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District Court 14 December 2018

R v Lewis

[2018] NSWDC 522

Drugs
CURIAL PUNISHMENT AND WAS REMORSEFUL.

Citation: R v Lewis [2018] NSWDC 522
Court: District Court of New South Wales
Date: 14 December 2018
Judge: Neilson DCJ

Background

The offender was convicted by a jury of manufacturing 13.059 kilograms of methylamphetamine at a residential property in East Kurrajong between 27 and 30 December 2015. That quantity met the threshold for a "large commercial quantity" under the relevant drug legislation. The offender had pleaded not guilty and was convicted after a trial lasting approximately two weeks in September 2018.

The offender worked for Hawkesbury City Council alongside his supervisor, Michael Patrick Stewart. He arranged for Stewart's shed to be used to house large industrial reaction vessels and associated equipment for the drug manufacture. On the evening of 28 December 2015, the offender arrived at the property with co-participants Raymond John Bell and Bill Tsimingos, bringing gas bottles and other materials in a council utility vehicle. Stewart gave evidence that he observed the offender physically breaking up crystals in a bucket inside the shed during the manufacturing process.

An explosion occurred at the property during or after the cook, which became the basis for the police investigation. Stewart's evidence was central to the Crown case against the offender. Bell's trial was ongoing at the time of sentencing.

  • What was the appropriate sentence for the offender, given his role in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine?
  • How should the parity principle apply, given that a co-offender (Stewart) had already been sentenced to 9 years imprisonment with a non-parole period of 6 years and 9 months?
  • Whether any special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

Neilson DCJ assessed the offender's role in the enterprise carefully. The court found that the offender was not a mere facilitator. He had arranged access to the property, transported equipment using a council vehicle, and was observed participating in the physical manufacturing process. His involvement went beyond that of Stewart, who had pleaded guilty and received credit for that plea, remorse, and extra-curial punishment in the form of personal injuries suffered as a result of the explosion.

On parity, the court recognised that the offender's moral culpability was greater than Stewart's. Stewart had provided the property and some assistance but had largely stayed outside the shed. The offender, by contrast, had instigated the arrangement and played an active role in the cook itself. The offender also contested the charge and was not entitled to any discount for a guilty plea. These distinctions justified a substantially higher sentence than that imposed on Stewart.

The court made favourable findings about the offender's prospects of rehabilitation and found no addiction or particular reintegration need that would warrant a finding of special circumstances. A standard ratio between the non-parole period and the total sentence was applied. The non-parole period was set at nine years within a total head sentence of twelve years.

The sentence was backdated to 1 May 2018 by agreement between the parties, to account for an earlier period of custody the offender had served in 2016 before being admitted to bail.

Orders Made

  • The offender sentenced to a total term of 12 years imprisonment.
  • Non-parole period of 9 years, commencing 1 May 2018 and expiring 30 April 2027.
  • Balance of sentence of 3 years, commencing upon expiration of the non-parole period and expiring 30 April 2030.
  • The offender eligible for parole consideration at the expiration of the non-parole period.

Key Takeaways

  • The District Court confirmed that a co-offender who pleaded guilty, demonstrated remorse, and suffered physical injury as extra-curial punishment warranted meaningfully different treatment at sentence, even where both participated in the same criminal enterprise.
  • Parity does not produce identical sentences: the court assessed each offender's individual role, culpability, and personal circumstances, resulting in a head sentence of 12 years for the trial offender compared with 9 years for the co-offender who pleaded guilty.
  • Active participation in the physical manufacturing process, including transporting equipment and handling drug precursors on the night of the cook, placed the offender at a higher level of culpability than those whose involvement was more peripheral.
  • No special circumstances were found where there was no identified need for rehabilitation support or assistance reintegrating into the community, and where the standard non-parole period provided adequate time to address any mental health symptoms.
  • Backdating a sentence to account for pre-trial and pre-conviction custody is a practical sentencing tool, and the parties here agreed on a commencement date of 1 May 2018 to reflect time already served.

Legislation and Cases Referenced

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

Cases:
No specific cases were cited in the judgment text provided.