Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Campbell; R v Smith [2019] NSWCCA 1 Hearing dates: 23 November 2018 Decision date: 01 February 2019 Before: Beazley P at [1]; Rothman J at [2]; R A Hulme J at [24] Decision: I propose the following orders in respect of Simon Vincent Campbell: 1. Crown appeal against sentence allowed. 2. Aggregate sentence imposed in the District Court on 8 June 2015 quashed. 3. The respondent is sentenced to an aggregate term of imprisonment for 11 years with a non-parole period of 7 years. The sentence is to date from 29 April 2015 and the respondent will become eligible for release on parole when the non-parole period expires on 28 April 2022. I propose the following orders in respect of Sean Anthony Smith: 1. Crown appeal against sentence allowed. 2. Aggregate sentence imposed in the District Court on 8 June 2015 quashed. 3. The respondent is sentenced to an aggregate term of imprisonment for 16 years with a non-parole period of 10 years 6 months. The sentence is to date from 29 April 2015 and the respondent will become eligible for release on parole when the non-parole period expires on 28 October 2025. Catchwords: SENTENCING — Crown appeal against inadequacy of sentence – offences related to manufacture of methylamphetamine – firearms offences – assessment of objective seriousness of offences not disputed – inadequacy of indicative sentences imposed – effect of distinct criminality in drug supply and precursor offences on notional accumulation of sentences – comparison of indicative sentences relevant to assessment of whether aggregate sentences are proportionate to totality of criminality – purposes of sentencing in drug manufacturing offences – s 33 Crimes (Sentencing Procedure) Act 1999 (NSW) – taking account of offences listed on Form 1 document in sentencing – effect of delay on Court's discretion to intervene Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 68A Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW s 3A Drugs Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) ss 7(1), 51D2 Weapons Prohibition Act 1998 (NSW) Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure Act 1999, No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DL (No 2) v The Queen (2018) 358 ALR 666; [2018] HCA 32 El Jamal v R [2017] NSWCCA 243 Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 Farrah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jeffree v R [2017] NSWCCA 72 JM v R [2014] NSWCCA 297; 246 A Crim R 528 Kwok v R [2018] NSWCCA 200 Luu v R [2008] NSWCCA 285 Mack v R [2009] NSWCCA 216 Parente v R [2017] NSWCCA 284 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Allpass (1993) 72 A Crim R 561 R v Amurao [2005] NSWCCA 32 R v Brown [2006] NSWCCA 249 R v Deng [2007] NSWCCA 216 R v Falzon (2018) 92 ALJR 701; [2018] HCA 29 R v Hallocoglu (1992) 29 NSWLR 67 R v JD [2018] NSWCCA 233 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Medd [2016] NSWCCA 216 Raniga v R [2016] NSWCCA 38 Raniga v R [2016] NSWCCA 38 RL v R [2018] NSWCCA 274 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Regina (Appellant) Simon Vincent Campbell (Respondent) Sean Anthony Smith (Respondent) Representation: Counsel: Mr B Hatfield (Crown) Mr L Brasch (Campbell) Mr R Pontello (Smith) Solicitors: Solicitor for Public Prosecutions Michael Croke & Co Benjamin & Leonardo Lawyers File Number(s): 2015/235660; 2015/222896 Decision under appeal Court or tribunal: District Court Date of Decision: 8 June 2018 Before: Bright DCJ File Number(s): 2015/235660; 2015/222896 Judgment 1. BEAZLEY P: I have had the advantage of reading in draft the reasons of R A Hulme J. I agree with his Honour's reasons and proposed orders. 2. ROTHMAN J: I have had the advantage of reading the draft Reasons for Judgment of R A Hulme J, for which I am most grateful. Unless expressly qualified, I agree wholeheartedly with the reasons for judgment of his Honour and with the orders he proposes. There are two issues on which I comment. Firearm offences: Smith 1. Charges 5 and 6 relate to firearm offences against the respondent Smith. Charge 5, as R A Hulme J points out, is the possession of a firearm in contravention of a prohibition order, for which the maximum sentence is 14 years' imprisonment. Charge 6 is the possession by a person not authorised of more than three unregistered firearms, any one of which is a prohibited firearm and for which the maximum sentence is 20 years' imprisonment and for which there is a standard non-parole period of 10 years. 2. The sentence imposed on Mr Smith in relation to charge 5, for an offence which was assessed as being "middle of the range" in terms of objective seriousness, was a starting point of a head sentence of four years, which, with the discount, resulted in an indicative sentence of three years' imprisonment. An examination of sentences imposed for like offences results in the middle of the range of such offences being a head sentence of approximately six years. 3. In my view, even the six years head sentence for an offence in the middle of the range of objective seriousness is far too lenient. The courts have, unfortunately, treated firearm offences far too leniently. 4. The offence is the possession of the firearm in contravention of a prohibition order. As stated, that offence has a maximum sentence of 14 years' imprisonment. It is difficult to understand how "the possession of a firearm in contravention of a prohibition order" would, in these circumstances, where there are significant Form 1 offences; where the firearm is possessed by a person with prior criminal offences; where the firearm is possessed by someone who is also in possession of ammunition; and where the firearm is possessed, inferentially, for the purpose of a significant criminal activity; and the other matters to which I refer below, would be assessed as "mid-range". 5. In relation to charge 6, where the maximum sentence is 20 years' imprisonment and the standard non-parole period 10 years' imprisonment, the learned sentencing judge considered the offence well above the midrange. Such a classification, on past sentencing comparisons and statistics, puts a sentence between 7 years and 8 years and the non-parole period of over 4 1/2 years at a level that is about two thirds of the maximum that has been imposed. In my view, such a sentence is not at an appropriately severe level, even accounting for the difficulties with statistics. 6. The sentencing judge commenced sentencing with a starting point of 8 years, which, to me, does not reflect a culpability of well above the mid-range. It is a head sentence of less than the standard non-parole period for the hypothetical mid-range offence. Again there were significant matters on the Form 1 notification. 7. The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons generally, by which I include knives, has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society. 8. It must be accepted that the kernel of the criminal conduct involved in possession of firearm offences is the possession of the firearm. Where, as here, the firearm is real and not a replica firearm; is in working order; is a modern firearm and not an antique or collectors' piece; is possessed at the same time as the offender possesses ammunition; and is possessed in the context of the involvement of the offender in a criminal organisation and/or other criminal conduct, it is difficult to imagine any more serious circumstances. 9. The classification of the objective seriousness of an offence as a worst case is not precluded by the capacity to imagine even worse circumstances. Unfortunately, human imagination is almost limitless and is usually possible to imagine worse circumstances. 10. Notwithstanding the foregoing comment, the sentencing judge has classified each of the firearm offences in a particular manner and neither party cavels with that classification. In those circumstances, I would not seek to reassess objective seriousness, even if I were entitled so to do: DL (No 2) v The Queen (2018) 358 ALR 666; [2018] HCA 32. 11. Having made those comments and indicated my view that firearm offences are treated too leniently, I do not consider that a sentence beyond that which has been indicated by R A Hulme J is necessary and I accept the indicative sentences proposed by him for these offences. The effect of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) 1. The reasons for judgment of R A Hulme J refer to the insertion in 2009 of section 68A of the Crimes (Appeal and Review) Act 2001 (NSW). Those provisions were, as is stated by R A Hulme J, considered by the Court in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49. The passage upon which R A Hulme J relies is in the judgment of Spigelman CJ, with whom Allsop P agreed and with which, at least in the relevant respect, the majority judgment of McClellan CJ at CL, Howie and Johnson JJ agreed. 2. There is, however, a difference between the expression of the established practice in Dinsdale v The Queen (2000) 202 CLR 321 at 340[62]; [2000] HCA 54 as being to impose a sentence "towards the lower end of the range of available sentences" and those statements in a number of other judgments which are in or to the effect that the sentence to be imposed is lower than that which could properly have been imposed or would have been imposed at first instance: see R v JW, supra, at [96] and the cases cited therein. 3. The injunction in s 68A of the Crimes (Appeal and Review) Act prevents the Court from imposing a less severe sentence "than the court would otherwise consider appropriate", on account of double jeopardy involved in the respondent being sentenced again. 4. Nevertheless, the appropriate sentence for an offence will be one within a range of sentences available to the Court. To fix the sentence at the lower end of that which is "appropriate" or "considered appropriate" by the Court is not to contravene the injunction in s 68A of the Crimes (Appeal and Review) Act. 5. Further, if the Court were to fix a sentence at that level, the severity of the sentence would not be occasioned by the circumstance that an offender is liable to be sentenced twice, nor based upon any element of distress and anxiety. Rather, it is an exercise of the jurisdiction of the appellate court that takes account of the fact that a sentence that is considered appropriate may fall within a range of sentences. 6. The Court would then impose a sentence that is appropriate and may have been imposed by a sentencing judge at first instance. In doing so, the Court is not basing its judgment on the "distress and anxiety" of the offender at being sentenced twice, but is avoiding the imposition of a sentence that may be more severe than that which may have appropriately been imposed by a sentencing judge at first instance. 7. The reasons for judgment of Spigelman CJ expressly avoided any attempt to reconcile the different formulations that have been given to a constraint on the sentence that the Court might impose once it intervenes. However, the reference to the judgment in R v Allpass (1993) 72 A Crim R 561 at 562 as an application of the "double jeopardy principle" is a reference to the application of the principle, described by the Court in Allpass as "a sentence that is somewhat less than the sentence it considers should have been imposed at first instance". 8. That is a very different constraint than the imposition of a sentence "towards the lower end of the range of available sentences". The latter phrase would be the imposition of a sentence that was appropriate and flows from the comments of Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 340[62]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54. 9. I am mindful of the comments of the High Court in Farrah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, recently reiterated in R v Falzon (2018) 92 ALJR 701; [2018] HCA 29 at [49] and do not, as a consequence, deal with the question any further. 10. Notwithstanding the foregoing comments, I do not disagree with the orders proposed by R A Hulme J and, as earlier stated, I agree, except to the extent expressly stated in relation to the provisions of s 68A of the Crimes (Appeal and Review) Act with his reasons for judgment. 11. R A HULME J: The Crown has appealed against the asserted inadequacy of aggregate sentences imposed upon Simon Vincent Campbell and Sean Anthony Smith by her Honour Judge Bright in the District Court at Newcastle on 8 June 2018. 12. Mr Campbell was sentenced in respect of five offences related to the manufacture of the prohibited drug methylamphetamine. He also asked that his guilt in respect of 14 further offences be taken into account. They were listed on Form 1 documents in respect of each of the five principal offences. 13. Mr Campbell received an aggregate sentence of imprisonment for 8 years 6 months with a non-parole period of 5 years 7 months. The sentence dates from 29 April 2015. 14. Mr Smith was sentenced in respect of six offences; four related to the manufacture of methylamphetamine and two related to firearms. He asked that his guilt in respect of 34 further offences be taken into account. They were listed on Form 1 documents in respect of each of the six principal offences. There were also two related summary offences of driving while licence cancelled for which good behaviour bonds were imposed which are not the subject of the appeal. 15. Mr Smith received an aggregate sentence of imprisonment for 11 years with a non-parole period of 7 years 4 months. His sentence also dates from 29 April 2015. Offence details for Simon Campbell 1. The offences for which Mr Campbell was sentenced were all contrary to the Drugs Misuse and Trafficking Act 1985 (NSW) ("DM&T Act"). The details are in the following table together with reference to what the judge said about their objective seriousness and the indicative sentences she said she would have imposed if she were not imposing an aggregate sentence. Each of the offences was subject to the possible imposition of a fine with or instead of imprisonment but there is no need to refer to that detail. Charge 1 Manufacture commercial quantity (641g pure) of methylamphetamine DM&T Act, s 24(2) – maximum 20 years Standard non-parole period 10 years "Just above the middle of the range" [1] 5 years 7 months Non-parole 3 years 9 months Charge 2 Possess precursor (18.5kg hypophosphorous acid) with intent to manufacture a prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Well above the mid-range" [2] 2 years 3 months Charge 3 Supply (19.72g) methylamphetamine DM&T Act, s 25(1) – maximum 15 years "Towards the lower end of the range" [3] 12 months Charge 4 Possess precursor (20kg iodine) with intent to manufacture a prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Well above the mid-range" [4] 2 years 3 months Charge 5 Possess precursor (6.467kg red phosphorous) with intent to manufacture a prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Above the mid-range" [5] 1 year 10 months 1. The offences taken into account in the assessment of the indicative sentences for each of the above offences in relation to Mr Campbell were: Form 1 Charge 1 1 Conduct drug premises: DM&T Act, s 36(1)(a) 2 Possess drug manufacture instructions: DM&T Act, s 11C(1) 3 Goods in custody (Harley Davidson): Crimes Act 1900 (NSW), s 527C(1) Form 1 Charge 2 1 Possess precursor (6.966 kg iodine) with intent to manufacture: DM&T Act, s 24A(1)(a) Form 1 Charge 3 1 Possess 2.92 g of methylamphetamine: DM&T Act, s 10(1) 2 Possess 1.53 g of methylamphetamine: DM&T Act, s 10(1) Form 1 Charge 4 1 Possess drug manufacture apparatus: DM&T Act, s 24A(1)(b) 2 Possess precursor (119 g hypophosphorous acid) with intent to manufacture: DM&T Act, s 24A(1)(a) 3 Possess precursor (959 g iodine) with intent to manufacture: DM&T Act, s 24A(1)(a) Form 1 Charge 5 1 Possess precursor (2.749 kg iodine) with intent to manufacture, DM&T Act, s 24A(1)(a) 2 Possess precursor (444 g hypophosphorous) with intent to manufacture, DM&T Act, s 24A(1)(a) 3 Possess drug manufacture apparatus, DM&T Act, s 24A(1)(b) 4 Possess drug manufacture instructions, DM&T Act, s 11C(1) 5 Possess precursor (668 g Hydriodic acid) with intent to manufacture, DM&T Act, 24A(1)(a) Offence details for Sean Smith 1. The offences to which Mr Smith was sentenced were contrary to the DM&T Act and to the Firearms Act 1996 (NSW). Charge 1 Manufacture commercial quantity (641g pure) methylamphetamine DM&T Act, s 24(2) – maximum 20 years Standard non-parole period 10 years "Just above the middle of the range" [6] 6 years "Role of Smith slightly greater than that of Campbell" [7] Non-parole 4 years Charge 2 Possess precursor (18.5kg hypophosphorous acid) with intent to manufacture a prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Well above the mid-range" [8] 2 years 3 months Charge 3 Supply commercial quantity (993g) methylamphetamine DM&T Act, s 25(2) – maximum 20 years Standard non-parole period 10 years "Middle of the range" [9] 4 years 6 months Non-parole 3 years Charge 4 Possess precursor (936.27g pseudoephedrine) with intent to manufacture a prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Below the middle of the range" [10] 18 months Charge 5 Possess firearm (Colt AR15 .223 calibre semi-automatic rifle) in contravention of prohibition order Firearms Act, s 74(1) – maximum 14 years "Middle of the range" [11] 3 years Charge 6 Possession by a person not authorised by licence or permit of more than 3 unregistered firearms, any one of which is a prohibited firearm Firearms Act 1998 (NSW), s 51D(2) – maximum 20 years Standard non-parole period 10 years "Well above the mid-range" [12] 6 years Non-parole 4 years 1. The offences taken into account in the assessment of the indicative sentences for each of the above offences in relation to Mr Smith were: Form 1 Charge 1 1 Possess 1.53 g of methylamphetamine: DM&T Act, s 10(1) 2 Supply 19.72 g of methylamphetamine: DM&T Act, s 25(1) 3 Conduct drug premises: DM&T Act, s 36Z(1)(a) Form 1 Charge 2 1 Possess precursor (6.966 kg iodine) with intent to manufacture: DM&T Act, s 24A(1)(a) 2 Possess drug manufacture instructions: DM&T Act, s 11C(1) Form 1 Charge 3 1 Supply 48.37 g of methylamphetamine: DM&T Act, 25(1) 2 Supply 7.5 g of methylamphetamine: DM&T Act, s 25(1) 3 Supply 19.8 g of methylamphetamine: DM&T Act, s 25(1) Form 1 Charge 4 1 Possess precursor (2.749 kg iodine) with intent to manufacture: DM&T Act, s 24A(1)(a) 2 Possess precursor (444 g hypophosphorous acid) with intent to manufacture: DM&T Act, s 24A(1)(a) 3 Possess drug manufacture apparatus: DM&T Act, s 24A(1)(b) 4 Possess drug manufacture instructions: DM&T Act, s 11C(1) 5 Possess precursor (668 hydriodic acid): DM&T Act, s 24A(1)(a) 6 Possess precursor (6.467 kg red phosphorous): DM&T Act, s 24A(1)(a) Form 1 Charge 5 1-7 [13] Acquire firearm subject to prohibition order: Firearms Act, s 74(1) 8 Acquire ammunition subject to prohibition order: Firearms Act, s 74(3) Form 1 Charge 6 1 Possess unauthorised firearm (22-250 Remington 700 bolt action rifle): Firearms Act, s 7A(1) 2,3,5,6,8-11 Not keep firearm (various) safely: Firearms Act, s 39(1)(a) 4, 7 Possess prohibited weapon (magazines with capacity > 10 rounds): Weapons Prohibition Act 1998, s 7(1) 12 Possess ammunition without permit/licence: Firearms Act, s 65(3) Background to the offending 1. An investigation into the respondents' suspected involvement in the manufacture of methylamphetamine was commenced by officers of Strike Force Raptor in February 2015. 2. Mr Campbell was aged 41 and Mr Smith was aged 46. They had been friends for over 20 years. Mr Campbell had been a member of the Lone Wolf Outlaw Motorcycle Gang since 2008 and he became the Sergeant-at-Arms for the Mt Druitt Chapter in April 2014. Mr Smith had been a member of the Nomads Outlaw Motorcycle Gang since 2005 and he was the Sergeant-at-Arms for its Penrith and City Chapters from 2009 to 2012. He was responsible for security and management of club weapons, including firearms. 3. Mr Smith acquired in 2005 a rural property at Howes Valley, about 150km north of Richmond NSW and about 30km off the Putty Road. The property is in a secluded area; it is within bushland and is only accessible via a dirt road. In 2015 the property was surrounded by a barbed wire fence and access was through a metal gate that was kept locked by a chain and padlock. There was a large shed with a concrete floor and a kitchenette at the top of a hill on the property. The shed was surrounded on two sides by an awning with a concrete floor. The shed was not visible from the road and was only accessible via a 300m dirt driveway. 4. Police carried out surveillance at the property on 31 March 2015 and observed items consistent with drug manufacturing. They installed surveillance devices in the shed two days later. Offences at Howes Valley property on 29 April 2015 1. Throughout the day on 29 April 2015 the respondents were monitored as they manufactured methylamphetamine. They were seen and/or heard to wear protective clothing items; to set up equipment; measure and weigh precursors and other chemicals; and to discuss how the manufacture was progressing. They were also recorded talking about previous instances in which they had manufactured, or attempted to manufacture, methylamphetamine. Mr Smith was recorded talking about a possible yield of 5kg or 5l from the current manufacture. 2. Police attended the property at about 5.00pm. The entrance gate was locked and secured by the chain and padlock so it was necessary to cut the chain to obtain access. Both offenders were arrested as they walked out of the shed. 3. Experts who attended the scene confirmed that what was in the shed was an active clandestine laboratory in which methylamphetamine was being manufactured by the use of the hypophosphorous acid, iodine and pseudoephedrine process. (Conduct drug premises: Charge 1 Form 1(1) Campbell and Charge 1 Form 1(1) 1 Smith.) 4. The equipment being used in the shed included a 40l custom made stainless steel reaction vessel which was connected to a custom made stainless steel condenser. Subsequent analysis revealed that the condenser contained 6114 grams of brown liquid methylamphetamine with a purity of 10.5%. If refined, the total amount of pure methylamphetamine which could have been extracted from the reaction vessel was 641 grams. (Manufacture commercial quantity methylamphetamine: Charge 1 Campbell and Charge 1 Smith.) 5. Police searched the property that day and the next. What they found included: 19.72 g of methylamphetamine of 80% purity in a blue container on a shelf inside the shed. (Supply methylamphetamine: Charge 3 Campbell and Charge 1 Form 1(2) Smith.) 2.92 g of methylamphetamine in a small container in the kitchen area of the shed. (Possess methylamphetamine: Charge 3 Form 1(1) Campbell.) 1.53 g of methylamphetamine in a small plastic bag in the kitchen area. (Possess methylamphetamine: Charge 3 Form 1(2) Campbell and Charge 1 Form 1(1) Smith.) A Samsung tablet device in Mr Smith's car with both offenders' DNA on it was found to have numerous detailed instructions relating to methylamphetamine manufacturing, including the extraction of pseudoephedrine. A Huawei mobile phone found inside the shed had similar instructional material stored on it. (Possess drug manufacture instructions: Charge 1 Form 1(2) Campbell and Charge 2 Form 1(2) Smith.) 18.5 kg of hypophosphorous acid was found in two large containers on the outdoor front porch area and an outdoor table/sink area. (Possess precursor with intent to manufacture: Charge 2 Campbell and Charge 2 Smith.) 6.966 kg of iodine was found within a container and a pail on the porch. (Possess precursor with intent to manufacture: Charge 2 Form 1(1) Campbell and Charge 2 Form 1(1) Smith.) 1. Police also found at the property other chemicals and various household items associated with the manufacture of methylamphetamine. 2. The agreed facts included that 18.5 kg of hypophosphorous acid and 6.9 kg of pure iodine would potentially yield 4.2 kg of pure methylamphetamine. In order to produce this yield, 6.9 kg of pseudoephedrine hydrochloride or 5.7 kg of pure pseudoephedrine or ephedrine would be required. A total of 175 g of pure ephedrine was found at the property. Offences at Campbell's home at South Penrith 1. Police executed a search warrant at Mr Campbell's home at South Penrith on 1 May 2015. They found a cardboard box in a hallway cupboard which contained 20kg of iodine. (Possess precursor with intent to manufacture: Charge 4 Campbell.) 2. Police also found: ● A bucket containing 4.7 g of brown liquid that was later found to contain pseudoephedrine. ● A plastic cube container labelled "methylated spirits" and containing brown staining. The standing was later found to contain pseudoephedrine. ● Various documents associated with the purchase of items used in manufacturing methylamphetamine. ● Various items and chemicals, harmless in themselves, but commonly associated with manufacturing methylamphetamine. Offences at premises at Smithfield frequented by Campbell 1. A search warrant was executed at premises at Smithfield that had been frequented by Mr Campbell. It was a unit that consisted of a workshop for a mechanic and associated offices. Police found: A Harley Davidson motor bike in a state of disrepair. (Goods in custody: Charge 1 Form 1(3) Campbell.) Numerous items of Lone Wolf OMCG clothing. A drum containing toluene and a drum containing acetone. The owner of the business told police that Mr Campbell had brought the acetone. 1. There was a locked box trailer belonging to Mr Campbell. The following items were found inside it: Laboratory equipment. (Possess drug manufacture apparatus: Charge 4 Form 1(1) Campbell.) 119 g of hypophosphorous acid. (Possess precursor with intent to manufacture: Charge 4 Form 1(2) Campbell.) 959 g of iodine. (Possess precursor with intent to manufacture: Charge 4 Form 1(3) Campbell.) Multiple items that had been used in the manufacture of ephedrine and other items containing waste liquids from methylamphetamine. There were also a large number of household items as well as chemicals associated with the manufacture of methylamphetamine. Analysis indicated that some of the household items had been so used in the past. Offences at a rented self-storage facility at South Windsor 1. Mr Smith had rented a storage unit at Hawkesbury Self-Storage since 2001. Police executed a search warrant there on 9 June 2015. It was necessary to cut a padlock to gain access. Within the unit police found: Various quantities of tablets containing pseudoephedrine as well as a number of pseudoephedrine-based pharmaceutical preparations. The total amount of pseudoephedrine was 936.27 g. The total amount of pure pseudoephedrine was 135.6 g. (Possess precursor with intent to manufacture: Charge 4 Smith.) 1. The agreed facts for Mr Smith include that the potential yield from 135.6 g of pure pseudoephedrine is 101 g of pure methylamphetamine. To achieve that yield, 166 g of 50% hypophosphorous acid and 166 g of iodine would be needed. 2. Other items were found which, according to the agreed facts, were possessed jointly by the offenders: 6.467 kg of red phosphorus in two containers. (Possess precursor with intent to manufacture: Charge 5 Campbell and Charge 4 Form 1(6) Smith.) 2.749 kg of iodine in three containers. (Possess precursor with intent to manufacture. Charge 5 Form 1(1) Campbell and Charge 4 Form 1(1) Smith.) 444 g of hypophosphorous acid in three items. (Possess precursor with intent to manufacture: Charge 5 Form 1(2) Campbell and Charge 4 Form 1(2) Smith.) Nine items of laboratory equipment, two of which contained methylamphetamine. (Possess drug manufacture apparatus: Charge 5 Form 1(3) Campbell and Charge 4 Form 1(3) Smith.) A book and two CDs containing instructions for the manufacture of methylamphetamine. (Possess drug manufacture instructions: Charge 5 Form 1(4) Campbell and Charge 4 Form 1(4) Smith.) 668 g of hydriodic acid in two bottles. (Possess precursor with intent to manufacture: Charge 5 Form 1(5) Campbell and Charge 4 Form 1(5) Smith.) 1. Also within the storage unit were a number of chemicals as well as household and scientific items associated with the manufacture of methylamphetamine with some showing indications of having been used for that purpose in the past. Offences at Smith's home at Freemans Reach 1. Police executed a search warrant at Mr Smith's home at Freemans Reach on 1 May 2015. They found: A bottle containing 993 g of a cloudy liquid which was analysed and found to be base liquid methylamphetamine with a purity of 24.5%. The pure weight of methylamphetamine present in the bottle was 243 g. The commercial quantity prescribed in Sch 1 of the DM&T Act at the relevant time was 250 g. (Supply commercial quantity of methylamphetamine: Charge 3 Smith.) A plastic container with 48.37 g of methylamphetamine with a purity of 14.5%. (Supply methylamphetamine: Charge 3 Form 1(1) Smith.) 1. Police also found: ● Seven mobile phones. ● A handwritten note with references to liquid weights, temperature and items used in the manufacture of prohibited drugs. 1. Also found were household items and chemicals frequently involved in the manufacturing of drugs and a large number of items that had in fact been so used. 2. Ms Tiarna Rose, a friend of Smith's, lived at his house from October 2014 until his arrest and for another five months. She visited him in gaol in May 2015 and he told her where he had hidden some methylamphetamine at his home. Ms Rose, and Mr Smith's girlfriend, subsequently found four containers of varying sizes each containing a crystal substance. Using a set of electronic scales, they ascertained that the substance in three of the containers weighed 336 g, 36 g and 175 g. The fourth container was full of a liquid with crystals in it. 3. During the next three months Ms Rose supplied various quantities of methylamphetamine at Mr Smith's direction. She also collected and distributed money on his behalf. 4. Police returned to Mr Smith's home with a search warrant on 16 July 2015. They found: 7.5 g of methylamphetamine in a plastic resealable bag inside a bedroom wardrobe. (Supply methylamphetamine: Charge 3 Form 1(2) Smith.) 19.8 g of methylamphetamine with a purity of 79% in a resealable plastic bag hidden inside a VHS player. (Supply methylamphetamine: Charge 3 Form 1(3) Smith.) 1. Sometime between 1 and 27 August 2015 Ms Rose decided that she did not want to get into trouble so she threw away the remaining methylamphetamine she had hidden for Mr Smith. Police returned to the home again on 28 August 2015 when they found in a bin three containers with methylamphetamine weighing a total of about 75 g. Mr Smith was not charged in relation to this. Firearms offences concerning only the respondent Smith 1. Mr Smith was not the holder of any licence or permit to possess firearms or ammunition. Moreover, he was formally issued with a Firearms Prohibition Order under s 73 of the Firearms Act on 4 October 2014. 2. A number of firearms and a quantity of ammunition were found during the execution of the search warrant at the South Windsor storage unit on 9 June 2015. 3. There were eight firearms in all. Seven of them were "unregistered" and six of those were also "prohibited" firearms. The agreed facts include that their precise ownership was unclear but Mr Smith had possession of them in his capacity as a member of the Nomads OMCG, being responsible for the security of weapons including firearms. 4. The firearms found were: A 22-250 Remington model 700 bolt action sniper rifle. A nearby bag contained a rifle bipod and scope. This firearm was identified as one of four that were stolen in 2009 at Richmond NSW. Also stolen were over 500 rounds of assorted ammunition. Some of the ammunition found in the storage unit was identified by the victim of that theft. Even though stolen, this firearm was still "registered". [14] A Colt AR15 .223 calibre semi-automatic rifle together with an attachable scope and bipod stand for the rifle. A .38 calibre "pen gun" firearm. A Ruger Mini 14 .223 calibre semi-automatic rifle and five empty magazines (three of which could hold 10 rounds). A 12 gauge pump action shotgun. A Remington Savage brand .223 calibre rifle with scope. (This is not a "prohibited" firearm. [15] ) A 12 gauge shortened single barrel shot gun. A homemade .22 calibre "pen gun" firearm. A number of magazines for ammunition, some filled with ammunition and some not. A large quantity of ammunition suitable for mutliple calibres of firearms. 1. These offences were dealt with by way of Mr Smith pleading guilty in respect of the Colt AR 15 .223 semi-automatic rifle to an offence of possessing a firearm in contravention of a firearm prohibition order (Charge 5). On the Form 1 for Charge 5 there were eight further offences of breaching a firearm prohibition order (seven for each other firearm and one for the ammunition). 2. Charge 6 was an offence against s 51D2 of the Firearms Act of Possession by a person not authorised by licence or permit of more than three unregistered firearms, any one of which is a pistol or prohibited firearm. This charge related to all but the registered firearm, the first in the list above. 3. On the Form 1 for Charge 6 there was an offence of Possess unauthorised firearm (the Remington 700 bolt action sniper rifle), two offences of Possess prohibited weapon (magazines capable of holding 10 rounds ammunition), one offence of Possess ammunition without a licence or permit and eight offences of Not keep firearm safely. Assessment of objective seriousness of the offences 1. The learned sentencing judge made an assessment of the objective seriousness of each of the principal offences for which the respondents were to be sentenced. Her conclusions in this regard were not disputed on the appeal. Manufacture commercial quantity (641 g) methylamphetamine – Charge 1 for both respondents 1. Her Honour had regard to the weight of the drug, its 100% purity and the prescribed commercial quantity (250 g) and large commercial quantity (at the time, 1 kg). She described the operation as "large-scale and well organised". There was a large amount of equipment. Photographs revealed the nature and extent of the operation. A metal reaction vessel being used had the capacity to manufacture large batches (up to 6 kilos per batch). She said the operation was "clearly for the purpose of financial reward". Each offender was actively involved in the set up as well as the manufacturing process at the remote rural property. The manufacturing process was in progress when police attended. A 40 litre stainless steel reaction vessel with an attached custom-made stainless steel condenser was in active reflux. Her Honour was satisfied that the role of Smith was greater than that of Campbell because of his ownership of the property. 2. Having regard to these matters, her Honour found the offence was "just above the middle of the range of objective seriousness". [16] Possess precursor (18.5 kg Hypophosphorous acid) – Charge 2 for both respondents 1. Having regard to the potential yield from this amount of this precursor being 4.2 kg of pure methylamphetamine, her Honour found this offence was "well above the mid-range of offending". [17] Supply 19.72g of methylamphetamine – Charge 3 for Campbell 1. Having regard to the prescribed indictable quantity being 5 g and the purity of the drug being 80%, her Honour found "the objective criminality of this offence is towards the lower end of the range". [18] Possess precursor (20 kg iodine) – Charge 4 for Campbell 1. Having regard to the quantity, this offence was assessed as "well above the mid-range of offending". [19] Possess precursor (6.467 kg red phosphorous) – Charge 5 for Campbell 1. Having regard to the quantity, this offence was "above the mid-range for this offence". [20] Supply commercial quantity (993 g) of methylamphetamine – Charge 3 for Smith 1. Her Honour had regard to the quantity (993 g), the prescribed commercial quantity (250 g) and large commercial quantity (at the time, 1 kg). She also had regard to the purity being 24.5% with the pure weight of methylamphetamine being 243 g. Having regard to these matters, the offence was found to be "in the middle of the range of objective seriousness". [21] Possess precursor (936.27 g pseudoephedrine) – Charge 4 for Smith 1. The pseudoephedrine was contained in over 2000 tablets. The amount of pure pseudoephedrine was 135.6 g and the potential yield from that was 101 g of pure methylamphetamine. Accordingly, her Honour found the offence was "below the middle of the range of offending". [22] Possess firearm (Colt AR15 .223 semi-automatic rifle) in contravention of prohibition order – Charge 5 for Smith 1. Her Honour had regard to the nature of the firearm and that it was found in a bag with five magazines each loaded with ammunition and an attachable scope and bipod stand. She had regard to it being found inside a storage shed: the shed was secured but the weapon was not. She also had regard to the respondent's role which was to store weapons in his capacity as a member of the Nomads OMCG. He was responsible for the security of the weapons. Her Honour said, "clearly, this created a very significant risk to public safety". 2. The objective seriousness of this offence was found to be "in the middle of the range". [23] Possess more than three unregistered firearms, one or which is prohibited – Charge 6 for Smith 1. Her Honour took into account that this offence related to seven firearms, six of which were prohibited; that they were found immediately proximate to over 1000 rounds of ammunition; and that they were found inside a storage shed, the shed being secure but the weapons not. Her Honour's finding as to the respondent's role in storing the weapons applied equally to this offence. 2. This offence was found to be "well above the mid-range of offending for this type of offence". She said that "this is particularly so because of the purpose of the storage, namely for and on behalf of the Nomads Outlaw Motorcycle Gang". [24] Background and personal circumstances of the respondent Campbell 1. Mr Campbell was aged 44 at the time of sentencing. 2. He has a criminal record which includes a stealing offence in 2004 (good behaviour bond); drug supply (2) gun possession (2) and other offences taken into account in 2007 (sentenced in 2009 to 4 years 7 months imprisonment with 3 years 1 month non-parole); and contravention of an apprehended domestic violence order in 2013 (fine). The judge regarded the record as one that disentitled Mr Campbell to any leniency on sentence. She also noted that the prior convictions for drug offences gave rise to considerations of both specific and general deterrence. 3. There was nothing particularly notable about Mr Campbell's family and relationship history. As to his employment history, he became an apprentice greenkeeper after leaving school and then had a lawn mowing business for about five years which he sold. He then operated a pest-control franchise business for a year that lead to seven years of litigation to recover money due to him. This took a toll, both financially and emotionally. At the age of 20 he took up employment in security work. He sustained an injury when he fell through the roof of a workshop involving fractured vertebrae and ribs. After six months off work he returned to light duties as a plant waterer on Garden Island. He reported that he had not been the same physically or psychologically since the fall. As the same time he was encountering difficulties with his marriage; he had separated from his wife who apparently suffered from schizophrenia. (This was as at the time of a psychological report prepared in relation to the drug and firearm matters in 2009). 4. The judge noted that Mr Campbell first tried amphetamines and cocaine at the age of 17. He claimed in 2009 to have detoxified in custody and had been drug-free since. The psychologist who reported at that time (Mr Watson-Munro) considered that Mr Campbell was endeavouring to turn his life around; he was drug-free in custody and was highly motivated towards his family responsibilities. 5. In Mr Watson-Munro's report of 18 October 2017 it was said that Mr Campbell had been working as a forklift driver on a subcontract basis. He then became involved in a skip bin business with his co-offender. They had worked together for about 12 months and had been friends for 21 years. 6. Mr Campbell told the psychologist that after he renewed his friendship with Mr Smith he began using crystal methylamphetamine (ice). He said he experienced high levels of paranoia and sleep disturbance during that time. He had been abstinent from drugs since going into custody. He had attended a Positive Lifestyle course and had secured employment within the prison. He had plans to marry upon his release. 7. Mr Watson-Munro assessed Mr Campbell as being depressed and anxious, saying that the symptoms were apparent at interview and confirmed through psychometric testing. He felt, however, that "this is a function of his escalating concerns referrable to his pending sentence hearing". Despite this, Mr Campbell acknowledged that he had much to look forward to upon his release in the context of his relationship and his strong desire to re-enter the workforce. Mr Watson-Munro considered that with appropriate treatment, "his prognosis will remain on a positive trajectory". 8. A letter by Mr Campbell's fiancé confirmed that she had been with him for over four years and remained supportive. She was of the opinion that he was motivated not to re-offend. 9. The judge concluded that Mr Campbell had taken positive steps towards his rehabilitation whilst in custody. She accepted the evidence concerning his abstinence from drugs and the course he said he had undertaken. She added, however: "Despite these positive steps, any assessment of his prospects for rehabilitation must remain guarded because it is accepted that he has an ongoing affiliation with the Lone Wolf Outlaw Motorcycle Gang." [25] 1. Her Honour was also unable to find that Mr Campbell was unlikely to re-offend. 2. A finding of special circumstances was made so as to permit a reduction in the proportion of the sentence represented by the non-parole period. The factors she accepted were relevant to this were that Mr Campbell had spent an extended period of time in custody as a remand prisoner and that he needed an extended period on parole to facilitate his reintegration into the community. [26] Background and personal circumstances of the respondent Smith 1. Mr Smith was aged 49 at the time of sentencing. 2. He has a criminal history which includes a number of offences committed in 1997 for which, after an appeal, he was fined and placed on good behaviour recognizances (the offences were the unauthorised possession and use of a firearm, possession of a prohibited article, possession of housebreaking implements, and committing an act of cruelty upon an animal). In 2004, after an appeal, he was sentenced to 12 months imprisonment to be served by way of periodic detention for assault occasioning actual bodily harm. 3. In 2007 he was placed on good behaviour bonds, including in respect of a suspended sentence of 6 months imprisonment, for offences of assault and stalking or intimidating with intent to cause fear of physical or mental harm. 4. In 2013 he was fined for offences of possessing or using a prohibited weapon, affray, and two of possessing a prescribed restricted substance. 5. In 2015 he was fined and placed on a 12 month good behaviour bond with a non-association condition for having habitually consorted with convicted offenders. That bond was current at the time of the present offences which the judge noted to be an aggravating feature. [27] 6. As with the respondent Campbell, her Honour regarded Mr Smith's prior record as disentitling him to any leniency on sentence. She also noted that the previous convictions for firearm offences gave rise to considerations of both specific and general deterrence. 7. The judge derived from the documentary material before her that Mr Smith's parents separated when he was aged 12. He remained living with his father while his siblings lived with his mother. He reported that his father drank to excess and there were instances of physical and psychological abuse. After having been dux in Year 6 at school he experienced difficulties at high school and his academic performance declined; this coinciding with the separation of his parents. He was a victim of bullying as well. 8. Mr Smith's employment post-high school included working as a waiter, labourer, bricklayer and factory worker. He completed a printing apprenticeship and was employed in that field for four years. He then sought a career in boxing and kickboxing but did not succeed. He became a bouncer and had his own security company for 10 years. At the time of the offences he had been working in the skip bin business with Mr Campbell. 9. Mr Smith's father passed away in 2002 and this had a significant emotional impact upon him. His use of cannabis, alcohol and other drugs increased. He married his long-time girlfriend but they soon broke up and she left for overseas. 10. Mr Smith reported that he experienced depression from 2002 and this was exacerbated in 2011 when he was involved in a motor bike accident and suffered serious and ongoing health difficulties. He almost lost his right foot which was saved by the insertion in the ankle of numerous plates and screws. He became addicted to prescription medication as well as ice and cannabis. 11. The judge recorded that Mr Smith had described himself to a psychologist as "somewhat of a loner" but wanted human contact which led him to join the Nomads OMCG. 12. The psychologist, Mr Sam Borenstein, found Mr Smith's mood was mildly depressed. He considered that he presented with Major Depression and Substance use disorder, currently in remission. 13. It was submitted to her Honour that there was a causal link between Mr Smith's mental health and his offending because it was associated with his joining the Nomads. She said that she was not satisfied of such causal connection but would take the mental health issues into account. 14. The judge noted that Mr Smith's family remained supportive of him. 15. Mr Borenstein also reported that Mr Smith had said he was now motivated towards rehabilitation and had been abstinent from drugs whilst in custody. Her Honour considered that his rehabilitation prospects were "guarded because he has accepted that he has ongoing contact with members of the Nomads Outlaw Motorcycle Gang". She was unable to find that he was unlikely to reoffend. She noted that there was no evidence of remorse. [28] 16. Her Honour was satisfied that there were special circumstances warranting a reduction of the non-parole period, being that custody was more onerous for the offender because of his poor physical health and that he needed an extended period on parole to facilitate treatment for his depression. Other aspects of the sentencing judgment 1. The judge addressed the question of parity in sentencing the two offenders. In relation to the offence in Charge 1 for each offender (manufacturing 641 grams of methylamphetamine) she considered that the only differentiating feature in relation to objective criminality was that Mr Smith owned the property where the manufacturing was carried out. Subjectively, their backgrounds were indistinguishable. For these reasons she said she would impose a slightly greater sentence upon Mr Smith. She said she would impose the same sentences in relation to other offences where they were jointly charged. [29] 2. Her Honour indicated that she proposed to impose aggregate sentences. She said that if she had imposed individual sentences she would have partially accumulated each of the sentences in respect of Mr Smith in order to reflect the totality of the criminality. In respect of Mr Campbell, she said that she would do the same with the exception of the supply 19.2 g of methylamphetamine offence (Charge 3) because she thought the criminality for that was encompassed adequately within the sentence for the commercial quantity manufacture offence (Charge 1). [30] 3. Both respondents pleaded guilty in the Local Court on 8 February 2017. The judge said she would reduce the sentences she would otherwise have imposed by 25 per cent. [31] Basis of the Crown appeal 1. The Crown relies upon the sole ground of appeal that the aggregate sentences imposed in respect of each respondent are manifestly inadequate. It contended that three particular matters may explain how a manifestly inadequate sentence may have been arrived at: 1 Her Honour failed to impose indicative sentences that reflected the objective seriousness of the offending. 2 Her Honour erred in the approach to the principle of totality. 3 The overall sentences are unduly lenient and fail to reflect sufficient specific and general deterrence, and denunciation. 1. The first particular entails an assertion of specific error that may assist in the assessment of the sole ground of appeal, although not be determinative by itself. Consideration of the indicative sentences has been described as "a guide to whether error is established in relation to the aggregate sentence": JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40](11). 2. The second and third matters assert or imply error on the part of the sentencing judge but the Crown does not suggest that such error is patent. The Crown relies upon the last category in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505 and those two "particulars" are a description of matters the Crown says may be inferred from the inadequacy of the sentence imposed. Failure to reflect the objective seriousness of the offending Charge 1, both respondents 1. In relation to the commercial quantity manufacturing offence which was Charge 1 in respect of both respondents, the Crown contended that the indicative sentence of 5 years 7 months with a 3 year 9 month non-parole period for Campbell and 6 years with a 4 year non-parole period for Smith failed to have properly reflect the judge's finding that the offence was "just above the middle of the range" where the statutory guideposts are a maximum penalty of 20 years and a standard non-parole period of 10 years. Before the 25% discount for the pleas was applied, the starting points for the head sentences were 7 years 5 months and 8 years which were significantly less than the guidepost for just the non-parole period. 2. The Crown submissions made the uncontroversial point that the seriousness of the offence was not confined to just a consideration of the quantity of drug that had been created at the time the police intervened. It referred to the judge's finding that what was involved "was large-scale and well organised with a large amount of equipment brought to the remote rural site for the purpose of manufacture". The Crown said that it was important in these circumstances for any sentence to give "full effect to the finding of objective seriousness and the nature of it". 3. The Crown contended that there was nothing in the case for either respondent that mitigated the offending in any meaningful way. It also submitted that it was clear that the offending was significantly connected with each respondent's involvement in an outlaw motorcycle gang. 4. The Crown also submitted that it was necessary for the judge to appropriately take into account the additional offences on the Form 1 documents for each respondent when assessing the appropriate sentence for this offence. This was particularly so in relation to the respondent Smith where one of these offences indicated that his activities went beyond the manufacture of the drug but extended to its supply. The supply offence to be taken into account involved an amount that was four times the prescribed indictable quantity and was of 80% purity. Charge 2, both respondents 1. In relation to the offence in Charge 2 for each respondent, possession of 18.5 kg of the precursor hypophosphorous acid, the Crown contended that an indicative sentence of 2 years 3 months (starting point 3 years) for an offence assessed as "well above the mid-range" was inconsistent with the yardstick of the maximum penalty of 10 years. 2. The evidence was that this quantity of hypophosphorous acid, and the 6.9 kg of iodine (Item 1 on the Form 1 for this offence for both respondents) capable of yielding 4.2 kg of pure methylamphetamine (over 4 times the prevailing large commercial quantity). Possession of this quantity of a precursor was said to indicate that each respondent was not only capable but was prepared to engage in further manufacturing on a very significant scale. 3. It was further submitted that not only did this offence represent significant criminality, it was criminality that was separate and distinct from that in Charge 1 which should have been reflected in an appropriate indicative sentence as well as in an appropriate aggregate sentence. Charge 3, Campbell 1. Mr Campbell's Charge 3 was the supply of 19.72g of methylamphetamine. The judge found that it was "towards the lower end of the range" and indicated a sentence of 12 months (starting point of 1 year 4 months). Although it was contended that this finding as to objective seriousness was "somewhat generous", it was conceded that it was a finding that was open to her Honour. The complaint in relation to the judge's treatment of this offence was confined to totality and accumulation which is discussed later. Charge 4, Campbell 1. Charge 4 for Mr Campbell was the possession of 20 kg of the precursor iodine for which the indicative sentence was 2 years 3 months (starting point 3 years) against a maximum penalty of 10 years. The judge's finding was that this offence was "well above the mid-range of offending". 2. The Crown noted that this precursor was found at the respondent Campbell's home along with other items of equipment and chemicals associated with drug manufacture. It was said to be clear that it was intended to be used in further manufacturing of methylamphetamine and that it was one of the three major chemical components required to do so. 3. Moreover, the Crown referred to the requirement for the judge to take into account a further three offences on a Form 1, two of which concerned the possession of precursors with intention to use them in manufacturing and one which concerned possession of drug manufacturing apparatus. 4. The Crown did not explicitly assert in the written submissions that the indicative sentence for this offence was inadequate, but it was clearly implied. Charge 5, Campbell 1. The offence of possessing of 6.467 kg of the precursor red phosphorous was found by the judge to be "above the mid-range". Red phosphorous was one of the main chemical precursors in manufacturing methylamphetamine and the quantity jointly possessed by the respondents was significant. The Crown submitted that, contrary to the judge's finding as to the objective seriousness of the offence, an indicative sentence of only 1 year 10 months (starting point about 2 years 6 months) was appropriate for a matter falling towards the lower end of the range when regard is had to the maximum penalty of 10 years. Charge 3, Smith 1. The offence of supplying a commercial quantity (993 g) of methylamphetamine was found to be in the "middle of the range" and yet the sentence indicated was one of only 4 years 6 months with a non-parole period of 3 years (starting point 6 years) against a maximum penalty of 20 years and a standard non-parole period of 10 years. 2. The Crown pointed to this significant quantity of methylamphetamine being found at Mr Smith's home along with a large number of items relating to both the manufacture and supply of the drug (e.g. seven mobile phones). It was submitted that the respondent's involvement in drug dealing extended beyond manufacture and included activities related to supplying the drug to a substantial degree. 3. The Crown also pointed to the three supply offences that Mr Smith asked to be taken into account in relation to Charge 3. They involved quantities of 48g, 7g and 20g (in rounded terms). The latter two related to Mr Smith continuing to possess and exercise control over quantities whilst he was on remand. This was said to highlight the need for greater weight to be given to personal deterrence and denunciation. Charge 4, Smith 1. The Crown referred to the finding that this offence was "below the middle of the range" but contended that the indicative sentence of 18 months (2 year starting point) was more appropriate for an offence at the lower end of the range. It was said to be clear from all of the surrounding circumstances that not only was the respondent intending to undertake a further manufacture of significant quantities of methylamphetamine with this 936.27g of the precursor, pseudoephedrine, he was in a position to do so. Charge 5, Smith 1. This is the offence of possessing a firearm whilst subject to a firearm prohibition order. It is a relatively new offence and there is only a single case in the Judicial Commission's database of sentencing statistics. 2. The maximum penalty for this offence is 14 years and the judge found it was in the "middle of the range" and yet she assessed an indicative sentence of 3 years (4 year starting point) which the Crown submitted was appropriate for a matter falling toward the lower end of the range. A reason why the indicative sentence was inadequate was that it was also necessary to take into account the Form 1 offences concerned with the respondent's acquisition of other firearms and ammunition in breach of the firearms prohibition order. Thus, it was necessary for the sentence to reflect an enhanced need for personal deterrence and denunciation. Charge 6, Smith 1. This offence against s 51D of the Firearms Act was found to be "well above the mid-range" but the Crown said that an indicative sentence of 6 years with a non-parole period of 4 years (starting point of 8 years) did not reflect the finding when the maximum penalty was 20 years and there was a standard non-parole period of 10 years. 2. The finding as to objective seriousness was said to be clearly warranted. The offence related to seven firearms, six of which were prohibited, which was well above the minimum required to make out the offence: four unregistered firearms, one of which is prohibited. There was also the judge's finding as to Mr Smith's role in storing the weapons on behalf of the Nomads. Totality and accumulation 1. The Crown referred to the relevant principles to which I will refer later. Totality in relation to the sentencing of Campbell 1. In relation to the respondent Campbell, the Crown contended that her Honour was in error in regarding Charge 1 (commercial quantity manufacture) as encompassing entirely the criminality in Charge 3 (supply 19.72g). This was said to be because the charges represented different conduct; the quantity of the drug in the supply charge was relatively significant given its high purity; and it was clear that it was derived from a different manufacture than the one the subject of Charge 1. For these reasons, Charge 3 represented a separate episode of criminality and so there was no basis for regarding Charge 1 as encompassing it. The Crown also referred to authority for the proposition that there is a need to ensure public confidence in the administration of justice by avoiding a perception that those who commit multiple offences will not receive more severe punishment. 2. As to the aggregate sentence generally, the Crown submitted that it reflected only a very small degree of notional accumulation. It was a sentence of 8 years 6 months and the indicative sentence for Charge 1 was 5 years 7 months. Accordingly, the criminality in the other four offences (and taking into account the further 11 Form 1 offences) accounted for only another 2 years 11 months. The non-parole period for Charge 1 was only 1 year 10 months less than that for the aggregate sentence. 3. It was submitted that there was "considerable distinct criminality" between the commercial quantity manufacturing offence in Charge 1 and Charges 2, 4 and 5 which were concerned with possession of precursors in significant quantities with intent to (further) manufacture. Those three charges concerned each of the three main chemicals required for the manufacture of methylamphetamine and each was a quantity sufficient for the manufacture of a large commercial quantity (1.0 kg as prescribed at the time). Totality in relation to the sentencing of Smith 1. The Crown contended that, despite its submissions to the contrary, the judge had not found that the firearms offences for Mr Smith were connected with the drug-related offences. It submitted that it could thereby be inferred that her Honour regarded the firearms offences simply related to Mr Smith's involvement with the Nomads. 2. The Crown submitted that if a finding had been made that there was a connection between the two types of offences there would have been a significant increase in the objective seriousness of those offences. R v Amurao [2005] NSWCCA 32 at [69] and Luu v R [2008] NSWCCA 285 at [32] were cited. It was submitted that in these circumstances there was a need for a substantial degree of (notional) accumulation of the sentences for the drug offences and the firearms offences. 3. The judge did indicate an intention to partially accumulate each of the six sentences but it was contended that aggregate sentence reflects only a very small degree of accumulation. 4. In relation to the drug matters, it was submitted that there was distinct criminality between the manufacturing offence, the supply offence and the two precursor offences and so there was a need for significant accumulation, albeit perhaps less between the sentences for the two precursor offences. 5. Between the firearms sentences, there was said to be also a need for some accumulation "to reflect the fact that the acquisition of firearms contrary to the firearms prohibition order needed to be reflected solely in Charge 5 (as well as the significant number of similar matters attached to the Form 1) whereas the possession of the cache of weapons in itself was to be reflected in Charge 6". Manifest inadequacy 1. The Crown submitted that its claim that the aggregate sentences imposed upon each respondent were manifestly inadequate was made good for the reasons advanced under the first two particulars. It submitted that if the objective seriousness of the offences, as well as the need for specific and general deterrence and denunciation, were properly reflected in both the indicative and aggregate sentences, a substantially more severe sentence would have been the result. The need for general and specific deterrence, denunciation and protection of the community was submitted to be particularly important in relation to the firearms offences in Mr Smith's case. Submissions for the respondent Campbell 1. In relation to each of the indicative sentences and the aggregate sentence overall, counsel for Mr Campbell acknowledged that the respondent's subjective case was "not overly powerful". It was emphasised, however, that the judge accepted that he had taken positive steps towards his rehabilitation whilst in custody and she appears to have accepted that he had ongoing support from his partner. [32] 2. In relation to the indicative sentence for Charge 1 (commercial quantity manufacture), it was submitted that a starting point of 7 years 6 months, prior to reduction by 25% for the plea of guilty, does not fail to reflect the objective seriousness of the offence. It was also submitted that the Crown had not demonstrated that the indicative sentence was manifestly inadequate by reference to other cases or sentencing principles. [33] 3. It was acknowledged that in relation to the precursor possession offences in Charges 2 and 4, which were each found to be "well above the mid-range" of objective seriousness, the starting point for the indicative sentences of 3 years against a maximum penalty of 10 years "has the appearance of being lenient". [34] However, it was submitted that in the absence of a prescribed standard non-parole period for an offence against s 24A(1)(a) of the DM&T Act, it is difficult to identify a sentence that would reflect an offence found to be in the mid-range. The argument then was that if the 10 year maximum penalty was reserved for offences in the worst case category, where there is 25% reduction for an early plea of guilty for such an offence there would be a sentence of 7 years 6 months. It was submitted that the sentence for a mid-range offence does not fall half-way between 0 years and 7.5 years because "the measurement of a sentence imposed against the maximum penalty as a yardstick is not a mathematical calculation". [35] 4. A similar submission was advanced in relation to the indicative sentence for the other precursor possession offence (Charge 5) which was found to be "above the mid-range". 5. As to the issue of totality and accumulation, counsel correctly pointed out that the accumulation of sentence is a matter which requires the exercise of a discretion based upon the circumstances of the case at hand and it is a matter about which the views of sentencing judges might differ. It was submitted that it was open to the judge to regard the criminality involved in the supply offence (Charge 3) was encompassed with that which was involved in the commercial manufacture offence (Charge 1) because it involved the same drug which was found at the same location. Moreover, Charge 1 involved a substantial quantity of methylamphetamine whereas the quantity involved in Charge 3 was comparatively minor. [36] 6. It was also submitted that because the corresponding supply offence for the co-offender Smith was one that was taken into account on a Form 1 in his case, it was "quite proper" that the notional sentence for Charge 3 had no apparent impact upon the aggregate sentence for Mr Campbell. And, if it had any impact, it would only have been "very modest". [37] 7. As to the notional accumulation of the indicative sentences for the three precursor offences (Charges 2, 4 and 5) upon that for the commercial quantity manufacture offence (Charge 1), counsel submitted that the sentences for the three precursor offences should have been substantially concurrent on their own given their intended use overlapped. Further, it was submitted that a substantial part of the criminality involved in the precursor offences is encapsulated in the manufacturing offence. Accordingly, a notional accumulation of 2 years 11 months upon the indicative sentence assessed for Charge 1 was said to represent a proper application of the principle of totality. [38] 8. As to the aggregate sentence, counsel for Mr Campbell conceded that it was lenient but maintained that it was not manifestly inadequate. A sentence of 8 years 6 months was a "substantial sentence", particularly after the respondent had received the benefit of a 25% reduction on account of his early pleas of guilty. [39] The judge had regard to all relevant principles and had imposed a sentence that was within the legitimate exercise of her sentencing discretion. Submissions for the respondent Smith 1. Counsel for Mr Smith addressed the Crown's claim that the indicative sentence for the commercial quantity manufacture offence (Charge 1) is manifestly inadequate by referred to sentencing statistics and case details from the Judicial Information Research System (JIRS) [40] as well as to some other "comparative" cases. It was submitted that when regard was had to that material it can be seen that the indicative sentence for Charge 1 was well within the judge's sentencing discretion because it is not "markedly different from other sentences that have been imposed in other cases": Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. It was not "below the range of sentences that could be justly imposed for the offence consistently with sentencing standards": Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. [41] 2. A similar submission was made in respect of the Crown's reference to statistics and cases in respect of the aggravated firearm possession offence (Charge 6). [42] 3. Counsel for Mr Smith referred to the case of El Jamal v R [2017] NSWCCA 243 that the Crown had referred to below and Mack v R [2009] NSWCCA 216 upon which the respondent had relied in support of the proposition that the sentence for the offence in Charge 6 was not manifestly inadequate. It was accepted that the indicative sentence for the Charge 6 offence was lower than in those two cases. However, it was submitted that this did not mean that the sentence was "markedly different" having regard to the "principle of individualised justice" which allowed the judge to have regard to all relevant considerations including the respondent's subjective circumstances. [43] 4. In relation to the offence in Charge 5 of possessing a firearm in contravention of a prohibition order, it was submitted that the indicative sentence of 3 years (starting point 4 years) was consistent with the sentence imposed in a case which had been referred to by the Crown in its written submissions below: Raniga v R [2016] NSWCCA 38. [44] 5. In relation to the precursor possession offence in Charge 2, it was submitted that the indicative sentences when compared to the maximum penalty are not manifestly inadequate for offences found to be "well above the mid-range". A similar submission was made in respect of the precursor possession offence in Charge 4 where the finding was "below the middle of the range". [45] 6. The commercial quantity supply offence (Charge 3) which was found to be in the "middle of the range" was noted to involve a quantity of 993 grams of methylamphetamine that was in cloudy liquid form, consistent with the manufacture of the drug and unlikely with it being supplied in that form. It was submitted that the indicative sentence of 4 years 6 months with a non-parole period of 3 years (starting point 6 years) was not manifestly inadequate. [46] 7. As to the degree of accumulation and the principle of totality, counsel for Mr Smith pointed out that although the prohibited substances were found at different locations, the drug and precursor offences were part of a single ongoing enterprise concerned with the manufacture of methylamphetamine. Accordingly, it was appropriate for there to be a large, if not very large, degree of concurrency in the indicative sentences for those offences. There was not any distinct criminality as between the manufacturing, supply and two precursor offences. [47] 8. It was also submitted that there was a large degree of overlap between the two firearms offences (Charges 5 and 6). Wholly concurrent sentences would not have been inappropriate. A small degree of accumulation would also have been appropriate. It was also submitted that nearly all the Form 1 firearm offences involved either acquiring the firearms the subject of Charge 6, or not keeping them safely, and so there was not much of a greater need for personal deterrence to be factored in to the indicative sentence for the principal offences that was not already apparent. [48] 9. In concluding the written submissions, counsel accepted that the aggregate sentence was lenient but submitted that it was not manifestly inadequate. Moreover, it was submitted that the sentence was not "derisory" and that, together with the absence of the Crown having identified any specific error on the part of the sentencing judge, should lead this Court to dismiss the appeal. [49] Principles in relation to Crown appeals 1. The principles applicable to Crown appeals were summarised in the written submissions for the Crown in a manner that was not subject to any criticism: "A claim of manifest inadequacy requires the party advancing that complaint to establish that the sentences imposed were unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach. (R v Dinsdale (2000) 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]). Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public and are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice. (Everett v The Queen (1994) CLR 295 at 306 per McHugh J). The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted person. In the exercise of its jurisdiction under s 5D Criminal Appeal Act 1912 the Court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1]). The Crown bears the onus of negating any reason why the residual discretion of this Court not to interfere should be exercised. (Griffiths v The Queen (1977) 137 CLR 293; Green v The Queen; Quinn v The Queen; CMB v Attorney-General (NSW) [2015] HCA 9 at [36]). A claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error (Dinsdale v R [2000] HCA 54; 202 CLR 321 at [6]). In Harris v R [2015] NSWCCA 81 Adamson J (with whom Basten JA and R A Hulme J agreed) observed that where there is in substance only one ground of appeal, manifest inadequacy, identification of specific error is not required. Her Honour also noted that, nonetheless, identification of specific error may assist to explain why a sentence is manifestly inadequate. Her Honour noted that the judgment in CMB (CMB v Attorney-General (NSW) [2015] HCA 9) does not support the proposition that specific error must be identified before this court will intervene, if manifest inadequacy can be established." 1. Counsel for Mr Smith referred to further authority including Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 where at [27] the High Court said: "As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted." (Citation of authority omitted) 1. Reference was made to Bugmy v The Queen at [24] where the plurality observed that the discretion of the sentencing judge must be respected and that intervention by an appellate court is only warranted where the court was satisfied that the discretion miscarried because the sentence imposed was below the range that could be justly imposed for the offence consistently with sentencing standards. 2. Counsel for Mr Smith also referred to authority for a proposition that "where a Crown appeal is successful, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences". This was said to support a proposition that this provided "an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences". [50] 3. Dealing with the last matter first; if intervention by the appellate court could be described as "tinkering", then it would be inconsistent with the court having concluded that a sentence imposed at first instance is manifestly inadequate. Secondly, the authority cited by counsel for the proposition is Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [62] (Kirby J) which predates the insertion of s 68A in the Crimes (Appeal and Review) Act 2001 (NSW) by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW) which is in the following terms: "68A Double jeopardy not to be taken into account in prosecution appeals against sentence (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal." (Emphasis added) 1. R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [96]-[98] confirmed that the principle for which counsel for the respondent Smith cited Dinsdale v The Queen was abolished in New South Wales by s 68A. Consideration 1. Arguments were advanced by the Crown as to features of the offences that were relevant to their objective seriousness. For example, at the hearing of the appeal the Crown referred to the use of a custom-made metal reaction vessel and a custom-made metal condenser, both of high quality, which was said to be indicative of a sophisticated and well-resourced manufacturing enterprise. There is no need to engage in an analysis of such matters because the sentencing judge articulated very clear assessments of the objective seriousness of the offences that the Crown accepts and which were not the subject of any dispute by the respondents. Inadequacy of indicative sentences 1. It is important to recognise that the Crown's appeal relates only to the aggregate sentence. In such an appeal it is often relevant to consider the appropriateness of the indicative sentences but this is not determinative. Indicative sentences can be inadequate, or excessive, and yet because of the level of accumulation or concurrency the aggregate sentence may be appropriate and proportionate to the totality of criminality and the subjective features of the offender. That is not to say, however, that an examination of the appropriateness of the indicative sentences is not a worthwhile exercise; it is of considerable assistance in making an assessment of whether the aggregate sentence bears an appropriate relationship to the totality of criminality in the offending. 2. There was very little by way of mitigation available to the respondents in their subjective cases. It could not be realistically argued that they would justify sentences at the lower end of the range of aggregate sentences proportionate to the totality of criminality. Counsel for Mr Campbell frankly conceded that his client's subjective case was "not overly powerful". [51] 3. The Crown's contention that the indicative sentences are inadequate when seen in the light of the maximum penalty guidepost and the judge's findings as objective seriousness of the offences should largely be accepted. It will suffice to provide some examples. 4. Charge 1 involved the manufacture of 641g of pure methylamphetamine in the context of a sophisticated and well-organised illicit drug manufacturing operation by two OMCG-affiliated offenders. It was assessed in the case of each respondent to be an offence that was "just above the middle of the range of objective seriousness". Yet, for Mr Campbell the sentence before discounting for the plea was assessed as 7 years 6 months and for Mr Smith as 8 years. This is inadequate when regard is had to the maximum penalty of 20 years and the standard non-parole period of 10 years. An assessment in the region of around 10 years before reduction for the plea would have been appropriate. 5. A finding of "well-above the mid-range" of objective seriousness in relation to the possession of 18.5kg of the precursor hypophosphorous acid with intent to manufacture (Charge 2 for both respondents) is clearly not reflected in a starting point of 3 years and an actual sentence of 2 years 3 months when there is a guidepost maximum penalty of 10 years. One is left to wonder what sentence would be assessed for a mid-range offence committed by an offender with a reasonable subjective case. The same question is valid when the Form 1 offence(s) are taken into account. 6. In Mr Smith's case, a finding of "well above the mid-range" for the aggravated possession unregistered firearms (Charge 6), in the context of a maximum penalty of 20 years and a standard non-parole period of 10 years, is clearly not compatible with a starting point for a sentence of 8 years, the more so when regard is had to the 12 additional offences that Mr Smith asked the judge to take into account. 7. The Crown submitted (correctly) that Mr Smith's offences of possessing a firearm in contravention of a firearm prohibition order (Charge 5) represented criminality beyond that in Charge 6. This was the offence that charged him with having the firearm and the offence for which the judge was asked to take into account that Mr Smith had the other firearms. The only other charge in relation to most of the firearms was that they were not being kept safely (Form 1, Charge 6). The possession of a Colt AR15 .223 calibre semi-automatic rifle in contravention of a firearm prohibition order, taking into account that Mr Smith had also acquired a significant number of other firearms notwithstanding the prohibition order, in circumstances where he was warehousing them along with a considerable quantity of ammunition on behalf of an OMCG for potentially criminal misuse, leads only to a conclusion that the sentence of 3 years (starting point 4 years) against a maximum penalty of 14 years is quite inadequate. 8. Reference should be made to the submission by counsel for Mr Smith that the 3 year indicative sentence assessed for Charge 5 was "similar to the sentence imposed upon the applicant in Raniga v R [2016] NSWCCA 38. The offence in that case was one of possess unauthorised firearm contrary to s 7(1) of the Firearms Act for which there is a maximum penalty of 14 years' imprisonment with a standard non-parole period (at the relevant time) of 3 years. Mr Raniga asked the sentencing judge to take into account three offences on a Form 1 document: two of possess/use prohibited weapon without permit and one of possess ammunition without licence, permit or authority. The sentence imposed was 4 years 6 months (not 4 years as stated in the written submissions) with a non-parole period of 3 years. The sentence was reduced by 25% for an early plea of guilty so the starting point must have been one of 6 years (as opposed to the 4 year starting point for Mr Smith). 9. The firearm in question was a 7.62 x 39mm calibre SKS self-loading rifle. It was found along with ammunition in the boot of a taxi in which the offender was travelling with a co-offender with a further co-offender following in another vehicle. The offender and his companion in the taxi were "prospect" members of the Hells Angels OMCG and the man in the car behind was the president of the Sydney chapter. The judge rejected Mr Raniga's claim that the firearm was intended for "hunting" and concluded that possession "was not for some innocent purpose but was in some way connected with his involvement with that outlaw motor cycle group". Grounds of appeal asserting an error in the assessment of objective seriousness ("upper end of the mid-range") and manifest excess were both rejected. 10. Mr Smith's reliance upon this case is (with respect) misplaced. A starting point for the sentence in that case of 6 years, if anything, supports the Crown's contention that the starting point of 4 years for Mr Smith's Charge 5 was inadequate, particularly when regard is had to the need to take into account his guilt in respect of his acquisition of a significant number of other firearms and a large quantity of ammunition in contravention of a prohibition order. Notional accumulation / concurrency 1. The level of notional accumulation of the individual sentences is impossible to determine as the judge did not indicate by how much one sentence was notionally accumulated upon another. She was not required to. What the judge was required to do was to determine an aggregate sentence that was proportionate to the totality of the criminality involved. 2. The approach to be taken in sentencing for multiple offences was described in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at 624 [45]: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59)." 1. Beazley P explained the approach to be taken in the context of fixing an aggregate sentence in Jeffree v R [2017] NSWCCA 72: "[43] When a court determines an aggregate sentence, the sentence so imposed must reflect the totality of the criminality involved: see JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]. In R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130, the Court, at [44], endorsed the leading statement of the effect of the totality principle from D A Thomas, Principles of Sentencing, which was endorsed by the High Court in Mill v The Queen (1988) 166 CLR 59 at 63: 'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".' [44] A court, as part of the sentencing process, is required to state the indicative sentence for each offence: the Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2). There is no statutory requirement, to state any period of accumulation although there is no prohibition in doing so. [45] The principles governing the concurrency or accumulation of sentences were explained in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27], where Howie J (Adams and Price JJ agreeing) explained that: '… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality … If [the sentence does not reflect the overall criminality of the offending] the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences.'" 1. Both respondents submitted that there should have been substantial concurrency between the sentences for the precursor possession offences and the sentence for the commercial quantity manufacture offence. Counsel for Mr Campbell put this on the basis that a substantial part of the criminality involved in the former was encapsulated in the latter. [52] Counsel for Mr Smith went further and contended that there should have been "a large (if not very large) degree of concurrency in the indicative sentences for the drug and pre-cursor offences" as it was "not the case that there was distinct criminality as between the manufacturing, supply and two precursor offences". [53] 2. It is not necessarily the case where an offender is to be sentenced for drug manufacturing and supply that the sentences should be concurrent, or even substantially concurrent. That this is so, even where the drug the subject of the supply offence is part of the drug the subject of the manufacture offence, was made clear in Kwok v R [2018] NSWCCA 200. In that case the offender was involved with others in manufacturing methylamphetamine in a large clandestine laboratory. Soon after, he and a co-offender were arrested whilst in possession for the purpose of supply of 15 kg of the product of the manufacture. The offender was sentenced to 22 years for the manufacture offence and 15 years for the supply offence but they were partially accumulated so as to yield a total effective sentence of 25 years. 3. The first ground of appeal was that the judge had erred by partially accumulating the sentences. It was submitted that the offending in relation to the supply charge was a manifestation of, or an aggravating particular of, that in the manufacture charge. One offence comprehended the other to the point that the entirety of the offending could be viewed as a single course of criminality and the sentences should have been either wholly concurrent or accumulated to a more modest extent. [54] 4. Bellew J, with the agreement of Ward JA and Beech-Jones J, rejected the ground of appeal. It was acknowledged that when a drug is manufactured it is manufactured for the purposes of supply so in that sense the offending in the two counts was related. But his Honour did not accept that one offence was comprehended by, and reflected the criminality of, the other. The offender's activities in relation to the manufacture "were separate and distinct from those which centred upon the supply of the drug". The sentencing judge was correct to conclude that the offending in the two counts was separate and so it followed that partial accumulation was required. [55] 5. In the present case the situation is more stark. The supply offences had no relationship with the manufacture offence. The drug the subject of the supply offence (Campbell) or offences (Smith) was clearly the subject of some other episode of manufacturing. And the precursor possession offences related not to the manufacture offence but to intended manufacturing in the future. In short, there was distinct or additional criminality involved in these offences over and above that in the commercial quantity manufacture offence. Moreover, there was no basis for any accumulation to be "modest". The offence in Charge 2 for each respondent was their possession of a quantity of hypophosphorous acid, intending that it be used in the manufacture of methylamphetamine, and it was an agreed fact that, together with other chemicals, it could be used potentially to make a substantial quantity, 4.2 kg, of pure methylamphetamine. 6. No error can be discerned with her Honour's statement that had she imposed separate sentences in relation to Mr Smith she would have partially accumulated each of them to reflect the totality of the criminality. She said the same in respect of Mr Campbell with the exception of saying that the sentence for Charge 3 (supply 19.72 g of methylamphetamine) would have been concurrent because the criminality was encompassed within Charge 1 (commercial quantity manufacture). The latter was not correct as the 19.72 g of methylamphetamine was not the product of the commercial quantity manufacture offence. It represented additional criminality. However, given it was a relatively minor offence in comparison with the manufacture offence, this is of no great moment as any accumulation would have been quite modest. 7. A comparison of all of the indicative sentences on the one hand with the aggregate sentence on the other leads inescapably to the conclusion that there was substantial concurrency between the former. The question is whether aggregate sentences are proportionate, or "just and appropriate", to the totality of the respondents' criminality. Manifest inadequacy 1. The respondents had some personal circumstances that the judge was entitled to take into account but neither presented a subjective case that would justify any unusual degree of leniency being extended. They were mature men aged in their 40s with prior records that disentitled them to leniency. In Mr Smith's case there was the aggravating factor that he was on a bond for consorting. The judge observed that general and personal deterrence required added emphasis on account of each man having similar prior offences. 2. The purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) almost all pointed to a more severe sentencing outcome in this case. Promotion of the rehabilitation of the offender (s 3A(d)) was of relatively minor significance given the judge's findings in the case of each respondent that their prospects of rehabilitation were "guarded" because of their ongoing affiliation or contact with their respective OMCG. The need for punishment, deterrence (personal and general), denouncing their conduct, and making them accountable were all significant considerations. 3. In Parente v R [2017] NSWCCA 284, the unanimous reasons of five members of this Court included the observation (at [109]-[110]) that for many decades there has been no doubt about the importance of general deterrence in drug supply cases. Protection of the community is also usually of significance given the social impact of drug use, particularly as an underlying cause of other criminal offending. That policy must be reflected in relation to sentencing or taking into account the supply offences in this case. It is also a policy that logically applies to drug manufacturing offences. 4. There are many judgments of this Court in which statements have been made about the seriousness of offences against the Firearms Act and the Weapons Prohibition Act. The more serious of the two offences against the Firearms Act for which Mr Smith was sentences was that against s 51D(2) (Charge 6). Spigelman CJ made the following observation about such an offence in R v Brown [2006] NSWCCA 249: "[21] When s51D was introduced by the Firearms Amendment (Public Safety) Act 2002, the Minister said: 'Firearm related crime is a major concern for both police and the community.' [22] The offence, in a series of offences relating to firearms in the Firearms Act 1996, is directed to persons who are engaged in the warehousing of firearms for sale. A person so engaged plays a critical role in the perpetration by other criminals of the worst crimes of violence in this community. The maximum sentence reflects the important role that such conduct plays in the injuries inflicted upon members of the community by deadly weapons." 1. Of course, Mr Smith was not "engaged in the warehousing of firearms for sale"; he was warehousing a collection of deadly weapons, together with a large amount ammunition, for the benefit of an outlaw motorcycle gang. 2. When regard is had to the totality of criminality in the five substantive offences in Mr Campbell's case and six in Mr Smith's case, together with the need to take into account the 14 additional offences in Mr Campbell's case and 34 in Mr Smith's case, the overwhelming conclusion in my view is that the aggregate sentence in each case is manifestly inadequate. 3. This derives in part from the inadequacy of a number of the indicative sentences. Some of them do not reflect the objective seriousness of the offences. Many of them do not also reflect the need to take into account additional offences on the Form 1 documents. 4. The manner in which an offender's guilt of additional offences listed on a Form 1 document are to be taken into account is governed by the statutory provision and the principles recently summarised by Bellew and Wilson JJ in RL v R [2018] NSWCCA 274: "[53] Section 33(3) of the Crimes (Sentencing Procedure) Act is the only statutory limit upon the sentence that may be imposed where an offence is taken into account pursuant to s 33(2). It provides: '33(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.' [54] In Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 the provisions of s 33, along with those of s 32, were considered by this Court. The following propositions can be extracted from the judgment of Spigelman CJ: (i) although a court is sentencing for a particular offence, the use of the Form 1 means that the sentencing court takes into account an additional matter or matters in respect of which guilt has been admitted: at [42]; (ii) the sentencing court takes such additional matter(s) into account with a view to increasing the penalty that would otherwise be appropriate for the offence for which the person is to be sentenced: at [42]; (iii) the sentencing court takes such additional matter(s) into account by giving greater weight to two elements which are always material in the sentencing process, namely personal deterrence, and the entitlement of the community to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed: at [42]; (iv) the manner and degree to which the Form 1 offence(s) can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors, and the weight to be given to them in the overall sentencing task: at [44]. [55] Two further propositions regarding the use of a Form 1 in sentence proceedings can be extracted from the recent judgment of Bathurst CJ in Abbas, Bodiotis Taleb and Amoun v R [2013] NSWCCA 115: (i) ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) empower a sentencing court, in sentencing for the principal offence, to take further offence(s) into account, which could lead to an increase in penalty (up to the maximum penalty) for the principal offence: at [22]; (ii) such an approach would generally, although not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the further offence(s) were not taken into account: at [23]." 1. It must be acknowledged that the sentencing judge was well aware of the correct approach. She said towards the end of her judgment that she had taken into account the Form 1 offences in accordance with the principles in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure Act 1999, No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518. Regrettably, the end result is indicative of error. For example, in Mr Campbell's case, a sentence of 2 years 3 months cannot be justified for Charge 2 (possess precursor with intent to manufacture) when it was necessary to take into account a further such offence which was also of considerable gravity. In Mr Smith's case, a sentence of 3 years cannot be justified when it was necessary to take into account eight further offences of similar gravity. 2. The level of notional partial accumulation of the indicative sentences would seem to have been overly generous. The essential matter, however, is that the total criminality involved in the constellation of offences for which each respondent was brought to account is not reflected by a proportionate aggregate sentence. Residual discretion 1. Notwithstanding a finding that a sentence is manifestly inadequate, there remains a discretion as to whether or not the Court should intervene and re-sentence. In this regard the Crown bears the onus: CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346 at 358-9 [33]; [2015] HCA 9. 2. Counsel for Mr Campbell submitted that his client was about two-thirds through his non-parole period (he has served about 3 years 7 months out of the 5 years 7 months). Through no fault of his, there had been a substantial delay between arrest and sentence and now further delay awaiting the hearing of the Crown appeal. 3. It was also submitted that if it is held that the judge fell into error by assessing a manifestly inadequate sentence for the commercial manufacturing offence (Charge 1), then the Crown played a role in that "by referring to comparative cases which did not suggest that the sentence imposed was manifestly inadequate". In other words, there was conduct by the Crown at the sentence hearing that was relevant to the exercise of the residual discretion. It was submitted that if it was held that the aggregate sentence is manifestly inadequate, the Court should nevertheless dismiss the appeal. 4. Counsel for Mr Smith submitted that there were five reasons for the Court not to intervene if error was established. First, there was no question of principle raised. Secondly, there has been delay between the commission of the offences and the hearing of the appeal and between sentencing and the lodging of the appeal. The respondent was entitled to expect finality by now. Thirdly, there was evidence in the form of an affidavit by the respondent of anxiety and distress he had experienced since he became aware the Director of Public Prosecutions was considering an appeal and during the period in which he had to wait for a decision to be made. Fourthly, there was the conduct of the Crown in the court below in relying on statistics and other cases which did not involve sentences that were disproportionate to the indicative sentences assessed by the primary judge. Fifthly, it was submitted that any resentencing by this Court would only lead to a relatively small increase in the overall sentence. [56] 5. It is convenient to deal with the five points raised by counsel for Mr Smith as they encapsulate the arguments of counsel for Mr Campbell. 6. The assertion that no question of principle is raised overlooks the fact that this Court has a role in ensuring consistency in sentencing and the maintenance of public confidence in the administration of justice: R v JD [2018] NSWCCA 233 at [67]. The present matter involves serious drug offences and, in Mr Smith's case, firearms offences, in respect of which Parliament has provided substantial penalties. It is necessary for this Court to maintain a consistent approach by ensuring deterrent sentences are imposed whenever appropriate. 7. Delay is not a reason for the Court to refrain from intervention. The reason for the delay appears to have been largely because of the number of charges and the time taken by the parties to "negotiate" agreed facts and a division of the charges between those to which the respondents would plead guilty and those which would be placed on Form 1 documents. [57] It would seem that agreement was reached at a point that was favourable to the respondents in terms of the majority of charges being placed on Form 1 documents. 8. In any event, it is clear that the lengthy period that elapsed since the arrest of the respondents was a factor that the sentencing judge was alive to and took into account. For example, in finding special circumstances her Honour took into account that Mr Campbell had been held as "a remand prisoner for an extended period of time, namely since 29 April 2015". [58] In Mr Smith's case it had been submitted that delay should be taken into account in part because of his physical and mental health issues. There is no complaint that her Honour did not adequately take such matters into account. The fact that custody was more onerous for him because of his health was one of the reasons for her Honour finding special circumstances. 9. It is also of note that despite the best part of two years passing before the respondents entered their pleas of guilty, the judge still rewarded them with the full benefit of a 25% reduction of their sentences. 10. Much was sought to be made of the fact that the notice of the Crown appeal was not filed until 24 August 2018. However, the Crown notified each respondent that consideration was being given to an appeal by way of an email sent to their respective solicitors on 20 June 2018. Such delay is a little more than the eight weeks between sentencing and filing of the appeal in R v Hallocoglu (1992) 29 NSWLR 67. The respondent in that case received a letter a week after sentencing advising that an appeal was being considered. Hunt CJ at CL said (at 80D): "A Crown appeal will not be dismissed simply because of delay. It will only be dismissed if that delay has caused prejudice to the respondent. Such prejudice may be occasioned, for example, where as a result of a successful Crown appeal the respondent has to be returned to custody after having served the whole of the custodial part of the sentence from which the appeal is brought; but, even then, the seriousness of the crime may be such as to outweigh that prejudice." (Citation of authorities omitted) 1. It is pertinent that the respondents were each notified that an appeal was under consideration but unfortunate, to say the least, that a final decision was not made by the Director for another almost two months. If the respondents had committed less serious crimes and/or had been sentenced to short terms, or no terms, of imprisonment it may well be that the Court would refrain from interference. However, having regard to the significant terms that were imposed upon each respondent the delay is not as concerning as it otherwise might be. 2. The respondent Smith provided an affidavit in which he claimed to have suffered considerable distress in waiting for a decision as to whether the Crown would appeal and then having to wait for the appeal to be determined. He said, for example, "I couldn't believe there would be a further delay to my case, waiting for the decision as to whether the Crown would appeal was excruciating just when I thought my case was finished it seemed that it was all starting over again, I am devastated that it's not over". I accept that Mr Smith has suffered a degree of stress but how much of the symptoms are attributable to the appeal process as opposed to the time he spent on remand awaiting finalisation of the proceedings in the District Court is not entirely clear. The time taken between sentencing in the District Court and finalisation in this Court is not, in the scheme of things, out of the ordinary. 3. I should not be taken as suggesting that it is a benchmark but in R v Medd [2016] NSWCCA 216 the respondent was sentenced in December 2015 and served with a notice of Crown appeal in February 2016. The appeal was heard in June 2016 and judgment delivered in November 2016, only months before the expiry of the respondent's non-parole period. The Court considered (at [23]) that the inadequacy of the sentence that was imposed for two serious drug offences was such that it should intervene nonetheless. The delay in the present case is by no means of the same extent but the seriousness of the offences warrants the same approach. 4. The fact that Mr Campbell is two-thirds of the way through his non-parole period, as counsel pointed out, is not a sufficient reason to decline intervention. His release on parole is by no means imminent. 5. There is no merit in the assertion that the Crown contributed to the imposition of inadequate sentences (if that be the Court's finding) by drawing the judge's attention to statistics and comparable cases. The Crown correctly pointed out that in the District Court it specifically disavowed characterisation of the cases as "comparable". The statistics were of little assistance and would not have been at all influential. It is significant as well that the sentencing judge made no reference to these cases or statistics at all. 6. The final matter that was raised by counsel for Mr Smith was that any intervention would only lead to a slight increase in the sentence. That is simply incorrect. 7. Even considering the various matters that were raised by the respondents in combination, I remain persuaded by the Crown that the offences in this case are of such seriousness and the aggregate sentences imposed of such inadequacy that the Court should proceed to resentence. Resentencing 1. The facts pertaining to the offences and the subjective cases of each respondent have been outlined in detail and there is nothing further to add. 2. The Court is required to take into account such further evidence as may be placed before it as to events which have occurred since sentencing: R v Deng [2007] NSWCCA 216 at [28]. The affidavit by the respondent Smith referred to earlier not only speaks of the stress he says he has experienced but also of what he has been doing in custody since being sentenced. He received a "B" classification but has had to remain with an "A" classification because his status remained as a remand prisoner. The pain and discomfort he experiences with his ankle continues to trouble him. He has experienced difficulty in obtaining access to his cell to elevate his foot during the day and he encountered delays in accessing orthopaedic shoes. Nevertheless he was working for about a month and since then has been undertaking education on a full-time basis with a view to acquiring skills that he did not have when he came to gaol. 3. None of this warrants a change in the assessment made by the primary judge that Mr Smith has taken positive steps towards rehabilitation but his prospects are guarded because of his ongoing contact with members of the Nomads OMCG. Mr Smith's affidavit is silent about the latter. The affidavit does, however, confirm that custody remains a more onerous experience for him because of his physical health. The primary judge took that into account in finding special circumstances; a finding that should be maintained for both respondents in resentencing. 4. There was no evidence provided by Mr Campbell. As with Mr Smith, there was no suggestion that this Court should depart from any of the findings made by the sentencing judge. 5. Having regard to the objective seriousness of each of the principal offences, and having regard in each case to the additional offences to be taken into account, and tempering the determination by such subjective matters as are available in the case of each respondent, I propose the indicative sentences set out in the following tables. Where necessary the sentences have been rounded in order to achieve a practical result but each has been the subject of a reduction by 25% on account of the pleas of guilty. 6. The proposed indicative sentences in respect of Mr Campbell are: Charge 1: Manufacture commercial quantity (641g pure) of methylamphetamine DM&T Act, s 24(2) – maximum 20 years Standard non-parole period 10 years "Just above the middle of the range" 6 years 9 months Non-parole 4 years 4 months Charge 2: Possess precursor (18.5kg hypophosphorous acid) with intent to manufacture prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Well above the mid-range" 4 years Charge 3: Supply (19.72g) methylamphetamine DM&T Act, s 25(1) – maximum 15 years "Towards the lower end of the range" 12 months Charge 4: Possess precursor (20kg iodine) with intent to manufacture prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Well above the mid-range" 4 years 6 months Charge 5: Possess precursor (6.467kg red phosphorous) with intent to manufacture prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Above the mid-range" 4 years 1. The proposed indicative sentences in respect of Mr Smith are: Charge 1: Manufacture commercial quantity (641g pure) methylamphetamine DM&T Act, s 24(2) – maximum 20 years Standard non-parole period 10 years "Just above the middle of the range" 7 years "Role of Smith slightly greater than that of Campbell" Non-parole 4 years 6 months Charge 2: Possess precursor (18.5kg hypophosphorous acid) with intent to manufacture prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Well above the mid-range" 4 years Charge 3: Supply commercial quantity (993g) methylamphetamine DM&T Act, s 25(2) – maximum 20 years Standard non-parole period 10 years "Middle of the range" 6 years Non-parole 3 years 10 months Charge 4: Possess precursor (936.27g pseudoephedrine) with intent to manufacture prohibited drug DM&T Act, s 24A(1)(a) – maximum 10 years "Below the middle of the range" 3 years 4 months Charge 5: Possess firearm (Colt AR15 .223 calibre semi-automatic rifle) in contravention of prohibition order Firearms Act, s 74(1) – maximum 14 years "Middle of the range" 6 years Charge 6: Possession by a person not authorised by licence or permit of more than 3 unregistered firearms, any one of which is a prohibited firearm Firearms Act, s 51D(2) – maximum 20 years Standard non-parole period 10 years "Well above the mid-range" 7 years 6 months Non-parole 4 years 10 months 1. Each of the offences entails discrete criminality that is not completely encompassed by any of the other offences. The degree to which this is so varies from a slight degree in the case of Charge 3 concerning Mr Campbell to quite a significant degree in the case of Charge 1 for each respondent and for the firearms offences in relation to Mr Smith. 2. The aggregate sentences I propose have been formulated upon the basis of the totality of the criminality in the offences but, once again, tempered by such favourable matters that there are in the subjective case of each respondent. Orders 1. I propose the following orders in respect of Simon Vincent Campbell: (1) Crown appeal against sentence allowed. (2) Aggregate sentence imposed in the District Court on 8 June 2015 quashed. (3) The respondent is sentenced to an aggregate term of imprisonment for 11 years with a non-parole period of 7 years. The sentence is to date from 29 April 2015 and the respondent will become eligible for release on parole when the non-parole period expires on 28 April 2022. 1. I propose the following orders in respect of Sean Anthony Smith: (1) Crown appeal against sentence allowed. (2) Aggregate sentence imposed in the District Court on 8 June 2015 quashed. (3) The respondent is sentenced to an aggregate term of imprisonment for 16 years with a non-parole period of 10 years 6 months. The sentence is to date from 29 April 2015 and the respondent will become eligible for release on parole when the non-parole period expires on 28 October 2025. ********** Endnotes 1. ROS [103] 2. ROS [107] 3. ROS [106] 4. ROS [110] 5. ROS [111} 6. ROS [103] 7. ROS[102] 8. ROS [107] 9. ROS [105] 10. ROS [109] 11. ROS [116] 12. ROS [114] 13. Item 7 on the Form 1 is described as an offence of Not keep firearm safely and relates to a homemade .22 pen gun. In fact, such a charge is Item 11 on the Form 1 for Charge 6. The agreed facts indicate that Item 7 of the Form 1 for Charge 5 relates to a charge of possession of a firearm whilst subject to a prohibition order and that makes sense as that is the nature of the charge for all the other offences on that Form 1. 14. POS 14.40 (AB 501) 15. Crown District Court written submissions at [61] (AB 391) 16. ROS [103] 17. ROS [107] 18. ROS [106] 19. ROS [110] 20. ROS [111] 21. ROS [105] 22. ROS [109] 23. ROS [116] 24. ROS [114] 25. ROS [193] 26. ROS [195]-[196] 27. ROS [117] 28. ROS [148]-[150] 29. ROS [197]-[201] 30. ROS [202]-[203] 31. ROS [3]-[4] 32. Campbell WS [14] 33. Campbell WS [5]-[9] 34. Campbell WS [11] 35. Campbell WS [12] 36. Campbell WS [18]-[21] 37. Campbell WS [22] 38. Campbell WS [24]-[26] 39. Campbell WS [27] 40. JIRS being available on the website of the Judicial Commission of New South Wales 41. Smith WS [8]-[13] 42. Smith WS [16] 43. Smith WS [17]-[19] 44. Smith WS [20] 45. Smith WS [21] 46. Smith WS [22] 47. Smith WS [25] 48. Smith WS [26] 49. Smith WS [28] 50. Smith WS [7] 51. Campbell WS [14]; T19.12 52. Campbell WS [25] 53. Smith WS [25] 54. Kwok v R at [22] 55. Kwok v R at [28], [30], [32] 56. Smith WS [29]-[39] 57. T14.15 58. ROS [195] 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: 01 February 2019