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District Court 12 July 2024

R v Snounou (No 3)

[2024] NSWDC 636

Drugs

Citation: R v Snounou (No 3) [2024] NSWDC 636
Court: District Court of New South Wales
Date: 12 July 2024
Judge: Sutherland SC DCJ

Background

The offender, a company director, pleaded guilty to two counts of possessing iodine as a precursor intending it be used in the manufacture of methylamphetamine, contrary to s 24A(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). Each offence carries a maximum penalty of 10 years imprisonment and/or a $220,000 fine. Although iodine is not itself a prohibited substance, it is a listed precursor because it is a key ingredient in the chemical process used to produce methylamphetamine.

The offender was a director of Cyndan Manufacturing Pty Ltd, a company with a legitimate commercial use for iodine in a teat sanitiser product. Count 1 related to 800 kg of iodine purchased in September 2013 and diverted to a Marrickville auto-electrical business. Count 2 related to a one-tonne iodine order placed in March 2017, which the offender personally decanted into unmarked white buckets and delivered to an unknown associate. Iodine traceable to Cyndan's orders was subsequently found at multiple clandestine methamphetamine laboratories scattered across rural and semi-rural New South Wales.

The offender was first charged in February 2018, meaning he came before the court for sentence roughly six years after that arrest. The significant delay between charge and sentence was a relevant consideration in the sentencing exercise.

  • What was the appropriate objective seriousness of the two offences, given the quantities involved and the potential yield of methylamphetamine?
  • What aggravating and mitigating factors were relevant to sentence?
  • What discount, if any, should apply for the late guilty pleas, the delay in proceedings, and other personal factors including any remorse?
  • How should the principle of totality apply when structuring an aggregate sentence for two discrete offences separated by three and a half years?

Decision

Sutherland SC DCJ assessed the objective seriousness of both offences as "extremely high." The quantities of iodine were capable of producing what the court described as "massive" amounts of methylamphetamine, and that conclusion held on any descriptive approach and by reference to comparative cases. The direct link between the offender's iodine and multiple clandestine laboratories operating across different parts of New South Wales underscored the serious community danger posed by the offending.

Financial gain was identified as an aggravating factor. The offender's use of a legitimate chemical business to acquire and then covertly divert large quantities of iodine, including decanting it into unmarked containers to conceal its origin, demonstrated a calculated and deliberate course of conduct. General and specific deterrence were significant sentencing considerations.

Mitigating factors included the delay in proceedings (the offender was charged in 2018 but sentenced in 2024), some degree of remorse, and a further discount for disclosing evidence that saved court time. These factors, taken together, produced an overall discount of approximately 12.5 percent from the starting points for each count, comprised of 10 percent for the late guilty pleas and an additional approximately 2.5 percent for the other matters.

Applying the totality principle, the court imposed an aggregate sentence rather than purely cumulative individual sentences. However, because the two offences were entirely discrete and separated by three and a half years, some degree of accumulation was warranted. Starting points of 8 years (Count 1) and 8 years 10 months (Count 2) produced indicative sentences of 7 years and 7 years 8 months respectively before aggregation.

Orders Made

  • The offender was convicted on both counts.
  • An aggregate sentence of 10 years imprisonment was imposed.
  • A non-parole period of 7 years and 6 months was set.
  • The sentence was backdated to 22 August 2021, accounting for 965 days of pre-sentence custody and approximately 3 months of restricted conditional bail.
  • The non-parole period expires on 21 February 2029; the additional term of 2 years and 6 months expires on 21 August 2031.

Key Takeaways

  • The District Court treated possession of a listed chemical precursor at these quantities as attracting the highest range of objective seriousness, even where the offender operated within a legitimately licensed commercial business that provided cover for the acquisition.
  • Where a defendant diverts precursor chemicals to multiple clandestine drug manufacturing operations across a wide geographic area, the resulting danger to the community is a significant factor in assessing the gravity of the offending.
  • Financial gain as an aggravating feature was established by the commercial scale of the operation, including the large sums paid for the iodine consignments and the systematic steps taken to obscure the precursor's origins.
  • Substantial delay between arrest and sentence can attract a sentencing discount, particularly when combined with disclosure of evidence that reduces the burden on the court, though the weight given to delay will depend on the circumstances of each case.
  • An aggregate sentence is appropriate for multiple discrete offences, but where the offences are entirely separate and span years, the court retains scope for meaningful accumulation rather than full concurrency.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 24A(1)(a)
- Drug Misuse and Trafficking Regulation 2011 (NSW), Schedule 2
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes Act 1914 (Cth)
- Crimes Legislation Further Amendment Act 2000 (NSW)

Cases
- DG v R (No 1) [2023] NSWCCA 320
- El Kheir v R [2019] NSWCCA 288
- Imbornone v R [2017] NSWCCA 144
- Mori v R [2021] NSWCCA 32
- R v Campbell; R v Smith [2019] NSWCCA 1
- R v Cousins & Anor (2002) 132 A Crim R 444
- R v James [2017] NSWCCA 287
- R v Le Serf (1975) 13 SASR 237
- R v Qutami [2001] NSWCCA 353
- R v Shi [2004] NSWCCA 135
- R v Snounou (No 1) [2023] NSWDC 583
- R v Snounou (No 2) [2023] NSWDC 584
- R v Walker [2023] NSWCCA 219
- Salama v R [2023] NSWCCA 141
- Takiari & Anor v R [2009] NSWCCA 84
- The Queen v Kilic (2016) 259 CLR 256
- The Queen v Olbrich (1999) 199 CLR 270