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District Court 30 May 2022

R v Drever; R v Reilly

[2022] NSWDC 563

DrugsFirearms & weapons

Citation: R v Drever; R v Reilly [2022] NSWDC 563
Court: District Court of New South Wales
Date: 30 May 2022
Judge(s): Tupman DCJ

Background

Two offenders, referred to here by their roles as the principal cook and the support offender, pleaded guilty in the Local Court to knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine. The offending took place at a remote 40-hectare rural property near Queanbeyan, which had been converted into a sophisticated clandestine drug laboratory using a steam distillation process and industrial-scale equipment.

A police strike force identified the property through surveillance, optical and audio monitoring devices, and telephone intercepts. On 11 January 2020, police attended and arrested both offenders. Forensic analysis established that 46.402 kilograms of methylamphetamine oil had been manufactured at the site, a quantity exceeding 90 times the statutory threshold for a "large commercial quantity" under the Drug Misuse and Trafficking Act 1985 (NSW).

Each offender also asked the court to take into account additional offences on a Form 1 document at sentencing. The principal cook had two Form 1 offences (possession of identification information and dealing with proceeds of crime). The support offender had six (five firearms-related offences and dealing with proceeds of crime).

  • What sentence was appropriate for each offender for the substantive offence of knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years?
  • How should the court assess the relative culpability of each offender, given their different roles in the enterprise?
  • Whether the support offender's claim of non-exculpatory duress should reduce his moral culpability.
  • How should the Form 1 additional offences be treated in the sentencing exercise?
  • What weight should be given to each offender's subjective circumstances, including prospects of rehabilitation and prior criminal history?

Decision

Tupman DCJ found that both offenders bore significant moral culpability, though their roles differed materially. The principal cook, who held chemical engineering qualifications, flew from Adelaide to Canberra under a false identity to participate in the manufacturing operation and played the role of the "cook" directing the process. The support offender had been involved over a longer period, constructing a large shed on the property and purchasing materials for the laboratory, but his role was assessed as lesser. Her Honour was careful to note, however, that the support offender was not a mere labourer.

The support offender advanced a claim of non-exculpatory duress, submitting that his participation was influenced by pressure from others. Her Honour did not accept that this duress was established to the requisite standard and declined to treat it as a mitigating factor reducing his moral culpability.

Both offenders had prior criminal histories, and the court acknowledged those histories in the sentencing exercise. Nonetheless, Her Honour accepted that both offenders had good prospects of rehabilitation. The Form 1 offences were taken into account in the global sentencing exercise without increasing the sentence beyond what the substantive offence warranted, consistent with established principle.

Her Honour also made pointed observations about procedural deficiencies. The "agreed facts" tendered were, in reality, a summary of evidence rather than a statement of what each offender actually did, and Her Honour expressed concern that this practice continued to occur. She also criticised the DPP for failing to include in the facts the important circumstance that the methylamphetamine oil was to be transported elsewhere. Additionally, the court commented that the number of Form 1 offences in the support offender's matter was excessive and attributed some of the complexity to the Early Appropriate Guilty Plea (EAGP) scheme case conferencing process.

Orders Made

  • The principal cook (Drever) was sentenced to an overall term of 9 years and 9 months imprisonment, commencing 11 January 2020 and expiring 10 October 2029, with a non-parole period of 6 years commencing 11 January 2020 and expiring 10 January 2026. Two Form 1 offences taken into account.
  • The support offender (Reilly) was sentenced to an overall term of 6 years and 9 months imprisonment, commencing 11 January 2020 and expiring 10 October 2026. Six Form 1 offences taken into account.
  • The sum of $3,340 forfeited to the State (Drever).
  • The sum of $1,110 forfeited to the State (Reilly).

Key Takeaways

  • Where two offenders participate in the same drug manufacturing enterprise, the court will assess each offender's role individually: the principal cook with relevant technical qualifications attracted greater culpability than the offender who built infrastructure and sourced materials, even though the latter was not treated as a mere labourer.
  • A claim of non-exculpatory duress will not automatically reduce moral culpability; the District Court declined to accept the claim here on the facts presented.
  • Form 1 additional offences are taken into account in the global sentencing exercise and do not operate to increase the sentence beyond what the substantive offence warrants, regardless of how numerous they are.
  • Agreed facts tendered at sentencing must set out what each offender actually did, not merely summarise the evidence that would prove guilt. Tupman DCJ expressed clear dissatisfaction with the continued use of evidence summaries in place of proper factual statements.
  • The judgment flags, without resolving as a discrete legal issue, that the EAGP scheme can generate excessive charges and procedural complexity that complicate sentencing proceedings.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes Act 1900 (NSW), ss 192K, 193C(2)
- Firearms Act 1996 (NSW), ss 7, 7A(2), 36(1), 39(1)(a)

Cases:
- R v Mok, Hin Lok [2017] NSWDC 314