R v Hitchen [2020] NSWDC 498

District Court New South Wales

Medium Neutral Citation: R v Hitchen [2020] NSWDC 498 Hearing dates: 27/7/20, 3/8/20 Date of orders: 3/8/20 Decision date: 03 August 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Sentenced to an aggregate term of imprisonment of 10 years 6 months with a NPP of 6 years 9 months. Catchwords: Crime – Sentence – Conspiracy to manufacture commercial quantity of methylamphetamine – Knowingly take part in supply of large commercial quantity of methylamphetamine – Possess unauthorised firearm Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Category: Sentence Parties: DPP – Crown Ross Hitchen - Offender Representation: Mr N Marney for Crown Mr B Bunton for Offender File Number(s): 2015/311061

sentence 1. The offender Mr Ross Hitchen comes before the Court for sentence on three offences which are as follows: 2. Firstly an offence of conspiring to manufacture a prohibited drug, methylamphetamine, not less than the commercial quantity. The maximum penalty for that offence is 20 years imprisonment and a standard non-parole period of 10 years is specified. 3. Secondly, an offence of knowingly take part in the supply of a large commercial quantity of prohibited drug, namely methylamphetamine. The maximum penalty for that offence is life imprisonment and a standard non-parole period of 15 years is specified. 4. In addition the offender asks that in sentencing him for that offence I take into account a further offence of knowingly deal with the proceeds of crime which itself carries itself a maximum penalty of 15 years imprisonment. 5. The third offence for which the offender is to be sentenced is one of possess unauthorised firearm. The maximum penalty for that being five years imprisonment and there is no standard non-parole period. 6. The offender pleaded guilty at an early stage and a discount of twenty-five per cent applies which I will allow on the sentence that I impose. 7. The facts relating to the offences are the subject of agreement and are in essence as follows: 8. During 2017 police commenced an investigation into the manufacture and supply of prohibited drugs by this offender Mr Hitchen as well as Craig Bloom and Christian Meis M-E-I-S. As part of that investigation police installed a surveillance device in the offender's Ford Territory vehicle. On 17 August 2017 the surveillance device recorded the offender having driven to the home of co-offender Craig Bloom at Victoria Road, Wedderburn, where he stayed for about 90 minutes. Two days later on 19 August 2017 a telephone call was intercepted between the offender and his brother Geoffrey Hitchen, in which the offender asked to speak to Craig Bloom. The offender then gave Bloom directions to attend a McDonalds restaurant at Narellan and at about 11.30am that day closed-circuit television recorded a meeting between the offender and Bloom at the McDonalds. On 24 August 2017 the offender was observed again to meet with Craig Bloom at Victoria Road, Wedderburn. 9. On 13 September 2017 the offender attended Jack Simpson Fuel Supplies at Oakfield where he purchased 20 litres of toluene. On 19 and 20 December 2017 telephone calls were intercepted between the offender and Bloom in which they arranged to meet at Bloom's home on the afternoon of 20 September 2017. Police subsequently observed the offender and Bloom meet at that time and location. Three days later on 23 September 2017 the surveillance device recorded the offender travelling to the Budget Service Station at Woodland Road, St Helens Park where he met with Craig Bloom at about 8am. At that location CCTV recorded the offender entering Bloom's Ford Ranger vehicle after which the pair drove away, returning at about 7.15pm that night. The offender then entered his Ford Territory vehicle and drove away. 10. On 11 October 2017, that is, about 18 days, later the surveillance device indicated that the offender drove to Bunnings Hardware at North Penrith. At that location he purchased four litres of acetone and one litre of hydrochloric acid. Two weeks later on 27 October 2017 a surveillance device recorded the offender's brother Geoffrey Hitchen travelling to the same Bunnings Hardware Store. At that location Geoffrey Hitchen purchased some Hydrochloric Acid. On 15 November 2017 the offender and Stephan Gillard were observed to attend a laboratory supply store at Gardeners Road Mascot. At that location Gillard purchased a five litre Buchner flask, a Buchner funnel, filter papers and a connecting sleeve. Each of these items can be used in the manufacture of methylamphetamine. Gillard then carried the boxes containing these items from the store and re-joined the offender who took them to his home at Lorne Avenue, South Penrith. 11. The next day, 16 November 2017, the surveillance device recorded the offender driving to the Budget Petrol Station at Woodlands Road, St Helens park. At that location CCTV showed him meet with Craig Bloom and then being driven away in Bloom's vehicle. They drove to the home of Christian Meis at Figtree Crescent, Glen Alpine where they remained for about five hours. On 19 December 2017 police observed the offender meet with Craig Bloom at a restaurant located at Rosemeadow Marketplace. On 22 January 2018 the police recorded a conversation between the offender and his brother Geoffrey Hitchen in which the offender asked why "The step was left open". When Geoffrey Hitchen replied "It was open when I parked the car, I ran the car over it", the offender said, "If the cops come here we've got real problems, if they come here we'll be doing 20". 12. The next day 23 January 2018 police recorded a further conversation between the offender and his brother Geoffrey. In that conversation the offender told his brother: "I am gunna tell ya one time cunt. And you listen to me. If you cause a drama at that house and the coppers come around and lose my mates money and gear I will fucking bury you and disown you. You will have a tribe of cunts wanting to kill you". 1. In late January 2018 surveillance devices also recorded Craig Bloom attending the residence of Christian Meis at Figree Avenue Glen Alpine on a number of occasions. On 30 January 2018 at about 8am police observed the offender attend the Budget Petrol Station at Woodlands Road, St Helens Park where he met again with Craig Blloom. They then travelled together to the home of Christian Meis at Glen Alpine where they remained for about eight hours. During this time however they also travelled to a Service Station at Appin Road, St Helens Park where they purchased eight bags of ice and also to a Bunnings Warehouse where they purchased a submersible pump. It is an agreed fact that the submersible pump could be used to circulate chilled water during the process of manufacturing methylamphetamine. 2. In early February 2018, namely on the 1st, 9th and 11th of February, police observed the offender meet with Craig Bloom at his home at Victoria Road Wedderburn. On 15 February 2018 the offender was recorded speaking with his brother Geoffrey Hitchen and stating "You went and cooked the gear, you made it". 3. Also during February, the offender and his brother Geoffrey drove to Victoria and to South Australia. On 20 March 2018 at about 8.30am the offender again met with Craig Bloom at the Budget Petrol Service Station at St Helens Park. They then travelled to the home of Christian Meis at Glen Alpine where they remained in the garage. At about 3.10pm that day Craig Bloom purchased several bags of ice at a 7-Eleven Service Station at St Helens Park and then returned to the house at Figtree Crescent Glen Alpine. Craig Bloom and the offender eventually left the house at about 8.30pm. On 10 April 2018 the offender was again detected to attend the Budget Petrol Service Station at Woodlands Road St Helens Park where he met with Craig Bloom. On that occasion Bloom purchased 12 bags of ice which he loaded into his vehicle, after which he and the offender drove to Christian Meis' house at Glen Alpine where they remained for about eight hours. 4. On 8 May 2018 the offender was recorded as saying: "All the big crooks start off in Penrith and places like that. Then move to Dover Heights and get all their stuff taken off them". Later that day the offender met with Craig Bloom at a Pizzeria in Leumeah. 5. On 29 June 2018 a surveillance device detected the offender attending Craig Bloom's home at Victoria Road Wedderburn where a discussion was recorded between the two men. During this conversation Bloom said to the offender: "Do you want me to go around to the little guy's place and ask him if that guy wants a litre? Maybe I'll see him at the gym tomorrow. That's where I usually see him. I bought him a new ice machine now. He has the ice machine working in there now. I left him some money for new ducting. Remember the ducting was fucked". 1. It is agreed that the ice machine and ducting referred to in this conversation were to be used in the manufacture of methylamphetamine. During this same meeting the offender said "The guy from Adelaide is starting to pick up now too" to which Bloom replied "I gave the bloke a half, we'll have to see what he comes back for". 2. On 10 October 2018 at 8.50pm a conversation was recorded between the offender and his brother Geoffrey Hitchen while travelling in a vehicle which included an exchange in which the offender referred to some cash that was in the glove box apparently of the vehicle and suggested that his brother conceal it inside his pants in case they were pulled over by police. In that conversation the offender said to his brother "What do you want to do about this cash. How big is it, can you put it down your pants if they fucking pull us over". The brother Geoffrey said "Where is it?" and the offender said "In there in the glove box just put it down your pants now mate". Geoffrey however said "I'm not having it the whole way down my fucking pants idiot". 3. On 11 October 2018 the police executed a covert search warrant at the offender's home at Lorne Avenue, South Penrith. In the garage and under the stair case police found chemicals and equipment used in the manufacture of methylamphetamine. Also in a spare room police found a box containing lab equipment being a magnetic stirrer and a retort stand. Also, a respirator, a glove and two bottles were found in the carport which contained DNA which matched the offender. Also at the premises were a number of plastic bags and bottles which contained methylamphetamine amounting to a total of 1,386.54 grams, ranging in purity from about 13 per cent to 70 per cent. Police also found in the offender's bedroom a 0.177 calibre Baikal single shot air rifle as well as a 500mm Buchner flask and a 10 litre glass beaker with a white plastic filter funnel. 4. On that same day police stopped the offender and his brother while driving in a vehicle used by the offender. When searched, the offender was found to have $15,250 cash concealed in his underwear. When interviewed by police he told them that he used acetone in the course of his business in importing mirrors about seven years ago and that he had put the cash in his pants the night before. He said the air rifle had been his father's and he had forgotten about it. 5. On 31 October 2018 police executed a warrant at the premises of Christian Meis at Figtree Avenue, Glen Alpine. In the garage of those premises police found a number of items used in the manufacture of methylamphetamine including a commercial ice machine, scientific glassware, pumps, an electric wok, acetone, hydrochloric acid, face mask filters, rubber gloves and other equipment. Analysis of these items showed the presence on them of various chemicals including pseudoephedrine, dimethyl sulfone, , ephedrine, amphetamine and methylamphetamine. 6. Police also found a plastic bucket which contained 5 kilograms of iodine and a plastic drum containing five kilograms of hypophosphorous acid. An extraction fan had been installed in the garage. The offender's DNA was found on a glove and a bottle taken from premises. 7. Police obtained the opinion of a forensic chemist who reviewed the equipment and chemicals found at the Glen Alpine House. According to the chemist the hypophosphorous acid and iodine found at the premises were capable of being used to manufacture a commercial quantity of methylamphetamine, provided a sufficient quantity of pseudoephedrine or ephedrine was available. Those are the facts on which the offender is to be sentenced. 8. Objectively these drug offences are clearly very serious, having regard firstly to the maximum penalties and standard non-parole periods that apply. However, of course in assessing objective seriousness it is important that I make some determination as to what role the offender played in the offences. In other words, what he did. It was submitted on the offender's behalf that, although he accepts the agreed facts, he was not the manufacturer, that is, not the maker of the drugs. I accept this submission in the sense that I cannot be satisfied that this offender was "the chemist", that is, the one with the technical knowledge and expertise involved in carrying out the chemical processes required to produce methylamphetamine. However, that said, it is clear that the offender occupied a central role in the drug manufacturing conspiracy and the supply business. This is demonstrated in relation to the conspiracy offence in part by his various attendances at the Glen Alpine house which was clearly being used as a clandestine drug laboratory. 9. As noted in the agreed facts the offender attended those premises on 16 November 2017 and remained there with Craig Bloom and presumably Christian Meis, whose home it was, for five hours. This was one day after the offender and Stephan Gillard had driven to a scientific glassware shop at Mascot where Gillard bought some scientific equipment used in making methylamphetamine, which equipment was taken home by the offender. On 30 January 2018 the offender again attended the lab at Glen Alpine with Bloom, Mr Meis also being at home and remained there for eight hours during which he and Bloom left the house to buy bags of ice and a submersible pump which I conclude were required as part of the drug manufacturing process. On 20 March 2018 the offender again attended with Bloom at the lab house at Glen Alpine where they stayed the day, Bloom leaving at one stage to buy some more bags of ice before re-joining the offender and presumably Mr Meis at the house. And, on 10 April 2018, the offender and Bloom again met up at a Service Station where Bloom bought some 12 bags of ice before travelling with the offender to the lab house at Glen Alpine where they stayed for eight hours. 10. This evidence strongly suggests that the offender had a close knowledge of and involvement in the manufacturing processes that were carried out in the house. Furthermore there is the conversation on 29 June 2018 in which Bloom asks the offender if he wanted Bloom to attend Meis's lab house and asks whether another guy wanted a litre of something. Bloom also referred to having provided some money apparently to Mr Meis to replace some ducting and reminded the offender about the ducting being "fucked" - in other words I assume, faulty. Although I am not satisfied that the offender was the chemist, the evidence I have referred to demonstrates that he held a central role in the conspiracy to manufacture, and appears to have been an equal partner with Bloom and Meis. His attendances at the lab house, the purchase of laboratory equipment, ice and a submersible pump, indicate that the offender was fully aware of the chemical processing operation being carried on in the house and was involved at least in obtaining and replenishing equipment and supplies needed in that operation. There is also the fact that the conspiracy was ongoing for a significant period of time, exceeding 12 months and, as the Crown submitted, the fact that drugs were successfully manufactured before the police raids, while not an aggravating feature, does mean that the offender's involvement in the conspiracy cannot be treated as an isolated incident. 11. Having regard to all these matters I assess the objective seriousness of the conspiracy offence as being around the midrange. 12. In relation to the offence of knowingly take part in supply offence, the 1.38 kilograms of methylamphetamine found at the offender's house was no doubt intended to be used by the offender and his brother for the purpose of supply for profit. Indeed it is an agreed fact that the offender and his brother were actively involved in the supply of methylamphetamine for profit. I have no doubt that this was an ongoing business, although of course the offender is only to be sentenced in relation to the drugs that were in fact found at his house. The commercial nature of the operation is confirmed by the conversation between the offender and Bloom on 29 June 2018 when the offender said that "The guy from Adelaide is starting to pick up now too", to which Bloom replied "I gave the bloke half we'll have to see what he comes back for". As was noted in the facts, the offender and his brother travelled to South Australia in February 2018. Furthermore, the profitable nature of the enterprise is demonstrated by the finding of $15,250 cash in the offender's possession upon his arrest, a matter that he had discussed with his brother the previous day. In addition there are a number of intercepted conversations referred to in the facts which shine further light on the offender's role in the enterprise. On 22 January 2018 he questioned his brother Geoffrey as to why the "step" had been left open and reminded his brother that if the police came around and found what was hidden inside the step they would be going to gaol. He also the very next day rebuked his brother telling him that he would "bury" and "disown" him if he caused any dramas leading to the police coming around. 13. It was argued by the offender that the supply offence should be regarded as being at the very bottom of the range of objective seriousness due essentially, so it was argued, to the relatively low purity of 13.5 per cent of about 1 kilogram of the total of 1.386 kilograms of methylamphetamine. While I take this fact into account it does not to my mind reduce the objective seriousness to any substantial degree given that under the Drug Misuse and Trafficking Act 1985 it is the impure quantity or admixture that is of relevance. In this regard, Parliament has set the large commercial quantity at 500 grams. The drugs seized from the offender's home therefore represent more than two and a half times the large commercial quantity which is a highly relevant, though not determinative, factor in assessing objective seriousness. In my view the knowingly take part in supply offence lies somewhere below the midrange but not in the lowest range of objective seriousness. 14. In relation to the proceeds of crime offence, which is a matter to be taken into account on the Form 1 document, I accept this also is a relatively serious offence which carries a maximum penalty of 15 years. However, as the substantive offence of supply was one no doubt carried out for profit, it seems to me that the $15,250 cash is appropriately treated as part of those profits. In those circumstances this admitted offence must operate so as to increase the penalty that would otherwise be appropriate for the substantive supply offence due especially to the importance of personal deterrence and the community entitlement to retribution for serious offences. However, in my view any increase in punishment should be moderate only, given the overlapping nature of the criminality involved in the supply offence. 15. The firearm offence is also of some seriousness although I note the Crown concession that there is no evidence that it was connected in any way with the drug offending, and that the Crown accepts the offender's assertion that he had forgotten about it. Given this, and the nature of the weapon, I assess the objective seriousness as low. 16. In terms of moral culpability it seems to me that the offender's involvement in the conspiracy offence and his involvement in the knowingly take part in supply offence is such that his moral culpability must be regarded as high. 17. Turning to subjective matters, the offender is currently 46 years of age. A psychological report which was tendered on sentence describes a relatively unremarkable background with the offender having apparently grown up in a stable and fairly middle class background. Regrettably both his parents died from cancer, his mother in 2000 and his father in 2016. He has a brother who is 18 months older than him. He described himself as an average school student and after leaving school at age 16 he completed a carpentry apprenticeship. Since then he has apparently been gainfully employed and operated his own businesses. While the psychologist did not consider that the offender currently experiences any major psychiatric issues it was concluded that it was likely at the time of the offences that he was suffering from major depression. I approach this purported diagnosis, however, with some caution given that the history given to the psychologist was not confirmed by the offender on oath. The report does however describe a number of stressors which were apparently affecting the offender in the years before the offences, including his brother's alcoholism, his father's terminal illness, and a somewhat fractured relationship with his father. I take these matters into account as part of the relevant background. 18. In relation to his offending, the offender accepted responsibility telling the psychologist "I knew I was breaking the law". He expressed shame about what his parents and other family members and neighbours would think of him and his offending. The offender's acceptance of responsibility and his expressions of shame are some evidence of remorse or contrition. There is also the fact that the offender told the Community Corrections officer that he did not realise the impact of illicit drugs on the community until he came to gaol, which I will treat as some further acknowledgement by the offender of the harmful nature of his offending. But, as the offender did not give evidence on sentence the extent to which I will give credit for remorse and contrition is somewhat reduced. 19. The offender has been assessed as a medium low risk of reoffending according to the Revised Level of Service Inventory test, whereas the psychologist suggests that he has good prospects of rehabilitation. He has a very limited criminal history which does not involve any prior drug offences. It appears that since being in custody he has engaged himself in useful activity as a painter and sweeper at the Long Bay prison and reports getting along well with other inmates and prison officers. He also has plans to complement his carpentry qualifications by obtaining a qualification in building and told the psychologist that he wants to put the past behind him, get a job, look after his family and get back to a positive lifestyle. I note that he apparently has a fiancée who is currently in Thailand. Having regard to all of these matters I assess his prospects of rehabilitation as reasonable. 20. In sentencing the offender it is important that the penalty reflect the fundamental need for deterrence both for this offender and others. It is well known that drugs, and in particular methylamphetamine, cause great harm in the community and it is the Court's own experience that a significant percentage coming before this Court arise either directly from the abuse of that drug or from the need to fund an addiction to it. 21. I am satisfied that the only appropriate punishment in this case is one of fulltime imprisonment. In coming to that view I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 22. As there are three offences, each of which involve separate criminality, I must have regard to principles of totality. In other words, the importance of ensuring that, although the offender receives appropriate punishment for each of his crimes, that punishment, when viewed from an overall perspective, not be such as to amount to a crushing sentence which might remove for example any motivation for the offender to rehabilitate himself. I do accept that each of the three offences involve discrete offending. In those circumstances it is appropriate for there to be some degree of accumulation of the sentences to be imposed. 23. I will impose an aggregate sentence. Had I not done so then the penalties I would have imposed are as follows: 24. Mr Hitchen the sentences I am about to indicate are what are known as indicative sentences. They are not the sentence you will actually serve. I will announce that near the end of my remarks. 25. The indicative sentences are as follows. For the offence of conspiracy to manufacture not less than a commercial quantity of prohibited drug, an imprisonment period of eight years six months with a non-parole period of five years six months. For the offence of knowingly take part in supply large commercial quantity, and taking into account the offence on the Form 1 document, imprisonment for a period of six years six months with a non-parole period of four years three months. For the offence of possess unlawful, firearm a period of imprisonment of six months. 26. I impose an aggregate sentence of ten years six months. I find special circumstances for varying the ordinary ratio of non-parole period to head sentence based on this being the offender's first period in custody. I set a non-parole period of six years nine months. Each of those will date from the date of arrest, namely 11 October 2018. The head sentence will therefore expire on 10 April 2029 and the non-parole period will expire on 10 July 2025. 27. I make an order that the drugs seized by police be destroyed.