Citation: R v Doan, R v Wensor [2019] NSWDC 399
Court: District Court of New South Wales
Date: 21 June 2019
Judge: Buscombe DCJ
Background
Two co-offenders were sentenced following their respective guilty pleas to charges arising from a methamphetamine manufacturing operation at a rural property near Goulburn, NSW, in May 2017. The first offender (the manufacturer) was the hands-on operator who spent approximately four hours in a shipping container on the property producing the drug; police found his DNA and fingerprints on multiple items of laboratory equipment inside. The total amount of methylamphetamine detected across the liquids and solids in the container was 17.31 kilograms, representing a pure yield of approximately 1.679 kilograms. He was also intercepted driving away from the property with 365.1 grams of methylamphetamine hidden in the van's door panel.
The second offender (the property owner) pleaded guilty after the close of the evidence at trial to knowingly taking part in the manufacture. His role was to make his rural property available for the operation. Evidence established that he purchased the shipping container used as the clandestine laboratory in early April 2017, attended Bunnings with the manufacturer to purchase items later found in the container, and was aware of the manufacturing activity throughout, as demonstrated by intercepted telephone calls.
The two offenders faced different charges reflecting their different levels of participation. The manufacturer faced the primary manufacturing charge (large commercial quantity), a commercial quantity supply charge, and a further supply offence taken into account on a Form 1. The property owner faced the manufacturing charge framed as knowingly taking part, and a possession offence dealt with by way of a s 166 certificate.
Legal Issues
- What sentence was appropriate for the manufacturer, having regard to the objective seriousness of the offences and his subjective circumstances, including the timing of his plea?
- What sentence was appropriate for the property owner, given that his role was facilitative rather than operational, and that his plea came at the conclusion of the evidence at trial?
- How should the court approach the sentencing of co-offenders whose participation in the same enterprise differed substantially in nature and degree?
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio in either case.
Decision
The court sentenced the manufacturer as the primary actor in a serious commercial drug operation. His manufacture of methylamphetamine at a large commercial quantity level, combined with the concurrent supply of 365.1 grams at high purity (78%), placed the offending at a significant level of objective seriousness. His plea of guilty, entered shortly before trial, attracted a reduced discount compared to an early plea. The court imposed an aggregate sentence of 12 years imprisonment with a non-parole period of nine years, comprising an indicative sentence of 11 years (non-parole period of eight years and three months) for the manufacture offence and five years (non-parole period of three years and nine months) for the supply offence, served concurrently.
For the property owner, the court accepted that his role, while essential to the operation, was materially less culpable than that of the manufacturer. He did not cook the drug, manage the process, or personally profit from its distribution. However, the court was satisfied beyond reasonable doubt that he knew from the time he purchased the container that it would be used to manufacture methylamphetamine. His plea, entered at the conclusion of the trial evidence, attracted little discount.
The court found special circumstances in the property owner's case, warranting a departure from the standard non-parole period ratio. He received a total sentence of seven years imprisonment with a non-parole period of four and a half years, reflecting both his lesser role and the particular circumstances of his situation. The possession offence on the s 166 certificate was dealt with by conviction only, with no further penalty imposed.
Orders Made
In relation to the manufacturer:
- Convicted of manufacturing a prohibited drug (methylamphetamine) not less than the large commercial quantity, and of supplying a prohibited drug (methylamphetamine) in a commercial quantity.
- Indicative sentence of 11 years imprisonment (non-parole period of 8 years and 3 months) for the manufacture offence.
- Indicative sentence of 5 years imprisonment (non-parole period of 3 years and 9 months) for the supply offence.
- Aggregate sentence of 12 years imprisonment with a non-parole period of 9 years, commencing 3 May 2017, expiring 2 May 2029; non-parole period expiring 2 May 2026.
In relation to the property owner:
- Convicted of knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine.
- Sentenced to 7 years imprisonment comprising a non-parole period of 4 years and 6 months and a balance of term of 2 years and 6 months, commencing 21 June 2019, expiring 20 June 2026; non-parole period expiring 20 December 2023.
- Possession offence (s 166 certificate): conviction recorded, no further penalty.
Key Takeaways
- The District Court confirmed that a property owner who knowingly facilitates a drug manufacturing operation by providing land and infrastructure, and who purchases key equipment for that purpose, can be found to have knowingly taken part in the manufacture even without performing any hands-on production role.
- Differential sentencing of co-offenders in the same enterprise is appropriate where their roles, levels of knowledge, and degrees of participation differ materially, even where both offences attract the same maximum penalty and standard non-parole period.
- A guilty plea entered at the conclusion of the trial evidence attracts only a minimal discount from the sentence that would otherwise have been imposed, as demonstrated by the property owner's outcome here.
- Special circumstances can justify a lower non-parole period to standard ratio, and the court applied this finding in the property owner's case to extend the supervision period upon potential release.
- Under s 24(2) of the Drug Misuse and Trafficking Act, both the primary manufacturer and a person who knowingly takes part in manufacture at or above the large commercial quantity are exposed to a maximum of life imprisonment and a standard non-parole period of 15 years, regardless of the form their participation takes.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Muldrock v R (2011) 244 CLR 120