District Court New South Wales Medium Neutral Citation: R v Merhi [2020] NSWDC 910 Hearing dates: 5 November 2020 Decision date: 11 December 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to 6 years imprisonment; non-parole period 3 years 6 months Catchwords: CRIME – sentence – knowingly take part in manufacture of a prohibited drug not less that indictable quantity – not involved in manufacture but allowed it to take place on his premises – lack of co-operation with police – prior good character – special circumstances – totality of criminality. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug (Misuse and Trafficking Act) 1985 Cases Cited: 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] HCA14; 164 CLR 465 Category: Sentence Parties: Regina (Crown) Joseph Merhi (Offender) Representation: Counsel: Mr N Adams (DPP) Mr P Godkin (Offender) File Number(s): 2018/00002923 Publication restriction: No Judgment 1. Joseph Merhi appears today for sentence in relation to three offences for which he was found guilty by me acting as a Judge sitting alone pursuant to s 132 Criminal Procedure Act 1986. 2. Count 1 that he was found guilty of, was an offence of knowingly take part in the manufacture of a prohibited drug, that is, methylamphetamine, not less than the indictable quantity on the dates pleaded and at the place pleaded in the indictment. 3. That offence carries a maximum penalty of 15 years imprisonment and/or a fine of 2,000 penalty units. There is no standard non-parole period. 4. In relation to Count 2 the prisoner was found not guilty of the principal charge but found guilty of a statutory alternative of knowingly take part in the manufacture of a prohibited drug, to wit 3-4 methylenedioxymethamphetamine or MDMA, not less than indictable quantity, and that carries the same maximum penalties as I set out for the offence in Count 1. Again there is no standard non-parole period. 5. Count 3, for which the prisoner was found guilty, knowingly take part in the manufacture of a prohibited drug, not less than the large commercial quantity of that drug, to wit gammabutyrolactone or GBL, is an offence contrary to s 24(2) Drug (Misuse and Trafficking Act) 1985 that carries a maximum penalty of life imprisonment and has a standard non-parole period of 15 years imprisonment. 6. The prisoner was found not guilty of Count 4, supplying cannabis. 7. There are a number of offences on a s 166 certificate that could have been dealt with in this Court without additional penalty but the prisoner selected, as was his right, for the matter to go back to the Local Court so that the Local Court can grapple with appropriate penalties to be imposed in relation to those matters. 8. I do not propose to re-state the facts, obviously they are set out in considerable length in the judgment I gave in relation to this matter on 5 November. But in the context of the submissions that have been made by the parties, which have been most helpful, both from the Crown and the defence in both written and oral submissions, I have come to various conclusions relevant to fixing the appropriate sentence in relation to each count on the indictment. 9. Firstly, where able to be identified in respect of each count, I have had regard to the quantity of the relevant prohibited drug by reference to the legislative provision in respect of minimum amounts for indictable quantities and/or large commercial quantities in the case of Count 3 in the indictment. 10. With regard to Count 2, notwithstanding the fact that I was not satisfied beyond reasonable doubt that a large commercial quantity had been manufactured, for reasons I need not reiterate, it is quite clear that the process of manufacturing of MDMA that I concluded had occurred, and which the prisoner had permitted, was a substantial process of manufacture. One need only go to pp 42-44 of my judgment where I dealt with the issue of whether the Crown had proved beyond reasonable doubt that there was a large commercial quantity manufactured, to understand that it is clear from the amount of waste in the IBC container, that is over 915 kilograms of waste, that a substantial process of MDMA had occurred. But the difficulty was, in the context of what the Crown was seeking to prove, being satisfied beyond reasonable doubt what that quantity was. It is in this context that I cannot accept by reference to the alternative count to Count 2 the submission of learned counsel for the prisoner that I should regard that offence as being, to quote his words, "at the quite lowest end" of the scale of offences contemplated in relation to the manufacture of MDMA pursuant to s 24(1) Drug (Misuse and Trafficking) Act. 11. I also note, in fairness, by reference to the submissions by learned counsel for the prisoner, that in relation to Count 3, bearing in mind the quantity of the drug required to establish a large commercial quantity is 4 kilograms, and the particular quantity which has been proven by the Crown in relation to the particular process of manufacture with which I am concerned, that the quantity in fact manufactured is at a lower end of the range of quantities that are contemplated by the section. As the learned counsel for the prisoner pointed out, in respect of Count 3, by reference to what constitutes a large commercial quantity of GBL. The upper limit is in fact "open ended" and from experience one can reflect upon cases of supply and/or manufacture of that particular drug in much greater quantities than that proven in this particular case. 12. However, coming back to the nub of the matters, each of the offences for sentence had common features, in my view, in reflecting upon the objective seriousness of the offences within the range of offences contemplated in each of the respective provisions. 13. Firstly, I am not satisfied beyond reasonable doubt that the prisoner was an organiser of the respective processes of manufacture, in fact I am quite satisfied that he had no direct role in any of the processes of manufacture. 14. I pause for a moment to point out, as the Crown very properly reminded me, that in my findings I accepted that there were items that belonged to the prisoner held within the "rear shed" that were obviously used in the process of manufacture. I am unable to conclude that the prisoner directly permitted that to occur. But by allowing the shed to be used by people that were involved in these processes of manufacture he indirectly permitted the use of his own equipment. 15. Likewise his possession of the 'Shellite' cans was a matter relevant to the assessment of the issue of his knowledge of the processes of manufacture within the shed in the context of him being aware that the contents of those cans can be used in the manufacture of prohibited drugs. But his possession of the empty cans, whilst relevant to the ultimate conclusion I reached as to his guilt, does not establish, in my view, significant matters that go to the issue of his knowledge of the precise methods of processes of manufacture, and quantities of manufacture, occurring within the rear shed. Thus, in this particular matter, I cannot be satisfied beyond reasonable doubt that he was aware of the quantities of the relevant prohibited drug that were manufactured within the shed although he was obviously aware of the fact that there was a process, or processes, of manufacturing occurring within the shed. 16. It seemed to me significant, in the context of the very thorough investigation of this matter by the police, that when police attended upon premises in late September 2017 conducting their searches, the prisoner himself was not in possession of quantities of prohibited drugs consistent with a direct connection with the processes of manufacture. 17. There has been no evidence produced of enrichment of the prisoner. No evidence of significant sums of money being deposited in bank accounts, or being found within his possession. Of course it may be that there are substantial sums of money that he hid in a manner that prevented police investigation. But that is not a matter that I could be satisfied of and remains merely a remote possibility. 18. The evidence available to me from the prisoner, although much of his evidence is not acceptable, is that he received a modest financial advantage for permitting the processes of manufacture to occur, claiming that he had been paid one sum of $800 for a month's rent of the shed, but was owed rent for a number of months that the shed had been leased to the "unknown persons" or "unknown person" responsible for the processes of manufacture. Certainly his activities since September 2017 prior to the police searching are consistent with a person not having substantial financial means. He was dealing in cannabis quite clearly from the telephone intercept evidence, on a very small scale. Hence, the related charges that could have been easily disposed of today had it been the prisoner's wish. In fact it was a relevant matter I took into account in concluding that he should be acquitted in relation to Count 4, the count concerned with the alleged supply of cannabis leaf. 19. He pawned a mobile phone for a modest sum, bearing in mind it was a significant item in the conduct of his personal affairs. It reflected a financial situation entirely inconsistent with a person sharing in the financial advantage that could be gained from the manufacture of drugs in the quantities that have been proven in this particular case. 20. In that regard, I note I have been provided with a statement from Detective Keary, the Officer-in-Charge of the matter, who has been of assistance to the Court throughout the trial, concerning matters within his experience which are not disputed, particularly in relation to sums of money that may be obtained from different methods of sale or supply of the particular drugs with which I am concerned. 21. In relation to the value of methylamphetamine for sale, I note the contents of paras 12-15 inclusive in respect of that particular drug. In relation to MDMA, I note the contents of paras 17-20 inclusive relating to methods of sale and value of particular units of that particular drug, in either powder or tablet form. In relation to GBL I note the contents of his statement at paras 23-26 concerning methods relevant to the sale of that particular drug. Of course these matters have to be seen in the context of the conclusions I reached as to the respective quantities of drug that were manufactured in the rear shed. 22. With regard to the prisoner's role, I am sentencing the prisoner on the basis that he permitted the processes of manufacture to occur within the shed, and in that regard the issue of whether he turned a "blind eye", as submitted by his counsel, is not a significant matter in my view. It is quite clear to me on the basis of the evidence in the trial that, notwithstanding the fact I cannot be satisfied beyond reasonable doubt that the prisoner participated in any profit making from the processes of manufacture beyond, as I earlier pointed out, his modest payment of rent, the prisoner's permission for the processes of manufacture to occur, as they did occur, obviously permitted the dissemination of the drugs manufactured into the community. In the manner that has been discussed in a different way by learned counsel for the prisoner in identifying what he submitted may be aggravating factors he found pursuant to s 21A(2) Crimes (Sentencing Procedure) Act 1999, hereinafter referred to as the Act. 23. As I said, there is no evidence of the prisoner receiving substantial quantities, or any quantities, of the relevant prohibited drugs that were manufactured. I accept that there remains the possibility that the prisoner did not pursue the non-payment of rent that he alleged that he had been owed because he felt somewhat powerless to do anything to enforce the agreement having regard to the character of the criminal enterprise going on inside the shed. It reflected quite clearly a high degree of planning and organisation. 24. I accept, in the context of my findings in the trial, that the prisoner was not a party to, or a participant in, that planning and organisation, beyond of course making the shed available to others. I accept the Crown's submission, particularly in that regard reflecting upon the prisoner's role, that the prisoner's role in providing an ideally secluded location, as the Crown identified it, was an important role in permitting the processes of manufacture to proceed. That is self-evident. This was an ideal location. 25. On the other hand, by reference to the helpful submissions of the learned Crown Prosecutor, the commercial interests of the lessee, Mr Calacoci, and the potential adverse effect upon his commercial interests by the activities of persons within the shed, is not a matter I could reflect upon as relevant to the assessment of the objective facts. Bearing in mind, of course, whilst there was a threat of danger to the enterprise run by Mr Calacoci, I have no evidence of actual damage suffered by him. 26. In fact one of the matters I considered relevant in my assessment of the matter was the fact that the prisoner's interest in the property, which he clearly had by reason of his parents' ownership of the land and his long experience of working on the property, reflected adversely upon his claim of ignorance of the source of the damage done to various parts of the property by waste disposal. 27. So ultimately, whilst it is clear that there was a substantial manufacture of particularly GBL and MDMA that had been permitted by the prisoner over an extended period of time, ultimately the responsibility of the prisoner remains to be examined in the context of permitting those processes of manufacture to occur in circumstances where he was not a participant. 28. The Crown, in its written submissions, made a particular submission about the way in which the prisoner might be viewed by relationship to such persons responsible for the actual processes of manufacture. In fairness to him, on reflection, he has amended his submission in that regard. 29. With regard to the offence that carries the standard non-parole period, noting the role of the prisoner, his expected financial gain, the quantity of the relevant prohibited drug by relationship to the minimum quantity required to prove the charge and noting the absence of any evidence of the prisoner's role in the distribution of the drug, which clearly would be distributed, as would be the proceeds of any manufacture of the other prohibited drugs, I consider this offence committed by the prisoner as well blow the middle of the range of objective seriousness of offences of that type. But, of course, not at the lowest level. Certainly it is accepted that by reference to the submissions of learned counsel of for the prisoner that that offence, as with the other offences, have crossed the s 5 "threshold" of the Act. That is, nothing other than a term of imprisonment may be imposed in respect of each of the offences. 30. The maximum penalty provides a yardstick for measuring the significance of each offence. Of course, the offence under Count 3 is a more substantial and more serious offence than the offences proven in relation to Count 1 and the alternative to Count 2. 31. As to the two offences that do not have standard non-parole periods, that is the offence proven in relation to Count 1, and the alternative count in relation to Count 2, the objective seriousness of those offences is not at the lowest end of the scale, as I have earlier indicated, particularly by reference to submissions in respect of Count 2. But it is at the lower end when one considers what can be understood to be the quantity of the drug manufactured. 32. We know the quantity in relation to Count 1. I accept that the actual quantity in relation to the alternative to Count 2 is somewhat a matter of speculation. As I said earlier, the evidence of the waste product within the IBC container reflects upon a substantial process of manufacture, bearing in mind the range of quantities relevant to that particular offence, pursuant to s 24(1) Drug (Misuse and Trafficking) Act. 33. I also note in the context of assessing his responsibility for knowingly taking part in the manufacture of those drugs the absence of any evidence as to his involvement in its distribution, or sharing in the true financial benefit, that may be obtained from the manufacture of these drugs. 34. In relation to this matter of course the full truth is not known to us. The prisoner knows many things that he has not dared to share with us, although he was prepared to give evidence on oath and tell a number of lies to the Court, clearly untruths, or false statements, were made by him in relation to a number of matters, as I pointed out in my earlier judgment. 35. The fixing of the sentence for each offence is absent any discount, or reflection of mitigation, that might be given for contrition or co-operation. His counsel put to the Court in his written submissions that the accused was co-operative with the police. It must be fairly said in terms of being co-operative at the time of the search and permitting himself to be interviewed, he extended that level of co-operation. But the co-operation was limited when one has regard to the full facts of the matter. It was, with the greatest of respect to the prisoner, entirely absurd to claim that he had no knowledge of the identity of the people, or persons, who rented the shed from him. 36. Turning to some of the subjective matters that are relevant as they establish either mitigating factors, or other matters that are part of the mix of issues that have to be taken into account by the Court in the context of intuitive synthesis of all the relevant material, I note the prisoner at the time of the offending had no prior criminal convictions. 37. He was born in 1974 so he was 43 years of age, a man of some maturity at the time of the offending. Although I am aware of the fact from the telephone intercepts that during the course of the offending with which I am concerned, which obviously occurred over a number of months during 2017, bearing in mind the permission to use the shed had extended for what appears to be seven or eight months before the police search in late September 2017, he was involved in small scale drug supply of cannabis for which he had not at that stage been charged. 38. Subsequent to his arrest in relation to the current matters, he was convicted at the Liverpool Local Court in May 2018, apparently charged before he was interviewed by police in early 2018 in relation to the current matters, for the offence of possessing a prohibited drug and placed on what was called a "s 9 bond", now repealed, pursuant to the Act. He was required to obey reasonable directions for counselling in relation to drug and alcohol rehabilitation. 39. That order was varied on appeal to the District Court approximately six weeks later when he was placed on a s 10 bond, that is, a conviction was not recorded, but he was placed on two years supervision, as opposed to nine months supervision. 40. Amongst the conditions, as I would understand it, apart from being of good behaviour, he was required to undertake drug counselling and treatment. This reflects what I think is the undisputed fact of the matter that the prisoner, at least in recent years to his arrest in relation to the matters with which I am concerned, was a person who was dealing with drug dependency to some extent. 41. In that regard I note a history of industry in his parents' property, as I noted in my findings in relation to the charges. I am aware that he has had other employment as well. Mr Calacoci spoke of the great assistance that the prisoner gave him when he took over the lease of the "green houses" at the rear of the property, and the prisoner obviously was a person with great knowledge of matters agricultural relevant to the maintenance of the particular property. But because of an injury some six or seven years before being charged in relation to the current matters, he obviously had some difficulties maintaining employment, and possibly, although the picture is very incomplete I hasten to say, this contributed to his use of drugs. 42. He has a further finding of guilt in relation to an offence of driving a vehicle with an illicit drug present in his blood, the relevant drug is not known to me. He was convicted of that at the same time he was convicted of the 'possess prohibited drug' offence, fined and disqualified. He appealed against the severity of that penalty in the District Court at the same time that he received the s 10 order in respect of the possess prohibited drug offence. The learned Judge, from what I can see of the criminal history, confirmed the orders made at the Local Court. So in other words the conviction was maintained. 43. I appreciate these convictions post-date his convictions in the current offending. Thus, I am prepared to find that the prisoner did not have a criminal record, or criminal convictions, at the time of the offending for which I am concerned, and I am prepared to accept in a range of ways, making allowance for his small time drug dealing, that he was relevantly, as it was taken into account in the trial, a man of good character, at least to a limited extent, prior to the offending with which I am now concerned. 44. In fact such is the evidence that I cannot conclude that he was directly involved in other criminal activities such as supplying cannabis before the offending that is the subject of these charges, so he receives the benefit of two findings under s 21A(3) relating to mitigating factors. However the findings of guilt that I have referred to in the criminal history, in conjunction with the approach that the prisoner took to the trial, reflect upon an inability to conclude as mitigating factors the prisoner is unlikely to re-offend, and an inability to conclude on balance that the prisoner is a person with good prospects of rehabilitation. 45. In that regard I note the contents of the Sentencing Assessment Report, which belatedly arrived at Court through no fault of the parties. That reflects, by use of the actuarial instrument used by Community Corrections, the prisoner is a person with a medium to low risk of re-offending according to the actuarial instrument. I would imagine his drug usage is a contributing factor to that. His obstinance of taking responsibility for the offending that I am concerned with is also a matter that is, in the context of what I am discussing at the moment, very problematic. 46. The Sentencing Assessment Report confirms other aspects that I was already aware of, the prisoner living at the time of his arrest at the family property, having responsibility for his parents about whom he spoke quite emotionally during his evidence, particularly his father; his daughter and her mother from whom he is estranged. Apparently he has not had contact with that daughter for three years and at the trial he raised that as a relevant issue to matters distracting him. 47. He was on Jobkeeper or Jobseeker payments apparently during this year. He supplemented his finances by growing crops on the family property and there is reference to the injury that he suffered in 2012 with, as I would understand it, arthritis and pain in his spine. The prisoner told the Community Corrections Officer that he "commenced methylamphetamine and cannabis use in late 2017 as a way of coping with his father's illness and was using illicit drugs on a weekly basis". I do not believe that represents the full story. It depends how one describes the words "late 2017" but, as I said, there is clear evidence that the prisoner was dealing, if that is the correct expression, on a small scale with cannabis in at least September 2017, as the telephone intercepts make clear. He claimed to the Community Corrections Officer, however, that he had not used illicit drugs since 2018, but identified his associates as "factors in his drug use". 48. He maintained his position, to my mind, contrary in fact to the real effect of his evidence, that the storage shed, or the rear shed, as we referred to it during the course of my judgment, had been rented out to "an unknown tenant". As I said, that assertion is clearly, in my view, untrue. 49. With regard to other matters that I am required to consider, firstly s 3A of the Act is of significance. It sets out the "purposes of sentencing" and of course in this particular matter general deterrence is a substantial issue to be taken into account, as the Crown correctly identified. 50. Some of the matters identified by learned counsel for the prisoner as "aggravating factors" were in one sense inherent features of the offending with which I am concerned, or directly concerned with the offending with which I am concerned. As I said, I do not hold the prisoner responsible for the distribution of drugs which were manufactured. But by permitting the rear shed to be used for the manufacture of drugs there are consequences for the community directly or indirectly arising out of that permission being given to others. 51. There is a need for an element of personal deterrence, although in that respect I have borne in mind relevant to that aspect, and also to the issue of the prospects of rehabilitation, that this substantial sentence which I impose will have a salutary effect upon the prisoner. 52. I am mindful of the fact that at his mature age he is a person who has not previously served a term of imprisonment. The absence of criminal convictions, and his otherwise industrious working history, particularly working on his parents' property, reveals a person of potential, and for such a person to be imprisoned at this stage of life will, of itself have a substantial deterrent effect. 53. I do not believe the community requires protection from the offender. But I have to make him accountable, despite his denials of his actions, denounce his conduct, and also, inherently to the offending, recognise the harm done to the community by permitting this activity to occur in the rear shed. 54. I am also required to promote his rehabilitation. I propose to do this in part by determining that there are "special circumstances" pursuant to s 44 of the Act and I propose to adjust the relationship of the non-parole period to the balance of sentence to permit an extended period of time for supervision. Firstly, to assist him to adjust to community living after the service of his term of imprisonment, also to provide him with professional assistance if it is a requirement at the time of his release to address issues which contributed to his drug use. 55. One of the underlying features of the case as earlier noted in my judgment is, I am satisfied that the prisoner knows to whom he rented the shed, I am satisfied that the prisoner rented the shed knowing that that person would have an association with the distribution of drugs and the manufacturing of drugs for distribution, and thus, bearing in mind the prisoner's own use of drugs, there is a clear connection, it seems to me, between the prisoner's association with people involved in the drug trade and his involvement in the commission of these offences. The claim of meeting a stranger whilst mowing a lawn and permitting him to use the shed for months on end without payment of rent over most of that period was simply unbelievable. 56. Thus, although the purposes of sentencing may be as the High Court in Veen (No 2) to be "guideposts" sometimes pointing in "different directions", as I concluded ultimately, I can assist the promotion of the rehabilitation of the prisoner by adjusting the relationship of the non-parole period to the balance of the sentence. 57. I should add to what I have said earlier that I cannot be satisfied on balance that the prisoner has good prospects of rehabilitation. I am not suggesting for a moment that the prisoner is without hope. I know his mother is not well, apparently she suffers from dementia now. I saw her on film over three years ago and although I did not notice any decline because I do not know the woman, or any substantial disability, from such a film as I saw of her, I am prepared to accept there has been some decline. But ultimately making allowances for the interests of his brothers in the property where these activities occurred, the prisoner will have the opportunity of going back to the property if it still remains within the family. 58. It does not seem to be a case where the prisoner has a great deal of family support at the moment, judging from the contents of the Sentencing Assessment Report. As I have earlier pointed out, there is a background of industry and connection with the property and the like, that may support the ultimate rehabilitation of the prisoner, notwithstanding my inability to find that aspect as a "mitigating factor". 59. With regard to the matter thus, noting the submissions of the Crown and the defence to which I earlier referred, there are no specific aggravating factors that I can find pursuant to s 21A(2) beyond those matters that arise from the character of the offending and the nature of the offences for which the prisoner has been found guilty. 60. A couple of other matters that are worthy of comment at this point, bearing in mind the material from the parties I have only seen this morning. I have been on leave this week and came back into Chambers this morning to read the helpful submissions of counsel for the Crown and the defence. Counsel for the prisoner has provided me with some "statistics" from the Judicial Information Research System, or JIRS, and they provide some information about a range of penalties imposed in the higher courts in respect of the various offences under s 24(1) and (2) Drug (Misuse and Trafficking) Act 1985 where there are particular submissions made by learned counsel for the prisoner in respect of the relevance of those statistics to the task I have to undertake. 61. I bear in mind of course what has been said about the limitations of statistics as far back as Bloomfield (1998) 44 NSWLR 734, Spigelman CJ, admittedly in the context of reflecting upon statistics for appeal purposes, noted some of the limitations. Having acknowledged that, I am assisted to some extent in understanding the range of penalties that may be available in respect of particular categories of offending under the respective sections with which I am particularly concerned. 62. I will backdate the sentence to the date the prisoner came into custody. As far as I am aware the prisoner's sentence should date from 5 November. If there be any dispute about that I will ask the parties to assist me when I conclude my remarks very shortly. 63. With regard to the fact finding I should note, in fairness to the Crown's very helpful submissions, that the Crown's observations at para 11 of its submissions are entirely accurate in their reflection upon the essence of the findings of fact that I made in the course of determining the guilt of the prisoner in respect of the particular matters with which I am concerned. 64. One other aspect of the Crown's submissions I have not commented upon at this point, I do not propose to reflect upon it at great length, it is clear the offending is not "an aberration" in the sense the offending is concerned with a state of affairs occurring over a relatively short period of time. But it is to be borne in mind the period of time during which the shed was leased to the unknown person or persons has to be considered in the context of what findings can reasonably be made from forensic evidence that was collated as a consequence of the police search over the two days in September that the search warrants were executed. 65. Thus, having had regard to everything that has been put on behalf of the prisoner by his counsel and noting what has been put helpfully by the learned Crown Prosecutor, I will turn to imposing the respective sentences, bar one matter, which I foreshadowed I would address, in my haste to get to the orders, I have neglected to do. This is the very important issue of totality of criminality. 66. In Pearce v The Queen (1998) 194 CLR 610 the majority of the High Court in a conviction appeal reflected upon the proper approach to sentencing an offender in multiple offences. The issue arose as obiter dicta in the appeal because one of the sequelae of the appeal to the Court of Criminal Appeal in that matter was that an offender was acquitted by the Court of Criminal Appeal, if my memory serves me correctly, but the sentence for the remaining offence, or offences, was expressed in modest terms because of the way in which the offence for which the offender had been acquitted had been dealt with by the trial judge. 67. The majority of the Court made it very clear, at [45], that, a court in sentencing an offender for multiple offences was required to fix an appropriate sentence for each offence so that there was complete transparency as to the character of the sentences being imposed in respect of individual offences. 68. Then turning one's mind to the issue of concurrency and accumulation in the context of the principle of totality. Totality of criminality has been discussed in a range of judgments. One of the leading cases on this was the High Court judgment in Mill v The Queen (1988) 166 CLR 59 particularly at pp 62-63, and of course there is the dicta of Street CJ in the decision of Holder & Anor (1983) 3 NSWLR at 245, particular at p 260. 69. I am aware of the fact that before Pearce v The Queen there was a practice of fixing concurrent sentences, some exceedingly modest for the character of the particular offending, in respect of a series of crimes committed as what was seen by the Court as part of one transaction. Since Pearce, that approach has been recognised as not appropriate. An example of that was reflected in the mid 2000's in the judgment of Howie J, the reference to which is not available to me at the moment, where his Honour considered the totality of criminality arising out of a course of conduct in driving a motor vehicle that led to grievous bodily harm being inflicted on several passengers of the car driven by the offender. 70. In times past the one sentence would have been imposed in relation to each offence, each sentence concurrent with the others. But his Honour recognised of course that if, for example, a person injured two passengers in the course of driving, the totality of the criminality was in fact increased because of the number of people that are injured. 71. In this particular matter there is one course of conduct with which I am concerned. That is, he permitted the processes of manufacture to occur within the rear shed in circumstances where the prisoner had no control over the actual processes that were undertaken and, in my view, was not aware of the quantity of drugs that were being manufactured at the time. 72. In this particular matter thus the circumstances of the totality of the prisoner's criminality was not increased by the fact that there was more than one process of manufacture occurring within the shed during the period of time that he permitted its purposes to be used for the manufacture of prohibited drugs. 73. Although his conduct gave rise to the three offences for which he was found guilty the fact that there were three offences in the circumstances does not lead to the conclusion that the totality of the criminality is increased. Bearing in mind of course the many common features of the criminality of the prisoner in relation to each count. He permitted the use of the shed for the purposes of the manufacture of prohibited drugs but he was not a party to the process of manufacture. As I said, he did not have knowledge of the quantity or character of the drugs produced. It was sufficient for him that he be paid a particular sum of money per month for rent irrespective of how many processes of manufacture occurred within the shed, or how many drugs were manufactured. Thus, in the circumstances, I have determined that despite the fact ostensibly the totality of the criminality is increased by the number of counts, in reality, in this particular matter it was not. It is in these circumstances I have concluded that doing other than what I normally would do where I was dealing with three counts, admittedly committed over the same period, I am proposing to impose concurrent sentences in relation to each offence rather than fix sentences that were partially concurrent and partially cumulative. 74. If you could stand up, thank you, Mr Merhi? 75. In relation to Count 1, that is knowingly take part in the manufacture of an indictable quantity of methylamphetamine, you are convicted. You are sentenced to two years imprisonment commencing on 5 November 2020, expiring on 4 November 2022. 76. In relation to the alternative count, Count 2, that is knowingly take part in the manufacture of an indictable quantity of MDMA, you are convicted. You are sentenced to two years imprisonment commencing on 5 November 2020, expiring on 4 November 2022. 77. In relation to Count 3, that is knowingly take part in the manufacture of a large commercial quantity of GBL, you are convicted. You are sentenced to a non-parole period of three years six months imprisonment commencing on 5 November 2020, expiring on 4 May 2024. I fix a balance of sentence of two years six months imprisonment expiring on 4 November 2026. 78. In relation to the s 166 matters, that is sequences 5, 6, 7, 8, 9, 10, 11, 12 of H66233611, those matters are remitted to the Local Court at Parramatta on Friday 15 January 2021 at 9.30am pursuant to s 167 Criminal Procedure Act 1986. 79. It is a total sentence of six years imprisonment with a non‑parole period of three years six months. All the sentences I have imposed are concurrent for the reasons I have given. You will be eligible for release to parole, subject to the approval of the parole authority, on 4 May 2024. 80. Just for your information, Mr Merhi, by the way, I was proposing to just convict you without further penalty in relation to the matters that are going back to the Local Court, but good luck back there. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2021