District Court New South Wales Medium Neutral Citation: R v Blake Geoffrey ELLIS [2012] NSWDC 170 Hearing dates: 28/06/12 Decision date: 03 July 2012 Before: S Norrish QC DCJ Decision: CONVICTED: Sentenced to a term of imprisonment which consists of a non parole period being 6 years to commence on 10/5/2011 and to expire on 9/5/2017. The balance of the sentence being 3 years and is to expire on 09/05/2020. The total sentence of imprisonment is 9 years. Destruction of the drugs and the forfeiture of all property seized during the search ordered. Catchwords: CRIMINAL LAW: Sentence - manufacturer of prohibited drug; joint criminal enterprise, special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Postiglione v R (1997) 189 CLR 295 R v Jimmy (2010) 77 NSWLR 540 Green v R (2001) 86 ALJR 36 Lowe v R (1984) 154 CLR 606 Muldrock v R [2011] HCA 39 R v Wright [2009] NSWCCA 3 R v JW [2010] NSWCCA 49 R v KR [2012] NSWCCA 32 R v Sukkar [2011] NSWCCA 140 R v Wright [2009] NSWCCA 3 Category: Sentence Parties: Director of Public Prosecutions Blake Geoffrey Ellis (Offender) Representation: Mr L Carr (Director of Public Prosecutions) Mr G Goold (Offender) File Number(s): 2011/152935 SENTENCE 1HIS HONOUR: Blake Geoffrey Ellis appears today for sentence in relation to an offence alleging that he, between 24 November 2010 and 15 December 2010 at Werris Creek in the state of New South Wales did manufacture an amount of a prohibited drug, to wit, 19.275 kilograms of 3,4methylenedioxyamphetamine, otherwise known as MDA, which was not less than the large commercial quantity applicable to that prohibited drug. The maximum penalty for this offence is life imprisonment. The standard nonparole period for this offence is fifteen years imprisonment. A large commercial quantity of the drug MDA is a quantity not less than 500 grams. The prisoner has been in custody, as I understand it, since 10 May 2011 and any sentence to be imposed will date from that date. 2In this matter the Crown tendered a fourteenpage statement of facts which was not an "agreed statement of facts", in that it was signed by the prisoner and/or his legal representative. However, the Crown submitted, without specific dispute from learned counsel for the accused, save for matters I will deal with in my judgment, that essentially the facts to a large extent were not in dispute. The matters the Crown submitted were in dispute, however, were: (i) the offender's involvement in the actual process of manufacture that commenced after 24 November 2010 and had finished by 15 December 2010; (ii) the offender's role in the joint enterprise to manufacture MDA; and (iii) the amount of time the prisoner was present at the Werris Creek property between 23 November and 16 December 2010. That is, the date that was typed in the facts, but in fact the dates are not exactly accurate in that respect. 3As can be seen from the facts presented and the facts as I find them, the three matters identified very much overlap and are intimately bound together. 4The statement of facts that was tendered, however, transpired to be somewhat misleading. For instance, it was found to be materially incorrect in particular respects and required amendment during the course of the proceedings. It was difficult to work out where some of the information within the statement of facts had come from. It would appear that it was based upon a range of sources, a number of which are not identified. Only in the course of discussing the matter with the parties, particularly the Crown, was it revealed to the Court clearly that part of the material was based upon information provided by AD, the person who has provided information to the authorities as an associate of the person described as "the financier" referred to in the facts as SY. Some of the representations within the facts were based upon surveillance material, some were from police investigations and observations, some were from phone records, statements and other sources. 5The learned solicitor for the prisoner gave an indication that the critical issue for determination was the role of the prisoner in the context of an admission of involvement in the joint criminal enterprise. In order to assist the Court in relation to the fact finding, particularly in relation to the matters identified specifically by the Crown, the prisoner commenced to give evidence in relation to the matter. However, within a very short period of time he indicated that he would not answer questions which identified particular people with whom he was associated. This situation was somewhat absurd, given that the particular people in question were already identified in the facts. 6Perhaps the prisoner feared that by giving evidence about matters referred to in the facts, he might provide material that may be used in proceedings in relation to the co-accused. There are a number of people referred to in the statement of facts who are still to be dealt with by the Courts in one way or another. 7He also said, in circumstances where I was on the verge of directing him to answer questions, that he had fears for his safety. The reason for this was not made clear to me, save for the fact that, no doubt in associating with others in this joint criminal enterprise, he was associating with a number of unsavoury, perhaps dangerous, people. The extent of their danger to him was not made known to me by any evidence. 8A cynical response to the prisoner's plight, simply to state the obvious, was that in choosing to associate with the people that he associated with up until the time of the commission of this offence, he ought to have been more discerning. 9I am mindful of the fact that in January 2012 whilst he was in custody, an unknown person caused damage to a motor vehicle belonging to one of his parents. In the information contained within police documentation the damage was valued at $4,000. This matter was reported to the police, as was the fact that two days later a piece of paper was found in the letter box of the home of the parents of the prisoner upon which was written, "If B talks your(sic) next bitch". The note was produced to the Court as an exhibit. The author of the note of course is unknown. There is the suspicion by the prisoner's parents that it is related to the accused's co-accused, and the likelihood is that it has some connection with people that are awaiting appearance in Court. 10Although acknowledging there are difficulties for the prisoner in giving evidence, it must be said that it was totally unrealistic to call the prisoner to give evidence that would have been relied upon to establish facts in the case, when the witness, either on advice or of his own motion, was not prepared to give full particulars to enable his version of events to be either challenged, verified or even properly understood. In any event, the choice by him not to continue his evidence - he was granted leave to have his evidence withdrawn the following day - was his, taken on the advice of his counsel. It should be noted that I indicated to his counsel that, short of directing the prisoner to answer the questions, there were various other alternatives. I can compel the witness to answer questions. Or I could close the Court, or I could direct no publication of the evidence, or any one of those combinations. 11I appreciate that his unwillingness to continue with his evidence was no sign of disrespect for the Court. On the other hand, I do not understand why the way in which the sentence proceedings of his coaccused were conducted could in any way inform the manner in which this prisoner would be allowed to give evidence in these proceedings. That MH could give evidence without disclosing any relevant details or any particular details is a matter for that sentencing judge, not a matter that assist me in any way in conducting these current proceedings. I was not given the benefit of a transcript of what occurred in the sentencing of MH, to whom I will refer shortly. In any event, ultimately, I draw no inference adverse to the prisoner by his failure to complete his evidence. 12The essence of the charge to which the prisoner pleaded guilty arises from the fact that at 2pm on 15 December 2010 a white Hiace van that had been rented was stopped at Quirindi by a Highway Patrol officer and the driver submitted to a random breath test. In the vehicle were two men, MH who had been sentenced by her Honour Judge Payne on 27 January 2012 and AM. The police officer was told by the occupants of the Hiace van that they had come from Werris Creek. Their conduct raised the officer's suspicions. The occupants of the motor vehicle made admissions that they had been at a property near Werris Creek for approximately three weeks, the van had been rented for $500 a week. 13A subsequent search of the van revealed glassware, including a condenser tube and a reaction flask, clearly associated with the manufacture of prohibited drugs. The two men were arrested, as I understand it, in relation to their possession of implements that may be used in the manufacture of prohibited drugs, and were subsequently taken to the police station at Tamworth. Investigations continued. They apparently were released on bail to be arrested a short time later when other finds were made in the van. 14The statement of facts sets out the detail of the search of the vehicle, which need not be dilated upon, beyond noting a range of glassware was found, as well as other items consistent with the manufacture of prohibited drugs. The glassware was subsequently tested and proved positive to the prohibited drug, which might shortly be called MDP2P, and other substances. A number of the substances that were identified in the glassware, or traces of which were found in the glassware, were precursors in the manufacture of the prohibited drug which the prisoner has been charged with, that is, manufacturing MDA. 15In addition to precursors for the manufacture of MDMA, which is otherwise known as 'ecstasy', a mobile phone and a Blackberry phone were found. Ultimately, the police found sixteen vacuum-sealed plastic bags containing beigecoloured powder in each. The powder contained within it, on analysis, the prohibited drug MDA, and the net weight of the powder was 19.275 kilograms. 16I have the analyst's certificate and a schedule of the purity of the various bags of the prohibited drug. The average estimated purity ranged between 8.8 and 10.3 per cent, generally in the low nine per cent range, and the table presented by the Crown shows the presence in the powder of other substances which might be described as cutting agents, such as caffeine and lactose. The presentation of the powder indicated that it was ready for pressing as pills. 17The drugs, as it transpired, but unknown to the police at that stage, had been manufactured at a property situated at Lot 1, 410 Perlwar(?) Road near Werris Creek in what were described in the facts and the photographs as shearing quarters. I have evidence that the wholesale value of the prohibited drug seized, if each pill manufactured weighed an average of 0.31 grams at ten dollars per pill, was $621,690. At ten dollars per pill, with each pill weighing 0.37 grams, the wholesale value was $520,880. This would seem to be the amount of the wholesale value of the drugs settled upon by her Honour Judge Payne. 18MH and AM were, as I said initially, released on bail. MH, as I understood it, was arrested at the airport about to fly home, he believed, at that time. AM was arrested a short time later. Their arrests followed upon the finding of the prohibited drugs which, as I said, occurred apparently after they were granted bail. 19Subsequent to the van being stopped, the prisoner and a person called AF, who is alleged to be a principal in the manufacture of the prohibited drug, met up with SY and AD at the Ibis Hotel in Darling Harbour, having returned from Werris Creek to Sydney during the period of time that AM and MH were dealing with the police. The evidence reveals that AF, AM, the prisoner and MH were residents of the Cronulla/Sutherland area and had known each other for a number of years before the commission of this offence. AD states that the accused and AF were agitated on meeting with SY. AF and the prisoner requested money, according to the informer, to depart from Australia. The following day AF and the prisoner were observed by members of the Crime Commission, who had installed covert cameras and listening devices at a property at Elizabeth Bay associated with SY. 20The facts state, based upon the information provided by AD, that AF and the prisoner were given money by SY. AF and the prisoner travelled to the airport, it would seem directly, bought open tickets to Hong Kong, paying in cash, and immediately departed for Hong Kong without any luggage, obviously to avoid apprehension. In fact, they ultimately ended up in Bangkok, Thailand. The offender returned to Australia of his own volition on 18 January 2011, and I will deal with that aspect of the matter, which nobody placed much emphasis on in submissions, later in my findings of fact. He was not arrested until 10 May 2011. AF was the subject of an arrest warrant issued on 5 April 2011 and was arrested on a warrant in June 2011, to be ultimately extradited back to Australia in August 2011. I note that the prisoner is not alleged to be involved in any criminal conduct on his return. 21On the evidence available to this Court, the earliest contact between the prisoner and SY was when he attended a meeting in company with AF, also attended by AD, in the eastern suburbs. AD was not present when there were conversations that occurred between SY, AF and the prisoner. This meeting was on 31 October 2010. From evidence obtained from a receipt from Bunnings at Caringbah, recovered by police in their investigations, the prisoner and another person, initially, I hasten to say, identified as MH, but because of the findings of fact by Judge Payne, now a person unknown, attended upon Bunnings and purchased various goods in the sum of $1,663.36, out of a sum of $1,700 in cash proffered by the purchasers. The various items that were purchased were associated in various ways with the subsequent manufacture of MDA or other prohibited drugs, or were capable of being so used. 22On or about 2 November 2010, the prisoner and another person attended upon Burson Auto Parts in Cawarra Road, Caringbah, and ordered amounts of hosing, which apparently were collected the following day or the day after. From what I can work out, the prisoner paid $133 of the $400-odd dollars cost by an EFTPOS transaction. A police investigation which ran parallel with the impending manufacture of MDA at Werris Creek, which commenced in November 2010 from information from a member of the public, led to the search of the property at Coolumburra near Nowra on or about 22 November 2010. That search revealed various items associated with the clandestine laboratory, although no laboratory had been set up at that point. Amongst the items found was some of the hosing that had been purchased from Burson Auto parts by the prisoner in early November. As I understand the evidence, there is no evidence of any physical connection, other than the hosing, by the prisoner with that property. 23On 21 November 2010, two people, AD and RG, left a business called Lab Supply with glassware and other equipment that had been ordered by others for the manufacture of prohibited drugs. This was taken to a cul de sac in the suburb of Yowie Bay, which is in the Cronulla/Sutherland area, close to the home of AF, formerly the home of his father. The prisoner, AM and AF met the delivery and the glassware was transferred into a plain white van consistent with one of the white vans seen at the Werris Creek property where the manufacture of MDA subsequently took place. 24Police investigations revealed that a man called GR lived at, or had control of, the property at Werris Creek, earlier mentioned. GR had an association with a person called EB up until 24 November 2010. On that date, EB met with GR and EB told GR that there were, "three vans on the way up to Sydney" and the occupants wished to use a shed on GR's property, on GR receiving a payment of $50,000. Not surprisingly, GR found the offer "too good to refuse". 25After a meeting between GR and EB at a hotel in Werris Creek, GR met up with the vans near the town and guided MH, AF, the prisoner, as well as other males including, it is believed, AM to the property. The prisoner, AF, MH and AM unpacked the vans of the equipment which was placed in the shearers' quarters and ultimately set up to comprise a laboratory. Obviously chemicals and other substances were brought to the property to be used in the manufacture of the prohibited drug. 26EB returned to Sydney the following day, 25 November. After the unloading of the various vans, one van left and at least one van remained, as did the prisoner, AF and MH at least. The evidence reveals that the prisoner returned to Sydney by plane on the 3rd and returned to Tamworth on 4 December. He was seen at the Werris Creek property on 14 December 2010 when he spoke to GR and asked GR to provide a phone number so GR could be contacted to receive his payment. This conversation in fact took place in the early hours of 15 December 2010. On that date, GR saw two white vans and another van he described as an electrician's van, with letters on the roof. This van is said to be the prisoner's father's van, the prisoner's father being an electrical contractor. There is no dispute, as I understand it, that the prisoner's father owned a van of a similar description at that time. 27On 15 December 2010 the prisoner, AF, MH and AM packed the manufactured prohibited drug seized by the police in one of the vans and the various chemicals and equipment into each of the van that were available and ultimately left the property. I note the van of the prisoner's father was debited at 4.30am on an E-tag travelling on the eastern distributor on a northbound motorway on 15 December. Later, at 7.07pm, it was debited travelling across the Sydney Harbour Bridge on the southbound road. This is consistent with the van being driven north on 15 December from Sydney and returning that evening from Werris Creek. It is possible that the prisoner was the person driving the van north, likely one would have thought given that the van belonged to his father, and is consistent with the prisoner not necessarily having been at the property at Werris Creek continuously from 4 December until the laboratory was packed up. 28As it turned out, GR received no money for permitting his property to be used. He received an electricity bill for $800 for the period of the manufacture which was triple the normal usage rate. When he inspected the quarters he smelled a smell consistent with the use of chemicals that lingered for months, as well as other indicia of the manufacture of prohibited drugs, including various stains on the floor and on the walls. 29The white Hiace van intercepted by the highway patrol at Quirindi, when examined by police subsequently, rendered fingerprints of the offender, MH and AF on flasks and other equipment used for the manufacture of MDA. DNA testing of the sixteen bags for the prohibited drug was unsuccessful in matching any DNA profiles with the prisoner. Experts formed the view that some of the glassware and equipment located in the van was used in the preparation of the 19.275 kilograms of MDA that was found. 30One of the vans was rented from the Hertz organisation at Arncliffe on 17 November 2010. A person by the name of Thomas Rose was used to hire the motor vehicle. He declined to cooperate with police and now lives in England. AM rented a Hiace van on 24 November 2010, which vehicle was returned to the rental company the following day. The mileage on the vehicle returned was consistent with a round trip from Sydney to Werris Creek. 31Another white van was rented by a "dummy", as I would understand it, on 18 November 2010 and returned on 17 December 2010. It had travelled 2,423 kilometres. The renter, a man called Andrew Truscott, left Australia afterwards for Dubai. He has not returned as I understand the position. 32A search of the property where the laboratory was set up was conducted on 22 March 2011 with the execution of a search warrant. Fingerprints identification was made of AF, MH and the prisoner on a toaster, the DNA of the prisoner and others was found on separate cigarette butts throughout the shearing quarters, the cigarette butt with the accused's DNA profile was found in a room where the manufacturing process took place. Other DNA evidence linking the prisoner to the property was located. The prohibited drug MDA was found on the walls of the quarters and on items that were used in the manufacture of MDA that were left in the premises. 33I should point out that, as I understand it, MDA is a prohibited drug which is sometimes passed off as MDMA or ecstasy. It has a very similar chemical constituency to ecstasy without the methyl component (as in methylamphetamine). From information made available to the Court, out of various quantities of MDMA or thought to be so by a purchase, approximately 1.4% of submitted samples are in fact MDA. GR does not assert that he saw the prisoner AF or MH every day. As I said, in relation to the prisoner's presence on the property, apart from his travel back and forth to Tamworth on 3 and 4 December, the major evidence concerning his movements is evidence that his mobile phone was effectively off the system, not operating or turned off between approximately 24 November and 3 December and between 4 December and the time that the parties left the Werris Creek property in mid December. 34Noting all that has been put and noting the difficulty in ascertaining the course of what is claimed to be the evidence within the statement of facts, the prosecution has clearly established that the prisoner was part of a joint criminal enterprise to manufacture a large commercial quantity of a prohibited drug. The earliest involvement of the prisoner would appear to stem from his meeting with SY in company with AF on 31 October 2010. His first active involvement was the purchase of items from Bunnings on 1 November 2010 in company with another person. The process of manufacture was clearly conducted between approximately 24 November and 15 December. The prisoner was obviously present at various times through that period of time, although it cannot be established that he was there the entire period of time. Certainly he was not there between 3 and 4 December. He may well have returned to Sydney from time-to-time by road transport before 15 December, particularly in order to drive his father's van back to Werris Creek. Apparently, it would seem, because the group needed three vans to pack up. 35I am informed in the fact there were more than seven people involved in the relevant joint criminal enterprise. The prisoner's presence at the delivery of the glassware, the delivery of items to Werris Creek, the packing up of Werris Creek, being within the place of manufacture, his discussion with Reynolds about obtaining a contact number, amongst other matters, show that he clearly knew of the process of manufacture taking place. He knew or would have understood what the product of the process was, or the processes of manufacture were that occurred over the period of time that the clandestine laboratory was set up. He was present for a number of days to contribute to the process of manufacture, either by directly involving himself in that process of manufacture or assisting those he did. 36His asthma, which is well documented, may have inhibited him in his presence within the laboratory when particular chemicals were being used. Some chemicals used in the process - as I learned from a trial I have just concluded which was exclusively about the manufacture of methylamphetamine - can create a sensation similar to the effect of ammonia. But, on the other hand, there were respirators present to assist with breathing. Anybody, even somebody without asthma, would have had difficulty breathing from time-to-time throughout the process, and the processes involved in the manufacture of MDA, like methylamphetamine, take a number of stages which do not necessarily all involve difficulties with breathing. 37He had assisted in the packing up of a large commercial quantity of prohibited drug manufactured, the glassware, the related chemicals and other equipment. The Crown has submitted that the prisoner was a principal in the enterprise, asserting that the prisoner was an important member of the enterprise and was a person who could be described as "upper management", having a more significant role than that of MH and not less than AF. In support of these submissions, the Crown points to these matters. (i)The prisoner's involvement in purchasing items at Bunnings. (ii)The purchase of the heater hoses. (iii)The transportation of equipment to Werris Creek. (iv)Unloading the equipment and setting it up, albeit that his exact role at the Werris Creek property is not clear but he was certainly present as part of the joint criminal enterprise. (v)Although he left the property he returned. (vi)He packed up the equipment and was involved in transporting equipment and unused items from the Werris Creek site. (vii)He expected financial benefit. (viii)He was involved at a "early stage" having regard to the chronology of the purchase of relevant items as can be ascertained by the prosecution. (ix)He had direct contact with the principal of the operation, SY, who as I said, was described as the financier. (x)He received money from SY to leave the country. (xi)The prisoner discussed with GR, matters concerning a contact number to arrange payment for Reynolds. 38On the other hand it should be pointed out these matters are reflected in the evidence: (i)There is no evidence that the prisoner financed any aspect of the operation, except for paying or being present, when the payment was made of $1700 at Bunnings, for the purchase of the hoses and contributing a modest amount in that regard. (ii)There is no evidence the prisoner had any financial resources to properly finance any aspect of the operation. The evidence unchallenged is that at the time that he was seeking to flee the country, he borrowed nearly $3000 from his sister before he went overseas. No banking records have been produced to show that he had any substantial assets at that particular time. (iii)There is no evidence that the prisoner was involved in hiring vans, choosing the location for manufacture or financing the purchase of equipment such as glassware, chemicals or paying rent for any particular location. (iv)There is no evidence that the prisoner had any chemical or drug manufacturing skills, any past involvement in the manufacture of prohibited drugs, or any specialist knowledge in relation to the manufacture and distribution of prohibited drugs, in fact, apart from some cannabis use. There is no history of significant drug use on his part at all, according to the histories he has given others. (v)The Crown's facts and considerable detail reflect upon the information provided AD, the close associate of SY, and they reveal that the prisoner was not known to AD until the prisoner met with SY in company with AF. He had little to do with AD and SY, save for what I have outlined. (vi)AD does not provide any information of first hand knowledge of the prisoner's involvement in any arrangements or preparations, relating to the matter beyond his observations of meetings with the prisoner. Whilst AD met the prisoner when equipment was delivered on or about 21 November, it is to be noted that AD had meetings with others, including AM, to provide him with equipment when the prisoner was not present. 39Evidence was given by a police officer that SY was the financier of the criminal enterprise and that AF held a senior position. There were opinions expressed by the officer in charge of the matter, but I was not taken to any particular evidence to support of the analysis he gave. More importantly for my purposes, the prisoner was described as a "long time" associate of AF and was either at the same level or a little lower in the order of seniority of the enterprise. I asked the officer if in fact he had a signed organisation chart from SY, AF and/or the prisoner and he replied, that he did not. No such organisation in fact, was relevantly identified in any meaningful way, beyond as I have outlined it. I note in relation to the evidence that officer gave, that it was not alleged that the prisoner had access to or used one of the alleged encrypted Blackberries, that were used by members of the enterprise. As I understand it, there are no relevant intercepted telephone calls suggesting any particular relationship with the prisoner with any other members of the enterprise relevant to the furtherance of the criminal enterprise. 40I also note notwithstanding Judge Payne's findings regarding the role of MH, that MH and AM were entrusted with the transport of the manufactured drug. This was not the subject of any particular submission by either the Crown or the defence. I note that neither man co-operated with the initial police investigation and that is revealed by the fact that the prohibited drug was not found until after they were granted bail, having to be arrested a short time later. 41If I may turn to the sentencing of MH and the relevance of its outcome to the sentencing here, as I said, MH was sentenced by her Honour Judge Payne on 27 January 2012. Her Honour's analysis of the evidence does not provide a great deal of detail, although she gives her reasons for concluding as she has, the role of MH and the objective seriousness of his criminality. This is not a criticism. But is relevant to the regard I should give to her findings for current purposes. It is to be noted that MH pleaded guilty to the same charge to which this prisoner has pleaded guilty. The learned trial judge imposed a sentence comprising a non parole period of six years, with a balance of sentence of three years and four months, making a total of nine year's and four month's imprisonment. There was a finding of special circumstances as is self evident. MH was given a discount of fifteen per cent, to represent the utilitarian benefit of the plea of guilty. The plea was entered on 10 December 2011 as I understand it, prior to trial but the intention to plead having been communicated in late October. It should be noted the trial of that prisoner was first listed in the Tamworth District Court on 24 October 2011, and for various reasons transferred to Sydney. There was no committal proceedings. There was a waiver of committal. In relation to MH there was a finding that the prisoner had taken responsibility for his offending behaviour and otherwise demonstrated his contrition, as required pursuant to s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. 42So far as his role in the criminal enterprise like the current prisoner, he had an association with a number of the co-offenders through the Cronulla area. He was sentenced as being part of a joint criminal enterprise. In his case there was no evidence linking him to: (i)the purchase of the chemicals used in the manufacture of the prohibited drugs (ii)the purchase of the glassware used for the Werris Creek manufacture (iii)the finding of the joint criminal enterprise (iv)the renting of the vehicles (v)nor any involvement with the affair at Nowra. 43There is no evidence that showed that he had been involved in the selection of the Werris Creek property. 44All of these observations could equally be made of the prisoner. As I said the prisoner did buy the hosing from Bursons and the items from Bunnings. Those items I point out included respirators, masking tape, various tools, petrol cans and other items including clothes pegs, related to the manufacture or supporting the presence of people at the shearer's quarters for the purposes of the manufacture of MDA. MH was sentenced on the basis of his involvement in taking items to Werris Creek, setting up the laboratory, remaining on the property during the course of the manufacturing process, building benches in the shearer's quarters so the glassware could be assembled upon it, purchasing food, beverages and fuel when necessary. Such details are not available for positive conclusion in relation to the prisoner appearing today. It was also pointed out by her Honour that MH was involved in the disassembly of the laboratory and the clearing, with AM, of the premises. As I have pointed out, he was entrusted with the custody of the product of the manufacturing process. 45The learned sentencing judge accepted that MH was invited to participate in the joint criminal enterprise on Monday 23 November. This was not what was first asserted before me until the facts were amended. He was given little time to consider whether or not to participate. He was at the property working in the role that was described, between 24 and 29 November. He flew back to Sydney on 20 November to attend a probation and parole officer's appointment, returning on 1 December 2010, and remained at the Werris Creek property between 2 and 5 December inclusive. He drove back to Sydney in one of the vans, came back to Werris Creek on 15 December. She calculated the prisoner had been on the property nine and a half days and the prisoner was to receive a trip to Bali for his efforts, to the value of $4,000 to $5,000. 46It was accepted that he performed fairly menial tasks. He was a "step and fetch support service". His participation was spontaneous. He had a low level of involvement. He was to receive little by reward, and had little time to consider participation. It might be added, as her Honour must have found, that he did participate, not over a matter of hours but over a matter of weeks. She concluded that the offence fell in the middle range but in the lower end of that range. His role was "not insignificant", nor was it fleeting or over a very short period, and he was a, "trusted and important assistant to the principals, particularly so during the critical stage of manufacture". He clearly had a "very good idea" of what was going on. 47I note MH was two year's older than the prisoner. He was first convicted in 2001 for driving with high range PCA. He had convictions for assault occasioning actual bodily harm, assaulting police officers, damage to property and stealing property in a dwelling by 2004. In 2005 he was convicted of failing or refusing to undergo a breath analysis. In 2006 he was convicted of offensive manner and common assault. In 2008 he was convicted of destroying or damaging property for which he was fined and for behaving in an offensive manner as well as assaulting a police officer in the execution of this duty. For that last offence he received a good behaviour bond for a period of two years, on and from 15 October 2009. He was in breach of that bond when he committed the offence with which I am concerned. 48In October 2010 he also received a bond for eighteen months to be of good behaviour for destroying or damaging property. He was also in breach of that bond at the commission of the subject offence. When sentenced he had a matter taken into account, on a Form 1 relating to the possession of the glassware but that was a matter of no moment, because it was inadvertently bound up with the facts relating to the principal offence. Of course, the sentencing of MH the only person thus far sentenced as far as I am aware, is highly relevant to the sentencing of this offender. The two men were convicted of the same offence, and were involved in the same criminal enterprise. Determining their respective roles as best one can from the available evidence, is one aspect of the extent to which there should be parity or disparity in their sentencing. 49Noting differences in discounts to be applied, bearing in mind, as I will point out later, the prisoner receives a discount of twentyfive per cent. In noting the differences in subjective circumstances, is another matter to be taken into account. Equal justice requires like to be treated alike and the appropriate distinction drawn to the extent of the "unalikeness" of the offenders, their offending and their backgrounds. Equal justice is the fundamental principle from which party derives (see Postiglione v R (1997) 189 CLR 295, particularly, at 301-302 per Dawson and Gaudron JJ). As to the treatment of co-offenders and making due allowance for their "un-alikeness", see the discussion on "equal justice" by Justice Rothman in R v Jimmy (2010) 77 NSWLR 540, particularly at 597-598. 50This matter, of course, does not give rise to consideration of significant and fundamental differences that arise for example, where cooffenders are convicted of different charges, discussed in Jimmy. Nor here are the issues that arise the same as those considered in Green v R (2001) 86 ALJR 36. Disparity between offenders may be justified by differences between co-offenders as to their role and culpability and as well, as to other matters such as differences in age, background, criminal history, general character and relevant mitigating and aggravating factors that arise under the Crimes (Sentencing Procedure) Act. 51I also note Green in relation to the issue of the notion of equal justice and its role in the sentencing of co-offenders. I note particularly the observations of Dawson J in Lowe v R (1984) 154 CLR 606, and Mason J in Lowe v R, (at 610). 52Justice Mason said: "The notion of equal justice is a fundamental element in any rational and fair system of criminal justice. Inconsistency in punishment because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence and the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 53If I can turn to the subjective circumstances of the prisoner for the moment. He was born in August 1985. I note he was almost two years younger than MH. He has a number of convictions in the Local Court for crimes of violence including a conviction for assault occasioning actual bodily harm for which he was fined $1,000 and placed on a good behaviour bond for twelve months in 2006. This in fact was his first major conviction. He breached that bond and the bond was replaced by a hundred hours community service. He was convicted of behaving in an offensive for which he was ordered to perform more community service. At the time of the breach of the bond in March 2007, he was convicted of resisting a police officer in the execution of his duty on 22 June 2007 and fined $750 and ordered to pay court costs. 54On 1 July 2010 he was convicted of "affray" for which he was fined $600 and ordered to pay court costs. That matter seems to arise out of what was claimed to be an attempt to defend a friend. For a conviction for common assault dealt with at the same time as the breach of the bond for the assault occasioning actual bodily harm matter, in early 2007, he was sentenced to eight months imprisonment, suspended pursuant to s12 Crimes (Sentencing Procedure) Act, and placed on supervision. 55He has also been convicted of driving whilst suspended for which he was fined and disqualified from holding a motor vehicle driver's licence for twelve months. He has no convictions for drug supply nor use. He was not subject to any form of conditional liberty at the time of the offence. He did manage to perform the requirements of the suspended sentence. I have a reasonably detailed Probation and Parole Service report. It relevantly notes the background of supervision. It states in relation to the period of supervision, which in fairness did occur some five years ago, when the prisoner would have been approximately twenty-two: "During this supervision period, Mr Ellis' attempts to address his offending behaviour was short lived as he failed to attend the recommended ongoing psychological counselling, although his supervision was terminated early on 31 October 2007, Mr Ellis struggled to complete his CSO hours until March 2008." 56The report sets out his background. The prisoner is the second of three children. He is said to have had a happy childhood. His father advised that Mr Ellis and his siblings upbringing was subject to ongoing parental conflict in relation this mother's health issues. Although there was no domestic violence and the parents remained married the supposed conflict between them was most severe when Mr Ellis was aged between eleven and fifteen years. 57During his teenage years and his early twenties he experienced behavioural problems associated with anger and aggression as his record makes clear. His mother declined to discuss the prisoner with the Service. His father stated that the extent of Mr Ellis' poor impulse control, poor decision and his inability to consider the consequences of his actions have been the contributing factors in his belief to the prisoner's offending behaviour. 58He is supported by his family, but a relationship he had a with woman prior to coming into custody has not survived his incarceration. He was an unspectacular student at school. He left school at sixteen years of age, but he completed an apprenticeship as either an electrician or an electrical mechanic in his father's business. He continued in his employment with his father until May 2010. According the Probation and Parole Service references made in that report to his father's financial circumstances which I will deal with in a moment. 59The report notes as other documents available to the Court show that the prisoner was an Australian champion in various extreme sports and games and represented Australia in 1999 and 2000 particularly in the area of skateboarding. Being a champion athlete, in particular so many years before the commission of this offence, is little mitigation. There is reference in this report to a background of anxiety and "depression" and the provision of medication for that condition. There was recommendation by a psychologist back in 2007 for the prisoner to address his anger management issues. It is clear that he did not take any advice from the psychologist, preferring to hang around with people that clearly were of criminal propensity. Whether the prisoner was being hired as a bodyguard, or not, it is impossible to conclude. He certainly showed little interest in addressing the issues that brought him to Court in 2007. 60The prisoner admitted to social use of cannabis and claims that this is where he came to know his co-offenders. He told the Probation and Parole Service that his behaviour was "motivated by stresses and worries associated with the financial problems of his father's business that had affected the whole family". He claimed that these stresses contributed to poor decision making to obtain financial proceeds from drug manufacturing. The prisoner according to the Probation and Parole Service did not try to minimise his offence, although he did not agree with the "police facts in entirety". In fairness to the prisoner I have got absolutely no idea what piece of paper with writing on it was given to him to consider as being the supposed facts in relation to this matter and whether the facts that were provided to the Probation and Parole Service were in fact the same facts presented in this Court. 61The prisoner said that he did not think of the consequences during his involvement in this crime. He was looking for an "easy fix". He has had no behavioural issues in custody. He has undertaken various programs to deal with sleep difficulties and is employed as a sweeper. He was cooperative with the Probation and Parole Service. The Probation and Parole Service stated: "As reflected in his criminal history making poor decisions and taking inappropriate risks that have resulted in his offending behaviours would indicate that Mr Ellis appears to lack cognitive ability to consider consequences for his actions. Mr Ellis acknowledged that he lacks foresight and the ability to cope with challenging or stressful situations. Given this M Ellis may benefit from having a comprehensive psychiatric or psychological assessment with cognitive behavioural therapy and further intervention by this service to address his cannabis use and offending behaviour." 62He is thought to require a medium level of intervention by the service. 63There was some medical evidence, which was very thin indeed. Discharge summaries were tendered from Sutherland Hospital which do confirm that the prisoner has suffered from asthma for a number of years, including an admission to an emergency ward at the Sutherland Hospital in May 2006 for a severe asthma attack. He has been treated in the past for a head injury that came as a result of a motor vehicle accident. I note in relation to that matter that he in fact discharged himself on the day of the accident, so he could not have been too badly injured. He also was admitted to hospital as a result of an assault, a head injury causing a wound after he was bitten on the head. There did not appear to be any evidence of concussion. He also suffered a hand injury from punching a person in the head. Apart from his asthma there were no continuing medical issues for the prisoner on the evidence available to this Court. 64His sister gave some evidence of when skateboarding he suffered some head injuries. There is no medical evidence to confirm the extent of these injuries, their significance or whether they continue to affect him. 65A large number of references were tendered from persons who have known the prisoner from varying periods of time in varying contexts. Some of the evidence referred to his sporting prowess, his involvement in Oztag in the Cronulla Sutherland area and in boxing, the "sweet science" that the prisoner should well stay away from one would have thought given his criminal background, as well as his involvement in skateboarding. Other references related to contact he had had with business associates and friends of his parents or contacts he had made through persons independent of his parents. The referees generally speak of the prisoner's involvement in drug manufacture as being uncharacteristic. This is no surprise bearing in mind his criminal history. Each referee speaks of their disappointment in the prisoner's involvement in serious crime, although some do not seem to be aware of his other criminal history. Assault occasioning actual bodily harm is a serious crime. 66I accept the theme of the references that the prisoner is a considerate person to others. He is helpful and willing from time to time to volunteer himself for community sport activity and other charitable works. He has made a contribution to Camp Good Time run by Sydney Children's Hospital to help families with children suffering from HIV Aids. Many of the referees were involved in organised sporting activities, business and professional pursuits. His referees include an accountant, a solicitor, a retired detective from the New South Wales Police Force, business people and the like. To these people the prisoner is a trustworthy person who has the capacity to make a responsible contribution to the community. 67The references from the family accountant and others confirm the financial difficulty of the prisoner's family, particularly the prisoner's father occurring prior to the prisoner's involvement in the current offending which threatened the business where prisoner was employed. The referees speak of the prisoner's helpfulness. 68The prisoner in the interview with the Probation and Parole Service and the prisoner's sister provide some evidence, along with that of the family accountant's statement, that the prisoner's involvement in the commission of the current offence was in some way associated with what the accountant called "constant financial pressure" that the family was under in some way seeking to assist his parents to meet their ongoing financial commitments. 69The prisoner's father as I said is a licensed electrician who conducted his own business apparently for a number of years before striking financial difficulties because of poor advice from a financial advisor. I have no doubt that the financial difficulties for the family and problems that may have existed in conflict between the prisoner's mother and father over the mother's health created some stress for the prisoner. However, they have little, if any, causal connection with the commission of the current offence. 70The father was made a bankrupt as far as I can work out, with the appointment of a Trustee in Bankruptcy on 25 September 2009, more than a year before the commission of the offence. According to the prisoner's tax returns the prisoner continued to be employed by his father subsequent to his father's affairs being run by a Trustee of Bankruptcy. The prisoner earned $50,224 according to the tax return for the tax year ending 30 June 2010 and $40,047 for the tax year ending 30 June 2011. This was a year which included a month where the prisoner was in Thailand. It included the month that the prisoner was involved more or less with the Werris Creek activities and of course the prisoner was in custody from 10 May 2011. It would seem that the father's bankruptcy did not prevent him trading, or paying his son's wages. 71I accept that the father's financial circumstances may have threatened the prisoner's then employment and it may well be that he prisoner from whatever he was to receive from his involvement in this event he may have sought to assist is father or his parents in some way. However, absent evidence from the prisoner and denied any details from him as to what he was to receive for his involvement in his criminal activity, it is not possible to conclude that the commission of the crime was for altruistic reasons or solely altruistic reasons. In any event that would afford little in way of mitigation, if any, that the prisoner involved himself in serious criminal activity to assist his parents financially. This is not much consolation to the people that could be damaged by the use of the drugs. 72The truth of the matter is that the evidence suggests that the prisoner's involvement in the commission of this crime had more to do with his associations of that time, including his friendships with AM, MH and AF, particularly AF than providing assistance to his parents. I accept from the evidence of the referees that the prisoner is capable of being a hard worker and generally supportive of his parents. On the other hand if it were reasonably possible that the prisoner may have contributed proceeds of the criminal enterprise when they were received to assist his parents, given their standing in the community, if they had known of the source of the funds, I very much doubt that they would have accepted the offer from that source. He certainly did not seek his parents approval to commit the crime. There is reference in the evidence to the circumstances of the prisoner's finances at the time of the criminal enterprise showing that he, as I said earlier, had little in the way of savings. 73I have two psychological reports, one relating to treatment in 2006, 2007, particularly in relation to the charges of assault earlier referred to and an up to date report from Mr Watson-Munro dated 22 June 2012. The first report in time provides little assistance other than noting a pattern of aggressive behaviour and the assessment of the presence of depressive symptoms in a moderate range. This is supported by some of the discharge summaries from Sutherland Hospital, which refer to a history of depression at the time the prisoner was admitted to the hospital on occasions. 74This first psychological report notes his poor performance at school. The fact that he was taking prescribed anti-depressant medication in 2006 and 2007 and reports the obvious poor history of anger management. He was provided with advice in relation to the latter respect. References made in the report to treatment by a psychiatrist but now psychiatric reports have been tendered. It was recommended that he receive further treatment for his anger management. 75Mr Watson-Munro refers to the prisoner as a "somewhat feckless individual" who had been impacted upon by the stress of his father's financial difficulties and the resultant pressure upon the prisoner's employment. Mr Watson-Munro based much of what he concluded upon what the prisoner told him which is untested. He stated that the financial difficulties of the family principally the father was essentially the context in which the prisoner agreed to become involved in the current matters that lead to him being remanded in custody. This is an unsupported over-simplification of the situation as discussed elsewhere. As I said earlier the prisoner gave the psychologist no history of involvement with illicit drugs, stating substance abuse was not relevant to his criminality. He could not claim that he was a person who was involved in this to obtain drugs for his own use. 76Reference was made to his head injury as a result of motor vehicle accident with possible long term affects. There was a statement made that a closed head injury might take twelve months for a person to return to what is described as "Baseline Functioning". The psychologist did not assert any signs of organic brain damage and as the motor vehicle accident in question, as far as I can work out from the evidence available to me, was in February 2006. The effects of it must have well and truly worn off by 2010. The medical notes show, in any event as I said earlier, that the prisoner presented with a headache after the motor vehicle accident and discharged himself on the same day, admittedly against advice. 77The prisoner has given the psychologist a history of poor impulse control and diminished threshold for frustration and "galvanised" sense of remorse once he came to grips with the realities of maximum security incarceration. He gave no indication of gross psychiatric disturbance, no thought disorder, delusions or any other mental illness. The only psychometric assessment that was applied, as I understand it, was revealed in the depression inventory which showed "significant depression and anxiety". Many of the symptoms recounted in the report reflect symptoms that are reasonably consistent as being reactive to his current circumstances. 78There is a reference to a lengthy interview with the parents who did not given evidence. Their particular difficulties are traversed. They asserted to the psychologist that the prisoner had significantly matured in gaol and that he had a tendency to be easily led. The psychologist noted that the prisoner was the youngest of the co-accused. The psychologist reports the expression of remorse to the parents and to himself. The psychologist opines that the history given by the parents reflects upon the prisoner's immaturity in concrete thinking. The psychologist in his conclusion states, "The essential diagnosis in this case is that of an anxiety disorder according to DSM IV TR criteria". 79He notes the prisoner's poor academic skills but has consider trade skills, underlying symptoms of inadequacy, impact of him being led in peer group situations and his claimed "strong desire to assist the underdog". Whilst that might assist him in fights down at "Northies" (North Cronulla Hotel) or other places, there is no explanation for him sticking up for the underdog as having any explanation for his involvement in this offence. 80The psychologist states these matters do have relationship to his convictions of violence. The psychologist describes the prisoner as being a "sensitive individual" who "tends to act without thinking". Again these reflections are more personal opinions than matters of scientific fact quite obviously. Certainly it is clear that the prisoner had plenty of opportunity between 31 October and 16 December to think about what he was involved in. The psychologist expressed the opinion that the prisoner needed cognitive behaviour therapy, medication and family support. He had a "very positive" prognosis. 81Of course, much of the psychologist report did not reflect upon other aspects of the prisoner's personality that may have contributed to his offending, including the strength of his friendships with the co-offenders as opposed to being "easily led". 82So far as the submissions are concerned the solicitor for the accused said the matter should be categorised as below the mid range. He noted that the prisoner's precise role was not clear and that he was not a financier. It was conceded however that he had a substantial role and the various matters I have outlined that really are not in dispute were acknowledged. However it was submitted that he was not a principal and it was submitted that he was not "directly involved" in the manufacture of the MDA ,there was no evidence that he was a chemist or had the necessary skills. 83A great deal of time was spent arguing about what he would have done during the period he was at Werris Creek. It seemed to me a great deal of time was wasted on this topic. The prisoner did not assist me in this regard beyond leaving open the fact that for a lengthy period of time either side of 3 and 4 December he was incommunicado, consistent with him being on the property and deliberately turning his phone off. As the prisoner has not assisted me, primarily because of his concern about his welfare, he has provided no direct evidence other than his admission of being involved in the relevant criminal enterprise and of course the nature of the criminal enterprise. 84There is absolutely no doubt that he was relevantly present at various times during the period of manufacture. Clearly he was involved for financial gain, although he has not assisted me with the extent of that. He may have been concerned to assist his parents in some way given their financial troubles, but again he has provided no direct evidence in relation to that matter. 85It was submitted that I should give the prisoner a twenty-five per cent discount for the utilitarian benefit of his plea of guilty. This is not disputed by the Crown. A plea of guilty was entered at the Local Court in a reasonable time after the prisoner had come back into custody. It was also submitted that the prisoner was relevantly contrite, had good prospects of rehabilitation, did not have a significant criminal history and whilst his involvement may be viewed as greater than MH he was entitled to consideration for a greater discount the different criminal history and the fact that he was not subject to conditional liberty. It was submitted there should be a finding of special circumstances. 86The Crown in its submissions correctly pointed out that the seriousness of the crime required specific and general deterrence. It noted the entitlement of the prisoner to the 25 percent discount. Reference was made to the High Court decision of R v Muldrock as it relates to a standard non-parole period (see Muldrock v R [2011] HCA 39). 87The essence of the prosecution submissions in relation to joint criminal enterprise was that each person involved in a joint criminal enterprise was liable for the acts of the others. It was also submitted by reference to authorities such as Goundar and Breedon from 2001 and 1992 respectively, that this principle does not automatically mean that every participant in such a criminal enterprise shares the same degree of objective criminality. The assessment begins with the proposition that each intended the crime and each set out to carry it into effect. In this regard I note that the Crown has submitted with apparently no dispute, what arises from the judgments of R v Wright [2009] NSWCCA 3 at [28], R v JW [2010] NSWCCA 49 at [160], per Hodgson JA (213) per McClelland CJ at CL, Howie and Johnson JJ. In that judgment the majority said: "Difficulties may whoever arise when a Court attempts to categorise the role of an offender in a criminal enterprise. Difficulties arise as the sentencing Judge is unlikely to know the full nature and extent of the roles of particular offenders within the enterprise. The applications of labels such as principal or middle order may obscure the assessment of what the offender did in leading to the erroneous sentencing process." 88(Relying upon the High Court decision of the R v Olbrich (1999) 199 CLR 270 particularly at [19] and [22]). 89With regard to authority relied upon I also note a judgment cited by the Crown of R v KR [2012] NSWCCA 32, where their Honours (at [16] - [18]) cite passages from various judgments. In R v Sukkar [2011] NSWCAA 140 Latham J, speaking for the Court, said at [19] to [22] that what emerged from the various statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise by whomsoever they are committed yet a particular participant's level of culpability stands to be assessed by reference to his or her particular conduct. She went on to say, inter alia, criminal responsibility and therefore liability to punishment attaches to the person voluntarily and intentionally performing those acts constituting the offence; citing O'Connor v The Queen. The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability. She went on to say (at [22]): "Culpability on the other hand is concerned with the assessment of an offender's moral responsibility for the offence as such. It assumes liability for the offence and focuses upon aspect of the offender's conduct and his subjective circumstances in order to determine the appropriate degree of punishment." 90The Crown submits that the assessment begins with the fact that each participant in this joint criminal enterprise intended the crime set and set out to achieve it. Each participant carried out a role to achieve the desired goal. There will be occasions that will call for a differentiation between the participants and the enterprise. It is relevant to refer to the particular conduct of each participant so far as it is known to the Court with a view to identifying the level of culpability for each must be sentenced. Of course, the only culpability in detail that I can identify is that of MH, that SY is the "financier" and that AF, the rather shadowy associate of the prisoner was a principal in some degree not particularised, except on reputation. 91The Crown submits that this is an offence in the upper bracket of the middle range of objective seriousness for the various reasons set out in it's submissions. Some of those matters involve consideration of matters which it conceded, in oral submission, were irrelevant as I have pointed out the Crown. I appreciate, in terms of assessing the objective seriousness, the weight of the relevant prohibited drug and the value of it are not the sole determinants. I have not forgotten of course that the quantity seized is thirtyeight times the minimum amount proscribed by the Parliament for a large commercial quantity of MDMA. 92I accept the submission of the Crown that the accused came into the enterprise before 1 November and he set out with the others to conduct the crime for financial or material gain. This is acknowledged by his plea and by his plea he acknowledged that was intended to be done and what he knew or believed to be done was the manufacture of not less than a large commercial quantity of the prohibited drug or a prohibited drug. 93The Crown submits that given the matters noted concerning the prisoner's involvement at an early stage his contact with the principal and the role of him speaking to Mr Reynolds, the prisoner should be identified as I said earlier as "upper management". It is submitted that the prisoner's role is "more significant" than that of MH and not less than AF. The Crown also submitted there was a justifiable basis for concluding there were special circumstances. 94With regard to aggravating and mitigating factors under s 21A, which of course are relevant in considering the standard non-parole period and the implications of Part 4, Division 1A as they are in all sentencing matters, ultimately it was conceded that the very character of the crime had the inherent qualities of planning and organisation, as was to some extent the financial gain. The Crown also said that the threat to public safety was intimately bound up in the characterisation of the offending by reference to both the nature of the crime and the maximum penalty that is available. 95The Crown referred to the likelihood of reoffending or the unlikelihood of reoffending and the prospects of rehabilitation and remorse shown by the prisoner as possible mitigating factors. It was conceded by the Crown that the prisoner did not have to give evidence to show contrition although his hearsay representation on the matter need not necessarily be accepted. So far as the plea of guilty was concerned it was merely a recognition of the inevitable and was in itself evidence of expression of remorse. 96As to the distinction to be drawn between the prisoner and MH on the objective facts the Crown submits, as I said earlier, that the prisoner was more significantly involved than MH and must have a starting point in his sentence higher than that of MH. Ultimately, I have agreed with that submission. Obviously it follows from what the Crown has submitted and the character of the offending that the prisoner must face a significant term of imprisonment. 97A matter of substantial significance not addressed, it seems to me by the defence counsel nor the Crown, was the return of the prisoner to the jurisdiction. I appreciate when he returned to Australia he did not actually surrender himself but on the other hand he did not know when he wandered through Customs on 18 January 2011 that he was not going to be arrested. As it turned out he was not. He apparently led a peripatetic existence around the Cronulla area but frankly I could not believe that it would difficult finding him in that area. There is no evidence of what steps were taken to find him. I note the warrant issued for AF was issued in April, the prisoner was not arrested until 10 May. He must have known that his arrest was inevitable. Ultimately making himself available to the authorities to my mind is an important matter. The authorities did not have to go through the difficulties that had been required in bringing AF back into the country or even locating the prisoner overseas. He saved potential cost to the community of that exercise and I accept, although it was not expressly put, that ultimately the prisoner's return to Australia was an acceptance by him of the inevitable, not knowing of course at that stage where the police investigation had reached. I am mindful of the fact that the laboratory had not been found by the time that he returned but the prisoner would not have known the state of the police investigation and certainly would have feared the worst, given what had happened to MH being arrested in December 2010. 98Just turning briefly to Muldrock, to which I earlier referred, the High Court dealt with the consideration of Part 4, Division 1A, Crimes (Sentencing Procedure) Act, setting out the concept of standard non-parole periods and the offences which attract standard non-parole periods. The Court's reasoning principally is set out at paragraph 17 to 29. Amongst other things the court said, at [17]: "It remained, and remains, essential to recognise, however, that the fixing of a non-parole period is but one part of the large task of passing an appropriate sentence upon the particular offender. Fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important endpoint in framing a sentence to which (Part 4) Division 1A applies." 99The common law in relation to sentencing continues to apply and should not be forgotten (see [18] to [20]). When determining the sentence for the offence the Court is to set the standard non-parole period as the non-parole period for the offence unless the court determines there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. The Court went on to explain: "The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are those referred to in s 21A." 100As to the approach to s 21A: "(it) requires an approach to Division 1A offences consistent with the approach to sentencing described by McHugh J in Markarian v The Queen." 101The Court is required to "identify all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case" using what has been sometimes described as intuitive synthesis. The standard non-parole period is a legislative guidepost together with the maximum penalty. The objective seriousness of the offence does not include taking into account the characteristics of the offender, the objective seriousness of the offences to be assessed without reference to matters personal to the particular offender or class of offenders. It is to be determined solely by reference to the nature of the offending. There is no requirement for a two stage approach and of course standard non-parole periods are now directly relevant whether the sentence arises out of a plea of guilty or after trial and I note a number of authorities since Muldrock including, without giving references, Ayshow, MDZ, R Madden, Kirkbride, Phong Foster, Koloamatangi, Calcutt, Zreika, Yang and others. The case of Muldrock has obviously generated much debate. 102So ultimately, by reference to s 21A the only relevant aggravating factor, and it is as has been pointed out by the Crown this is to some extent bound up in the character of the offending, was that the offence was committed for financial gain. In this particular matter there was no actual injury or loss or damage caused by the good work of the police in intervening the shipment. 103I am prepared to find on the balance that the prisoner does not have a significant record of previous convictions, that the prisoner is unlikely to reoffend. I believe this term of imprisonment will ultimately be the salutary lesson that six or seven months in prison four or five years ago may have well served. 104The prisoner has good prospects of rehabilitation having regard to his relative youth and the support of his family. I am prepared to accept further, pursuant to s 21A(3) that although he did not give direct evidence in relation to the matter there is a consistent pattern of expression of remorse by the prisoner accepting responsibility for his actions. His having returned to Australia as I have pointed out might be seen as evidence of that. The plea of guilty alone does not prove that. I accept that there are many other matters to take into account and he has acknowledged such loss and injury that has occurred. The plea of guilty is of course a mitigating factor but that is a matter for which he receives the benefit of a discreet penalty (as said) but it is to be considered pursuant to s 22 of the Act. 105Ultimately, noting the findings of Her Honour Judge Payne, which I understand are the not the subject of challenge by the Crown although MH is considering his options as far as an appeal is concerned, I conclude that the relevant objective seriousness of the offending, with which I am concerned, is such that it can be categorised as within the midrange, slightly higher than that assessed for MH primarily because of the evidence available to this court. 106It shows that the prisoner was involved in the criminal enterprise longer than MH. I point out that there's no evidence that he did very much between 2 November and the date that the glassware was delivered to AF's premises at Yowie Bay. From the commencement of MH's participation, however, he was as with the prisoner to my view of the matter just as involved and I notice I have said earlier that ultimately after the manufacture MH was entrusted with the drugs that were manufactured. 107In assessing the objective seriousness of the matter I have noted the quantity of the prohibited drug, the purity of it and what could be called the substantial, but in the range of cases of this type relatively modest, wholesale value of the drugs. The range of offences that this court deals with, dealing with MDA, MDMA or methylamphetamine just coming into my court, includes a range of values of prohibited drugs even in wholesale form from thousands of dollars up to millions of dollars. There is no evidence of any "worth" of the prisoner's interest in the context of what the Crown defines as principals or "upper management". On balance I am not satisfied that the prisoner's involvement could be categorised, particularly in the absence of any evidence of any financial means, as either a principal or the rather vague position of "upper management". 108The significant matters that operate in mitigation include the absence of past offences for drug supply in the context of what could be called a modest criminal record that certainly does him no credit, his relative youth, the contrition he has expressed, his plea of guilty and the discount that receives, the absence of any breach of conditional liberty on this occasion, a background of regular employment, good prospects of rehabilitation and to my mind the strong likelihood that the prisoner's involvement in this criminal enterprise arose more directly from his association with other people, particularly his association with AF than any self motivating force. 109I was given a range of comparable sentencing matters. Without seeking to cite the references these cases are from a period of time between 2000 and 2010 and including cases such as Kalach, DAB, Kalemusic, Cvitan, Hosseini, Walsh, Lin and Lau v The Queen, Song Lin v The Queen, The Queen v Parker and The Queen v Pedavoli. None of these cases, of course, are on all fours with the matter at bar. They relate in many instances to different prohibited drugs. In fact, as I understand it, they all relate to different prohibited drugs than the prohibited drug with which I am concerned. I am mindful of the fact that MDA, a relatively recent addition to the list of prohibited drugs as I would understand it, is considered a drug that might be seen as a substitute for MDMA. But I have no real evidence about its effect and other matters. The offenders involved in those various appeals played differing roles to the way in which one could categorise this prisoner's role and of course many of the offenders had other offences to be dealt with at the same time on a Form 1 or otherwise and had differing criminal histories. I have received some assistance, but limited assistance, from those comparative cases. 110Thus, having surveyed what I understand to be the evidence as it is presented to me, trusting that I have dealt with all matters raised by the parties, without a transcript to assist me at any stage, and noting the starting point for MH, on my assessment that would have been eleven years, I have determined that the starting point for the sentence for this prisoner, all matters taken into account, should be twelve years imprisonment. With a discount of twentyfive percent it leaves a sentence of nine years. I have determined that there are "special circumstances" pursuant to section 44 of the Crimes (Sentencing Procedure) Act. The special circumstances are, in my view, the extended period of supervision the prisoner will require to adjust to community living. 111In my view he will need professional assistance in relation to financial counselling, anger management if there is any anger left in him by the time he gets out of gaol and also he will need direction in relation to his associations. The days of hanging out with his mates from the Cronulla area that have brought him into this difficulty he should realise are over. Of course that is not going to stop him hanging out with friends that he has grown up with, but he will have to be far more discerning in his choice of associates and friends. You can stand up thanks very much Mr Ellis. 112In relation to the offence to which you have pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of six years, that will commence on 10 May 2011. 113HIS HONOUR: that's the correct date Mr Crown? 114OUTRAM: Yes your Honour. 115HIS HONOUR: It will expire on 9 May 2017. The balance of sentence will be three years, the balance of sentence will expire on 9 May 2020. Thank you, just take a seat. ********** 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: 05 October 2012