Lewis v R

1. [1]

   HOEBEN CJ at CL: I agree with Bellew and with the orders he proposes.

2. [2]

   BELLEW J: On 21 September 2018 Mark Brett Lewis (the applicant) was found guilty by a jury of the following offence contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act):

3. [3]

   The offence carries a maximum penalty of life imprisonment and a prescribed standard non-parole period of 15 years imprisonment.

4. [4]

   On 14 December 2018 the applicant was sentenced to imprisonment for 12 years with a non-parole period of 9 years.

5. [5]

   A co-offender, Bill Tsimingos (Tsimingos) had previously pleaded guilty to the same offence. On 24 May 2017 he was sentenced by her Honour Judge Noman SC to imprisonment for 9 years with a non-parole period of 6 years and 9 months.

6. [6]

   The applicant now seeks leave to appeal against his sentence on the grounds more fully considered below.

THE FACTS OF THE OFFENDING

1. [7]

   The facts of the offending which were found by the sentencing judge following the jury’s verdict may be summarised as follows.

2. [8]

   In late 2015, the applicant was employed by the Hawkesbury City Council. Michael Stewart (Stewart), who was the applicant’s supervisor and with whom he also had a social relationship, owned a property in East Kurrajong, the area of which was slightly less than one acre. A three bedroom house, a carport, and a double garage/shed were erected on the property.

3. [9]

   In late 2015, the applicant asked Stewart if he could store some equipment in the shed for a friend, Raymond Bell (Bell). The applicant told Stewart that he wanted to “do a cook-up" which would “only be a small thing” and which would “go for a couple of hours”. A number of items were subsequently delivered to the property including two large reaction vessels each with a capacity of about 220 litres, stoppers to seal the apertures at the top of each reaction vessel, injection tubes, funnels and condensers.

4. [10]

   On 28 December 2015 the applicant told Stewart that the “cook-up” would be likely to take place that evening. Stewart was home at about 8.00pm when two vehicles arrived, one of which he recognised as the applicant's work utility. In the rear tray of that vehicle Stewart saw a number of items including gas bottles, a pump, a length of blue hose and what he thought were a number of empty boxes. Another vehicle driven by Tsimingos subsequently arrived at the property. Both vehicles were then driven to the entrance to the shed, at which time the items from the back of the applicant's utility were unloaded before being taken inside the shed and assembled. The windows of the shed were then taped up and one of the reaction vessels was unwrapped.

5. [11]

   When Stewart later returned to the shed he saw Tsimingos using a red funnel. When Tsimingos asked him whether he had anything to remove a blockage in the funnel, Stewart found an aluminium rod which he gave to Tsimingos. Stewart also observed Bell with a 20 litre bucket which contained what he described as “bluey-purply” crystals. He also saw the applicant using a rod to break up the crystals in the bucket.

6. [12]

   At about 11.00pm the applicant, Tsimingos and Bell all came out of the shed. The applicant then fell to the ground with a coughing attack. Either Bell or Tsimingos told Stewart that the applicant had “sucked in a mouthful”, an apparent reference to the applicant having inhaled fumes created by the manufacturing process. As the applicant continued coughing, Stewart took him inside the house and assisted him by providing a nebuliser. The applicant stayed inside Stewart’s premises for the remainder of the night while Bell and Tsimingos remained in or about the shed.

7. [13]

   At about 6.00am the following morning Stewart went outside and saw Tsimingos coming out of the shed. He was wearing a mask and was accompanied by Bell. Stewart heard Tsimingos say words to the effect “it's too hot. It's not cooling down” before walking back into the shed. About 10 seconds later, there was a large explosion which propelled a reaction vessel through the roller door of the shed. The chemicals inside the reaction vessel splattered throughout the shed, over the applicant's vehicle and over the vehicle which had been driven to the premises by Tsimingos. The explosion also shattered a glass window at the back of the shed. Tsimingos suffered significant injuries as a consequence of the explosion, including substantial burns extending from above his groin to below his knees and shrapnel punctures as a consequence of being sprayed with multiple glass fragments.

8. [14]

   Stewart saw smoke coming out of the shed and heard Tsimingos yelling for help. He obtained a hose and sprayed water on Tsimingos, following which Bell and the applicant put Tsimingos on the back seat of the applicant's vehicle and drove off. Subsequent investigations by the police found 13.0569kg of methylamphetamine in the exploded reaction vessel.

THE FINDINGS OF THE SENTENCING JUDGE

1. [15]

   The sentencing judge found that the applicant: [1]

2. [16]

   Having made those findings, his Honour said: [2]

3. [17]

   His Honour then turned to the role of Tsimingos: [3]

4. [18]

   Having addressed aspects of the applicant's subjective case, the sentencing judge then returned to the issue of the applicant's role: [4]

Submissions of the applicant

1. [19]

   Counsel for the applicant took no issue with the fact that the applicant had carried out the various acts attributed to him by the sentencing judge. However, he emphasised that the applicant had been charged with manufacturing a large commercial quantity of methylamphetamine, as opposed to taking part in such manufacture. It was submitted that in these circumstances, an assessment of the objective seriousness of the applicant's offending depended upon what was found to have been his “hands-on” contribution to the actual process of the manufacture of the methylamphetamine.

2. [20]

   Counsel submitted, in particular, that some of the acts of the applicant identified by the sentencing judge, such as finding the premises and placing items in the shed, were removed from the actual manufacturing process, and were therefore erroneously taken into account. It was submitted that for the purposes of determining the applicant’s role, the matters that the sentencing judge could properly take into account were restricted to the applicant’s activities in the shed. In that regard, it was further submitted that in the absence of any direct evidence about the applicant’s actual contribution to the process of manufacture, his presence in the shed was ambiguous, and not something from which any adverse inference could be drawn.

3. [21]

   It was submitted that having adopted that approach, the sentencing judge had erroneously concluded that the involvement of the applicant and Tsimingos was equal.

Submissions of the Crown

1. [22]

   The Crown submitted that the basis of the applicant’s criminal liability for the offending was his participation in the manufacture of a quantity of methylamphetamine as part of a joint criminal enterprise, and that as a consequence he was liable for the acts of the other participants in furtherance of that enterprise. Whilst accepting that the applicant’s level of criminality was to be assessed by reference to his conduct in the course of participating in that enterprise, the Crown submitted that this did not lead to a conclusion that such an assessment was to be limited to a consideration of his involvement in the actual process of manufacture. It was submitted that such an approach was impermissibly narrow.

2. [23]

   The Crown submitted that the evidence supported a finding that the applicant was part of the joint criminal enterprise on and from the time he asked Stewart for permission to use the property to carry out the manufacture. In terms of what the applicant had subsequently done, the Crown pointed to his acts in bringing equipment to the property, setting it up, and taking part in the manufacturing process.

3. [24]

   The Crown further submitted that the applicant’s presence in the shed whilst the manufacture was being undertaken was a fact from which his participation in that process could be inferred. Whilst the Crown accepted that it was not possible to determine who performed what precise act(s) inside the shed, it was submitted that it was evident that each of the participants was present during the manufacturing process and that in the case of the applicant, such an inference was available from his obvious exposure to the fumes and chemicals. The Crown submitted that in all of these circumstances it had been open in sentencing judge to find that both the applicant and Tsimingos were “worker[s]” who were present and assisting in the manufacturing process.

4. [25]

   Finally, the Crown submitted that properly understood, the sentencing judge did not equate the role played by the applicant on the one hand and Tsimingos on the other. It was submitted that notwithstanding that the sentencing judge had classified both the applicant and Tsimingos as “workers”, he had nevertheless drawn a clear distinction between their actual roles, and had concluded that at least in terms of the hours spent engaged in the process of manufacture, Tsimingos’ role was greater than that of the applicant.

Consideration

1. [26]

   The proposition that the applicant’s role was to be assessed solely by reference to what he did when engaged in the actual manufacturing process, and without regard to (for example) any act he performed preparatory to that process, is in my view erroneous. The applicant was a participant in a joint criminal enterprise. The assessment of his role was to be made according to what he did, and according to the entirety of the acts that he performed, in furtherance of that enterprise. [5]

2. [27]

   Further, the dichotomy created by s 24(3) of the DMT Act provides no support for the proposition that the sentencing judge was in error in taking into account the applicant’s preparatory acts when assessing his role in the joint criminal enterprise. Section 24(3) creates two offences, namely manufacturing a prohibited drug and knowingly taking part in the manufacture of a prohibited drug. The same maximum penalty is prescribed in each case, regardless of whether the drug in question is successfully produced. Generally speaking, a charge of manufacture is laid where the prohibited drug is brought into existence, and a charge of knowingly take part in the manufacture is laid when it is not. The relevant focus, therefore, is upon the outcome of the process of manufacture, rather than upon the process itself. [6]

3. [28]

   For all of these reasons, there was no error in the approach taken by the sentencing judge in assessing the applicant’s role.

4. [29]

   Further, and contrary to the express proposition upon which this ground is based, the sentencing judge did not find that the applicant’s involvement was the same as that of Tsimingos. Although his Honour found that the applicant, like Tsimingos, was a “worker”, [7] he drew a clear distinction between their respective levels of involvement. In doing so, his Honour specifically pointed out that the applicant had ceased any involvement in the actual manufacturing process at about 11.00pm on 28 December 2015, but that Tsimingos had continued for a further 7 hours until the explosion. [8] Properly understood, his Honour’s assessment was that Tsimingos’ role was greater than that of the applicant.

5. [30]

   For all of these reasons, this ground is not made out.

Ground 3 – THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE

1. [31]

   It is noted that ground 2 raises a parity issue and ground 3 asserts that the sentence imposed is manifestly excessive. In those circumstances, it is appropriate to address ground 3 first. [9]

Submission to the applicant

1. [32]

   In advancing this ground of appeal, counsel for the applicant relied upon the entirety of the submissions advanced in respect of each of grounds 1 and 2.

Submissions of the Crown

1. [33]

   The Crown submitted that the sentencing judge had not erred in assessing the applicant’s role, had not erred in his assessment of the objective seriousness of the offending, and had not misapplied any principle. It was submitted that when all factors were taken into account, the sentence imposed on the applicant did not fall outside the range of sentences permissible for offending of this kind, and that the sentence imposed was not unreasonable nor plainly unjust.

Consideration

1. [34]

   In Goodbun v R this Court summarised the relevant principles applicable to a ground of appeal asserting manifest excess of sentence as follows: [10]

   1. (1)

      appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

   2. (2)

      intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

   3. (3)

      it is not to the point that an appellate court might have exercised the sentencing discretion differently;

   4. (4)

      there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

   5. (5)

      it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

2. [35]

   For the reasons stated when considering ground 1, there was no error on the part of the sentencing judge in assessing the applicant's role in the offending, or his criminality.

3. [36]

   The offence of which the applicant was found guilty, carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment. Those provisions provided important yardsticks for the assistance of the sentencing judge in determining the appropriate sentence.

4. [37]

   Further, the amount of methylamphetamine was significant, as was the role played by the applicant. As the sentencing judge found, that role encompassed a number of separate and distinct acts, some of which were preparatory to, and others of which centred directly upon, the process of manufacturing. Further, the applicant's “detachment” from the enterprise was not the result of his voluntary withdrawal, but was forced upon him as a consequence of the fact that he was not able to physically continue. His subjective case was generally unremarkable and the overwhelming inference was that he became involved in the enterprise because of some expectation of a monetary reward. General deterrence was therefore a significant factor on sentence.

5. [38]

   In all of these circumstances, I am not satisfied that the sentence imposed was unreasonable or plainly unjust.

THE REASONS OF THE SENTENCING JUDGE

1. [39]

   In sentencing the applicant, the sentencing judge specifically adverted to the issue of parity: [11]

2. [40]

   His Honour then addressed various aspects of the applicant's subjective case and found (inter alia) that “[i]n essence” he was a person of prior good character [12] before returning to the question of parity: [13]

THE SENTENCE IMPOSED ON THE CO-OFFENDER

1. [41]

   As previously noted, Tsimingos pleaded guilty to the same charge as that brought against the applicant. After a discount of 25% to reflect the utilitarian value of that plea, Tsimingos was sentenced by her Honour Judge Noman SC to imprisonment for 9 years with a non-parole period of 6 years and 9 months. It is therefore apparent that in sentencing Tsimingos, her Honour adopted a starting point of 12 years imprisonment.

2. [42]

   Tsimingos was sentenced on the basis of a statement of agreed facts, by reference to which her Honour said the following in assessing Tsimingos’ role: [14]

3. [43]

   Although the final sentence of that paragraph is a little ambiguous, the reference to the “Bunnings trip” in the immediately preceding sentence was clearly a reference to Tsimingos. It follows that the final sentence must be construed as a finding that Tsimingos was differently and slightly less involved than the applicant. Such a finding was contrary to that made by the sentencing judge when sentencing the applicant.

4. [44]

   Her Honour found that Tsimingos was a person of prior good character. [15] She accepted that he was remorseful for his involvement, [16] and found that such involvement was “inexplicable and an aberration”. [17] Her Honour concluded that Tsimingos had insight into his offending, that his prospects of rehabilitation were highly favourable, and that he was most unlikely to reoffend”. [18]

5. [45]

   Her Honour also found that Tsimingos sustained a number of injuries as a result of the explosion, including substantial burns, lacerations to a nerve in the knee, shrapnel punctures and multiple fragmentation injuries which resulted in the necessity to undergo a series of surgeries. [19] Her Honour accepted that those injuries gave rise to ongoing issues and amounted to extra-curial punishment, [20] but did not accept that such issues could not be appropriately addressed by Justice Health. However, her Honour did accept that such injuries would render Tsimingos’ period of incarceration moderately more difficult, and concluded that such matters should mitigate the sentence to be imposed. [21]

6. [46]

   Her Honour also found that as a consequence of the explosion Tsimingos was susceptible to noise which would render his conditions of custody more onerous than might otherwise have been the case, and that there should be a “slight amelioration in sentence” as a consequence of that factor. [22] Her Honour accepted that Tsimingos suffered from a depressed mood but concluded that this was consistent with his injured state, and his expectation of incarceration. [23] She concluded that these issues did not reduce Tsimingos’ moral culpability. [24]

Submissions of the applicant

1. [47]

   Counsel for the applicant accepted that this ground relied, to some extent, on the submissions advanced in support of ground 1. Counsel also accepted that in circumstances where the sentencing judge had specifically adverted to the issue of parity when sentencing the applicant, this Court would be cautious to intervene unless any demonstrated disparity was substantial.

2. [48]

   However, it was submitted that in sentencing Tsimingos, Judge Noman SC had been “wholly influenced” by the fact of Tsimingos’ plea and his injuries, and that those factors did not justify what was said to be a marked and unjustified disparity between the respective sentences which were imposed. Whilst accepting that Tsimingos’ injuries constituted extra-curial punishment, counsel for the applicant submitted that such injuries were properly viewed as having been self-inflicted, and that any amelioration of Tsimingos’ sentence on that basis should have been minimal. The effect of that submission was that the sentencing judge had ascribed excessive weight to that factor, as a consequence of which the sentence imposed on Tsimingos had given rise to the applicant having a justifiable sense of grievance, in circumstances where (leaving aside Tsimingos’ plea of guilty and his injuries) it was submitted that there were no substantial differences in their respective subjective cases.

3. [49]

   Finally, counsel emphasised that the applicant had spent less time in the shed than Tsimingos during the manufacturing process, had not been involved in assembling any material, and had no experience in this type of enterprise. In this regard, counsel pointed to the statement made by Tsimingos to the effect “it’s too hot. It’s not cooling down” which, he submitted, was indicative of a high level of knowledge of, and experience in, the process of methylamphetamine manufacture.

Submissions of the Crown

1. [50]

   The Crown pointed out that although the sentencing judge had characterised each of the applicant and Tsimingos as a “worker”, the differences in what they had actually done (which came about partly because the applicant became incapacitated) had caused the sentencing judge to find that the applicant's role was less than that of Tsimingos. It was submitted that this was obviously a finding which was favourable to the applicant.

2. [51]

   The Crown accepted that Tsimingos’ injuries amounted to extra-curial punishment but submitted that the weight that they were to be given remained a matter for the exercise of discretion of her Honour Judge Noman SC. The Crown submitted that there was nothing to indicate that having taken them into account, the weight ascribed to them by her Honour had given rise to an unjustifiable disparity. The Crown also pointed out that there were differences in the respective findings made as to remorse and rehabilitation, the findings in respect of Tsimingos being more favourable than those made in respect of the applicant.

Consideration

1. [52]

   The principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice also requires, where permissible, the different treatment of persons according to the differences between them. Consistency in the punishment of offences against criminal law finds its expression in the parity principle which requires that like offenders should be treated in a like manner, and which allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances. [25]

2. [53]

   The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. The question is always one of due proportion being structured between those sentences which is to be determined having regard to the different circumstances of the co-offenders and their different degrees of criminality. [26]

3. [54]

   As discussed when considering ground 1, it is apparent that the sentencing judge concluded that having regard to the extended period of time in which Tsimingos remained in the shed compared with the applicant, Tsimingos’ level of criminality was greater because he had a greater role in the actual process of manufacture. That conclusion was necessarily favourable to the applicant. That aside, I am unable to accept the submission of counsel for the applicant that the two subjective cases were essentially the same. On the contrary, there were a number of important distinguishing factors between them.

4. [55]

   Firstly, Tsimingos pleaded guilty at the earliest opportunity, and was given the benefit of a discount of 25%. The applicant elected to go to trial.

5. [56]

   Secondly, Judge Noman SC found that Tsimingos was remorseful. [27] No such finding was made in the applicant’s case.

6. [57]

   Thirdly, Judge Noman SC found that Tsimingos had “highly favourable” prospects of rehabilitation. The sentencing judge found himself unable, in the absence of an admission of guilt, to reach a similar conclusion in favour of the applicant.

7. [58]

   Fourthly, Judge Noman SC found, based upon what she described as Tsimingos’ “own insight supplemented by strong support in the community", that Tsimingos was “most unlikely” to reoffend. No such finding was made in the case of the applicant.

8. [59]

   Fifthly, Tsimingos was severely injured in the course of the offending. The severity of those injuries, and their ongoing sequelae, have been summarised above and need no further comment. Contrary to the submission advanced on behalf of the applicant, those injuries are not properly viewed as having been self-inflicted, and thus deserving of little or no weight. They were accidentally inflicted in the course of committing the offence. They were also significant. It was clearly open to Judge Noman SC to regard them as constituting extra-curial punishment and to take them into account on that basis. [28] It was also open to her Honour to find that those injuries, along with Tsimingos’ susceptibility to noise as a consequence of the explosion, would render his conditions of custody more onerous. The applicant did not have the benefit of any of those findings.

9. [60]

   In light of these matters, the conclusion of the sentencing judge that there was nothing to differentiate the two subjective cases apart from Tsimingos’ injuries and his remorse was an error. [29] However, it was one which favoured the applicant.

10. [61]

    Finally, it is necessary to emphasise that when sentencing the applicant the sentencing judge specifically alluded to the question of parity. It is also important to bear in mind that the sense of grievance necessary to attract appellate intervention with respect to sentences which are said to be disparate is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity.

11. [62]

    The Court will refuse to intervene when disparity is justified by differences between co-offenders. [30] For the reasons I have set out, the disparity in the respective sentences imposed on the applicant and Tsimingos is entirely justified by the important distinguishing features in their respective subjective cases. In these circumstances, I am not persuaded that the applicant has a justifiable sense of grievance. This remains the case notwithstanding the fact that this Court has concluded [31] that Tsimingos has a justifiable sense of grievance in view of the disparity in the respective sentences which were imposed, and that his sentence should be reduced on that basis.

ORDERS

1. [63]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [64]

   N ADAMS J: I agree with Bellew J.