Kay v Tasmania

[2024] TASCCA 13

[2024] TASCCA 13

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Kay v Tasmania [2024] TASCCA 13
PARTIES:	KAY, Joshua William
v
STATE OF TASMANIA
FILE NO:	2551/2024
DELIVERED ON:	27 November 2024
DELIVERED AT:	Hobart
HEARING DATE:	12 November 2024
JUDGMENT OF:	Pearce J, Marshall AJ, Porter AJ
CATCHWORDS:

Criminal Law – Appeal and New Trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in methylamphetamine – In possession of 112.9 grams intending to sell most – Imprisonment for 2 years and 6 months with non-parole period of 1 year and 3 months not manifestly excessive.

Upston v Tasmania [2018] TASCCA 4; 30 Tas R 262, applied

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:	K Baumeler
Respondent:	L Pennington

Solicitors:

Respondent: Judgment Number: Number of paragraphs:	Director of Public Prosecutions
[2024] TASCCA 13
40

Serial No 2551/2024

File No 13/2024

JOSHUA WILLIAM KAY v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL PEARCE J MARSHALL AJ PORTER AJ 27 November 2024
Order of the Court:

1            Appeal dismissed.

Serial No 2551/2024

File No 13/2024

JOSHUA WILLIAM KAY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
27 NOVEMBER 2024

1             The appellant pleaded guilty to two counts of trafficking in a controlled substance contrary to the Misuse of Drugs Act 2001, s 12(1). On 26 August 2024 he was sentenced by Martin AJ to imprisonment for two years and six months with eligibility to apply for parole after having served half of that term. This is an appeal against that sentence. The sole ground is that the sentence is manifestly excessive.

2             On 8 March 2023 the police executed a search warrant at the appellant's home in suburban Hobart. They found two safes in his bedroom. In one safe there were six snap lock bags containing a total of 112.9 grams of crystalline methylamphetamine, one snap lock bag containing 191 N, N- dimethylpentylone tablets with a total weight of 93.9 grams and $1,235 in cash. Three of the bags of methylamphetamine each contained about one ounce of the drug, approximately 27 grams, a quantity commonly purchased to on-sell to street level users. N, N-dimethylpentylone is a synthetic cathinone closely related to amphetamine, methylamphetamine and MDMA, used for its psychostimulant and hallucinogenic effects. In the other safe was $3,000 in cash in three $1,000 bundles secured with cable ties. The sentencing judge found, after hearing some evidence, that the cash was proceeds of the appellant's drug sales. Two digital scales and other snap lock bags were found nearby.

3             The appellant was sentenced on the basis that he possessed the methylamphetamine with the intention of selling it. Depending on the quantities in which it was sold it could have returned between $56,400 and $112,900. The sentencing judge accepted that the appellant would have used some of the drug himself. In contrast, the appellant trafficked in N, N-dimethylpentylone by guarding and concealing it in the belief that another person intended to sell it. It had a potential sale value of $4,750.

4             At the time of the search the appellant was aged 34. He was 35 when sentenced. His personal circumstances were outlined by his counsel and in a pre-sentence report provided by an officer of the court mandated drug diversion program. He experienced a difficult childhood. His parents separated when he was young, and he was exposed to drug abuse within the home. He had held some employment through his adult life and maintained a reasonable relationship with his mother and sister. He had three children from previous relationships. However he had a longstanding serious problem with poly-substance abuse dating back to his teenage years and, as an adult, an extensive history of related offending. On 20 December 2012 he was made subject to probation for 12 months and ordered to perform 91 hours of community service for possessing and using a controlled drug and multiple drug related driving offences. On 9 May 2013 he was fined for selling a specified substance without authorisation and given a wholly suspended one month term for possessing a controlled drug. On 12 January 2017 he was fined for possession of a controlled drug as well as for offences involving possession of a dangerous article and a prohibited firearm. On 14 August 2017 he was sentenced to a three month term, wholly suspended, for possession of a controlled drug and five drug related driving offences. On 21 September 2017 he was ordered to perform 70 hours of community service for burglary and stealing. The following day, 22 September 2017, the appellant was sentenced to imprisonment for three months, wholly suspended, for offences including multiple counts of possession and use of a controlled drug, possessing an instrument intending to commit a crime and evading police. The association between drug abuse and the appellant's continued offending is made

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clear when, on 27 August 2019, he was sentenced to imprisonment for a total term of seven months backdated to 29 January 2019, but released on the day of sentence subject to a drug treatment order with a custodial part of 12 months. The various offences for which he was sentenced included multiple counts of dishonesty, breaches of bail, possession of a controlled drug, resisting police, driving offences and, significantly, selling a controlled drug.

5             The drug treatment order made on 27 August 2019 was completed on 21 January 2021, but it subsequently became apparent that the appellant had committed further offences while subject to the order. On 27 April 2023 he was sentenced to terms of imprisonment totalling 16 months, each of which was wholly suspended for two years. The offences for which he was sentenced included two counts of selling a controlled drug, buprenorphine, on 7 March 2020, while the drug treatment order was in force. The sentences also related to continued offending after completion of the order: possession of a controlled drug and driving while an illicit drug was present in oral fluid on 9 June 2021 and multiple counts of trespass on 19 February 2023.

6             On 10 January 2024 the appellant appeared before a magistrate to be sentenced for more offences, some committed before and some after the crime which is the subject of this appeal. The offences for which he was to be sentenced included possessing a controlled drug and possessing a restricted substance on 6 January 2023. They also included possessing a controlled drug and possessing a restricted substance on 13 March 2023, possessing a controlled drug and driving with an illicit drug in oral fluid on 17 March 2023, possessing a controlled drug and driving with an illicit drug in oral fluid on 13 April 2023. The magistrate decided to defer sentence. The appellant next appeared on 17 April 2024 to be sentenced for a different offence, causing grievous bodily harm by negligent driving on 1 July 2022. He was given a four month wholly suspended sentence. The matters subject to the deferred sentence returned to Court on 5 June 2024. Apart from being made subject to a three month wholly suspended term no other order was made.

7             That rather lengthy summary makes clear the nature and extent of the appellant's record for drug related offending. He had many prior convictions for possession and use and drug related dishonesty and driving offences, and some prior convictions for selling, although none for trafficking. He had been made subject to many suspended terms of imprisonment, and although he had been made subject to a drug treatment order which was completed, his drug use continued during and following the order. He sold illicit drugs while subject to the order. The pre-sentence report which assessed the appellant's eligibility and suitability for a further drug treatment order also addressed the possibility of a home detention order and recommended against it. The report expressed strong concerns about the appellant's ability to remain abstinent from illicit substances given his history of use and continued use of methylamphetamine.

8             On behalf of the appellant the sentencing judge was given a report from a consultant psychiatrist, Dr Ross Kirkman, addressed to the appellant's general practitioner. The report refers to a diagnosis of ADHD, GAD and SAD. Although those latter two terms were not explained in the report, they seem to refer to generalised adjustment disorder and substance abuse disorder. Dr Kirkman suggested therapeutic medication. It was not suggested to the trial judge that the report had any relevance to sentence beyond addressing the prospect of the appellant's rehabilitation. His Honour was also informed that the appellant had "self-detoxified" and commenced the Salvation Army Day Program on 26 September 2023. By the date of the report on 8 April 2024, he had attended 18 sessions and had shown "insight into his substance abuse and its impact on his life…"

9 Counsel for the appellant urged the sentencing judge to make a drug treatment order. The submission was rejected. A drug treatment order, made under Part 3A of the Sentencing Act 1997 (Tas), is a sentencing option which places emphasis on the rehabilitation of the offender in preference to other sentencing objectives such as general deterrence and retribution: Tasmania v Joseph [2017] TASSC 23, referred to with approval by Martin AJ, with whom Marshall AJ and Porter AJ agreed, in

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Bell v Tasmania [2021] TASCCA 3; 33 Tas R 95 at [32]-[37]. As will be explained, for trafficking, although the personal circumstances of the appellant and the prospect of his rehabilitation remained relevant sentencing considerations, they were of lesser importance: Director of Public Prosecutions v Swan [2016] TASCCA 9 at [21]. It is not contended that the sentencing judge erred by declining to make a drug treatment order and imposing a sentence of actual imprisonment. On this appeal, the appellant argues that it is the length of the term which was imposed which makes the sentence manifestly excessive because of the following principal factors:

• the appellant pleaded guilty;

• there was some co-operation with the police on the day of the search. He had opened both safes when requested to do so;

• there was no other evidence of the level of trafficking beyond the "presence of a trafficable quantity of drugs" on the day of the search;

• the trafficking "had all of the hallmarks of a small individual who was afflicted by addiction selling to fund his own habit";

• the appellant was not to profit from the N, N-dimethylpentylone which was held for someone else;

• despite the appellant's long history of substance abuse he remained motivated to address his addiction and there remained a prospect of rehabilitation.

10           Strong reliance was placed by counsel for the appellant on the last of these factors, the prospects of the appellant's rehabilitation. Following his apprehension he had taken it upon himself to address his addiction by abstinence and engagement with a rehabilitation service. Some signs were positive. In sentencing since then, magistrates had been persuaded to order community based sentencing options to facilitate continuation of the rehabilitation. It was submitted that if a substantial term of actual imprisonment was imposed then all of the effort "invested" in achieving reform would be put at risk.

11           In Upston v Tasmania [2018] TASCCA 4; 30 Tas R 262, Porter AJ, with whom Blow CJ and I agreed, discussed many of the matters of principle to be applied when considering sentences for drug trafficking. His Honour referred to and applied statements made in this Court in a number of earlier appeals concerning sentences for trafficking: Sweetman v Tasmania [2016] TASCCA 5, 28 Tas R 325; Stebbins v Tasmania [2016] TASCCA 6, 25 Tas R 421, Director of Public Prosecutions v Swan (above), Deakin v Tasmania [2016] TASCCA 19 and Le v Tasmania [2017] TASCCA 21. The principles restated by Porter AJ in Upston have direct application to this case. At [15]-[16], his Honour said:

"There is no doubt, as counsel for the respondent emphasised, that the crime of trafficking in a controlled substance is one that, ordinarily at least, should attract harsh punishment. Factors of general deterrence and denunciation are the predominant sentencing considerations. As this Court has recognised, these considerations may become more acute where the controlled substance involved is methylamphetamine, particularly in its crystalline form colloquially known as 'ice'. This is primarily because of its pernicious nature, the prevalence of its use, and the great harm – direct and indirect – that it causes in the community.

As has also been discussed by this Court, because of the wide range of conduct that may be involved in the crime of trafficking, and the wide variation in criminality, there is no meaningful discernible sentencing range for the crime." (Citations removed)

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12   When addressing what was to be made of sentences imposed in other cases, his Honour

continued at [22]:

"Bearing in mind what I have already said about the use of this type of information, I should say something in general about recent sentences for trafficking. A review of all sentences in the last few years for that crime, particularly involving amphetamine and methylamphetamine, reveals an increase in the upper end of the range. That can be accounted for by escalations in the level of criminal activity in particular cases, thus requiring proportionate responses. It is also explained by the Court's response to the increased prevalence in the trade in, and use of those drugs. Courts are entitled in such circumstances to give factors of general deterrence and denunciation greater weight than they might have been afforded in the past: R v Downie and Dandy [1998] 2 VR 517 at 520-522; Braslin and Cowen v Tasmania [2010] TASCCA 1 at [23]."

13           Counsel for the appellant referred, in general terms, to the sentencing data provided on the Sentencing Advisory Council website for sentences for single and multiple counts of trafficking between 2001 and 2014. That data is now somewhat aged but, more importantly, it provides very limited assistance when, because of the wide variation in the circumstances which may constitute the crime, no sentencing range can be deduced. It was further submitted that following a conviction for trafficking, a sentence of actual imprisonment is not "a given." So much may be readily accepted. However it gets the appellant nowhere on an appeal on this ground. I would accept that it was open for the sentencing judge to adopt a more lenient approach. The appellant pleaded guilty and had no prior convictions for trafficking. His crime was motivated at least to some extent by addiction, and it was thus open to regard his criminality as less than that of the person who had offended purely for commercial gain: Upston v Tasmania (above) at [27] citing Stebbins at [102], [110]; R v Lacey [2007] VSCA 196 at [12]-[15] and R v Koumis [2008] VSCA 84, 18 VR 434 at [50]-[51]. The amount of cash in his possession was not large compared to some cases.

14           However, I am quite unpersuaded that the sentence imposed by his Honour was manifestly excessive. To succeed on that ground the appellant must establish that the sentence was so harsh as to fall outside the range open to the sentencing judge in the proper exercise of his broad sentencing discretion. Despite the considerable emphasis placed on the prospects of the appellant's rehabilitation, it has been repeatedly been made clear by this Court and by many other sentencing and appeal courts that, for drug trafficking, deterrence, punishment and denunciation, with the primary aim of protection of the public, are the dominant sentencing considerations. In Director of Public Prosecutions v Kobelke [2020] TASCCA 10 at [10], Brett J, like Porter AJ in Upston, noted the recent increase in sentences for serious cases of trafficking and saw it as an "appropriate incremental response to the prevalence of the crime and the developing perception and acknowledgment of the harm which drugs are causing to the community." The need for sentences to reflect the damage to society done by the sale of illicit drugs for profit has been recognised for a long time: see for example R v Tait (1979) 46 FLR 386. However, courts in this State and elsewhere are facing what seems to be an ever increasing burden of cases involving violence and dishonesty significantly contributed to by the use of and trade in methylamphetamine. Methylamphetamine is a drug which is particularly prevalent. Its use causes grave damage to the health of users and its trade causes great harm, both directly and indirectly, to the community: Bell v Tasmania (above) per Martin AJ at [19]. Traffickers foster and encourage addiction in others. As counsel for the respondent correctly submitted, the drug carries the risk of encouraging further criminal activity to fund addictions as well as contributing to reported and unreported violence. The appellant possessed a substantial quantity of methylamphetamine most of which was intended for sale at considerable value. Given the quantity and value of the methylamphetamine in his possession there must have been a significant element of financial gain in his offending, even if his involvement with drugs originated from his addiction. The cash in his possession was evidence of previous drug sales. Despite the absence of a prior conviction for trafficking he had previously sold illicit drugs. The many courts which had dealt with the appellant's drug related offending over the years had extended him lenience by imposition of wholly suspended

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sentences and a drug treatment order, none of which resulted in reform or sufficiently deterred him
from this crime.

15   The sentencing judge's comments on passing sentence included these remarks:

"Mr Kay, your counsel has urged me to give you another chance by making a drug treatment order. She has emphasised your past success and your continued efforts for rehabilitation notwithstanding relapses from time to time. In particular, she has emphasised your attempts to de-toxify and your work with the Bridge Programme. However, Mr Kay, there are limits to the circumstances in which such orders are appropriate. First, your criminal offending on this occasion was not minor. It was well removed from the simple possession of a controlled drug. You engaged in the next step up. You trafficked in this insidious drug, which causes misery throughout our community, and in an associated drug. Your trafficking in methylamphetamine was not a minor example of this crime. As I have said, no doubt you were helping to fund your own addiction, but your trafficking possesses the hallmarks going beyond the odd sale as a means of funding your addiction. You were well organised and well equipped to traffic in a significant manner. The potential return from the methylamphetamine was significant.

…Both general and personal deterrence are highly significant factors in sentencing you, as are denunciation and punishment reflecting the grave community concern arising from trafficking in methylamphetamine. It causes widespread misery, as I am sure you are aware. Ultimately, the primary concern is the protection of the public and I am satisfied that in order to achieve this purpose, it is necessary to impose a sentence of imprisonment. I regard the alternative as inappropriate."

16           In short, I agree with the sentencing judge. His Honour's approach to sentence did not result in imposition of a term of imprisonment of such length that it was manifestly excessive and eligibility for parole was allowed within the shortest possible time: Sentencing Act, s 17(3). I would dismiss the appeal.

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JOSHUA WILLIAM KAY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
27 November 2024

17           This matter is a sentencing appeal. On 26 August 2024, Martin AJ sentenced the appellant to a term of imprisonment of two years and six months, with a non-parole period of 15 months. The appellant claims that the sentence is manifestly excessive.

18 On 3 June 2024, the appellant pleaded guilty to two counts of trafficking in a controlled substance, contrary to s 12(1) of the Misuse of Drugs Act 2001. The particulars of the first offence are that on or about 8 March 2023, at West Moonah, the appellant trafficked in methylamphetamine. The particulars of the second crime are that on or about 8 March 2023, at West Moonah, the appellant trafficked in N-dimethylpentylone.

19          In his comments on passing sentence, the sentencing judge said that the appellant was engaged in the business of selling methylamphetamine. His Honour said:

"The drug was packaged in a form commonly used when selling; you were equipped with two sets of scales and empty bags; there were two safes; there were bundles of cash totalling $4,250, $3,000 of which was in three bundles, each of twenty $50 notes, and each secured with a zip tie. These are all the hallmarks of somebody who was engaged in selling methylamphetamine."

20          In addition to methylamphetamine, police discovered N-dimethylpentylone at the appellant's premises, in the form of pink tablets. There were 191 pink tablets of that substance, weighing 93.9 grams. Under the Misuse of Drugs Act, a trafficable quantity of that substance is 25 grams or 20 tablets. The appellant intended to consume some of the methylamphetamine for his own use, but intended to sell the bulk of it. The value of that drug, in the quantity possessed by the appellant on the day the police executed their search warrant, was in the range of $56,500 to $112,900. The other drug was possessed with the intention of selling it to another person, who intended to on-sell it. Its value was, in total, about $4,775.

21           During the police search at his premises, the appellant was co-operative and produced a key to open a safe. He also entered a code into another safe to allow police access. The police attendance at the appellant's premises occurred on 8 March 2023 in relation to a drug related search warrant.

22           The sentencing judge considered the offences not to be at the lowest end of the scale of seriousness. He said they had occurred against a background of the appellant's "constant involvement" with methylamphetamine.

23           The appellant was subject to drug related probation orders in 2012, 2013 and 2017. From August 2019 to January 2021, he was part of the Court Mandated Drug Diversion Programme, having been placed on a Drug Treatment Order on 27 August 2019. He relapsed by offending in March 2020, but graduated from the programme in January 2021.

24           Between January 2021 and March 2023, the appellant began again to use large quantities of methylamphetamine on a daily basis. The appellant attempted detoxification in early 2024 and has been engaged with the Bridge Programme.

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25           Before the sentencing judge, the appellant's counsel submitted that another Drug Treatment Order should be made, given that the appellant had attempted rehabilitation and had engaged with the Bridge Programme.

26           The sentencing judge rejected that submission, noting that trafficking was involved in the offending and not the mere possession of unlawful drugs. His Honour said that the appellant was "well organised and well equipped to traffic in a significant manner" and that "the potential return from the methylamphetamine was significant."

27           The sentencing judge also referred to the appellant's significant criminal record. He considered that general specific deterrence, denunciation and just punishment "reflecting the grave community concerns arising from trafficking in methylamphetamine" made it necessary for him to impose a sentence of imprisonment.

28          His Honour imposed a global, single penalty for the two offences. He noted that, but for the guilty pleas, he would have imposed a head sentence of three years' imprisonment.

29   The appellant was in his mid-30's at the time of the offending and was not a youthful

offender.

30           The appellant's counsel submitted that there was no evidence of trafficking beyond the presence of a trafficable quantity of drugs. So much is beside the point. The appellant trafficked in a trafficable quantity of drugs and pleaded guilty to doing so, and was sentenced on that basis.

31   The appellant's counsel also submitted that:

"The trafficking had all the hallmarks of a small individual, who is afflicted by
addictions, selling drugs to fund his own habit."

This overstates the situation. It was accepted before the sentencing judge that the appellant consumed part of what was available for him to sell, but as the sentencing judge pointed out, given the value of the methylamphetamine found at the appellant's premises, his operation, although not at the most sophisticated level, was not unsophisticated.

32           The appellant's counsel also stated that the alleged trafficking related to one day. However, that is because that was the day on which the police discovered the trafficking operation. Nothing turns on that.

33           Counsel for the appellant raised the importance of the appellant's attempts to rehabilitate himself prior to sentencing. The sentencing judge did take that into account, as well as relapses of the appellant during the course of that rehabilitation. In written submissions, counsel for the appellant said that:

"The sentence imposed is objectively high and seemed to reflect the Court's belief

that the appellant was in the business of drug trafficking."

The fact was the appellant was in that business, albeit not at a high scale, nor at a low scale.

34           To succeed on this appeal, the appellant must show that the sentence imposed was unreasonable or unjust. It must be established that it was so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion; see Bresnehan v The Queen (1992) 1 Tas R 234 at [242].

35   As Kirby J (with whom Gummow and Gaudron JJ agreed) said in Dinsdale v The Queen

(2000) 202 CLR 321 at [58]:

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"The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. …Because the imposition of a sentence involves the exercise of judgment and a valuation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellant review of a discretionary decision, a break is imposed upon undue appellant disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellant intervention."

36 A wide variety of circumstances may be covered by offences contrary to s 12 of the Misuse of Drugs Act. There is no general tariff. However, community concern about the insidious effect of the drug methylamphetamine has led, over time, to higher sentences for that offending; see Upston v State of Tasmania (2018) 30 Tas R 262 at [22] per Porter AJ.

37           The sentence imposed in this matter was not unjust or unreasonable. It did not involve an error in the exercise of the sentencing discretion of the sentencing judge. The drugs found by the police in executing their search warrant were not insignificant. As the sentencing judge noted, the trafficking had "hallmarks" of going beyond the odd sale to fund personal use.

38           The sentencing judge was entitled to take into account the appellant's poor criminal record, especially with respect to relevant like offending, as well as previous opportunities given to him in prior sentencing orders to engage in rehabilitation rather than be sentenced to imprisonment. Put simply, the appellant had run out of chances to avoid incarceration given the mid-range offending in this matter. General and specific deterrence supported the sentence imposed by the sentencing judge, as did the community concern about the prevalence of methylamphetamine and the harm it is doing in the community.

39   As the sentence was not manifestly excessive, the appeal should be dismissed.

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JOSHUA WILLIAM KAY v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
27 NOVEMBER 2024

40   I agree with Pearce J.