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District Court 11 December 2020

R v Merhi

[2020] NSWDC 910

Drugs
CRIME SENTENCE LACK OF CO OPERATION WITH POLICE PRIOR GOOD CHARACTER SPECIAL CIRCUMSTANCES

Citation: R v Merhi [2020] NSWDC 910
Court: District Court of New South Wales
Date: 11 December 2020
Judge: Norrish QC DCJ

Background

The offender, Joseph Merhi, was sentenced following his conviction at a judge-alone trial on three counts of knowingly taking part in the manufacture of prohibited drugs. The offences related to the manufacture of methylamphetamine, MDMA, and gamma-butyrolactone (GBL) at premises that included a rear shed on his property.

The court had found that Merhi did not organise or directly participate in the manufacturing processes. Rather, he permitted others to use his shed for those purposes, receiving modest rent payments in return. He was acquitted of a fourth count involving the supply of cannabis.

The sentencing hearing required the court to assess the objective seriousness of each offence, having regard to Merhi's peripheral role, his lack of prior criminal history, his financial circumstances, and the appropriate structure of sentences across three counts.

  • What was the appropriate objective seriousness of each offence, given Merhi's passive role in permitting manufacture rather than organising or conducting it?
  • To what extent was Merhi aware of the quantities and character of drugs being manufactured in his shed?
  • Whether the sentences for the three counts should be concurrent, partly cumulative, or fully cumulative, having regard to the principle of totality.
  • Whether special circumstances existed to justify a variation from the standard ratio between the non-parole period and the total sentence.

Decision

His Honour found that Merhi played no direct role in any of the manufacturing processes and was not an organiser. The court was not satisfied beyond reasonable doubt that he knew the precise quantities or types of drugs being produced, only that he was aware manufacturing was occurring. His possession of certain items (empty Shellite cans and equipment in the shed) informed the finding of knowledge but did not establish awareness of the scale of manufacture.

The court rejected the defence submission that Count 2 (MDMA) should be treated as at the very lowest end of the sentencing range. The volume of manufacturing waste (over 915 kilograms in a single container) demonstrated that a substantial process of manufacture had taken place, even though the precise quantity could not be established beyond reasonable doubt for the purposes of the principal charge.

On Count 3 (GBL, a large commercial quantity offence carrying a maximum of life imprisonment and a standard non-parole period of 15 years), the court accepted that the quantity proven was toward the lower end of what the section contemplates, noting that the threshold for a "large commercial quantity" is 4 kilograms and that far greater quantities are prosecuted under the same provision.

The court determined that the totality of Merhi's criminality was not meaningfully increased by the three counts, as all offences arose from the same course of conduct over the same period and Merhi had no knowledge of the quantity or character of the specific drugs. Concurrent sentences were therefore imposed on all counts rather than any cumulative or partially cumulative arrangement.

Orders Made

  • Count 1 (methylamphetamine, indictable quantity): convicted; 2 years imprisonment, commencing 5 November 2020, expiring 4 November 2022.
  • Count 2 (MDMA, indictable quantity): convicted; 2 years imprisonment, commencing 5 November 2020, expiring 4 November 2022.
  • Count 3 (GBL, large commercial quantity): convicted; non-parole period of 3 years 6 months, commencing 5 November 2020, expiring 4 May 2024; balance of sentence of 2 years 6 months, expiring 4 November 2026.
  • All sentences imposed concurrently.
  • Total sentence: 6 years imprisonment with a non-parole period of 3 years 6 months.
  • Eligible for release to parole on 4 May 2024, subject to Parole Authority approval.
  • Section 166 certificate matters remitted to Parramatta Local Court on 15 January 2021.

Key Takeaways

  • A finding that an offender permitted drug manufacture on his premises, without organising or directly participating in it, places that offender in a materially less serious category for sentencing purposes than a principal manufacturer.
  • The absence of evidence of financial enrichment (no significant cash deposits, no unexplained wealth, modest lifestyle) was a relevant mitigating consideration in assessing the extent of the offender's involvement and benefit.
  • Under the totality principle, where multiple counts of manufacture arise from the same course of passive conduct over the same period, a sentencing court may impose concurrent rather than cumulative sentences, even across separate drug types.
  • The District Court declined to treat the MDMA count as "at the lowest end" of the range simply because the precise quantity could not be proven beyond reasonable doubt to constitute a large commercial quantity. The scale of manufacturing waste provided an objective basis for a more serious assessment.
  • Where an offender lacks knowledge of the quantity or character of drugs produced, that absence of specific knowledge can bear on the objective seriousness of the offence, though it does not negate guilt where the elements of knowing participation are otherwise established.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 132, 166, 167
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24(2)

Cases:
- Holder & Anor (1983) 3 NSWLR
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- R v Bloomfield (1998) 44 NSWLR 734
- Veen (No 2) v R [1998] HCA 14; 164 CLR 465