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Supreme Court 11 December 2014

R v IL (No 4)

[2014] NSWSC 1801

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE WEAPONS AND FIREARMS CHARGES AGGREGATE SENTENCE DEATH OF CO OFFENDER IN COURSE OF MANUFACTURE

Citation: R v IL (No 4) [2014] NSWSC 1801
Court: Supreme Court of NSW
Date: 11 December 2014
Judge: Hamill J

Background

The offender (identified only as IL) was convicted by a jury on five counts arising from her involvement in the manufacture of a large commercial quantity of methylamphetamine at residential premises she owned in Ryde, NSW. The manufacturing operation came to light in tragic circumstances: in the early hours of 4 January 2013, a fire broke out at the Ryde premises during the refining process, seriously burning her co-offender. He died ten days later.

The manufacturing process involved refining raw methylamphetamine through an acetone evaporation process, raising purity levels from below 20% to over 80%. More than six kilograms of methylamphetamine at various stages of purity were found at the premises. A further 15.1 grams and approximately $16,900 in cash were found at the offender's separate home in South Hurstville.

In addition to the principal drug manufacturing charge, the jury convicted IL on three counts of possessing a pistol without authorisation and one count of possessing a prohibited weapon. Earlier in the trial, Hamill J had directed verdicts of not guilty on charges of murder and manslaughter arising from the co-offender's death: R v IL (No 2) [2014] NSWSC 1710.

  • What was the appropriate aggregate sentence for five serious offences, including manufacture of a large commercial quantity of methylamphetamine?
  • Whether the death of the co-offender during the manufacturing process constituted an aggravating circumstance at sentencing.
  • Whether a profit motive and disregard for public safety were properly treated as aggravating features.
  • How to weigh the offender's significant personal mitigating circumstances (good character, middle age, limited involvement) against the objective seriousness of the offences.
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether an aggregate sentence was appropriate under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

Hamill J found that the principal offence of manufacturing a large commercial quantity of methylamphetamine was objectively very serious. The quantity of drug involved far exceeded the large commercial quantity threshold of one kilogram. The operation, while not technically sophisticated, was clearly commercial in scale, using the Ryde premises exclusively for drug production and running two simultaneous refining processes to maximise output. The offender's role extended beyond merely permitting use of her premises: she purchased acetone, refilled gas bottles used in the process, and physically stirred a pot containing methylamphetamine during the manufacturing operation.

On the question of aggravating features, the court addressed three matters in turn. First, the death of the co-offender: Hamill J declined to treat this as a straightforward aggravating factor, given that the jury had acquitted IL of both murder and manslaughter, and findings adverse to the offender on that basis could not be made on the balance of probabilities given the directed verdicts. Second, whether the offence created a grave risk of death to another person was considered, having regard to the inherently dangerous nature of the manufacturing process. Third, the court accepted that a profit motive and disregard for public safety were relevant to the sentence.

The offender presented significant personal mitigating factors. She was a middle-aged woman of good character with no prior criminal history, her involvement appeared to span a limited period, and she had served over a year in custody before sentence. The court found special circumstances existed, justifying a non-parole period shorter in proportion to the total sentence than the statutory norm, given the offender's need for a longer period of supervision upon release.

Applying the aggregate sentencing provisions under s 53A, and indicating what individual sentences would have been for each count, the court imposed an aggregate sentence of 11 years and 6 months, with a non-parole period of 7 years and 6 months. The sentence was backdated to commence on 2 December 2013, reflecting the period already served.

Orders Made

  • Aggregate sentence of 11 years and 6 months imposed, with a non-parole period of 7 years and 6 months commencing 2 December 2013 and expiring 1 June 2021; balance of term of 4 years commencing 2 June 2021 and expiring 1 June 2025.
  • Drugs and weapons the subject of the five counts forfeited to the Crown for destruction.
  • Sequence 3 (offender found on drug premises) dismissed by consent.
  • Sequence 4 (owner knowingly allowing premises to be used as drug premises) dismissed by consent.
  • Remaining sequences (1, 5, 6, 7, 8, 11, 13, and 14) remitted to the Local Court on the joint application of the parties.

Key Takeaways

  • The death of a co-offender during a manufacturing operation was not automatically treated as an aggravating feature at sentencing, particularly where the offender had been acquitted of murder and manslaughter by directed verdicts. The court declined to make findings adverse to the offender on that issue to the relevant standard.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing court indicated the individual sentences it would have imposed for each count before arriving at a reduced aggregate, reflecting the principle of partial concurrence rather than full accumulation.
  • Good character, limited criminal involvement, and a confined period of participation remained available as mitigating factors even in proceedings involving very serious drug manufacturing charges.
  • A finding of special circumstances under s 44(2B) allowed the court to reduce the proportion of the sentence served as a non-parole period, where the offender's circumstances called for more extensive post-release supervision.
  • The court acknowledged the tension between consistency in sentencing for serious drug offences and the requirement to do individual justice in each case, treating both as legitimate and necessary sentencing considerations.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2B), 53A
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW)

Cases
- R v IL (No 2) [2014] NSWSC 1710
- Muldrock v The Queen [2011] HCA 39
- Wong and Leung v The Queen [2001] HCA 64; 207 CLR 584
- Olbrich v The Queen [1999] HCA 54
- R v RD [2014] NSWCCA 103
- SHR v R [2014] NSWCCA 94
- R v Nykolyn [2012] NSWCCA 291
- Brown v R [2012] NSWCCA 199
- R v Hines (No 3) [2014] NSWSC 1273
- Greenaway v R [2013] NSWCCA 270
- Eckersley v R [2013] NSWCCA 219
- DW v R [2012] NSWCCA 66
- Reardon v R [2012] NSWCCA 46
- DAB v R; NJB v R [2010] NSWCCA 275
- Lau v R [2010] NSWCCA 43
- R v Little and Walsh [2006] NSWCCA 406
- Melikian v R [2008] NSWCCA 156
- R v MacDonnell (2002) 128 A Crim R 44
- R v Kalache [2000] NSWCCA 2