District Court New South Wales Medium Neutral Citation: R v Lui ENA [2012] NSWDC 150 Hearing dates: 02/02/12 Decision date: 09 February 2012 Before: S Norrish QC DCJ Decision: Convicted: Sentenced to a term of imprisonment of 3 years and 6 months commencing 02/02/12 and to expire 01/08/15 with a non parole period of 1 year and 8 months to commence 02/02/2012 and to expire 01/10/2013. Catchwords: CRIMINAL LAW: Sentence - manufacture prohibited drug pseudoephedrine, expose a child to manufacture process and serious physical injury, special circumstances. Legislation Cited: Drug (Misuse and Trafficking) Act 1985 Criminal Case Conferencing Trial Act 2008 Crimes (Sentencing Procedure) Act Cases Cited: R v Thomson and Houlton [2000] NSWCCA 309 Alameddine v R [2006] NSWCCA 217 R v Allpass (1993) 72 A Crim R 561 R v Dietz (2003) 139 A Crim R 398 R v Noble (1996) Qld R v Barci (1994) 76 A Crim R 103. Markarian v The Queen (2005) 79 ALJR 1048 Veen (No 2) v The Queen (1988) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions Lui Ena (Offender) Representation: Mr M Johnston (Offender) Director of Public Prosecutions (Crown) Watsons (Offender) File Number(s): 2010/90760 sentence 1HIS HONOUR: Lui Ena today appears for sentence in relation to an offence committed by him on 14 March 2010 at Leichhardt. The offence to which he pleaded guilty at the Local Court and again at this court last Thursday was one alleging that he on 14 March 2010 at Leichhardt did manufacture a prohibited drug to wit pseudoephedrine and expose a child to that manufacturing process or to substances being stored for use in that process. This is an offence contrary to s 24A Drug (Misuse and Trafficking) Act 1985. 2It carries a maximum penalty of eighteen years to be distinguished from an offence of manufacture prohibited drug simpliciter which carries a maximum penalty of fifteen years imprisonment. There is additional and/or alternative penalty of 2,400 penalty units available under the Act. I propose to impose a term of imprisonment as was understood in the proceedings last week. I have not been asked to impose a fine. There is no standard nonparole period for this offence. 3The offender was born on 1 July 1971 and thus at the time of the commission of the offence on my calculation was thirtynine years of age. Some of the material tendered on behalf of the offender provides some background to the circumstances to the commission of the offence and I have taken that into account. In the context of dealing with the factual matters that arise in this case I propose to summarise the facts on sentence that were tendered by agreement by reference also to some of the material that touches upon the offender's subjective circumstances. 4The offender was a man who developed drug and alcohol dependency problems in the years leading up to the commission of the offence. I accept that at the time of the commission of the offence the offender was indebted to a person or persons who were supplying him with prohibited drugs upon which he was reliant or dependant and I accept that to some extent his judgment was affected by his dependency upon drugs and the need to assuage the debts that he had accrued in relation to his drug usage. 5This matter arose for the attention of the authorities and now this Court when at about 1.30am on 14 March 2010 there was a large explosion in premises at 12 Hawthorne Street, Leichhardt. When fire officers arrived they found the upstairs section of Unit 1, 12 Hawthorne Street to be alight and there was significant damage to the structure of those premises. These premises were rented by the offender and had been rented by him for approximately five or six months before. He was planning to vacate two or three days after the explosion occurred. 6It is of some importance to note that the premises had been occupied by the offender as his residence and I accept that he was, for reasons unconnected to the circumstances of the explosion, planning to move to other premises at which he already had personal property. I accept, as it is relevant again to an assessment of the offender's role in this matter, that the offender had leased the premises at Hawthorne Street, Leichhardt in his own name. His connection with the premises could easily have been established. 7The force of the explosion was so great that it destroyed a double-brick wall at the front of the building and tore portions of the metal roof off their joists throwing them approximately fifty metres from the site of the explosion. A portion of the roof was found on the front of the fence to number 10 Hawthorne Street, the adjoining property, and another portion of the roof was located in the side yard of number 14 Hawthorne Street. There was extensive damage to the interior of the unit and I have available to me a series of photographs which are taken, as I understand it, as stills from a video recording showing the extent of the damage. 8I have not been favoured with details of the cost of the damage to either the owner of the premises at 1/12 Hawthorne Street or the owner's insurer nor am I given details as to the loss to the relevant owner and/or insurer of Unit 2, 12 Hawthorne Street, Leichhardt. 9The charge to which the offender has pleaded guilty - pleads the aggravation ,which increases the otherwise appropriate maximum penalty, of exposing a child to the process of manufacture. The child exposed was a fouryearold girl called Sophia. She lived with her mother Rachel. Just by a stroke of luck when the explosion occurred the child was sleeping in her mother's bed. The mother saw a bright light and heard crashing noises. There was a large amount of dust in her bedroom. She grabbed the child to run downstairs. She heard someone bashing on the door yelling out the words, "Get out of the house now." I am satisfied that person was the offender although he himself was badly injured. I believe it is a significant matter to the offender's credit and supports his credibility in terms of his account of what occurred inside his own unit, that the offender notwithstanding his extensive injuries took the time before he fled to alert the people next door to a danger that they obviously already were aware of because of the extent of the explosion. 10It is worth pointing out however that the debris from the destroyed brickwork caused by the explosion was strewn across the child's bed,. The damage to 2/12 Hawthorne Street appears to be confined to the child's room; the upstairs bathroom and the stairwell and some evidence of that damage is available. It is quite clear from the evidence contained within the facts that the offender was aware of the fact that a child lived in the premises next door. The statement of facts refers to the offender being regularly seen by the occupants next door and the fact that on 13 March the day before the explosion the mother and the child were playing in the side garden and the offender was seen to come and go from the premises. It is just a complete fluke, to use a colloquialism, that the child was not injured. Thankfully for the offender and for the community and the child. 11So far as the manufacturing of the prohibited drug, adverting in part to the evidence of the offender and also the facts that have been presented to me, I am satisfied that the offender was approached by a person to make his residence available for the manufacture of at least pseudoephedrine. It has to be fairly said that the Court was not impressed by the offender's unwillingness to name the person who approached him. The matter was never addressed and I sought not to make an issue of it, but the facts of the matter are I could compel the offender to tell me the name of that person, otherwise the offender could face severe penalty for contempt of court or other sanction. 12In any event I accept on face value that the offender declined to nominate to police and to this court the person who recruited him who was clearly the person who was the principal in this process of manufacture. The offender has told me that there were threats made against him and he was in fear of those threats. He gave evidence that in fact he left hospital prematurely because of those threats. Of course, I have got no way of knowing one way or the other whether in fact threats have been made to him, other than on the say so of the offender. I can understand that it is likely that another person who was responsible for this laboratory would be very anxious to not be named. And I can understand the offender is in a vulnerable position in many respects. However, as I said, it was still open to the offender to supply that information. 13When the relevant authorities searched the premises it was quite clear that the premises were being used as a laboratory. Having regard to the state of the offender's evidence and the very skilled crossexamination of the Crown Prosecutor and matters raised by the Crown Prosecutor with me, she having sought instructions from a chemist Peter Ballard about some aspects of the offender's evidence, I do not have reason to doubt the evidence of the offender that the process of manufacture really commenced two days before the explosion, that is on 12 March when the offender began moving material from his then residence to which he was to move at Rosebery Place, Balmain to the premises he was vacating. 14I also accept, because I have no reason to doubt what has been asserted, that the actual cooking process which was involved with the production of pseudoephedrine was a process commenced sometime in the afternoon or evening of 13 March. I accept that the case is concerned with one process of manufacturing and there is no evidence available to me to reasonably conclude that the explosion came at the end of a series of processes of manufacturing over a number of days. 15I am not assisted with evidence as to the time it would take to extract pseudoephedrine to the extent that it may have been extracted at the time of the explosion. But from what I understood of the evidence of the offender there were a series of cooks occurring, if I could use that expression, from batches of tablets containing pseudoephedrine and other drugs. 16When police conducted their investigations they found a large silver chrome-coloured dish with bright red orange-coloured residue on the ground on the eastern side of number 14 Hawthorne Street. A scraping of that residue was taken and it was analysed as containing 54.8 per cent pseudoephedrine. Within the townhouse occupied by the offender or used by the offender were a number of items including containers, buckets, milkshake makers or blenders, portable washing machines, bags containing paper filters, other plastic drums containing absolute alcohol commonly used in the manufacture of pseudoephedrine, a glove and other items consistent with the process of manufacturing rudely interrupted by the explosion. 17Within the kitchen of the townhouse there were other items found consistent with the manufacture of pseudoephedrine, a white dish containing a plastic container with orange residue, a fan with green residue from which a scraping was taken and found to contain sixtyfive per cent pseudoephedrine. A frying pan cord also with green residue which scraping revealed that it contained 62.1 per cent pseudoephedrine. 18In the upstairs bathroom were the obvious detritus of the explosion, the cooking process in the chrome pan having occurred or was occurring in the bathroom at the time of the explosion. There were various items including a fan, ducting, Perspex, battery pack, carbon filter, a frying pan that were in various states of melting or damage. In the upstairs bedroom two further twenty litre plastic containers containing a green liquid residue were found. This liquid contained pseudoephedrine. There was also found another exhaust fan, frying pan lids, some other containers, strainers and a funnel consistent with the process of pseudoephedrine manufacture. 19The laundry held a black plastic bag containing two plastic bags of red gluggy powder the total weight of which was seven kilograms. This was considered to be the waste product derived out of the extraction process for pseudoephedrine. This waste material was analysed for the purposes of calculating a weight range in relation to the pseudoephedrine that had been manufactured. It is unclear as to whether this is the only waste product that was produced from the process of manufacture but there is no evidence of any other relevant waste. 20Mr Ballard's conclusion from his expertise as a chemist was that the pseudoephedrine base extracted from the waste product was estimated to be between seventyfive and 1,038 grams. This is a very wide range of estimation but I am not assisted as to how this came to be of such a character. Chemist Ballard further stated that these quantities of pseudoephedrine could be used to manufacture a maximum of between sixtyseven and 938 grams of methylamphetamine. He said that the actual amount manufactured will be less and would depend upon the skill of the operator, the formation of bi-products and the quality of reagents used. 21He stated that caffeine and antihistamine such as chlorpheniramine can be found in cold and flu medications that contain pseudoephedrine. They are extracted out of those medications along with the pseudoephedrine and do not interfere with the manufacture of methylamphetamine from pseudoephedrine. The presence of these other products to be found in cold and flu medications in the scrapings from the used paper filters and the blender is consistent with pseudoephedrine originating from cold and flu tablets. The offender has confirmed that, because he said in his evidence on two occasions for periods of up to an hour he was involved in grinding or breaking down physically such tablets. I note that no such tablets were found in that form in the detritus of the explosion. Mr Ballard said that these tablets can be crushed with blenders and electric drills as were found in the Hawthorne Street premises. 22The electric frying pan was consistent with the cooking process. Mr Ballard said that the cooking process involves heating pseudoephedrine mixed to boil off the ethanol as vapour. Ethanol vapour is a highly flammable vapour and when mixed with air in the correct proportions produces an explosive mixture. An ignition source such as a spark from an electric motor or thermostat controller or an electric switch may ignite an explosion. 23Smears of blood were found, a pair of eye goggles were located on the stairs. The police had no trouble, as I said, locating the offender. Ultimately, on 15 March 2010 the offender attended the police station at Balmain in company with his solicitor. He was severely injured. The ambulance officers described the offender as having "severe burn injuries to his arms, lower legs, back and some burns to the head area." The burns were equal to or greater than fifty per cent of his body. These burns were considered life threatening and displayed partial and full thickness burns. It would appear the offender was wearing goggles otherwise he would have lost his eyesight. And goggle marks were visible on his face which was burnt. 24The offender spent over a month at Concord Hospital receiving treatment and I have medical evidence in the character of discharge summaries and clinical notes confirming his presence in the hospital. Various medications being provided to him. Operations for skin grafts and the like and the fact that he was in persistent pain with severe wounds requiring very intense medical treatment and recommendations that he continue receiving medication to treat infection and to deal with pain which he continues to receive up until the present time. He has considerable scar tissue and I accept that these injuries from which he suffers will be a constant reminder for him of these matters giving rise to the charge for probably the rest of his life and have had a very severe impact on him. His discomfort and pain continues. 25Police were able to execute a search warrant at the premises at Rosebery Place at Balmain and there they found evidence of burnt skin consistent with the offender having been in those premises. They also found two twenty litre drums of the "Denatured Absolute Alcohol" identical to those found at the scene of the explosion. 26The offender gave evidence that he had come and gone from the premises whilst the preparation of material and the cooking of material to produce pseudoephedrine was taking place. I have also indicated that he actively participated in the process to a limited degree. He also gave evidence that early in the morning of the 14th when he returned to the premises there was a very strong smell of what was clearly ethanol vapour and other vapours. He went upstairs directly to the bathroom to disconnect the cooking implement. That probably precipitated the explosion. I accept the offender was in fact taking active steps to minimise the risk having arrived at the premises, and with his knowledge of the building industry and the like fully realising the risk of danger from material of this nature. There is no evidence upon which I could conclude that the offender had any knowledge of the process of the manufacture of pseudoephedrine, but his counsel conceded, and I accept, that the offender was clearly reckless to the risks that were involved and his plea of guilty is at least an acknowledgment of that. 27The facts are very serious in a number of respects. Clearly the process of manufacture was designed to obtain a quantity of pseudoephedrine and possibly or probably methylamphetamine in due course from the pseudoephedrine which was substantial and would have been available for distribution for commercial purposes, whether ultimately sold as methylamphetamine or sold as pseudoephedrine to others for whatever purposes they use it. Pseudoephedrine is a prohibited drug, as with methylamphetamine. 28Of course the facts do not establish beyond reasonable doubt that the process at the house was the process of manufacturing methylamphetamine as such. Clearly the plea of guilty and the facts are concerned only with the manufacture of pseudoephedrine, but as I said the facts themselves without objection point to the fact that pseudoephedrine may be used in the manufacture of methylamphetamine. One could not be satisfied beyond reasonable doubt of the exact amount of pseudoephedrine that was manufactured in the process beyond noting the very wide range of excess by Chemist Ballard. This was consistent with a "commercial" - in the general sense of the word - operation and nothing was put to me to suggest to the contrary. Certainly no suggestion was made that the accused was involved in this process to obtain pseudoephedrine for his personal use or the personal use of the man who was the principal of the manufacturing process. 29The offender's criminal history is not significant. He has some minor driving matters and other offences through the eighties and nineties. The one in the Children's Court of course I ignore. He has one conviction for driving with a high range prescribed concentration of alcohol in his blood stream, for which he was fined a modest amount and disqualified for twelve months in 2003. He has a conviction for driving with a middle range prescribed concentration of alcohol in 2007, for which he received a good behaviour bond and a period of disqualification. Those offences confirm what appears from the subjective material that the offender for a period of time had had problems with alcohol abuse and that ultimately led to his abuse of drugs. 30With regard to his background he has had a disadvantaged background. 31He had little contact - in fact from what I understood of it no contact -with his father. He was raised with his mother and other siblings. He left school with sufficient qualifications to become a panel beater. He was unfairly and to some extent cruelly treated by a stepfather at one stage. He began using prohibited drugs at an early age and he had a number of emotional upsets. He had a partner who gave birth to a daughter who is now nineteen years of age, and as I understood the evidence, although there seems to be some conflict in the evidence about this, she has two children, having first become pregnant at fifteen. I accept the offender has been emotionally distressed prior to the commission of the offence by the fact that his daughter had become pregnant at such a young age and was deeply concerned about her welfare. 32So far as his employment is concerned, as I said he qualified as a panel beater, worked in the auto industry for some period of time. There is reference in some of the material to helping his mother in a café, although he did not give oral evidence of that as far as I am aware. Again I do not have a transcript of the proceedings on the last occasion. He did however move into the construction industry and worked in that industry for approximately seven or eight years rising to the rank of a supervisor. He was involved in project management and had many responsibilities in that industry, but those responsibilities were one of the factors that contributed to drug usage to relieve tension. He set up a business selling online safety gear in the construction industry and other material including promotional products. He had a number of setbacks in relation to that business prior to the commission of the offence. This again contributed to his decision to use prohibited drugs and he was in some financial difficulty at the relevant time that the offence was committed. 33As I have earlier indicated, he gave evidence, which I accept, that he purchased drugs on credit and it was through the fact that he owed money to people or a person for the drugs he used that he agreed to allow the process of manufacture to be undertaken in his premises. Of course, this does not relieve the offender from the finding that an aggravating factor in this matter is that he was involved in the commission of the offence for financial reward, even if it was to pay off existing debts. There was a financial advantage for the offender from his involvement. 34I accept that since August 2011 up until going into custody last week the offender has sought assistance from a psychologist to resolve many of the issues that have contributed to his offending - his drug and alcohol dependency, his relationship with his partners, his relationship with his daughter and her children and also dealing with other matters including his fears of retribution from those that are responsible primarily for the manufacture of the pseudoephedrine. 35Dr Milic undertook standard psychometric assessment and his findings were that the offender was an individual who tended to rely on others for support and security to a strong extent. He has severe trauma related anxiety symptoms which are consistent with the experience of the explosion, general anxiety symptoms and alcohol dependence. He is likely to have chronic problems with bodily tension, nausea, worry, intrusive memories of traumatic events and a tendency to avoid difficult situations. 36The psychologist was of the view on the basis of the testing, as he understood it, that alcohol dependence and drug dependence existed before the explosion. The prisoner's main problems at the time of treatment were worries about his sentence, the welfare of his daughter, his physical injuries which are significant and related matters. The psychologist thought that the offender's account was plausible. 37He had a disadvantaged background which had impacted upon his early life and that he had severe emotional distress from his daughter's pregnancies, feeling that her mother had let her down and that he may have let her down given his separation from her. Part of his problems arose too from neglecting his business because of his dependency on alcohol and drugs and that all in all as he comes for sentencing various traumatic events including the explosion have taken a heavy toll on his emotional and physical health. 38I have a number of references from friends of the offender. These references cover a range of matters including the positive aspects of the offender's character, expressions of remorse and regret for his involvement in this matter, the offender's affection for his child and her children, the effect upon him of his injuries, his industry and his support for his friends' children. One of the matters adverted to was an act of bravery in assisting a friend's daughter from injury when she ran onto the road. These are all matters which reflect upon the offender as a person who, generally speaking, is a man who has made a worthwhile contribution to his community and he is possessed of qualities that may be taken into account in mitigation. 39I accept that from time to time he has been hard working. He is honest in his dealings. He is well respected by his friends as being a person who is loyal and committed to others and, further, that he is endeavouring to take steps to rehabilitate himself and to improve his life. 40I have evidence from the offender's business adviser that the offender's business affairs are in order, and I accept that the offender in recent times has taken steps to revive his business. The chartered accountant who prepared the report noted that whilst he had some problems with failing to lodge a tax claim for a few years, he did so because he was generating income which is consistent with the offender being in financial difficulty prior to the commission of the offence. The business however is one that has been revived. The customer base has been growing since August 2011 and the business is paying its way. The offender I understood has support in the ongoing conduct of the business into the future whilst he remained in custody, as he would have expected to do so after he appeared at this court. He has no outstanding debt, the company has no outstanding debt, and the financial records and the ATO tax lodgements for the business, which is called Stay Safe Warehouse Pty Limited, are up-to-date. 41I have taken into account all the material that has been tendered adverting to the offender's subjective circumstances. Included in that material of course is a letter addressed to myself consistent with the evidence given by the offender that he expresses guilt and shame for his conduct. He expresses regret for his conduct and is constantly reminded of his foolishness by the injury that he has done to himself. 42He is deeply apologetic for the recklessness of his conduct as it may have threatened the occupants in the premises next door and nearby, that he has nightmares about what has happened, that he needs to get on with his life, but at the moment he cannot see an ending to his suffering given the character of his scarring and his pain, that he has sought help from a psychologist and attended recovery groups to address his drinking problem. He also wishes to continue to support his daughter and her children, and I accept what he has put in that statement. I also have, as I said, discharge summaries and details of the medication and treatment that he has received. I have made earlier findings about the seriousness of his injuries. 43I have a Probation and Parole Service report setting out his background. I need not dwell upon that. It reflects upon his employment and education history, his work in project management and his business. It also reflects upon his drug and alcohol abuse since an early age and the fact that he has been seeking treatment. The Probation and Parole Service officer reported the offender had expressed "particular remorse for the impact of the explosion on the child who lived next door." It noted his explanation for his involvement in the offence which I accept. 44Its summary was that the offender presented as a "solitary person" who was trying to make a success of his life but was labouring under the difficulty of emotional and financial instability. The Probation and Parole officer said he was frank during interview, he was open in admitting his own failings and shortcomings and that the psychologist's assessments and treatments had had a positive effect upon him and that they would help him in the future, that he would benefit from a low to medium level of intervention by the service. He is unsuitable for community service and clearly given the seriousness of the offence, he is not eligible for consideration for another alternative to full-time custody such as an intensive correction order because the appropriate sentence must be greater than two years. 45If I have not already mentioned it, although it was discussed at the beginning of my remarks today, it has been confirmed that the offender was committed for sentence after undertaking Criminal Case Conferencing. I have a relevant certificate in that regard and I therefore am prepared to grant the offender a discount of twenty-five per cent upon the otherwise appropriate sentence to represent the discount for the utilitarian benefit of the plea of guilty in accordance with the terms of s 16 and 17 Criminal Case Conferencing Trial Act 2008 and/or the terms of R v Thomson and Houlton [2000] NSWCCA 309, the Court of Criminal Appeal judgment from 1999 dealing with that particular discount where those two sources of power are not inconsistent. No issue of inconsistency arises in this matter. 46With regard to the submissions, it was conceded by his counsel that this was a very serious matter, and I accept the submission that he was not to be sentenced on the basis that he was the principal mover of the operation, and I have already noted a number of matters that flowed from the evidence and submissions in my earlier findings of fact. 47The learned Crown Prosecutor put, very skilfully, that this was a matter involving considerable damage and given the maximum penalty and the character of the charge, it is a matter where a term of imprisonment must be imposed. I will come back to some of the submissions put by the parties about s 21A matters when I deal with that provision. 48Reference was made in the submissions to the decision of Alameddine v R [2006] NSWCCA 317. Mr Alameddine was convicted of an offence committed in 2002 carrying a maximum penalty of fifteen years imprisonment. 49There the offender was on home detention and he permitted another person to conduct an amphetamine laboratory in a shed at the rear of his premises. 50The substances identified from the explosion that occurred at the shed injuring the offender, similarly to this offender being injured, included 125.8 grams of pseudoephedrine of almost sixty per cent purity and almost thirty grams of methylamphetamine of very low purity with a very large quantity of waste product of sludge capable of producing 4,540 tablets from the dried waste. 51That offender was on home detention for driving offences relating to drug use. The offender was sentenced on the basis of a limited role, not for participating at all in the process as I understand it but for permitting premises owned by him to be used for the manufacture of drugs. I accept that he was on conditional liberty at the time, bearing in mind he was serving home detention. The gravamen of the judgment, however, is not the parity of sentencing issue or the comparative sentencing issue, although it is a matter that provides some assistance in that regard, but rather the question of "extra-curial punishment". The Court referred with approval to the decision of R v Allpass (1993) 72 A Crim R 561, R v Dietz (2003) 139 A Crim R 398, R v Noble a Queensland decision from 1996 and a Victorian decision of R v Barci (1994) 76 A Crim R 103. 52In the latter case the Victorian Full Court noted that it was "not a complete answer to say that the offender brought his injuries upon himself (in response to a Crown submissions on appeal), these very serious injuries directly resulted from the commission of the crime (and) for the rest of his life those injuries will serve as a savage reminder to (him) of his criminality and as such they must fairly be regarded as constituting some punishment for the criminality." Such a finding is available here. In Alameddine the court agreed with the judge who sentenced the appellant that the injuries were an available factor to be weighed in favour of the appellant in sentence assessment along the lines contemplated in Barci, although the issue was not whether the judge took the matters into account at all but what weight should he gave to them. The Court referred to the decision of Sharpe where it was accepted, although the injuries were passing injuries, that in a case where the injury was a consequence of the crime the principle did not operate to prevent mitigation on account of extracurial punishment in such circumstances. The Court rejected a submission there was "a boundary" in relation to injuries sustained by self inflicted illegal activity beyond which no mitigation could be granted. The Court in Alameddine noted however that that was not to say that the circumstances of infliction were irrelevant, and I adopt what was said in Alameddine. I indicate, as I have said, that the effect of the injuries on the offender will be a savage reminder of his criminality and is a matter available in mitigation, which I have taken into account as required by the High Court judgment in Markarian v The Queen (2005) 79 ALJR 1048. 53I am sorry, Mr Ena, I am very close to finishing your matter but you know the sentence and you know most of the reasons, I am going to interrupt my remarks as I am required to take a verdict in a trial I am conducting, and ask you if you don't mind waiting in the room behind the door there. I will have you back here in five or ten or fifteen minutes, I do not know how long. I will interrupt my remarks and I will come back to you. I apologise for not completing my remarks. 54I resume my remarks on sentence in the matter of Mr Ena. When I took the verdict of the jury in the trial that I had been conducting I was referring to the decision of Alameddine and principles contained within that judgment relating to "extra curial punishment". I wish to just add one matter about Alameddine. It was not specifically referred to as necessarily a comparative case for sentencing purposes. There are, of course, in the objective case many similarities although the quantities of drug potentially created do vary between each case. 55The role of Mr Alameddine clearly was less than the accused's because, as I said, the facts in that matter as I understood them did not show the same extent of active participation in the process but there was the quality also of permitting another person to conduct the process of manufacture. Both men suffered very serious injuries and properly they are taken into account here as with Mr Alameddine. 56One matter, apart from the fact that Mr Alameddine was subject to conditional liberty, a matter that is not an aggravation here, which does separate the two offenders, is that Mr Alameddine was convicted of an offence carrying a lesser maximum penalty. The Crown very helpfully provided information to show that the offence with which I am now concerned was approved by Parliament subsequent to the commission of the Alameddine offence and the Parliament has expressed a greater maximum penalty for the exposure of a child to risk. 57Whilst there was a risk to others in the Alameddine case there was no particular risk pleaded and certainly the blowing up of the shed is a different situation than blowing up a townhouse adjacent to and with a common wall to another building in which other people are present, in circumstances where this offender clearly must have expected, at the very least if he did not actually know, would have contained his neighbours at that hour of the day, being the early hours of the morning. 58Not for a moment am I suggesting that the offender intended that anyone be hurt or that there be an explosion. It was conceded, as I said earlier, that Mr Ena was reckless to the risks. He tried to militate or reduce, or remove the risks, ironically his actions in that regard may well have contributed to the explosion, but a plea of guilty acknowledges an exposure of the child to the risks in question, and that is a matter of importance when considering Alameddine by comparison to this matter here. 59With regard to the offender's circumstances, I note his injuries will cause him hardships in custody. I have sought with my best endeavours to obtain a report in that regard. As I have indicated, the matter will be delayed a further five or six weeks if such a report is to be prepared. I was told it could not be prepared in the time that I sought, that was six days. No further report is sought and it is asked that I continue with the sentencing today, by both parties, although it is really a matter for the offender as to whether that would occur. 60I would have granted an adjournment had an adjournment been sought, but it is quite clear, given particularly what I have been told about the confusion and the lack of knowledge of the precise circumstances of the offender when he came into custody, that the offender's circumstances in custody will be such as to create a greater hardship than for the ordinary offender. He will have to have treatment for his injuries throughout the term of imprisonment. He may need to be isolated from other prisoners for that treatment to be obtained. Because he is physically injured he is, to some extent, disabled or incapacitated and if a threat of physical violence arose I would expect that he would be far more vulnerable than he would have been but for the injuries. 61Of course, the precise circumstances of his custody in the future are matters of prediction about which I cannot be certain. I am mindful of the lack of available evidence as to his treatment whilst in custody. As I have said, the hardships in custody I believe can be generally assessed at this point, and as I have said, no attempt has been made to require me to find or obtain further information to be more specific. It is a matter to be taken into account in mitigation of what is otherwise a serious offence. 62I have had regard to s 3A Crimes (Sentencing Procedure) Act and the multitudinal purposes of sentence therein contained and note the obiter observations of the full Bench of the High Court in Veen (No 2) v The Queen (1988) 164 CLR 465 that the purposes of sentencing are like signposts, sometimes pointing in opposing directions. 63I appreciate that this crime, given the offender's subjective circumstances, require a balancing of personal and general deterrence, a need for punishment and denunciation, making the offender accountable ameliorated by the desire to promote his rehabilitation and also to give proper recognition to matters in mitigation and matters even on the objective factors in his favour, such as his alerting the neighbours to the risks or continuing risks, despite the very severe injuries he suffered himself. 64With regard to s 21A matters, as I said, these were the subject of specific submission. The principal aggravating factors arising under s 21A(2) noting the matters already incorporated into my reasoning by operation of s 21A(1) of the Act are the fact that the offender committed this offence for financial reward and the damage and/or loss to the owner of the property that he rented and the owners and occupants of the property next door, was substantial. 65I have not been favoured with precise evidence of the extent of damage - perhaps I should have been - but ultimately I can see that the damage was substantial and no submission was put to the contrary. The facts make that clear. There was a degree of planning in the commission of the offence, but that is not a specific aggravating factor under 21A(2) of the Act, because the planning in such an offence is really integral to the offence, as was pleaded, as would financial reward to some extent. I accept that this offence was not a part of a series of criminal acts. 66One sticking point I guess between the parties, if I might dwell upon this matter just briefly, was the Crown's submission that I should find as an aggravating factor there was a grave risk of death to another. Of course, the Crown pleads and the maximum penalty reflects the fact that there is the aggravation of exposing a child to risk, that is a very serious matter given the facts of this case. 67However, I cannot conclude that there was a grave risk of death to another in the circumstances of the matter. True it is if the child had been in her own bedroom she may have been killed and the offender would be facing a far more serious charge. But, whilst it is clear that there was a risk of potential harm and even physical injury to others, the particular aggravation particularised in s 21A speaks of a "grave risk of death". There may have been a risk of death, but not a "grave risk of death" in all the circumstances. In any event I think that the issue that the Crown is raising is adequately addressed in the way the case is pleaded. 68With regard to matters arising under s 21(3) of the Act, relevantly in addition to the matters I have already identified, the offender does not have a significant record of criminal convictions. I am prepared to accept that he is unlikely to reoffend. I accept that he has good prospects of rehabilitation. I accept that he has expressed contrition as required under the subsection and it is a genuine contrition. Of course there is also the plea of guilty, however, the offender receives a discrete discount for the utilitarian benefit of the plea in any event. 69I have made a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. In my view there are a number of features that are matters that properly permit an adjustment of the non-parole period in accordance with the terms of s 44 Crimes (Sentencing Procedure) Act 1999 to reflect special circumstances. Those special circumstances in my view are as follows, but not in any particular order. Firstly, the offender will need an extended period of parole supervision to adjust to community life having served his first term of imprisonment and will need an extended period of supervision by the parole service, particularly in relation to drug and alcohol and other psychological counselling. 70I further note in relation to the imprisonment of the offender he will need assistance to adjust given what I understand to be the difficulties he will face in custody arising out of his injuries. The offender has not served a term of imprisonment before, in fact he has only ever been on one bond before and it is clear that he observed the conditions of that bond. In the circumstances of the matter I have therefore concluded that the non-parole period should be adjusted as against the totality of the sentence to reflect the special circumstances I have outlined. 71Assuming that I have covered all relevant matters raised by the parties -directly I certainly have addressed in my formulation of the appropriate sentence all matters that have been brought to my attention by the parties. 72You can stand up thank you Mr Ena. In relation to the offence for which you have been found guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of one year and eight months. That will commence from the date you came into custody, 2 February 2012, expiring 1 October 2013. The balance of the sentence will be one year and ten months expiring on 1 August 2015. I cannot direct that you be released to parole at the end of the non-parole period. If you are of good behaviour and you have favourable reports from the Probation and Parole Service I am sure that you will be so released, but the reality is, as you well understand, this is a serious matter and it is inevitable notwithstanding the terms of s 5 Crimes (Sentencing Procedure) Act that a term of full time imprisonment must be imposed. 73I trust that you get proper treatment and I ask that the orders I make contain a further recommendation that the offender be properly assessed and properly treated whilst in custody in respect of his medical conditions. And I again recommend that he be returned, at this point, to the Justice Health facility at the appropriate institution firstly for assessment for classification, 74ABBOTT: Thank you your Honour. ********** 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: 18 September 2012