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District Court 14 December 2018

R v Mark Brett Lewis

[2018] NSWDC 509

Drugs
CRIME SENTENCE PARITY WITH CO OFFENDER WHO PLEADED GUILTY MAN 39 YEARS OLD AT TIME OF OFFENCE MINIMAL CRIMINAL HISTORY

Citation: R v Mark Brett Lewis [2018] NSWDC 509
Court: District Court of New South Wales
Date: 14 December 2018
Judge: Neilson DCJ

Background

The offender, a 39-year-old council worker, was convicted by a jury of manufacturing a large commercial quantity of methylamphetamine (13.059 kilograms) over three to four days in late December 2015 at a rural property in East Kurrajong, NSW. The offence occurred at a property belonging to his workplace supervisor, who had allowed the shed on that property to be used to house the manufacturing equipment after being approached by the offender.

The offender had arranged for a social acquaintance to store two large reaction vessels and associated hardware at his supervisor's property several months before the cook. On the night of 28 December 2015, the offender arrived at the property with gas bottles and other materials, and was observed actively participating in the manufacturing process, including breaking up chemical crystals. An explosion ultimately brought the enterprise to the attention of authorities.

The offender had pleaded not guilty and was convicted after a jury trial. The sentencing proceeding required the court to assess his role in what was a joint criminal enterprise, consider his otherwise favourable personal circumstances, and address parity with a co-offender who had pleaded guilty.

  • What was the appropriate sentence for manufacturing a large commercial quantity of methylamphetamine following a jury conviction?
  • What role did the offender play in the joint enterprise, and how did that bear on his culpability?
  • How should parity with the co-offender's sentence be approached, given that co-offender had pleaded guilty and the offender had not?
  • What weight should be given to the offender's minimal criminal history, positive personal circumstances, and post-traumatic stress disorder?
  • Whether special circumstances existed justifying an adjustment to the standard ratio between the non-parole period and the balance of term.

Decision

Neilson DCJ characterised the offender as a "worker" in the enterprise rather than an organiser or principal. He was not the person who directed the operation, owned the equipment, or supplied the precursor chemicals. However, his role was far from peripheral: he had arranged access to the property, transported materials on the night, and participated physically in the manufacturing process. The court found his criminality was genuine and significant, placing him above a mere facilitator but below the principal organisers.

The court assessed parity by reference to the sentence imposed on the co-offender who had pleaded guilty. That co-offender received a reduced sentence reflecting the utilitarian value and other benefits of an early guilty plea. The offender, having contested the charge at trial, was not entitled to that reduction. The court was careful to ensure the offender's sentence was consistent with the co-offender's in a way that reflected these differences rather than creating an unwarranted disparity.

Personal circumstances were assessed as strongly favourable. The offender had a minimal criminal history, stable employment, and supportive family circumstances. The court also accepted evidence of post-traumatic stress disorder, which had affected the offender's mental health during the relevant period. These matters went to mitigation but did not alter the fundamentally serious nature of the offence.

On special circumstances, the court declined to find any. The offender had no drug, alcohol, or gambling addiction requiring extended supervision upon release, and the standard non-parole period was considered adequate. The court noted that three years on parole would be sufficient to access any support services if needed.

Orders Made

  • The offender was sentenced to a total term of imprisonment of 12 years.
  • Non-parole period of 9 years, commencing 1 May 2018 and expiring 30 April 2027.
  • Balance of sentence of 3 years, commencing 1 May 2027 and expiring 30 April 2030.
  • The sentence was backdated to 1 May 2018 to account for time spent in pre-trial custody between January and June 2016.
  • The offender is eligible for parole consideration at the expiration of the non-parole period.

Key Takeaways

  • A participant in a large-scale drug manufacturing operation who arranges the location, transports materials, and performs physical tasks during the cook may be characterised as a "worker" rather than a principal, but this does not remove the offence from the serious end of the sentencing range.
  • Parity between co-offenders must account for material differences in their conduct, including whether a co-offender received a sentencing discount for a guilty plea that is unavailable to a jury-convicted offender.
  • Favourable personal circumstances, including minimal criminal history, stable employment, and family ties, were accepted as mitigating factors but carried limited weight against the gravity of manufacturing 13 kilograms of methylamphetamine.
  • The District Court confirmed that special circumstances under the Crimes (Sentencing Procedure) Act 1999 require a demonstrated need for extended post-release supervision, such as rehabilitation from addiction; the absence of such a need will ordinarily result in a standard non-parole ratio being applied.
  • Backdating a sentence to reflect time spent in pre-trial custody, by agreement between the parties, is a mechanism the court applied here to ensure the total period of deprivation of liberty was accurately reflected in the final orders.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
No specific cases were cited in the metadata or within the provided text of the judgment.