R v Gill [2016] NSWDC 176

District Court New South Wales

Medium Neutral Citation: R v Gill [2016] NSWDC 176 Hearing dates: 10 June 2016 Date of orders: 10 June 2016 Decision date: 10 June 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Impose an aggregate sentence which consists of a non-parole period of 2½ years and a head sentence of 5 years. Catchwords: CRIMINAL LAW – Sentence - Manufacture prohibited drug - P2P - Possess precursor - Form 1 - Principle of totality - Delay in sentencing Category: Sentence Parties: The Crown Patrick Michael Gill Representation: Counsel: T Edwards - Offender

Solicitors: Director of Public Prosecutions Bannister Law - Offender File Number(s): 2014/362875

Judgment 1. HIS HONOUR: Often enough in sentencing offenders Judges are faced with a situation where an offender has committed a number of offences at around the same time, but is sentenced for them some considerable time apart. We have an example of that before me today. 2. Patrick Gill was arrested in March 2013. He was charged with some offences. One was supplying a large commercial quantity of the drug Nexus. He was dealt with by his Honour Judge Arnott for that matter who sentenced him in April 2014 to imprisonment for six and a half years with a non-parole period of four years and three months. That was to date from the day Mr Gill was arrested, and so as matters presently stand he is entitled to be considered for release to parole on 24 June next year. 3. The other two matters with which Mr Gill had been charged were offences of manufacturing a prohibited drug, namely 1-phenol-2-propanone, also known as P2P and possessing a precursor for use in the manufacture of a prohibited drug, namely 143.3 kilograms of nitroethane, that is a substance that can be used and was intended by Mr Gill to be used in the manufacture of the drug methamphetamine. 4. Although those two offences should have been dealt with at the same time as Judge Arnott dealt with the large commercial supply of Nexus, because of delays in the prosecution getting its brief together the matters were separated and it was not until some significant time after Mr Gill had been sentenced that he was then made aware that the authorities were proceeding with the two matters for which he stands for sentence today. 5. In such circumstances the law is clear. What I should do is attempt to work out what sentence Mr Gill would have received had all of these matters been dealt with together and impose a sentence such that that outcome is achieved. It is that which has led to me choosing the commencement date which I have chosen for these matters. 6. I should note that when I sentence him for the manufacture P2P matter he asks that I take into account two other matters on a Form 1. They both related to his intention to produce methamphetamine. The first is possessing another precursor, this time 3.19 kilograms of benzaldehyde, and the other concerned some apparatus, namely a pill press and condensers, which were intended to be used by Mr Gill for the manufacture of methamphetamine. 7. Mr Gill pleaded guilty to these offences at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been. 8. In attempting to work out the objective gravity of the offences for which I must sentence him there is something of a difficulty. 134.3 kilograms of nitroethane sounds to be rather a lot of that substance, but how much methamphetamine can be produced from that quantity of nitroethane I do not know. When I raised this issue with the Crown before lunch the Crown said that he would see what could be done to supplement the evidence that the Crown had already tendered over lunch. On resumption the Crown tendered statement of a forensic chemist. That statement gave me some idea of how much P2P can be produced from 134 kilograms of nitroethane. But from my reading of that statement how much methamphetamine could be produced from 134 kilograms of nitroethane is not made clear. 9. When I first inquired of the Crown whether it was the Crown case that Mr Gill manufactured the P2P as a precursor itself to manufacturing methamphetamine the Crown said that it was. Mr Edwards at that stage objected saying that there was no evidence to that effect and indeed his client gave evidence that he had consumed some of the P2P that he manufactured and was intending to consume the rest. In those circumstances I will sentence him on that basis, namely that the P2P was manufactured as a stand-alone drug, not as a step in the process of manufacturing methylamphetamine to which the possession of nitroethane and the matters on the Form 1 thus relate. 10. In early 2013 the offender was living at a unit in Yagoona. The unit came with a garage which was locked and secured with a single door. The person who resided in the unit and thus used the garage was not there, living instead in a healthcare facility. In late February the offender began living at that address with another man by the name of Todd Smith. There they engaged in a joint criminal enterprise to manufacture prohibited drugs by both acquiring the necessary chemicals and laboratory equipment and using the premises for the purpose of manufacturing P2P. During the process Mr Gill also provided information to Mr Smith about the manufacturing process. Conversations were recorded in which the two men, together with another unknown male, discussed matters in relation to the manufacture of prohibited drugs. 11. Police ultimately went to the premises and conducted a search. They found a number of items associated with the manufacture of prohibited drugs, including equipment, 134.3 kilograms of nitroethane and 3.19 kilograms of benzaldohyde, a pill press and two condensers. Police also discovered the 16.9 grams of P2P. 12. Mr Gill turned 50 only a couple of days ago. His upbringing was much less than satisfactory. He was initially brought up by his grandmother but at the age of about four his mother re-entered his life. This would ordinarily have been a good thing but for Mr Gill it was not. He had become very attached to his grandmother and was suddenly expected to form a relationship with his mother who wanted to resume parentage of him. In any case she failed to adequately care for him. In particular Mr Gill's relationship with his step-father was one where his step-father would attack him in various ways and was violent to him on many occasions. Not surprisingly Mr Gill preferred to be absent from home rather than at home in the presence of his violent step‑father. From the ages of 14 to 18 fortunately he was taken into the care of a maternal aunt. At that stage, and as he grew up, he began to become less fearful of his step-father and has since, not surprisingly, refused to have any contact with him. Eventually his mother and step-father separated and his mother has moved to South Australia in order to ensure there is no contact between her children and her former partner. 13. Given Mr Gill's rather unstable upbringing it is perhaps not surprising that he began to use drugs at a relatively early age and mixed with people who were certainly not a good influence upon him. Some years ago he joined the Rebel Outlaw Motorcycle Gang. Part of his offending as revealed in his criminal history is probably related to that time. He has since left them but his drug use has been a significant problem for him. 14. He has previous convictions for drug possession, drug cultivation, possession of a precursor as well as knowingly taking part in the supply of a large commercial quantity of Nexus that I have referred to earlier. Before being sentenced by Judge Arnott he had already served two periods of imprisonment before. It is not surprising therefore that Judge Arnott considered Mr Gill's prospects of rehabilitation as being guarded. I too have the same view despite the obvious improvement in Mr Gill's attitude and behaviour which has been demonstrated in his most recent time in gaol. 15. Mr Gill has been progressing well in custody. Any difficulties in him participating in work and courses and the like are not of his making. He had progress through the classification system until he was at a stage where he was serving a sentence in a gaol which had few security measures. But once these matters which I must sentence Mr Gill were reactivated he immediately went to a maximum security institution. It is notorious that those awaiting sentence experience difficulties in obtaining access to programs and work which facilitate rehabilitation. Despite that Mr Gill has achieved a great deal. He has many qualifications and Mr Edwards who appears for him today tendered certificates attesting to Mr Gill's achievements. 16. Mr Gill gave evidence and he tells me that one of his activities whilst in custody has been to work and indeed when he can, he works seven days a week. He was working on constructing pre-fabricated cells which are necessary because of the increasing prison population. He appeared to me to be quite proud of what he had achieved in that regard. He has caused no trouble to the prison authorities and certainly there is no suggestion that he has been using drugs whilst in custody. 17. He has plans for the future too. He wishes to use his qualifications when he is released from custody and he has the support of a large number of family members now and I expect when he is eventually released. His family members now understand the problems that he has had with drugs over the years and are thus more able to support him then they were when he kept things from them. 18. The delay in these matters being dealt with is due in no way to Mr Gill. As I mentioned as soon as the charges were laid against him he pleaded guilty. In those circumstances I will take delay very much into account in his favour. I will also take into account that one of the consequences of that delay is that his rehabilitative efforts have been interrupted through no fault of his own by him going into maximum security once he was charged again with these matters. 19. It has to be recognised that at the time Mr Gill committed these offences and indeed at the time he committed the offence for which he was sentenced by Judge Arnott he was under the influence and effect of drugs to a significant degree. Mr Gill would not be the first drug user whose focus narrowed as his drug use increased to the extent that he barely thought about anything else apart from using drugs. That is precisely why offences of this type are so serious. Drugs are terrible things and they have terrible effects on many people, the families of those people and the wider community in general. 20. I will explain my process of reasoning in determining the appropriate sentence. If I had been dealing with all three matters together taking into account the matters on the Form 1, and taking into account the adverse consequences for Mr Gill of the delay I would have imposed a head sentence of eight years with a non-parole period of five and a half years. That has guided me as to how I should now sentence Mr Gill for these new matters. 21. Were it not for the fact that I will impose an aggregate sentence I would have imposed three and a half years imprisonment on each matter. Instead I will impose an aggregate sentence which consists of a non-parole period of two and a half years to date from 25 March 2016 and a head sentence of five and a half years. This means that Mr Gill is eligible to be released to parole on 24 September 2018. 22. If there are any errors in the calculation then I would appreciate them being brought to my attention earlier rather than later. 23. HIS HONOUR: Mr Gill what I have done is I've increased your eligibility for parole by a year and three months for these new offences. So the minimum period that you have to serve has been increased by that much. Whether you're released to parole on 24 September 2018 is not for me to decide. As you know it's the Parole Authority.