [63]

   In oral submissions, junior counsel for the applicants sought to maintain, as had been put to the sentencing judge, that “questions such as the precise roles played by Peter and Jim Martin, the precise quantum of [methylamphetamine] located and the precise quantum for which Peter and Jim Martin are each to be held criminally responsible are all matters to be resolved as part of sentence proceedings”. It was said that none of those matters were either elements of the offence or “of the essence” of the offence. Indeed, in a hearing on 5 August 2014, the defence applied for each plea to be accepted.

9. [64]

   Sentence was imposed in 2017, prior to the introduction of Division 1A within Part 3 of the Crimes (Sentencing Procedure) Act. Section 22 required the Court to take into account the fact that both offenders had pleaded guilty, and the timing of the plea (or the indication of the intention to plead) and empowered the court to impose a lesser penalty than it otherwise would have done. A reduction is not mandatory, as s 22(2) made clear, but in that case the court is required to indicate its reasons for doing so and make a record of those reasons: see Nanai v R [2010] NSWCCA 21 at [37]-[43]. The appropriate levels of reduction are found in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; hence the reference to the 25% in this ground.

10. [65]

    It is clear that the finding that there should be a discount of 15% was one with which this Court will interfere only in the event that error as described in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 is made out.

11. [66]

    The ground as formulated was that “her Honour did not take into account this offer [in the Local Court] to plead guilty in determining the appropriate discount”. That is not made out. Her Honour commenced the four pages of reasons directed to this issue by stating that “The defence submits that the offenders each indicated pleas of guilty in the Local Court on 9 July 2014”. Her Honour then dealt with the parties’ submissions concerning the disavowal in the Local Court of responsibility for the 33 kilograms of methylamphetamine found at “Quebec Quebec”.

12. [67]

    However, the ground was debated in this Court in a substantive way which disregarded the inapt form of the notice of appeal. Dealing with the matter at the level of substance, its gravamen is that the sentencing judge erred in not giving a discount of 25% in light of the applicants’ offer to enter pleas in the Local Court in July 2014.

13. [68]

    It is clear that an early guilty plea in circumstances where nonetheless the offender puts the Crown to proof on factual issues and loses does not entitle the offender to the same discount on utilitarian grounds as a person who does not require a contested hearing: R v AB [2011] NSWCCA 229; 59 MVR 356 at [32]. There, Johnson J said, with the agreement of Bathurst CJ and Hoeben J, at [27]:

14. [69]

    That is not to penalise the offender, who is entitled to put the Crown to proof. It is merely to deny that there is, in such a case, the same utilitarian benefit as would be the case following a guilty plea which does not involve a contested hearing.

15. [70]

    Moreover, as Johnson J said in AB at [33]:

16. [71]

    Bathurst CJ, who agreed, added by way of elaboration at [2] that:

17. [72]

    Those principles have been applied in Owens v R [2017] NSWCCA 16 at [64].

18. [73]

    We note for completeness that there is some simplification in the summary of the plea given above. The charges proposed by the prosecution were altered, and there was a complaint by the applicants that they were unable to respond to a fully detailed Crown case. Nonetheless, the large sticking point was whether they were responsible for the 32 kilograms of methylamphetamine found at “Quebec Quebec”. On the view we take, it is not necessary to summarise the details of the correspondence between the Crown and the defence.

19. [74]

    Let it be assumed, favourably to the applicants, that the offer to plead in July 2014 was capable of attracting a 25% discount. The discount actually applied when sentence was imposed could not put to one side the fact that the offenders had advanced a substantial factual issue, namely, whether they were acting under duress. They failed on that issue. That issue very substantially contributed to some seven days of hearings in the sentencing process. The utilitarian value of the early pleas was correspondingly diminished.

20. [75]

    Against this, the applicants pointed to the statement by the primary judge that it was appropriate for the Court to be assisted in full detail by lengthy evidence. The primary judge took that view, but that does not detract from the fact that days of court time were occupied by a factual issue raised by the applicants on which they failed.

21. [76]

    The primary judge concluded her reasoning thus:

22. [77]

    It was at least implicit that her Honour took into account the early offer to plead, but also the diminished utilitarian value of that offer, reflected in the lengthy sentencing proceedings, in reaching a discount of 15%. That approach reflects a long practice in courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted: see Regina v Oinonen [1999] NSWCCA 310.

23. [78]

    We do not consider that a basis to interfere in the discount has been established. While we favour granting leave to appeal, this ground is not made out.

Ground 4 – failure to find special circumstances

1. [79]

   The sentencing judge declined to make any finding of special circumstances. On appeal, it was said that the findings of good prospects of rehabilitation, prior good character, first time in custody coupled with the risks of institutionalisation, together with, in the case of Jim Martin, the hardship arising from his partial blindness and, in the case of Peter Martin, his psychiatric condition, all favoured a finding of special circumstances, so as to permit a variation in the statutory ratio between the parole period and the non-parole period.

2. [80]

   This ground was addressed in a page in the written submissions and was not elaborated orally.

3. [81]

   There is nothing in this ground. On any view, the sentences imposed will involve many years of supervised parole upon the applicants’ release from custody. In Magro v R [2020] NSWCCA 25, when dealing with a sentence with a non-parole period of 10 years and an additional period of 3 years and 4 months, this Court noted that:

4. [82]

   The position is a fortiori in the present case. Even in the absence of a finding of special circumstances, both applicants would inevitably have many years between the completion of the non-parole period and the balance of their terms of imprisonment.

5. [83]

   It was open to the sentencing judge, who expressly considered the point, to decline to make a finding of special circumstances. This proposed ground does not warrant a grant of leave.

Ground 3 – manifest excess

1. [84]

   The “primary ground” of these applications was that the sentences were manifestly excessive. That is to say it may be inferred that the sentence reflects some misapplication of principle, even though none appears on the face of what was said by the judge imposing sentence: see Nealon v R [2021] NSWCCA 286 at [18]-[20] and the authorities there cited.

2. [85]

   The applicants accepted that the offences were “objectively grave examples of the offence”. That concession was properly made. The quantity of the drug was more than 40 times that sufficient to amount to a “large commercial quantity”, and the sophistication of the operation was clear from the agreed facts.

3. [86]

   However, in light of the applicants’ good character, guilty pleas, remorse (as found by her Honour), positive prospects of rehabilitation, partial blindness (in the case of Jim) and emotional distress (in the case of Peter), the applicants had strong subjective cases, such that sentences with an undiscounted starting point of 35 years disclose manifest excess.

4. [87]

   The applicants contrasted Kalache, which involved two counts, with no genuine remorse, and a “truly appalling background of antecedent drug-related crime” (at [11]) where on a Crown appeal, head sentences of 21 years and 16 years would have been imposed. In R v Little and Walsh [2006] NSWCCA 406, Walsh was 25 years old with no criminal record, an amphetamine addiction and a gambling habit who was sentenced to 32 years with a non-parole period of 24 years for a supply charge, to be served concurrently with firearms charges and matters of dishonesty.

5. [88]

   The applicants also relied on three other cases which, although post-dating the sentence they challenged, were said to confirm that it was manifestly excessive.

   1. (1)

      In Kwok v R [2018] NSWCCA 200, a pure weight of 12 kilograms of methylamphetamine was found, and the calculated pure weight of methylamphetamine was some 61 kilograms, (the charged weight was 144 kilograms). Mr Kwok was found to be “at the apex of the known offenders”, pleaded guilty, was 58 when sentenced, and received 22 years imprisonment for manufacturing, and 15 years for the supply.

   2. (2)

      In R v Wan [2017] NSWCCA 261, a co-offender of Mr Kwok albeit with a subordinate role was sentenced to 18 years with a non-parole period of 12 years for the manufacturing offence, with a discount of 25%. The undiscounted starting point was thus 24 years, and it was not suggested that the sentence was inadequate.

   3. (3)

      In Bell v R [2019] NSWCCA 271, the offender pleaded guilty to a single count of manufacturing some 30 kilograms of methylamphetamine in a large scale, sophisticated laboratory. He was found to be a “worker”, although a significant one. He was 29 years old, with no prior criminal convictions and good prospects of rehabilitation. He was sentenced to 13 years and 4 months imprisonment, with a non-parole period of 10 years, reflecting an undiscounted starting point of 17 years and 9 ½ months. An appeal was allowed, reducing the sentence so that the starting point was 17 years 4 months.

6. [89]

   The applicants submitted that they had stronger subjective cases that any of the offenders summarised above.

7. [90]

   The applicants also relied on sentencing statistics. Very little can be derived from this, in light of the very substantial quantities involved in the present case, and the familiar limitations of statistics (the authorities may be found in Hall v The Queen [2021] NSWCCA 220 at [132]). In oral submissions, we did not understand Ms Stratton to place any substantial reliance on those statistics.

8. [91]

   The Crown contended that the sentences were not plainly unreasonable or unjust, doubted the utility of comparable cases, and submitted that Jim Martin had enjoyed considerable leniency in the partial accumulation of the fire offence.

9. [92]

   We have concluded that the sentences are so high that they are correctly described as “manifestly wrong” and “plainly unjust”: see, for example, Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ citing House v The King at 55). This is not to substitute our own opinions for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at 671-672 [15]. Rather, it is to recognise and give effect to the positive findings made by her Honour and to reach the conclusion that the sentences imposed on the applicants were so far outside of an appropriate discretionary range that this Court must intervene. The sentencing judge said that she recognised “that these sentences probably feel almost like a life sentence; they are intended to be fairly rigorous sentences for the reasons I have outlined”.

10. [93]

    The offending is a grave example of a very serious offence. The maximum penalty and the standard non-parole period reflect the assessment of the harm to the community that the manufacture of illicit drugs causes; it is difficult to assess how much damage, directly and indirectly, such a substantial quantity of methylamphetamine does. We also bear in mind the precursor offences, which are themselves very serious instances of their type, which were to be taken into account imposing sentence. Even so, the undiscounted starting point of 35 years discloses error. As the applicants observe, and the Crown did not dispute, they have strong subjective cases, stronger than those who have been sentenced for similar offending and received lesser sentences.

11. [94]

    It is necessary to resentence. Affidavits of both applicants were read without objection in that event. Neither applicant has been the subject of any disciplinary action while in custody. Both have undertaken and completed a series of educational and training courses (engineering, computing, horticulture and hospitality). Both are employed in positions of some responsibility in the correctional centres. It would not be unfair to say that, on the evidence placed before this Court, both have been model prisoners.

12. [95]

    Further, both have been affected in ways that could not have been foreseen when sentenced, including by the COVID-19 pandemic, a serious injury suffered by Jim’s mother, and by the deaths of two relatives, one unexpectedly, whose funerals they were unable to attend.

13. [96]

    The evidence confirms the findings of good prospects for rehabilitation.

14. [97]

    For the purpose of resentencing we proceed upon the same factual basis as determined by the primary judge (no aspect of which was sought to be altered). The conduct amounted to a grave example of the offence. We take into account the possession of the precursors.

15. [98]

    We would not find special circumstances. Both sentences should be backdated to the same extent as the primary judge (in the case of Jim, resulting in a partial accumulation with the sentence for the fire offence).

16. [99]

    We would start with an undiscounted sentence of 28 years imprisonment for each man. Allowing the same discounts as the primary judge (and some rounding):

    1. (1)

       In the case of Peter Martin, the sentence is 23 years and 9 months imprisonment, with a non-parole period of 17 years and 9 months commencing 13 January 2013 and expiring 13 October 2030, which is the first date on which he is eligible to be released on parole. The balance of the term expires on 13 October 2036.

    2. (2)

       In the case of Jim Martin, the sentence is 22 years and 4 months imprisonment, with a non-parole period of 16 years and 9 months commencing 13 January 2015 and expiring 13 October 2031, which is the first date on which he is eligible to be released on parole. The balance of the term expires on 13 May 2037.

17. [100]

    We make the following orders.