District Court New South Wales Medium Neutral Citation: R v McKenzie [2024] NSWDC 624 Hearing dates: 18 October 2024, 21 October 2024, 24 October 2024 1 November 2024, 25 November 2024 4 December 2024, 5 December 2024 Decision date: 09 December 2024 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: (1) In respect of the two counts on the indictment and the summary offences the offender is convicted. (2) I note I have set out the indicative sentences [94] after application of the 25% discount for counts 1 and 2. (3) In respect of the summary offence under section 10 of the DMTA the court proceeds by way of section 10A that is there will be a conviction recorded but no other penalty. (4) In respect of counts 1 and 2 the offender is sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 23 June 2022 and expiring on 22 June 2025 and with a balance of term of 3 years expiring on 22 June 2028. Catchwords: CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Caristo v R [2011] NSWCCA 7 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 El Kheir v R [2019] NSWCCA 288 R v James [2017] NSWCCA 287 McLaren v R [2012] NSWCCA 284 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Pedavoli [2002] NSWCCA 87; 128 A Crim R 137 Tepania v R [2018] NSWCCA 247 Category: Sentence Parties: Director of Public Prosecutions (NSW) (Crown) Jason Christopher McKenzie (Offender) Representation: Counsel: Mr J Hanna (Crown) Mr J Watts (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission (Offender) File Number(s): 2022/00182992 JUDGMENT Introduction 1. Jason Christopher McKenzie appears for sentence in respect of three offences. Two of them have proceeded by way of indictment. The first is a count under section 24(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA") of manufacturing or producing not less than a large commercial quantity of a prohibited drug, namely methlyamphetamine. That offence has a maximum penalty of life imprisonment and a standard non-parole period of 15 years, and or a fine of up to 5000 penalty units. The second is a count under section 24(1) DMTA of manufacturing or producing a prohibited drug, namely MDMA. That offence has a maximum sentence of 15 years and/or a fine of 2000 penalty units. There is no standard non-parole period. Additionally, there is an offence to be dealt with summarily being an offence under section 10 of the DMTA of possessing 0.52 of a gram of cocaine. The maximum penalty for that offence is two years imprisonment and or a fine of up to 20 penalty units. 2. In relation to the maximum sentences and, in respect of the section 24(2) offence, the standard non-parole period, those matters are taken into account as legislative guideposts indicating the legislature's view of the seriousness of the offences to assist in arriving at the appropriate sentences. In relation to the standard non-parole period, I note that in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). The standard non-parole period too is an indication of the legislative view of the seriousness of the offence. 3. The offences occurred or were discovered on 23 June 2022 and the offender was arrested that day and has been in custody since that date to this. The facts 1. Included in the Crown sentence summary which became exhibit A was a document at tab 4 headed "statement of agreed facts". The offender was born in 1984 and obtained a degree in biomedical science in 2008. In April 2022 police became aware the offender had bought equipment which by the DMTA regulations are specified drug manufacture apparatus. The purchases were made using his own personal details. The police suspected the offender was involved in the manufacture and sale of illicit drugs. A search warrant was granted and on 23 June 2022 the search warrant was executed upon the premises of the offender, which was his home where he lived with his mother and her partner. Upon entry, Police smelled a strong odour of chemicals. A door to one room was locked. The offender opened the door at the police request and was escorted from the room. The room is described as a bedroom. The room contained a large number of bottles and a functioning drug laboratory with two chemical processes being conducted. 2. The offender was arrested. 3. The offender cooperated with police when asked questions about the safety of the lab inside the house and how to turn off the equipment. 4. What was occurring in the laboratory were two active chemical processes involving the use of heating and distillation equipment to refine methylamphetamine oil by extracting it from waste product; see [10] of the agreed facts. 5. There was a thorough search conducted and prohibited drugs located. The analysis of the drugs revealed a pure quantity of methylamphetamine of 1.958 kg in both powder and oil form and this is the basis of the section 24(2) count. 6. Also found was MDMA totalling 68.86 g being the basis of the section 24(1) count. 7. Traces of drug residue were found in waste products of more than 170 kg. That drug residue was of both of the above named drugs but is not quantified and does not form part of the offences on the indictment. The drug apparatuses included a round reaction flask, condenser, distillation head, splash head, separating funnel and rotary evaporator. 8. The summary matter is that a small amount of cocaine was found in a plastic bag being 0.52 g. 9. The offender answered a limited number of questions when conveyed to the police station. He said he lived at the address with his mother and her partner who had no knowledge of what he was doing in the room. He said it was his bedroom but it contained no bed. It did contain a chair. 10. The photographs forming part of exhibit A shows the room to be crowded with bottles and boxes and what might be described as laboratory or distillation equipment. 11. In addition to those matters it is important that some additional facts are noted. First, the police search located no precursors such as pseudoephedrine that would aid a process of manufacture of methylamphetamine. The chemical process underway at the time the police executed the search warrant was a process seeking to extract methylamphetamine in crystal form. 12. Secondly the quantities of the drugs arrived at are extrapolations. That is the methylamphetamine and MDMA in question in this case was not in what was referred to as a saleable form. As paragraphs 16 and 17 of the agreed facts demonstrate the drugs were found in liquid contained in various receptacles and also in one case sediment. The facts set out the bulk weight and indicate the percentage purity contained in the bulk weight to arrive at what is said to be the pure weight. For present purposes the point is there was not available any substance the subject of counts 1 and 2 that was able to be passed on to the community. Notably, and a point of distinction from cases such as R v James [2017] NSWCCA 287, it was not a case of there being a missing ingredient before the manufacture could be completed. Rather, in the 3 months that the offender had attempted to extract the methylamphetamine he had very limited success, based on the matters set out below. 13. In addition to those agreed facts and matters there was evidence given by the offender. The Crown places much emphasis on the evidence given by the offender and asserts, amongst other things, that it is inconsistent with the statement of agreed facts. The various factual issues raised by the parties include: 1. In the Crown's written submissions of 4 November 2024, the inconsistency between the offender's evidence and the agreed facts is said to relate to the process engaged in by the offender in relation to the drugs found. The submission is that whereas the statement of agreed facts indicates that the active chemical processes that were being undertaken at the time of the police search "involved the use of heating and distillation equipment to refine methylamphetamine oil by extracting it from waste product", this was a different stage in the manufacturing process than the recrystallization that the offender claims he was doing. 2. How much methylamphetamine was the offender using in the period March to June 2024, and how much of that was extracted from the substance, the balance of which forms the basis of the charges. 3. Was the offender acting under non exculpatory duress. 4. Whether the offender was motivated by financial gain, as opposed to acting under non exculpatory duress, if established, and or to obtain drugs for his own use. 5. Does the evidence of the offender in relation to his evidence concerning crypto currency and bank deposits allow for the conclusion that the manufacture the subject of the charges was done for monetary gain? 1. Each of these points will be dealt with in turn. In respect of the first point, it should be noted that in the course of the sentencing hearing there was evidence taken in an attempt to resolve whether or not it was open to the Crown to seek to expand the offender's involvement beyond what it appeared to be from the agreed facts. This involved some evidence and argument as to what if any information could be considered on this question, and there was an associated application by the Crown to lead evidence in reply in the form of an expert's report that did not exist at the beginning of the hearing, and which was refused. In final submissions no mention was made of the process seeking to determine the basis of the plea, nor to the evidence tendered in that regard, being exhibits 5, 6 and F, and it must be said, these reasons are prepared based on the agreed facts, and other evidence of the Crown and the offender, but without reference to exhibits 5, 6 and F. 2. The Crown in its written submissions of 4 November 2024 fairly sets out the offender's evidence in summary form. Notably however, when making the submission that evidence is inconsistent with the agreed facts, the Crown does not refer to the particular evidence given by the offender, in either his examination in chief or cross examination as to why this was so. Rather, there is the simple submission that what was occurring when the search was conducted, i.e. the two processes underway at that time, is a different stage in the manufacturing process than the recrystallisation that the offender claimed he was doing. It was further submitted on the eighth day this matter was before the court, 5 December 2024, that it is known that manufacturing involves a number of steps, and that by his plea the offender has admitted to doing all that is necessary to manufacture the prohibited drug. The indictment pleads the offender "manufactured" and not "knowingly take part in the manufacture", and so to the unwary there was a superficial attractiveness to this submission. Another asserted inconsistency was that the agreed fact was of the extraction of the drug being from waste product. 3. The evidence given by the offender was that prior to November 2021 he had been engaging in a process whereby he would purify the methylamphetamine that he was using by liquefying the substance in water and evaporate the water over time to collect the purified crystals to obtain a pure form. To do this he used water and other chemicals such as acetone; T19. In other words, the offender would obtain a substance that was not liquid, would liquefy it and then evaporate it and collect the crystals. The agreed fact was that the process occurring upon the execution of the search warrant was one of extraction using heating and distillation equipment. There was no elaboration at least in the written submissions of why that process is different to what the offender explained in his oral evidence. In oral submissions (prior to 5 December) it was said that the offender's explanation was implausible and did not explain why there were different proportions of the drug in the various liquids found. No reference was made in submissions to where that may have been explored in cross examination, nor does there seem to be any evidentiary basis supporting the Crown's submission. The Crown's submission orally then was to the effect "something was being done but we do not know what", and "the drugs are in different stages of refinement, we do not know what". 4. The Crown submission that the offender's evidence in this regard is inconsistent with the agreed facts fails. The submission made that the offender by his plea is admitting to doing all that is necessary to manufacture the prohibited drug, and thus implicitly if not expressly submitting that the conduct extended beyond the extraction referred to in the agreed facts, also fails. This is because "manufacture" is defined by the DMTA to include "the process of extracting or refining the prohibited drug". That of course is exactly what is stated was occurring at the time of the police search. The further submission of the inconsistency being in the fact of the agreed facts stating the extraction of the drug was from waste product also fails, for at T24.42-45 the offender explained the process as a "distillation process where I was trying to extract the methylamphetamine from the impure mixture". Should it be considered vague that the reference there is to an impure mixture and not waste product, the cross examination at T187.45-188.09 of 22 October 2024 clearly shows the offender referring to the waste products. 5. This sentencing hearing has extended over parts of 8 days, though one occasion was a short mention. The reason the case has taken so long is because the Crown cross examined the offender on 4 of those days. As the Crown's submissions show, this has occurred without the Crown having an objective, that is, the Crown position was it did not know what else the offender had done besides engage in the extraction process. There is no substance in the Crown's position that the offender's oral evidence as to what he was doing with the drugs was inconsistent with the agreed facts. That heating and distillation equipment is used to extract the methylamphetamine seems to me entirely in line with liquefying a substance and then evaporating the liquid. 6. What appears to have sparked the interest of the Crown or at least caused the Crown to make this submission is the fact that the offender gave evidence of obtaining the methylamphetamine in powder form and that is not something that is expressly stated in the agreed facts. What is clear from the agreed facts is that the offender was engaged in a process of extracting the methylamphetamine. In oral submissions the Crown went so far as to say at some point the methylamphetamine was created, something self evidently correct, but in a way that seemed to suggest the offender was involved with that. There is no suggestion of that in the agreed facts, and as I understand the Crown's position, the Crown accept they do not know what else the offender did, but nevertheless, not knowing what he did, they insist that he did it. What appears to have occurred on the part of the Crown was, having agreed as a fact the extraction method was in process upon the search, to seek, apparently without any identified factual basis, to suggest the offender had in fact created the substance containing the methylamphetamine. Although not put this way, the only way some sense can be made of the Crown position is if the offender's case on duress was not accepted, and, although no submission was made identifying this being put to the offender, his evidence of getting the powder from someone else was also rejected, with the result that he must have created it himself. As noted, the Crown did not approach it that way, and the court was not taken to evidence to bear that out. The second issue, at [16(2)] above is more straightforward. The Crown submitted that the offender was able to support a methylamphetamine use of up to 3 g per day in the period March to June 2022. This is supported on one view by the evidence of 18 October 2024 at transcript pages 48 and 49. Variously in those pages the offender accepted that he was using methylamphetamine most days, used 3 g from March 2022 onwards, that it was between 1 to 3 g and it was about 3 g per day. Later on, 22 October 2024 at T182, and reflecting the uncertain nature of the evidence just quoted the Crown put the proposition that the offender had a habit of at least a gram a day between March and June 2022 and the offender answered, "it varied as I said before you know". He was then asked if it varied between 1 g and 3 g a day and answered by saying "if, if I could extract it yeah, I would smoke it. But I can't you know determine exactly the amount". The offender then concedes he was able to crystallize methylamphetamine from the batch that he had been working on, that is the fourth batch on which the offences are based and consumed it. He was asked if he was able to get some powder or crystal and supply any of that batch to other people and stated no. 1. The findings I make based on this evidence are that there were occasions in the period March to June where the crystallization was successful and those crystals were then consumed by the offender. There was no exploration of what was meant by the offender when he said "if, if I could extract it" but it is clear that he could extract it on a number of occasions. The evidence does not allow for a quantification of the frequency of that occurring nor of the amount consumed when it did occur beyond perhaps between 1 to 3 grams. 2. The third disputed point at [16(3)] is whether the offender has established that he was acting under non-exculpatory duress. Commencing at T20 on 18 October 2024 at line 46 the offender gave an account of being approached by two men, one who had a black handgun. They approached him at his residence and wanted him to go in a car with them. After showing him the gun he was escorted to the car. They told him they knew that he could recrystalise methylamphetamine and that they wanted him to do work for them. Communications were to be through the encrypted application Wickr. He received a message to pick up a package from a stationary car. In that package was powder methylamphetamine which he recrystallized and returned it to them in crystal form. He then received a message which he recalled as being "what the fuck have you done with our product? It's burning black. You've ruined it" and "you're going to have to make up for this" and sending out threats that they would kill him or harm his mother or sister if he didn't follow. When asked what they said he stated "just that they would kill me or you know they wouldn't hesitate to shoot up my residence if yeah I didn't adhere to what they wanted" which he said was to keep recrystalising methylamphetamine for them. 3. The account given was that he was being held responsible for allegedly ruining the first batch and he would need to recrystalise more drugs to make up for it. Further drugs were delivered this occurred a further three or four times. On my reading of the evidence, it was a total of four times including the first time, though not much turns on this. It was on the fourth time that things in his words "really turned bad for me". This is the time that he was dealing with at the time of his arrest. The offender said that when he tried to recrystalise the substance it liquefied, and he didn't know what was wrong and when he tried to hand it back they would not accept it and he received more threats of harm by text message on Wickr. 4. The offender said this had occurred in about March and when they demanded he fix the issue that was when he bought apparatus online to try and improve his methodology. He was shown some photographs of the laboratory he created in the bedroom of his family home. He said he moved the bed out in June to make more space and slept on a recliner. He had been trying to recrystalise the methylamphetamine in question in the period from March to June. He had not delivered any of it back to the owners. He did not know how much he had been given for this fourth batch but was told by text by the other party that it was 2 ½ kg but he was simply going off what they had said. 5. The equipment that he bought he bought in his own name using his own details. 6. The offender was cross-examined about this evidence and in my view his version of events remained intact. In passing I would note that the offender's evidence concerning the success that he had crystalising the powder but retaining it for his own use is straightforward and frank. 7. The offender says that his version of events should be accepted. This is because it is consistent with what he told the psychologist. It is also consistent with something he said to his sister in about mid April 2022; see paragraph 17 of her affidavit of 14 October 2024 affirmed by Allison McKenzie. She gave evidence which was not the subject of cross examination of having a verbal fight with the offender at the Tweed Heads residence. In response to her criticisms, he stated "you don't know what the fuck I'm going through. You don't know the people on dealing with". The offender also relies on a text message evidenced by the Cellebrite report at page 92 and being message 322. This is when he is talking to a person named Dave who was involved with finance. In the course of this text message conversation the offender stated he wished to leave his job and was asked why and replied "I don't want to BS you Dave because you are incredibly kind and generous person and I can already tell your good soul. Long story short I started off as a biomedical scientist as I had hoped of going to medical school. However one thing led to another and you find yourself getting extorted for certain skills and wind up forever thinking a way out". 8. The offender also relies on the evidence of Mr van Meurs. The offender had given him an account of what had occurred which in my view is not meaningfully different from the account given to the court. The basis of the Crown's argument that the version given to the psychologist was inconsistent was because the psychologist does not recall a detail of the gun being poked into the offender's ribs when it was produced in the car. The evidence of the psychologist was that when he was taking the history of what happened in 2022 the offender interposed what happened in 2012, so as to suggest the history taking had become sidetracked. 9. Additionally, the psychologist formed the view that the 2022 experience caused him to suffer PTSD or more accurately once he had been provided with earlier medical material, a re-aggravation of the PTSD he had experienced following the armed robbery of the club in 2012. 10. The Crown says the offender's version is implausible. The Crown also says that the court should find the offender to lack credibility. In my view limited to the facts going to duress there is no meaningful inconsistency or concerns as to credibility. The Crown's quite right however to raise concerns as to the honesty of the offender concerning the evidence relating to his crypto currency activities and of depositing modest sums of money on multiple trips to the local bank. Assuming for present purposes the findings are adverse as to the crypto currency and bank deposit evidence, I remind myself that it is open to a factfinder to reject part of the witness's evidence and accept other parts of it particularly where in the latter scenario there is other evidence consistent with what is being said. The offender is not a person whose evidence can be categorised in simply one way. My view his demeanour and the way in which he gave his evidence was that for the most part it was straightforward including significant concessions made against his interests as already referred to in the amount of drugs that he was taking in the period leading up to the arrest and the fact that he did succeed in crystalising some of the powder that he was seeking to crystalise. 11. I observed the offender as he gave the evidence concerning the two men. There was nothing about his demeanour that caused me to consider he was conveying a made up story. 12. In addition to saying the offender should be disbelieved simply as a person with no credit the Crown noted that it was implausible to suggest that someone would be given 2.5 kg of usable methylamphetamine to purify and then not be subject to some form of supervision or give evidence of ongoing threats. Added to this is the valuable nature of the powder. In my view that value should not be calculated as being based on the offender's evidence of what he had previously paid for his own drug supply which was $200 for half a gram which would give the value of $1 million. This is because although not abundantly clear it seems likely that what he was referring to as costing $200 for half a gram was crystalised methylamphetamine. Of lesser significance is the vagueness as to just what the quantity of powder was that the offender received. So, if the offender's evidence is as to crystalised methylamphetamine, the other unknown is how much crystal methylamphetamine is expected from the powder provided. If 200 g then the value would be at $200 a half gram, $80,000. Nevertheless, it is obvious that the powder is of some value, as just illustrated and I accept that it appears to some extent unlikely that in these circles that are being put forward the offender would be left as alone as he was. There was evidence that he from time to time heard a motorbike go past his home late at night which I infer was suggested as a motorbike connected with the two men, and the evidence was unclear as to just what was ongoing in terms of Wickr messages. 13. There are therefore factors that tend in opposite directions as to whether the offender has established on the balance of probabilities that he was visited by these men. As already noted, the Crown argued that the offender's evidence when cross examined as to the crypto currency messages and the bank deposits was significantly damaging to his credibility. The evidence concerning this topic came from a number of areas. First there was cross examination about a number of deposits that had been made to the offender's account in May 2022. Following the deposits there was a transfer which was accepted to be for the purpose of investing in crypto currency. There were then references to his messages with a man named Dave in June 2022. In those messages the lead up to what the Crown relies upon is of Dave inquiring of the offender about how he was going and whether he kept up with what were referred to as "the perpetual contract orders" [message 273]. At message 277 Dave asked "how are you doing? There is no progress" at which point the offender states "yet something pretty bad happened to me not long ago. Cut a long story short I was sent over a 100K of fake USDT for cash. Comes up as a legit transaction on the block chain. Anyways, before I found out it was already too late. Never even knew fake USDT was around. Anyways, so I'm basically starting at scratch. Sad to say". There then follows a conversation between them with repeated reference to the loss of the money by the offender and how he was rattled by the ordeal. In cross examination it was put that the offender was telling David that the offender had paid AU$180,000 for $100,000 of USDT and he answered no. It was put to him that he thought he was buying real USDT and he said no. When asked what he said in the messages he agreed he had said that. When asked that he was expecting to receive US$100,000 of USDT and that he believed it to be real he said no. Ultimately, he was asked "when you entered into a transaction with someone to get 100,000 USDT you were expecting to get US$100,000 worth of real USDT." At that point there was a significant pause, and the offender was asked by me if he was okay and he said he was and asked for the question to be repeated. The question was asked again, and he said that the message was concocted based on a friend who had an experience of the type he described in the messages, and that he was saying this to Dave the big note himself and for Dave to understand he was in a pretty bad situation. He wanted to convey to Dave that he needed help. In other words, in an effort to enlist the assistance of the man Dave and to also explain he was in a poor position he told Dave a story that he had heard happening to somebody else. When asked to give this other person's name he said he did not wish to as it may impact on him later. When directed, he answered the question and gave the name. It was put that he was making this up because he did not want to admit to having $180,000 in cash. He denied that. He said he didn't have $180,000 in cash and that he wasn't living a lavish lifestyle and was living in his mother's house. It was then suggested to him that he was doing that to avoid the appearance of having a lot of money which although is not answered directly was, based on earlier and later answers, not accepted. 14. Even before considering the evidence just referred to the fundamental problem for the Crown in relying on this material is that it is so unlikely that this man had $180,000. Furthermore, it is not clear from the messages just when it happened. Message 278 refers to happening not long ago. Yet we know that in 2020 in 2021 the offender was at least based on his evidence involved in fairly low level refining of methylamphetamine for himself and friends, for little if any remuneration. He had lost his job and was slipping further into the grips of methylamphetamine addiction. On the other hand, it cannot go unnoticed that the offender is dealing with a crypto currency trader at the very time of this offending. 15. Sometimes the situation suggested by the facts is in fact the situation. That is the offender is living at his mother's house in the circumstances just described. It seems to me somewhat fanciful to suggest that he would remain at his mother's home as the only way he could think of to make himself appear low-profile. Put another way the money could easily be used in other ways without ostentatiously showing a large amount of money. 16. Further, the evidence relied upon as being discreditable, on the basis of being false, needs to be viewed in context. The evidence concerning the text messages largely involved the offender admitting that he had sent the messages as they appeared in the Cellbrite report. That he accepted sending the messages was accurate. For the most part, it is Dave that he was lying to, for the purposes outlined above. Viewed in this way, the evidence concerning the crypto currency does not have the effect argued for by the Crown. 17. The evidence as to the multiple deposits of sums under $1000 is frankly odd, though the offender seems to think it was necessary for the amounts to be deposited in amounts of no more than $1000. This was said to be the limit on depositing at the ATM; yet no reason was given for not simply depositing it at the branch. The evidence was of having received some funds from his family, and of an intention to fix his car, but that he ultimately bought crypto with it. This evidence was not sincere and forthcoming and is to the discredit of the offender. Against that, as earlier noted, he made numerous concessions against interest. 18. After some reflection the conclusion I reach is that I consider it more likely than not that the offender was visited by malevolent men involved in the drug trade and put upon to carry out the task that he was carrying out at the time that he was offending. I would note that this finding does not result in a significant mitigating benefit, and I would also note that even if the conclusion be erroneous it is plain from the communications to both his sister and Dave that the situation in which he found himself was one of intense stress and certainly not one suggesting a person in some kind of reasonable business operation in receipt of reasonable profits. 19. The next issue at ([16(4)] above, was to consider whether the offender was motivated by financial gain. The Crown argument in this regard is that because of the evidence showing dealings in crypto currency involving sums of money arguably is much as $180,000 then taken together with the offender's evidence of having dealt with manufacturing drugs in the two year period prior to June 2022 the court should conclude that his drug dealings in that period were very profitable. In my view it follows from the previous findings that he was not. 20. I note these considerations determine the issue raised at [16.5] above. 21. In the Crown's submissions of 25 November 2024, a number of matters were set out under the heading "Crowns proposed findings of fact". They are set out at paragraphs 14 through to 18. The first point is that the accused had unexplained amounts of cash in 2022. For reasons just given I do not accept that. The second point is to relate that to his connection with illegal drug activity. That too is rejected though the court does find that there had been connection by the offender with illegal drug activity prior to the events giving rise to the present offending (and obviously ongoing). The submission goes on to say that had those conclusions been made the motivation of the offender's offending was profit and feeding his own drug habit rather than duress. I reject that proposition. The motivation for the current offending was to act in accordance with instructions given to him by people who had provided the powder. My view is there was the element of duress referred to above and it was not a profit motive. I do accept that he used some methylamphetamine crystal extracted from the powder to supply himself with drugs. 22. Adverse to the offender the facts show that this behaviour was not an aberration. Furthermore, it shows an involvement by the offender albeit in the circumstances of duress explained above showing that this was part of organised criminal activity. That in turn needs to be weighed up against the fact that I do not consider the offender's operation to be sophisticated by reason of the fact that it was being conducted in a bedroom of his mother's home and the level of sophistication being exhibited is reflected in the fact that he was using his own name and details to purchase equipment over the Internet. Summary of resolved facts disputes 1. The above findings together with the agreed facts will, to the extent they go to objective matters, be relied on to determine the objective seriousness of the offending as that term is used in section 54A (in respect of the s24(2) matter), and some will also impact on the offender's subjective case, and also, in relation to the assessment of objective seriousness of the offending in a more general sense, which, as noted below, is sometimes referred to as the offender's "moral culpability" . In summary the findings are: 1. No inconsistency in the offender's evidence to the agreed facts as to the process he engaged with in relation to the drugs. Nor any inconsistency between the offender's evidence of receiving powder from which he sought to extract methylamphetamine and the agreed facts. 2. The amount of drugs used by the offender in the period March 2022 to June 2022 cannot be determined with precision, nor the amount that he consumed from his refinement process. There were occasions his refinement resulted in crystal methylamphetamine that could be consumed and which he did consume. For the avoidance of doubt, the word "refinement" is interchangeable with the word "extraction" in relation to what the offender was doing. 3. The offender was acting under non exculpatory duress. The motivation for the current offending was to act in accordance with instructions given to him by people who had provided the powder. 4. The offender was not motivated by financial gain, other than indirectly by not having to pay money for drugs he consumed. 5. The offender was motivated in part to supply his own drug habit. 6. The evidence concerning crypto currency and concerning bank deposits does not allow the conclusion that in relation to the drugs the subject of the charges the offender was acting with a view to financial gain. 7. The offender did not have unexplained amounts of cash in 2022, so far as that was suggested in respect of the $180,000 amount. 8. The offender had previously been involved in drug manufacture. The offending is not an aberration. 9. In so far as the role of the offender is concerned, the basis of the sentence will be that which is consistent with the agreed facts. That the offender "manufactured" the methylampetamine the subject of the charges by extracting it from a substance within which the methylamphetamine (and MDMA) was already contained. The agreed facts do not refer to how this other substance came to be created, nor how it came into the possession of the offender. I am not satisfied the offender created that other substance. 10. The value of the methylamphetamine and MDMA at the time of arrest was negligible owing to it not being in a usable state, and based on my finding that, given the offender had been unsuccessful in large part in making the methylampetamine usable over the previous 3 months before his arrest, was unlikely to ever be made usable. Objective seriousness 1. The offender argues that the objective seriousness of the offending is significantly below the middle of the range of objective seriousness. The offender relied on Tepania v R [2018] NSWCCA 247 to include in this assessment the fact of the offender acting under duress. It needs to be borne in mind that the s24(2) matter has a standard non parole period. Care needs to be taken when making an assessment of objective seriousness to make clear whether the assessment is for the purpose of statutory considerations required by Part 4 Division 1A of the CSPA, which by the terms of s54A permits only objective factors to be taken into account, or whether what is being assessed is the offender's moral culpability, also sometimes referred to as "objective seriousness", and which also requires consideration as an aspect the instinctive synthesis approach to sentencing; see McLaren v R [2012] NSWCCA 284 per McCallum J at [29]. 2. The Crown in its written submissions of 18 October 2024 submitted that the offending of count 1 fell above the mid range of seriousness. After a hearing taking up parts of 8 days, including lengthy cross examination of the offender, that assessment changed, so that in the Crown's written submissions of 25 November the Crown stated "The Crown does not maintain that the offending falls above the mid range of seriousness". At first blush that would seem to convey that for the purposes of an offence with a standard non parole period it is conceded to be below that middle of the range of seriousness referred to at s54A. In oral submissions on 4 December when this was sought to be confirmed, no such concession was forthcoming. Rather the Crown position was again differently expressed, so that it was now said to be that the offending was "at or below" the middle of the range of seriousness relevantly to any consideration of s54A. The court of course arrives at the relevant assessment giving such weight to the various considerations as it considers appropriate, but the inability of the Crown to adopt a position was not just unhelpful, but puzzling. 3. In a similar vein, there has for a significant period of the course of this sentencing hearing pervaded a degree of confusion in respect of what the Crown contends is the role of the offender in the manufacture of the prohibited drugs, specifically, whether that role extends to the creation of the powder that he was provided with and which he was refining. Related to this is also some confusion as to just how "usable" the powder provided to the offender was at the time it was provided to him. It should be borne in mind that there is nothing in the agreed facts that suggests the offender had any role in the manufacture of the drugs beyond the extraction that was underway at the time that the search was affected, apart from being in possession of them. Sensibly read, the agreed facts would suggest the sentencing is to occur on the basis of manufacture by reason of the extraction. The confusion as to the offender's role emerged because the Crown maintained that the offender's role extended beyond extraction, but in circumstances where the Crown stated that it "did not know" what else the offender did. To be able to be taken into account adversely to the offender the Crown must prove the matters beyond reasonable doubt. With this frank concession as to the state of the matter, it is difficult to see how the Crown would not simply proceed on that basis, as outlined in the agreed facts. The confusion concerning usability is first seen in the Crown's written submissions of 18 October 2024 at [12] where it is said "That the methlyamphetamine seized was not yet in usable or saleable form does not reduce the offender's criminality". In the course of the hearing a number of references were made to "usable form". This included on 18 October when the offender was being cross examined at T60 where it was put that the offender had returned the drug "in a usable crystal form"; and on 21 October at T95 when it was put by the Crown to the offender that on earlier occasions "you were able to successfully recrystalise the methylamphetamine into a usable form", with which the offender agreed. Based on the various exchanges between the Court and the Crown, including for example at T47 of 24 October, the Crown would seem to be seeking to draw a distinction between the drugs actually undergoing the extraction process at the time of the search, and the other drugs in the liquid and residue form not at that very moment being processed. My understanding of those other drugs in the liquid and residue form is that they are the result of the failed attempts of the offender to recrystalise by way of the extraction technique; see T161 of 22 October. The offender explained this by reference to his earlier activities at T19 of 18 October as follows: Q. Did you start trying to purify the ice that you were consuming? A. Yes, I was. Q. Can you tell his Honour how you do that? How did you do it? A. The amounts that I was doing were just small amounts for personal use. I was doing that by heating - liquefying the substance in, in water, and essentially evaporating the water over time to collect the purified crystals. And I would repeat that process until I got a, a pure form. Q. But did you use only water, or did that involve using other chemicals? A. There were some other chemicals such as acetone. Q. How does that help in the purification process? What do you do with it? A. It can be used to expedite the process or precipitate the oil faster, but essentially is to evaporate the, the mixture so you have pure the crystal. Q. And so what form is the drug in before you start? A. Normally in a powdered form, a crystalline powder form. Q. What form is it in when you're finished? A. It should be in A. in a crystal, a - yeah. About the size of a fingernail, or - yeah, it depended, it can be your fingernail or the size of the finger. 1. What the offender explained as having occurred to the drugs the subject of the charges was that there was residual waste product from the methylamphetamine extractions, which is what he said was in the containers marked A007 and A014; see at T32 of 18 October. If it is accepted that the beginning form was powder, which I do accept, and there are numerous containers of water or sediment which in bulk are some 8kg, but with the charged amount of 1.958kg being pure methylamphetamine, then the conclusion I reach is that the drugs founding the charges (for the MDMA was found in this same mixture) were in the state they were following the failed extractions, or largely failed extractions. 2. This all suggests that the methylamphetamine was being subjected to the extraction technique to render it into a usable state. The offender concedes that is not so. The methylamphetamine in the powder form was saleable and usable. The purpose of the extraction is to increase its purity, and I would infer, increase its value, and by such amount as to make its worth greater than it was in powder form. Whilst usable the concession is qualified by noting the aim to improve the quality, that is, whilst usable, it is not the most valuable form. 3. The relevance of the state of the methylamphetamine before it was refined is that there is nothing in the agreed facts as to how it came to be in the possession of the offender. Notably what is in the agreed facts are facts about what the offender was doing, namely extracting the methylamphetamine. The agreed facts plainly allow for an assessment of the role of the offender in this manufacture. His role was to carry out the extraction. The Crown does not know what else he did, but for some reason spent days trying to find out, even though the scope of this sentencing exercise was plain based on the agreed facts. Not only that, but the Crown spent time examining the earlier conduct of the offender in a way to determine if there might be further charges. That this is so was in effect conceded, as an adjournment was sought to allow for directions from the director's chambers as to whether there may be further charges, albeit that the Crown was unwilling to initially disclose this to the Court as the purpose of the adjournment, despite it so informing the offender. 4. Both parties helpfully referred to a number of factors commonly referred to assist in making an assessment of objective seriousness. This includes the amount of drug manufactured, the purity of the drug manufactured, the value of the drug manufactured and the role played by the offender in that manufacture. The Crown made reference to what it described as the substantial equipment and chemicals in the position of the offender and argued the offending was plainly well planned and organized and carried out for financial gain. 5. In terms of the amount of the drugs, here some 4 times the minimum required for large commercial quantity, it is well recognised that is not the sole nor even the determinative factor. This case is a good example of why that would be so given that the totality of the drug was not saleable. The evidence was of the offender seeking to carry out the crystallisation process since March, so for some three months and there must be a real doubt that this process he was engaged in would ever have produced usable methylamphetamine beyond the amounts that he admitted consuming himself. That evidence suggests the process, unlike on at least two earlier occasions, was failing. The result is that was conceded to be usable methylamphetamine powder was rendered far less usable, and so far less valuable, and there is nothing in the evidence to suggest this was likely to improve. 6. The equipment and chemicals were of some significance in terms of quantity but based on the evidence they appear to be rather elementary laboratory type items of beakers and burners. I would not describe this as sophisticated offending particularly given its lack of success and the equipment being little if any more than basic requirements. That the offending lacked sophistication is borne out by the purchase of the equipment in the offender's own name and using his own details. Adverse to the offender is his role in this manufacture; even on the basis that the offender was carrying out the manufacture at the coercion of others he nevertheless was the sole person involved at this point in the actual manufacturing process. At the same time on the facts that have been found it would be inapt to describe the offender as a principal. Attaching labels to an offender's role is at times convenient, but when, as here, the labels may mislead, it is preferable to simply state what he did, and that has been set out above. 7. The offending was plainly not an aberration bearing in mind the evidence of the offender of having done this for a period seemingly commencing in late 2020 or possibly the beginning of 2021. It is important to remember that he is being sentenced for this conduct culminating in what was found in June 2022 and not his earlier conduct. 8. I note the findings of fact at [45] above and that the motivation of financial gain is largely lacking. Based on those findings and the above considerations, I consider the objective seriousness of this offending is low. 9. The Crown argues that the offending has been aggravated due to the risk to public safety. There is undoubtedly some added risk to the usual household by conducting the chemical processes that were involved here. There was no evidence of just how explosive or hazardous the particular combination of acetone, water and a certain quantity of methylamphetamine or MDMA is. There was also however reference to methanol. This ground of aggravation is established and will be taken into account. I note favourably to the offender that he cooperated in informing police how to cease the "cook" that was in process, and simply involved turning it off. 10. The Crown also argued that it was part of planned or organized criminal activity. The offender's case of doing this under duress created by standover men makes this conclusion unavoidable, but at the same time this matter of aggravation must be tempered for that same reason. The point of financial gain has been discussed above and will not be considered again. Subjective case 1. The offender is entitled to a 25% discount on his plea. 2. The offender has a criminal record for New South Wales limited to an offence in 2018 of driving with illicit drug present in his blood and in 2020 driving whilst disqualified. He also has a Commonwealth record for a charge of importing a prohibited import. In the scheme of things that is concerning. However, that offence was in 2008 and was dealt with by way of being discharged to be of good behaviour for 18 months without conviction suggesting it was a very minor matter. In my view the record does not prevent the offender being dealt with leniently due to his minimal record. 3. The offender relied on a psychological report dated 3 October 2024 of a Mr Sam van Meurs. The psychologist was cross-examined though nothing emerged that detracted from his report. The history given to the psychologist was of the offender being raised in Tweed Heads by his mother and father. There was no background of disadvantage. The family was pro social, though his parents appeared to favour corporal punishment. There was a significant event of trauma when the offender was sexually abused by a schoolteacher in year three which was only disclosed following this offending. 4. He describes himself as a problem child who his parents did not know how to deal with. He has a supportive sister who is a lawyer in the United Kingdom. There are half siblings and a more distant relationship with them though he had employment where his half brother was his superior. Following the sexual abuse he changed schools for years 4-6. In high school he began smoking marijuana and drinking and although he completed 12 received a ranking of 30/100. He later went to TAFE for his year 12 and went to University. He cared for his father full-time for three years. He gained a Masters degree in public health. His father however had long-term involvement with a club and the offender was employed there, for periods only ending in about 2020 and 2021 for reasons including the impact of Covid, though the Club had been in difficulty from about 2018. Between 2012 and 2014 the offender was largely absent from the Club following an armed robbery, causing the offender to suffer PTSD. In custody he has commenced an associate degree in business. 5. In the community the offender has a pro social network though also obviously had antisocial connections. 6. His drug use history is of cannabis during adolescence normally on weekends with friends followed by as an adult experimentation with MDMA and then in his 20s and 30s methylamphetamine particularly in the period 2018 to 2022. There was also regular binge drinking though it does not appear that overall alcohol is problematic. He has not used any substances in custody for the past 24 months having now been in custody for approximately 29 months. 7. He is confident he can remain abstinent in the community. 8. He gave the report writer a version of events concerning his claim to be acting under duress for the offending. On this version he says that two large men wearing masks came to his home and asked him to go to their vehicle and when he hesitated one showed him a gun under their shirt. In the vehicle they said they knew he could recrystalise methylamphetamine and asked him to perform that process. When he said he did not know that process they again produced a gun and said they know where he lives so he reluctantly agreed. He told the psychologist he was unable to perform the recrystallisation process on larger quantities often destroying the substance. When the contaminated amount was returned, he was told he was now in their debt for the value of the defective substance. In broad terms this matches up with his evidence in chief given in court. 9. He accepts responsibility and accountability for the offending. 10. Commencing at par 45 the psychologist carries out a psychological assessment. The major relevant events in the offender's life impacting on this assessment are the child sexual assault, the 2012 armed robbery and the alleged coercion of what might be described as drug-related stand over men. Following the sexual assault the offender became withdrawn and more dysregulated emotionally and behaviourally. The suggestion is he was a disappointment for his parents leading to what might be termed a lessening self-confidence. As a means of escape he began using cannabis and binge drinking. The robbery incident in 2012 led to symptoms of PTSD which was appropriately dealt with and based on all the evidence would appear to have dissipated by 2014 when he returned to working regularly at the club. Then with the stand over incident in 2021 there was some relapse into PTSD. 11. Commonly in cases where there is a traumatic event such as sexual assault a fairly direct line can be drawn between that event and a descent into substance abuse. This is not such a direct a case. I accept that trauma forms part of the life events which led the offender to become drug addicted. Yet by the time of his increased drug use from about 2018 he had overcome his PTSD from the 2012 incident and was in gainful employment. His continued use of drugs in these circumstances seems as much a consequence of poor social decision-making as anything to do with the original trauma. In saying that I am very conscious that in analogous situations such as where Bugmy principles might apply the disadvantaged background is not to be considered to diminish over time. In a similar way in my view the original childhood trauma would continue to be a factor that needs to be taken into consideration. In this case it is taken into consideration but the weight which it is given is modest at best. 12. The risk of reoffending assessment carried out by the psychologist resulted in a risk in the low range. In my view that is an understandable result. The offender comes from an environment that is pro social; he has a work history; as will be seen by his other material he has both family and community support. He is a person with tertiary qualifications and obviously of some talent. As the psychologist notes the primary contributors to his risk of reoffending are his criminal history, on which I replace minimal weight, and his drug problems, on which I would place significant weight. As is so often the case the prospects of this offender reoffending are tied inextricably to his ability to remain abstinent from drugs. Should he return to a drug environment I consider it highly likely he will reoffend. Should he remain free of it I consider it highly unlikely he will reoffend. The factors just referred to are protective factors which will assist him to remain abstinent. 13. As the psychologist points out at paragraph 58 the offender has displayed patterns of poor coping throughout his life; shortly put in times of stress he turned to drugs, and whilst that is accepted, it is with respect possibly being too kind to him because there was no particularly stressful event in 2018 which is prior to Covid and prior to the club closing (though its difficulties were beginning), and the increase in his methylamphetamine use dates from about that time. 14. In my view, consistent with the psychologist's view, once released into the community if not before it is essential that the offender fully appreciate the need to follow the recommendations of the psychologist. That is despite his own expressed confidence in remaining abstinent he should engage with the appropriate programs to deal with any residual trauma particularly from the childhood incidents and to learn coping mechanisms. 15. The other subjective material included medical records showing the treatment following the 2012 incident including by a psychologist and two psychiatrists. An affidavit of the offender's sister was corroborative of the offender's background. It gives some more information as to the club referred to in the evidence which was the Kirra sports club and which had been founded by the offender's father in 1989. She notes that the offender began working at the club in 2002 at the same time as he was at University. In 2008 he worked at the club full-time. During 2020 her brother was often "missing". Her view is he turned to drugs to cope with the failure of the club which was clearly a very significant part of this family's life. She also recounts some dealings with the offender as close to the offending as of April 2022. The description given at paragraph 17 of the affidavit I consider to be entirely consistent with someone in the grip of drug addiction. She does quote him as saying "you don't know the people on dealing with" which as already noted gives some support to his claims of acting under duress. 16. A letter from Alan Miller who knew the offender by being the auditor of the club described him as hard-working and dedicated, patient and willing to help. He also says that the offender has expressed great regret for his actions. 17. A friend of 20 years describes the offender as kind, reliable, supportive and loyal. He refers to the offender assisting at the local AFL club. 18. A chaplain from the Clarence correctional centre commends the character of the offender and states that he has completed the Alpha course which deals with the basics of Christian belief. 19. Finally, there were a series of certificates. The offender has now been in custody since June 2022 so almost 2 ½ years. He obtained a certificate one in workplace skills in December 2022, attended the remand addiction course in May, June and July of 2023, at some point obtained a certificate II in skills for work and vocational pathways. In September 2023 he completed the YEP collective mentor program and prior to that in August 2023 the YEP entrepreneur program. In December 2022 he completed the positive lifestyle program conducted by the Salvation Army. And as already noted he has been engaged in a business studies course. Consideration 1. There are three offences that are being considered. The summary matter of possession of 0.52g of cocaine is minor. But for the serious indictable offences it is a matter that would be dealt with shortly in the local court, and in my view would not pass the section 5 threshold. It will be dealt with by way of section 10A. 2. In respect of the two charges under section 24 the evidence of the offender which I accept is that he did not know there was any MDMA in the substances that he was crystalising. On one view, the matter can be viewed as if there was just the one count under s24(2) but with an additional 68g of prohibited drugs, so 2.026 kg instead of 1.958 kg. All other things being equal, there is not likely to be a greater sentence imposed based on that difference in weight. At the same time that in fact there were two different prohibited drugs is recognised. In my view there is no additional criminality attached to the behaviour founding count 2 beyond the criminality evident from count 1. For that reason, I consider the sentences should be wholly concurrent in respect of the two indictable matters. 3. I have dealt with the objective seriousness of the matter concerning the manufacture of illegal drugs above. Conduct that leads to the presence of such substances in our community has devastating effects on the lives of the people who use such drugs and their families and friends, an example of which is the offender himself and his family. It must be absolutely devastating for the offender's mother to see her son be reduced to the drug addicted state that he was in 2022 just as it would be for his obviously caring sister who gave evidence by affidavit. That impact is created thousands of times over by reason of conduct such as that of the offender. 4. It must be remembered that the conduct that is the subject of the sentence is based on what was found in his bedroom in June 2022; he is not being sentenced for any drug-related activity outside of the matters referred to in the agreed facts. 5. I have made certain findings as to the offender's risk of reoffending above. His prospects of rehabilitation can be viewed in similar terms; that is he does have support networks in place and he does have a degree of intelligence and has options to pursue that if properly utilized would see him become pro social, or more accurately, would see him not make antisocial choices. His behaviour in custody and success in enrolling and completing various courses shows he is on the path of rehabilitation. If the offender follows certain recommendations he is likely to adopt the emotional and psychological skills to develop better coping mechanisms as alternatives to relapsing into drug use. 6. Looking at other specific mitigating factors as referred to in section 21A, despite the well-recognized devastating effect of drugs in the community the fact remains that in this case there was no damage because there were no drugs in the community as a result of what the offender did, apart from the indeterminable amount he used himself. 7. His criminal record permits leniency in that regard. I also accept the evidence of the offender expressing appropriate remorse and acknowledgment of wrongdoing. I note from the subjective material that it is clear that from a time not long after going into custody he engaged in constructive rehabilitative behaviour in undertaking the courses that have been referred to above. I take that conduct into account also to demonstrate that the offender is a person who has recognized his wrongdoing and is eager to return to a pro social lifestyle. This evidence supports both remorse and prospects of rehabilitation. 8. This is the offender's first time in custody. An extended period of supervision upon release would be beneficial to his prospects of rehabilitation. This is because he seems to think that he can on his own remain abstinent and one can only hope that that is true but experience suggests that it may also be folly. The offender upon his release should engage with the appropriate services for counselling in the way described by the psychologist. For these reasons I make a finding of special circumstances. 9. The purposes of sentencing as set out in section 3A are as follows: 1. To ensure the offender is adequately punished; 2. To prevent crime by deterring the offender and others from committing similar offences; 3. To protect the community from the offender; 4. To promote the rehabilitation of the offender; 5. To make the offender accountable for his actions; 6. To denounce the conduct of the offender; 7. To recognise the harm done to the victim of the crime and the community. 1. In this case in my view weight needs to be given both to the need to deter the offender specifically and also for deterrence generally but also to facilitate and promote his rehabilitation. There is of course the need to protect the community, and to denounce the conduct of the offender. The need for deterrence is tempered somewhat by the circumstances of the offender, that is that what introduced him or formed part of his pathway into drug use was the traumatic events of his childhood. It should be made clear however that the lessened emphasis on deterrence for that reason is minor. 2. The found duress is a matter which also favours the offender. That issue is factually connected to the offender's mental health. The offender relied on the principles from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] to argue the offender's mental health, if causative of the offending in a material way, may reduce the offender's moral culpability. The argument here, which I accept, relies on the evidence of the psychologist that the event of the two standover men and the use of the gun triggered the PTSD of the offender, which had for some years been dormant. This together with his impaired coping mechanism contributed to his agreement to act as requested, along of course with the duress itself. It should be noted that the offender himself did not argue that great weight was to be placed on these matters, but certainly that they should be given some weight, and I take that approach. It results in a lesser emphasis on general deterrence. In my view his condition will not render his incarceration more onerous, and indeed the evidence suggests he has coped well with custody. Conclusion 1. I have already indicated the outcome of the summary matter will be to proceed by way of section 10A. As to the two section 24 offences I propose proceeding by way of an aggregate sentence. As to just what that sentence should be, the offender and the Crown sought to give some assistance to the court by reference to a number of cases. This included reference to the cases of R v James [2017] NSWCCA 287 and El Kheir v R [2019] NSWCCA 288 who were co offenders, with the former pleading guilty and the later found guilty after a trial by jury. The "bulk" weight of the methylamphetamine was 12.84kg from which 2.6kg of methylamphetamine could be extracted. Mr James pleaded guilty to a s24(2) offence and also 3 firearms offences, and there were 5 matters to be taken into account in respect of the manufacturer offence, including 3 of possessing precursors and a proceeds of crime charge. Relevantly to the present matter, Mr James was sentenced at first instance in respect of the s24(2) offence to a term of 9 years and 6 months with a non parole period of 5 years and 3 months. One error accepted on appeal was that a mathematical error in applying the discount of 25% had occurred, so the indicative sentence ought to have been 10 years and 6 months. The Court of Criminal Appeal held that the non parole period of 5 years and 3 months in respect of this offending does not reflect the minimum period of actual incarceration that should be spent in custody, particularly when the substantial matters on the Form 1 were considered. The passage at [54] citing Caristo v R [2011] NSWCCA 7 at [27] is instructive in this regard. On resentence the indicative sentence for the manufacture offence was 10 years and 6 months with an indicative non parole period of 6 years and 6 months. I note the case, as the Form 1 matters indicate, involved the use of precursors to create the methylamphetamine. The objective seriousness of the matter was assessed at first instance to be "just below mid range", and there was no statement in the appeal judgment expressly disapproving of that finding. Mr El Kheir was sentenced following a jury guilty verdict for a s24(2) offence and three counts of possessing precursors. In the first instance judgment, consistent with the judgments in James, the laboratory was said to reveal "considerable planning and organisation" and "was a sophisticated and large manufacturing operation", a description which in my view contrasts with the visually chaotic state of the offender's bedroom in the present case. Mr El Kheir received a 10 ½ year sentence for the manufacture offence with a 7 year non parole period. The appeal by Mr El Kheir was dismissed. 2. Reference to other cases is of course fraught with difficulty, simply because of the certainty of differences as to the facts, both objectively and subjectively, and the above comments touch only on the objective matters. Just the above short reference to the facts points up significant differences; a higher level of sophistication, and a greater role in the creation of the methylamphetamine, and the use of precursors. 3. R v Pedavoli [2002] NSWCCA 87; 128 A Crim R 137 was a case of manufacturing more than the large commercial quantity of amphetamine. The first instance sentence of 4 years with 15 months non parole was set aside and a term of 8 years with a 3 year 9 month non parole period imposed. The case is far different to the present in that it involved consideration of other sentences imposed by a different judge relating to supplying heroin and cocaine, and that the manufacture occurred whilst on bail. 4. Ultimately, taking into account all of the foregoing, I have arrived at the following indicative sentences. 5. The indicative sentence for count one, the offence under section 24(2) before the application of the 25% discount is 8 years and so 6 years after the discount. In respect of the section 24(1) offence which is count 2 relating to the MDMA the indicative term before the application of the 25% discount is 3 ½ years and so after the discount and rounding it down to the nearest month 31 months. 6. Earlier in these reasons I indicated that I considered those sentences should be wholly concurrent. At the risk of repetition, it may be argued that by combining the weights of the two charges it could be said that leads to a greater sentence. However, weight is not the sole nor even the determinative consideration and in the facts of this case I do not consider the second count adds to the criminality reflected in the first. 7. The aggregate sentence will therefore be 6 years. There will be a non-parole period of 3 years. The basis of the finding of special circumstances has been set out above. I note the passage from James citing Caristo referred to above, and consider the non parole period the appropriate minimum period of actual incarceration that should be spent in custody. 8. The indicative non-parole period for count 1 is 3 years. This differs from the standard non-parole period due to the low assessment of objective seriousness, the 25% discount and the facts relied on to find special circumstances. Orders 1. In respect of the two counts on the indictment and the summary offences the offender is convicted. 2. I note I have set out the indicative sentences above after application of the 25% discount for counts 1 and 2. 3. In respect of the summary offence under section 10 of the DMTA the court proceeds by way of section 10A that is there will be a conviction recorded but no other penalty. 4. In respect of counts 1 and 2 the offender is sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 23 June 2022 and expiring on 22 June 2025 and with a balance of term of 3 years expiring on 22 June 2028. ********** 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: 28 January 2025