Chen, Huagui v R

1. [1]

   THE COURT: The applicant seeks leave to appeal against one of two sentences imposed by her Honour Judge Wass SC in the District Court on 16 April 2024. He pleaded guilty in the Local Court to five charges laid under the Criminal Code (Cth) and one State charge (sequence 26) under the Drug Misuse and Trafficking Act 1985 (NSW). An aggregate sentence was fixed for the Commonwealth matters, with a 25% discount for the plea of guilty applied to each indicative sentence. A separate sentence was fixed for the State matter, with the same discount applied.

2. [2]

   The leave application concerns the sentence imposed for the State offence, which was as follows:

3. [3]

   On that count her Honour fixed a sentence of 8 years imprisonment with a non-parole period of 5 years. With the Court’s leave, granted at the hearing of the application, an amendment was made to the sole ground of appeal so that it now reads as follows:

4. [4]

   Sequence 26 was based upon the discovery of a clandestine laboratory at the applicant’s residential unit in Burwood when the premises were searched on 21 July 2022. Labelled containers of ingredients and reagents were found in the unit, together with receptacles, a portable electrical stove top and a butane gas stove. A blue rubbery residue was found on or in a number of items of hardware. It was established that 174 g of methylamphetamine in solid form constituted final product of the manufacturing process.

5. [5]

   In sentencing for that offence there was taken into account the applicant’s admission of guilt to seq 27, on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Sequence 27 was also an offence of taking part in manufacture of a prohibited drug, contrary to s 24(1) of the Drug Misuse and Trafficking Act. It concerned another 125 g of methylamphetamine that was in the course of being manufactured when the Burwood premises were searched. Both seq 26 and seq 27 concerned indictable quantities, below the 250 g threshold for a commercial quantity. Hence the maximum penalty for seq 26 was 15 years with no standard non-parole period. If a commercial quantity had been involved the offence would have been charged under s 24(2) of the Drug Misuse and Trafficking Act and would have attracted a maximum of 20 years and a standard non-parole period of 10 years.

The aggregate sentence for the Commonwealth offending

1. [6]

   For context it is necessary to identify the Commonwealth offences for which the applicant was sentenced at the same time. They were as follows (with maximum penalties and indicative sentences indicated):

2. [7]

   For the Commonwealth offences her Honour imposed an aggregate sentence of 13 years with a non-parole period of 8 years. Aggregate sentencing pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is available in respect of multiple convictions for Commonwealth crimes: McGregor v R [2024] NSWCCA 200 at [91], [92] and [103]. The applicant was remanded in custody from the date of his arrest, 1 August 2022. Her Honour ordered that the separate sentence for the State offence commence on that date and that the aggregate sentence for the Commonwealth matters commence on 31 July 2024. There was thus an accumulation of 2 years, giving rise to an overall effective sentence of 15 years with a non-parole period of 10 years.

3. [8]

   The applicant does not seek to disturb the length of the aggregate sentence for the Commonwealth offences but contends that if the sentence for seq 26 should be reduced then the Court should also bring forward the commencement date of the Commonwealth aggregate sentence, thereby reducing the degree of accumulation and hence reducing the overall effective sentence. The Crown does not dispute that it would be open to the Court to make such an adjustment if leave should be granted and if the appeal in respect of the sentence for the State offence should be upheld.

Further detail of the Commonwealth offending

1. [9]

   Although the aggregate sentence for the Commonwealth matters is not the subject of the leave application, the dates and details of the applicant’s offending against the Criminal Code are relevant to his sentence on the State manufacturing charge. The State offence was not an isolated involvement of the applicant with illicit drugs. It fell within a course of serious criminality over an extended period, from the applicant’s first dealings in proceeds of crime during December 2020 up to his manufacturing activity over some weeks prior to his arrest in early August 2022. That criminal conduct was diverse as well as enduring. It embraced repeated misuse of identity information, attempted possession of large quantities of two different border controlled drugs on multiple occasions, trafficking in yet a third illicit drug and dealing in significant proceeds of crime at various times over the charge period. The manufacturing enterprise in mid-2022 was the last chapter.

2. [10]

   Sequence 11, the attempt to possess imported drugs, was assessed by the learned sentencing judge as “extremely serious”. It related to four separate importations, three of methylamphetamine and one of heroin, over a period of three months in the second half of 2021. In each case the drugs were concealed within commercial products and packaging that had been consigned from overseas to Sydney addresses of which the applicant had control. The individual consignments were as follows:

3. [11]

   Sequence 15 concerned $137,436.65 in bets that the applicant placed at the Burwood RSL Club between 3 December 2020 and 9 January 2021. The indicative sentence for this offence took into account under s 16BA of the Crimes Act 1914 (Cth) two other offences, namely, seq 16 (dealing with suspected proceeds of crime in the amount of $34,440.35) and seq 17 (dealing with suspected proceeds in the amount of $4,500). The $34,440.35 was made up of further betting transactions at the Burwood RSL Club between 23 March 2021 and 28 January 2022 and the $4,500 was in the possession of the applicant when he was arrested on or about 1 August 2022, in $100 bills.

4. [12]

   Sequence 18 was committed by the applicant utilising the NSW driver licence of Samuel Fong. Mr Fong lost his wallet, containing the licence and other items, at Naremburn in November 2019. The wallet was either found by or handed in to police, who returned it to Mr Fong. However, the licence was not recovered by its rightful owner but the agreed facts on sentence did not explain how the applicant obtained it. He used Mr Fong’s name to register one of several mobile phone services that he subsequently used up until his arrest on 1 August 2022. The licence had been altered to incorporate an image of the applicant and he deployed the altered document in April 2021 to open three accounts in the name of Samuel Fong with St George Bank. In May and September 2021 the applicant used the name Samuel Fong to open an email account and to enter into an agreement for the provision of internet service. He used the altered licence document to enter into leases of two of the storage lockers to which there were addressed consignments of border controlled drugs, as charged in seq 11.

5. [13]

   Sequence 20 concerned drugs found within a storage locker at a commercial facility in Collingwood, leased by the applicant under the name Samuel Fong, using the driver licence. On 25 July 2022 the applicant deposited a black suitcase in the locker. When the locker was searched on 3 August 2022, two days after the applicant had been arrested, there was found within the suitcase a quantity of clear crystalline material, subsequently analysed as 688.04 g of pure methylamphetamine. On sentence for seq 20 the applicant admitted seq 21, being a further offence of trafficking in a controlled drug, namely, a total pure amount of 5.09 g of ketamine, found in the same locker at Collingwood. That matter was taken into account under s 16BA of the Crimes Act.

Objective gravity of the methylamphetamine manufacture offence, seq 26

1. [14]

   Relying upon the statement of facts that was agreed for sentencing purposes, the learned judge was satisfied that on 9 June 2022 the applicant had attended a hardware store in Ashfield in company with another person and purchased items to be used in the manufacture of methylamphetamine, including 4 litres of methylated spirits and 5 m of clear vinyl tubing. The discovery of the clandestine laboratory in the applicant’s residential unit on 21 July 2022, with both final product and more methylamphetamine in the course of manufacture, showed that the laboratory had been in existence for approximately six weeks. Her Honour accepted that both extraction and refinement of the drug were being carried out and that other prohibited substances, such as unreacted precursor material, were present.

2. [15]

   Her Honour was satisfied that the applicant organised the manufacturing operation and that he had acquired the knowledge of how to make the drug, or had received assistance with the task, albeit that he was unwilling to state truthfully how he gained that knowledge or what, if any, assistance he received. In evidence on the sentence proceedings the applicant proffered explanations for his involvement, including that some other person had told him about ingredients and materials that were abandoned and that he had sought to use those things to produce drugs for his own use, at no cost.

3. [16]

   Her Honour rejected those explanations as inherently unbelievable, leaving her to conclude that he involved himself in the enterprise “to a high degree” in the following respects: purchasing the equipment, establishing the laboratory in his own apartment for about six weeks, monitoring the security of the premises from a mobile phone, advancing the operation to the stage of final production and utilising the laboratory equipment – as indicated by a fingerprint left by him on some of the glassware. Her Honour found that the applicant undertook all his criminal conduct, including the attempt to manufacture methylamphetamine, for financial gain, “in order to profit from it either by obtaining payment or free drugs which he wanted from time to time”.

The applicant’s subjective case

1. [17]

   There were no significant features of the applicant’s subjective circumstances that warranted mitigation of penalty for the State offence of taking part in the manufacture of methylamphetamine or for any of the other matters to which he pleaded guilty. During his upbringing in his native country, China, the circumstances of his family varied from impoverished to modest. The sentencing judge accepted the applicant’s claim that he was sexually abused in his early teens. Her Honour accepted that his relationship with his father, who was mostly absent overseas for work, was distant. The learned judge took into account that the applicant was raised by his grandparents from the age of nine, that they “met only his basic needs and barely spoke to him”, that he struggled with learning and that he ceased regular attendance at school from the age of 15.

2. [18]

   The applicant arrived in Australia in 2010 at the age of 18 on a student visa. The visa expired in 2010 but he remained in the country illegally from then up to the date of his arrest. He was employed in unskilled work up to about the end of 2019 but was thereafter engaged on the criminal activities for which he was sentenced. The applicant has not become fluent in English and he has been somewhat socially isolated. He has had two intimate relationships whilst living in this country but both of them ended with the respective partners returning to China.

3. [19]

   The applicant has no criminal history but could not be considered as entitled to leniency. Her Honour took the view that in sentencing for seq 26 it was relevant that the applicant “has involved himself in many facets of drug trafficking and manufacture over an extended period”. That approach is consistent with such decisions as LN v R [2020] NSWCCA 131 and Ragg v R [2022] NSWCCA 150. As recently noted in Lowe v R [2025] NSWCCA 202, the effect of those authorities is that other charged and proved offences, as well as other uncharged matters (whether on a Form 1 or not), may be contextually relevant to prove, inter alia, that an offence for which sentence is to be passed was not an aberration by an offender of otherwise good character and was not an isolated incident.

4. [20]

   The applicant attempted to understate his responsibility for taking part in the manufacture of methylamphetamine. In his evidence in the sentence proceedings he also attempted to minimise his culpability for the other offences. The implausibility of that evidence led her Honour to the following conclusions:

The applicant’s submissions as to manifest excess

1. [21]

   In oral argument the applicant’s counsel speculated that the learned sentencing judge may have erroneously treated the objective seriousness of seq 26 as greater by reason of his commission of the further charge of taking part in manufacture of a prohibited drug, seq 27, which was taken into account on the Form 1. It was suggested that her Honour may have measured the objective seriousness of seq 26 by reference to the sum of the quantities of drug involved in the two offences, a total of 299 g. However, to the contrary, her Honour’s remarks on sentence contain an orthodox statement of the manner in which the Form 1 offence was to be taken into account, namely, that it would give rise to an additional need for personal deterrence and retribution: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]-[43].

2. [22]

   In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], Gleeson CJ and Hayne J said that a conclusion of manifest inadequacy or manifest excess is reached where a sentence is:

3. [23]

   Where past decisions of an intermediate appellate court have established a range within which sentences have been imposed and/or upheld for offending of the same type as that in respect of which a contention of manifest excess is advanced, the impugned sentence will be “unreasonable, or plainly unjust” if it markedly exceeds the range. That is the way in which the applicant seeks to demonstrate manifest excess in the present case. It is an approach supported by the following statement of principle by Gleeson CJ in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 [6]:

4. [24]

   In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 the High Court was concerned with sentencing of federal offenders but the principles stated are clearly of equal application to sentencing of State offenders. In a joint judgment French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ recognised that a range of sentences may be established by a course of intermediate appellate decisions concerning sentences for offences against a particular provision, all committed in reasonably comparable circumstances of objective criminality and subjective features of the offender. Further their Honours accepted that departure from such an established range would constitute unacceptable inconsistency. Referring to the judgment of this Court that was under appeal in Hili v The Queen; Jones v The Queen, their Honours acknowledged the significance of an established range in the following observations:

5. [25]

   The joint judgment includes emphatic statements as to the necessity of comparing all sentencing factors in the case under appeal with the whole scope of factors that were taken into account in such other cases as are said to have established the range from which the impugned sentence departed. One such statement is as follows:

6. [26]

   The manner in which “the relevant legal principles” have been applied in any sentencing will usually be ascertained by consideration of the length of sentence imposed relative to all features of objective seriousness, all elements of the offender’s subjective case and all statutory constraints or other “guideposts”, such as the prescribed maximum penalty. Comprehensive examination of all sentencing factors that were taken into account in comparable sentencing decisions is the way in which an appellate court pays “proper regard not just to what has been done in other cases but why it was done”.

7. [27]

   In the joint judgment in Hili v The Queen; Jones v The Queen, Gleeson CJ’s statement in Wong v The Queen, quoted at [22] above, was endorsed at [47], followed by these statements:

8. [28]

   The disparagement of mere comparison of the lengths of sentences is another way of saying that attention must be given to all features of any two sentencing decisions that are being examined for systemic consistency. The applicant respected that requirement in the present case. Counsel identified all factors that were required to be taken into account in arriving at the sentence under appeal and he compared them with a similarly comprehensive review of the sentencing factors in past decisions.

9. [29]

   It is recognised that offences against some provisions may be committed in such diverse ways that it is very difficult, or even impossible, to find past appellate sentencing decisions in cases that are truly comparable with each other and with any case that may be the subject of an instant appeal. The offence of manslaughter is in that category: see Abbas v R [2014] NSWCCA 188 at [38]-[41] (Adamson J, Hoeben CJ at CL and Fullerton J agreeing). On the other hand, offending against s 24(1) or s 24(2) by manufacturing the illicit drug methylamphetamine is relatively homogenous, with limited variables that can be allowed for in making a valid comparison of sentence outcomes.

10. [30]

    The present applicant’s approach to demonstrating a lack of “reasonable consistency” is directly supported by the following passages of the joint judgment in Hili v The Queen; Jones v The Queen:

11. [31]

    At [54] their Honours approved statements by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 to the effect that a history of past sentence outcomes does not of itself establish that the range disclosed prescribes correct upper and lower limits. However, from the balance of their Honours’ judgment it is apparent that while that caveat is applicable to first instance decisions, “consistency in […] sentencing is to be achieved through the work of the intermediate courts of appeal” (at [18], repeated at [56]) and that a range of sentences for reasonably comparable cases may be established from intermediate appellate decisions.

12. [32]

    To evaluate the applicant’s contention that his sentence in the present case fails the test of reasonable consistency with sentences in like cases, it is necessary to have regard to criteria by which the Court may assess the similarity or otherwise of the objective seriousness of any particular instance of offending against s 24(1) of the Drug Misuse and Trafficking Act. The offence is concerned with manufacture of quantities of drugs less than the commercial quantity specified in Sched 1 to the Act, namely 250 g for methylamphetamine. Infringement of the section may be proved without it being proved that the production of any specific quantity has been completed or was in process.

13. [33]

    Where a quantity is proved, a larger amount along the scale towards 250 g may tend to an assessment of greater objective seriousness, depending upon other circumstances. The purpose for which the manufacture is undertaken is a relevant consideration. Most cases involve production for commercial distribution, which has been treated as more serious than the rare instances of production for personal use.

14. [34]

    The scale and sophistication of the enterprise, measured by the quality and fitness for purpose of the equipment in use and its capacity for production, is a relevant factor. So also is the degree of involvement of the offender and the level of his or her responsibility for the manufacturing enterprise. The involvement of multiple offenders acting in concert may aggravate the seriousness of a manufacturing enterprise but the criminality of any one individual may be greater or lesser according to where he or she stands in the chain or hierarchy of responsibility and participation.

15. [35]

    The production of methylamphetamine is known to release dangerous fumes and to involve a risk of fire or explosion if not undertaken competently and with precautions. The seriousness of the offence may be exacerbated if the manufacturing is undertaken in a careless, incompetent manner and/or if the laboratory is in a residential rather than a remote, or less populated, location. Whether the offence was committed “without regard for public safety”, an aggravating factor under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act, would depend on evidence of the absence of precautions relative to the risk posed by the location.

16. [36]

    As a preface to considering the putative comparative sentences relied upon by the applicant, it is pertinent to note the maximum penalties prescribed for participating in manufacture of larger quantities of methylamphetamine. The escalating scale of penalties, disregarding fines, is as follows:

17. [37]

    Apart from quantity, the elements of an offence against s 24(1) are the same as the elements of an offence against s 24(2). The Court accepts the applicant’s submission that it is appropriate to have regard to the length of sentences commonly imposed for s 24(2) offences in order to determine whether the punishment meted out in comparable cases has established an identifiable range of outcomes, relative to which the sentence presently under consideration is manifestly excessive as an outlier.

18. [38]

    The applicant referred to seven cases in which sentences passed for s 24(1) offences have been considered in this Court. Some of those cases are of limited assistance in identifying a norm or range of sentences that this Court has regarded as appropriate. Where a severity appeal has been dismissed, the appeal decision provides a data point as to the level of sentencing in the District Court but it does not follow that this Court would have considered a higher sentence unacceptable. Where the Court has been constrained to resentence for a reduced term in order to achieve parity with the sentencing of a co-offender, the substituted sentence does not necessarily have this Court’s approval as a penalty that would be appropriate in a case unaffected by parity constraints.

19. [39]

    Again, where the Court has resentenced in circumstances requiring that the offender be returned to custody following release pursuant to an inappropriately lenient penalty fixed at first instance, consideration of the burden resulting from erratic administration of justice may mean that the resentence does not form part of any normal range against which “reasonable consistency” can be measured.

20. [40]

    The following summaries omit the detail of offences additional to drug manufacturing for which the respective offenders were sentenced at the same time. The nature of such additional offences and the penalties imposed for them always have a bearing upon the individual sentence fixed for any one matter but, for present purposes, the discussion of these cases can be simplified by omitting reference to other charges and sentences, without any resultant distortion of the case to case comparison.

21. [41]

    In R v Ayoub [2001] NSWCCA 241 the offender pleaded guilty to one count under s 24(1). The charge was based on the finding of a laboratory in a shed at the offender’s residential address. It was a one-man operation, with 189 g of methylamphetamine present, as well as precursor ingredients, but no active production underway. Although it is not expressly stated in the reasons of this Court, the 189 g appears to have been regarded as the subject of the manufacture. The primary judge took into account, in sentencing for the manufacture charge, an offence of possession of ammunition, admitted on a Form 1. A sentence of 4 years with a non-parole period of 3 years was imposed in the District Court. The offender also pleaded guilty to a charge of deemed supply in relation to the 189 g of methylamphetamine and 14 g of cocaine. This Court’s reasons do not indicate that the offender had any relevant record of past offending, or, on the other hand, any compelling subjective circumstances. It may be inferred that a 25% discount was allowed for the plea. Barr and Howie JJ concurred in dismissing the offender’s contention that the sentence was manifestly excessive. Barr J considered the possession of ammunition charge taken into account on the Form 1 would have been “a seriously aggravating feature contributing to the level of the sentence” that the Court upheld.

22. [42]

    In R v Karabatsos [2002] NSWCCA 526 police located at the offender’s premises containers of liquid pseudoephedrine in a sufficient quantity to manufacture 117 g of methylamphetamine, together with a quantity of Sudafed tablets. There was also present a blender suitable for reducing the tablets to powder and an array of chemicals that could be used to extract pseudoephedrine from the powdered medication. The offender did not have laboratory equipment or reagents that would be necessary to manufacture methylamphetamine from the precursor but surveillance evidence showed that he communicated with a co-offender, one Tesic, on the subject of producing methylamphetamine to be distributed for profit.

23. [43]

    The offender pleaded guilty to a charge under s 24(1) and was sentenced by Gibson DCJ to 5 years imprisonment with a non-parole period of 3 years and 9 months. The head sentence had been discounted by 17% from a starting point of 6 years. Tesic was not convicted of or sentenced for his part in this offence. Tesic pleaded guilty before Finnane DCJ to a separate charge under s 24(2) of manufacturing a commercial quantity of methylamphetamine in concert with a third offender named Snow. On sentencing Tesic for the s 24(2) offence, Finnane DCJ took into account on a Form 1 the s 24(1) offence that had been committed in conjunction with the offender Karabatsos. Tesic’s sentence was 6 years imprisonment with a non-parole period of 3 years – after allowance of a 25% discount from a starting point head sentence of 8 years.

24. [44]

    Smart AJ, with whom Michael Adams J agreed, gave the following reasons for allowing Karabatsos’ appeal against sentence:

25. [45]

    The substituted sentence of 3 years with a non-parole period of 2 years was also influenced by “rehabilitation progress while in custody”. The Court’s reasons for allowing the appeal show that the outcome is not indicative of the range within which sentences are generally imposed for s 24(1) offences. The decision is of little value for the purpose of determining whether there is a lack of reasonable consistency between the sentence under appeal and sentences in like cases.

26. [46]

    In R v Tolley [2004] NSWCCA 165 the Crown brought an inadequacy appeal in respect of a suspended sentence imposed for a s 24(1) manufacturing charge where no quantity of manufactured drug was proved. The offender had established a laboratory in a shed on his parents’ property, within which there were 246 non-prescription tablets from which the precursor pseudoephedrine could be extracted. At the time of the offence, in August 2003, the offender had been on bail for nearly 2 years in relation to an earlier charge of the same kind, committed in 2001, concerning the manufacture of 77 g of methylamphetamine. He pleaded guilty to the 2003 charge and the 2001 offence was taken into account on a Form 1. There was also taken into account an offence of possession of two unregistered firearms.

27. [47]

    The sentencing process in the District Court miscarried in numerous respects and it was necessary for this Court to resentence. A term of 2 years with a non-parole period of 1 year was substituted. It is inferred that the sentence involved a 25% discount for the plea. Howie J (Hodgson JA and Levine J agreeing) explained the Court’s decision as follows:

28. [48]

    Again, the unusual circumstances giving rise to a sentence “verging on the inadequate” have the effect that this outcome cannot be treated as indicative of a normal range against which the Court should now measure the “reasonable consistency” of the sentence with respect to which the present leave application is brought.

29. [49]

    In R v Williams [2005] NSWCCA 355 the offender conducted an active laboratory in a suburban house, of which he was the sole occupant. When arrested he was in possession of 84.9 g of methylamphetamine at 3.4% purity. He also had Sudafed tablets but there was no evidence of the likely yield of pseudoephedrine from those tablets. The offender pleaded guilty to one count under s 24(1), one count of possession of precursor, a charge of supply of the methylamphetamine (based both upon the offender’s possession of the drug and his intercepted phone conversations regarding distribution) and one count of possessing a prohibited weapon (a replica pistol).

30. [50]

    The offender was 39 when he committed the offences. There were significant mitigating subjective features to his case, including psychiatric illnesses that had been diagnosed from age 9 and a history of sexual abuse by older male patients while he was in a psychiatric facility in his early teens. An offsetting subjective consideration was the offender’s long criminal record, commencing from age 17, including a number of short terms of imprisonment (up to 8 months).

31. [51]

    At first instance the primary judge adopted a starting point for the s 24(1) offence of 10 years with a non-parole period of 5 years. That was discounted by 20% for the plea of guilty, resulting in a sentence of 8 years with a non-parole period of 4 years. The sentence was set aside by this Court on the ground of significant errors in process. At [44] Simpson J (with whom Basten JA and Buddin J agreed) apparently accepted the Crown’s submission that “it is not helpful to assess criminality of drug manufacturing offence only by reference to the quantity of the drug involved”. At 84.9 g, with a purity of only 3.4%, the quantity produced amounted to only 2.89 g pure. Despite the manufacturing output being so small, Simpson J gave weight to the circumstance that the offender “was plainly involved in a commercial enterprise of both manufacturing and distributing methylamphetamine” and characterised the offence as “a serious one, not a minor one”. Allowing the same discount as had been applied in the District Court and making allowance for “quite remarkable progress towards rehabilitation”, this Court substituted a sentence of 6 years with a non-parole period of 3 years and 3 months.

32. [52]

    For purposes of comparison, the outcome of the appeal in R v Williams reflects a starting point of 7 years and 6 months with a non-parole period of 4 years and 1 month. With a discount of 25%, as the present applicant was (and is) entitled to receive, that would give rise to a head sentence of 5 years and 8 months with a non-parole period of 3 years.

33. [53]

    In Langham v R [2006] NSWCCA 306 the offender and one of his co-accused engaged in manufacturing methylamphetamine for 10 days in late October 2003 at a rural property in far northern New South Wales. It was an agreed fact that the expected product would be 75 g of pure methylamphetamine. The offender also pleaded guilty to supplying methylamphetamine in May and June 2004, based upon intercepted phone conversations with potential purchasers. The reasons published by this Court do not disclose whether any drug had been manufactured successfully or sold or offered for sale. Nor is it stated within the reasons what discount was afforded for the offender’s pleas of guilty. It may be assumed that 25% was applied. The offender was 48 years old and had a record of significant convictions over the previous 30 years, including for drug offences. He suffered from post-traumatic stress disorder as a result of having been severely stabbed and assaulted eight years prior to when the manufacturing offence was committed. The offender was sentenced in the District Court to 3 years and 4 months imprisonment with a non-parole period of 2 years and 6 months. This Court held that the sentence was not manifestly excessive.

34. [54]

    In Salafia v R [2015] NSWCCA 141 the offender participated with seven co-accused in manufacturing methylamphetamine in mid 2011. The offender obtained a substantial quantity of liquid pseudoephedrine, which proved to be of very poor quality. The low quality of the precursor frustrated the manufacturing process when it was subsequently attempted in a laboratory on a remote rural property. After the offender and his associates had attempted a production run, police found laboratory glassware, other equipment, respirators, gloves and chemicals at the location. There was also present a combined total volume of liquid methylamphetamine weighing 1,409.29 g with an estimated purity of between 1.7% and 3.5%. The methylamphetamine content was 31.6 g. The offender had no relevant criminal record nor any significant subjective case. He had “reasonable to good” prospects of rehabilitation. He was sentenced at first instance to imprisonment for 3 years and 6 months with a non-parole period of 2 years and 2 months. That sentence allowed a 10% discount for a late plea of guilty. The starting point was therefore 3 years and 11 months with a non-parole period of 2 years and 5 months. For the purposes of comparison to the present applicant’s case, if the offender Salafia had been entitled to a 25% discount he would have received a head sentence of approximately 2 years and 11 months with a non-parole period of 1 year and 10 months.

35. [55]

    Salafia’s appeal ground alleging manifest excess was rejected by this Court. Although the objective seriousness of his involvement was reduced by reference to the small quantity and low purity of the manufactured drug, the Court took into account the sophistication and planning involved, the offender’s individual involvement and his intention and motivation for committing the offence. The trial judge had assessed that his role was “vital and significant” and could be characterised as “upper management”. He did not take part in “the cook” but had procured the essential precursor. He had engaged in protracted discussions with the others to organise and progress the activity and he was motivated by the expectation of profit. The Court considered that the objective gravity of the offending was not lowered by the fact that the manufacture was incompetently executed and was unprofitable.

36. [56]

    Dang v R [2013] NSWCCA 246 was not referred to by the applicant. The offender in that case manufactured methylamphetamine in a residential unit over two months from mid-May to mid-July 2009, until his activities caused a fire that resulted in the attendance of police. He was arrested and released on bail after four months. He then committed a further offence of manufacturing methylamphetamine in another residential unit, between the beginning of March and mid-April 2011.

37. [57]

    Although the offender was charged under s 24(2) for the first manufacture, the sentencing judge was not satisfied that a commercial quantity had been produced and a plea of guilty to having manufactured less than the commercial quantity was accepted. A discount of 25% was allowed and the offender was sentenced to 5 years imprisonment with a non-parole period of 3 years. In respect of the second manufacture a plea to the less serious offence, under s 24(1), was again accepted. After applying a discount of 25%, the sentence at first instance for that matter was 6 years imprisonment with a non-parole period of 3 years and 7 months. The amount of drug produced in the manufacturing activity does not appear to have been established with respect to either count. The primary judge accepted that the product was consumed by the offender, his girlfriend and “‘others’, who were not identified as to relationship or number”. The sentencing judge said that he did “not find any level of commerciality regarding the supply of methylamphetamine”. The offender was himself an addict.

38. [58]

    In this Court, Basten JA (Michael Adams J agreeing) made the following observations at [27]:

39. [59]

    Basten JA also took into account, as factors significant to the objective seriousness of the crimes, that the manufacturing in each case had taken place in a residential unit “with attendant risks of fire (which materialised in the Surry Hills apartment) and creation of obnoxious fumes (which occurred at Hurstville)”. Further, his Honour noted that the 2011 manufacture was “undertaken whilst the applicant was on conditional liberty in respect of the first offence, which is an established factor of aggravation: s 21A(2)(j)”.

40. [60]

    Upon consideration of the above-mentioned factors, particularly that “the primary purpose of the manufacture was to feed the applicant's addiction, rather than to supply any other person”, Basten JA concluded that the sentences for the manufacture offences were manifestly excessive. With the concurrence of Michael Adams J, his Honour adopted starting points of 5 years for the 2009 matter and 6 years for the further offence in 2011. Applying the 25% discount the resulting sentences were, for the earlier offence, 3 years and 9 months with a non-parole period of 2 years and 3 months and, for the later offence, 4 years and 9 months with a non-parole period of 2 years and 9 months.

41. [61]

    At [46], and [48]-[55], Michael Adams J considered a number of putative comparative sentences, some of which have already been summarised in the present judgment and most of which concerned charges under s 24(1) rather than s 24(2). His Honour said at [56] that the cases referred to involved “a markedly higher degree of objective seriousness” than the two manufacture charges that were the subject of the appeal then before the Court. Like Basten JA, his Honour regarded “the non-commercial character of the offences here as a most significant factor both of itself and as distinguishing this case from the examples”.

42. [62]

    Putting aside, or at least treating with caution, those decisions of this Court where resentencing was lenient because of the nature of the ground of appeal (as in R v Karabatsos) or because of procedural considerations (as in R v Tolley), and making due allowance for the highly variable combinations of aggravating and mitigating circumstances and subjective factors, it is the Court’s view that the above survey demonstrates that the sentence now challenged, with a starting point of 10 years and 8 months discounted by 25% to 8 years with a non-parole period of 5 years, is markedly inconsistent with the penalties that have been imposed upon numerous other offenders in broadly comparable circumstances. The sentence imposed by her Honour for seq 26 is manifestly excessive and must be quashed.

43. [63]

    The applicant cited cases in which offenders were sentenced for taking part in the manufacture of methylamphetamine, contrary to s 24(2), in circumstances comparable to the present except that the amount of the drug exceeded the commercial quantity and the higher maximum penalty was therefore engaged. The applicant submits that sentences passed in such cases have generally been less severe than the sentence imposed on himself for seq 26. Two decisions where this Court has itself passed sentence after upholding an appeal support the applicant’s argument that an established normal range of sentencing has been significantly departed from in the present case.

44. [64]

    In Cashel v R [2018] NSWCCA 292, the offender and three others engaged in a joint criminal enterprise to manufacture methylamphetamine for profit. The applicant purchased items of hardware to use in the process and he and one of the co-offenders secured the use of detached garages at two separate suburban properties. By the time of his arrest the offender and the others had progressed as far as extracting pseudoephedrine from cold and flu tablets, at each of the garages, and had manufactured 12.7 g of methylamphetamine. The extracted pseudoephedrine was capable of producing a further 332 g of the drug. The enterprise across the two drug laboratories was highly organised. The offender was 35 years old. He had a long criminal record for similar offending and he was on bail when he took part in this manufacturing project, over the course of a few weeks. The offender was at the time significantly involved in the supply of other drugs.

45. [65]

    At first instance the offender pleaded guilty to a charge under s 24(2) framed in terms that he manufactured not less than the commercial quantity. On appeal it was determined that the conviction should be quashed and substituted with a conviction for knowingly taking part in the manufacture. Exercising the sentencing discretion afresh, this Court imposed an identical sentence to that which had been imposed for the charge as originally framed, namely, 7 years and 10 months imprisonment with a non-parole period of 5 years and 1 month. That incorporated a discount of 12.5%, implying a starting point head sentence of 8 years and 11 months. For purposes of comparison, if the offender had been eligible for a discount of 25% his sentence would have been 6 years and 8 months with a non-parole period of 4 years and 4 months.

46. [66]

    In R v Campbell; R v Smith [2019] NSWCCA 1 the Court resentenced two offenders after upholding a Crown inadequacy appeal. They had both been dealt with for multiple drug and firearms offences, including a charge of manufacturing a commercial quantity of methylamphetamine contrary to s 24(2) of the Drug Misuse and Trafficking Act. That offence was committed in April 2015, at which time the threshold for a large commercial quantity was 1 kg. The amount produced was 6,114 g in brown liquid form equating to 641 g at 100% purity. Manufacturing took place in an active clandestine laboratory that had been set up in a shed on a remote and secluded rural property owned by Smith. There was a large amount of equipment in the shed, including a metal reaction vessel with a capacity to manufacture batches of up to 6 kg at a time and a custom-made stainless steel condenser. The operation was large, well-organised and clearly undertaken for financial reward. Both offenders were active in setting up the laboratory and in the manufacturing process.

47. [67]

    The offenders were long-term associates, both involved in outlaw motorcycle gangs, both with extensive criminal histories. They were not remorseful and had poor prospects of rehabilitation. RA Hulme (with whom Beazley P and Rothman J agreed) said this at [187]:

48. [68]

    In the District Court aggregate sentences were imposed and it was those aggregate sentences that were under appeal. When the sentences were set aside this Court nominated an indicative sentence for each offender on the manufacturing charge. Each sentence allowed a discount of 25% for the plea of guilty. For Campbell, from a starting point head sentence of 9 years, the discounted indicative sentence was 6 years and 9 months with a non-parole period of 4 years and 4 months. For Smith, from a starting point head sentence of 9 years and 4 months, the discounted indicative sentence was 7 years with a non-parole period of 4 years and 6 months.

49. [69]

    The applicant’s sentence for seq 26 is to be measured against the sentences passed in Cashel v R and R v Campbell; R v Smith. The applicant’s offence was of significantly lower objective seriousness and the maximum penalty applicable to him is significantly less. He has nothing like the long adverse criminal record of each of Cashel, Campbell and Smith. The fact that a second offence of taking part in manufacture, seq 27, was to be considered on a Form 1 could not possibly justify an uplift of the applicant’s sentence to the level that was imposed.

Orders

1. [70]

   With due consideration of all objective and subjective aspects of the manufacturing offence in seq 26 and taking into account the second such offence on the Form 1, a starting point head sentence of 8 years would be appropriate. After allowance of the 25% discount, the substituted sentence should be 6 years. Adhering to the proportion that the learned sentencing judge applied as between non-parole period and balance of term, the non-parole period should be 3 years and 9 months. To give effect to the principle of totality, there should be a reduction in the extent of accumulation between the substituted sentence for the State matter and the aggregate sentence for the Commonwealth matters. The length of the latter is not to be disturbed. The principle of totality may be respected by quashing the aggregate sentence and substituting a sentence of the same duration but with an earlier commencement date. That was the means by which an appropriate overall effective period of imprisonment was achieved, in similar circumstances, in Dyball v R [2025] NSWCCA 39 at [79]-[80] (Dhanji J, Price AJA and Yehia J agreeing). The Court considers that the appropriate period of accumulation is one year.

2. [71]

   Accordingly, the orders of the Court are as follows:

   1. (1)

      Grant leave to the applicant pursuant to Rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 to apply for leave to appeal against sentence after expiry of the applicable period.

   2. (2)

      Grant leave to appeal against the sentences imposed by Wass SC DCJ on 16 April 2024.

   3. (3)

      Allow the appeal.

   4. (4)

      The applicant is sentenced as follows:

3. [72]

   Pursuant to s 53A of the Crimes (Sentencing Procedure) Act the Court indicates that for the Commonwealth offences the separate sentences that would have been imposed if an aggregate sentence had not been ordered would have been the same as those nominated by the learned sentencing judge, as recorded at [6] above. Taking the two substituted sentences together, the overall effective term of imprisonment under the orders now made is 14 years with a total effective non-parole period of 9 years. In overall terms, the proportion between the partly accumulated non-parole periods and the overall head sentence is slightly more favourable to the applicant than was the case under the sentencing orders made in the District Court (64.3% compared to 66.67%).