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District Court 27 April 2018

R v Oncu; R v Dogan; R v Unver; R v Bassi-Anstee

[2018] NSWDC 106

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE FORM1 MANUFACTURE PROHIBITED DRUG LARGE COMMERCIAL QUANTITY METHYLAMPHETAMINE

Citation: R v Oncu; R v Dogan; R v Unver; R v Bassi-Anstee [2018] NSWDC 106
Court: District Court of New South Wales
Date: 27 April 2018
Judge(s): Berman SC DCJ

Background

Between late 2014 and December 2014, four offenders participated in a substantial methylamphetamine manufacturing operation at a property in Kenthurst, NSW. A purpose-built metal shed on a concrete slab had been constructed there, apparently for the sole purpose of producing the drug. Police conducted covert surveillance of the property over several weeks, including two covert searches in which a video camera was installed and forensic testing was carried out.

On 3 December 2014, police arrested three of the four offenders at the scene; the fourth was arrested shortly afterwards. A fifth participant had fled the jurisdiction before arrest. Forensic examination of the shed established that at least 30.5 kilograms of methylamphetamine had been manufactured across a minimum of eight separate batches, each producing approximately four kilograms of pure drug. DNA and fingerprint evidence linked each offender to items consistent with manufacture.

One offender (Mr Oncu) faced an additional charge of possessing an unauthorised pistol, a .357 magnum revolver with its serial number obliterated, found at his premises when he was arrested. He also asked the court to take into account, on a Form 1, a related offence of possessing a single round of ammunition without a licence.

  • What sentences were appropriate for each offender, given their differing roles in a large-scale commercial drug manufacturing operation?
  • How should the standard non-parole period of 15 years (applicable to manufacturing a commercial quantity of methylamphetamine) inform sentencing, and were there grounds to depart from it in each case?
  • How should the objective gravity of each offender's conduct be assessed where no offender was identified as the "boss" of the operation, and where surveillance was incomplete?
  • What discount applied to each offender's plea of guilty, given the varying timing of those pleas?
  • How should the pistol possession offence and Form 1 ammunition matter be dealt with in relation to Mr Oncu's overall sentence?

Decision

Berman SC DCJ sentenced each offender separately, accounting for their individual roles, personal circumstances, and plea timing. The court found that, while the operation was substantial and organised, none of the four could be regarded as the principal organiser. A police officer who investigated the matter gave evidence that no offender could be called the "boss." The court noted that those truly in charge of such operations rarely put themselves at risk of identification and arrest, which explains why sentencing statistics and comparative cases tend to cluster at or below the middle of the range of objective gravity.

The court declined to impose the 15-year standard non-parole period on any offender, providing reasons for that departure in the remarks on sentence. All four offenders pleaded guilty. Three entered pleas at the earliest opportunity, attracting a discount of approximately 25 percent on their sentences. Mr Oncu's pleas were not entered early, so his discount was approximately 20 percent.

For Mr Oncu's pistol offence, the court noted that the Form 1 ammunition offence carried a maximum penalty of a fine only, and factored its relatively minor nature into the sentencing for the principal firearms charge. The court ultimately imposed an aggregate sentence for Mr Oncu to account for both the manufacturing and firearms matters together.

The court acknowledged the limited assistance provided by comparative cases, noting significant factual differences in many instances, but found both those cases and the sentencing statistics to be of some assistance when adjusted for those differences.

Orders Made

  • Mr Bassi-Anstee: Non-parole period of 6 years; head sentence of 9 years, commencing 1 May 2015. Eligible for parole on 30 April 2021.
  • Mr Oncu: Aggregate sentence of 9 years and 6 months, with a non-parole period of 6 years and 6 months, commencing 30 January 2017. Eligible for parole on 29 July 2023.
  • Mr Dogan: Non-parole period of 4 years and 6 months; head sentence of 7 years and 6 months, commencing 19 January 2016. Eligible for parole on 18 July 2020.
  • Mr Unver: Non-parole period of 4 years and 6 months; head sentence of 7 years and 6 months, commencing 8 January 2016. Eligible for parole on 7 July 2020.

Key Takeaways

  • The District Court declined to impose the 15-year standard non-parole period on any of the four offenders, notwithstanding the large commercial scale of the operation, and set out reasons for that departure in each case.
  • A consistent finding across the sentencing remarks is that offenders who are actually caught in drug manufacturing operations are rarely the true organisers. Those at the top rarely expose themselves to detection, which means sentencing benchmarks drawn from decided cases tend to reflect conduct at or below the middle of the objective range rather than the worst category of offending.
  • Differing roles within a joint criminal enterprise must be assessed individually for sentencing purposes, even where forensic evidence (DNA and fingerprints) establishes presence and participation rather than specific tasks performed.
  • Plea timing directly affected the quantum of discount: early pleas attracted approximately 25 percent, while a later plea attracted approximately 20 percent, reflecting the utilitarian value to the justice system of guilty pleas.
  • Where an offender faces multiple charges, including a principal indictable offence and associated matters, the court may impose an aggregate sentence to reflect the totality of criminality, rather than cumulating separate sentences.

Legislation and Cases Referenced

Legislation:
- Provisions creating the offence of manufacturing a prohibited drug in a large commercial quantity (maximum penalty: life imprisonment; standard non-parole period: 15 years)
- Provisions creating the offence of possessing an unauthorised pistol (maximum penalty: 14 years imprisonment; standard non-parole period: 4 years)
- Provisions creating the offence of possessing ammunition without a licence or permit (maximum penalty: fine only)

Note: Specific Act names and section numbers were not cited in the text of the judgment provided.

Cases: No specific cases were identified by name in the provided judgment text. The court referred generally to sentencing statistics and comparative cases placed before it by the parties.