Kemp v R

[2014] NSWCCA 153

Court of Criminal Appeal

New South Wales

Case Title:	Kemp v R
Medium Neutral Citation:	[2014] NSWCCA 153
Hearing Date(s):	29 May 2014
Decision Date:	11 August 2014
Before:	Simpson J at [1] Adams J at [3] McCallum J at [4]
Decision:	Leave to appeal granted; appeal allowed; sentence imposed for count 2 quashed and in substitution therefore applicant sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 19 August 2013 and expiring on 18 August 2016 and a balance of term of 2 years expiring on 18 August 2018.
Catchwords:	CRIME - sentence - drug offences - assessment of roles of co-offenders engaged in same drug transactions - parity
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse & Trafficking Act 1985
Cases Cited:	R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Tan v R [2014] NSWCCA 96
Category:	Principal judgment
Parties:	Benjamin Kemp (applicant) Regina (respondent)
Representation
- Counsel:	Counsel: T Edwards (applicant) P Ingram SC (respondent)
- Solicitors:	Solicitors: Legal Aid (NSW) (applicant) Director of Public Prosecutions (respondent)
File Number(s):	2011/268510
Decision Under Appeal
- Before:	Acting Judge Freeman
- Date of Decision:	30 May 2013
- Court File Number(s):	2011/268510
Publication Restriction:	None

JUDGMENT

1. SIMPSON J: I have read in draft the judgment of McCallum J. I rely upon her Honour's statement of the relevant facts. I agree with the orders proposed by McCallum J, and with her Honour's reasons. Specifically, I agree that the sentence imposed with respect to count 2 was, of itself, manifestly excessive. A proper sentence for that offence, however, would ordinarily be somewhat greater than that now proposed. That sentence is appropriate in the circumstances of this case only by reason of the application of parity principles as stated in Lowe v The Queen [1984] HCA 46; 154 CLR 606. At pp 613-614 Mason J recognised that application of the principles stated therein might on occasion result in the imposition of a sentence that would otherwise be perceived as inadequate.

2. That is what has happened here. The sentence imposed on Kane in respect of the offence of supplying not less than the commercial quantity of methylamphetamine could well be regarded as artificially lenient. (Since that sentence is not before the Court, it would be inappropriate to label it manifestly inadequate.) The differences between the two offenders, however, are not such as to justify any greater differential than proposed by McCallum J. This is one of those cases where an inadequate sentence must be imposed in order to meet the interests of individual justice.

3. ADAMS J: I agree with McCallum J and with the additional remarks of Simpson J.

4. McCALLUM J: Benjamin Kemp seeks leave to appeal against the sentences imposed upon him after he pleaded guilty in the District Court to three drug offences, as follows:

   (1)Count 1: an offence of agreeing to supply a prohibited drug (140 grams of methylamphetamine) contrary to s 25(1) of the Drug Misuse & Trafficking Act 1985;

   (2)Count 2: an offence of supplying not less than the commercial quantity of a prohibited drug (446.7 grams methylamphetamine) contrary to s 25(2) of the Act;

   (3)Count 3: an offence of supplying a prohibited drug (3.24 grams of crystalline methylamphetamine) contrary to s 25(1).

5. The maximum penalty for the offences against s 25(1) is a term of imprisonment for 15 years. For the offence against s 25(2) of the Act, the maximum penalty is imprisonment for 20 years. That offence carries a standard non-parole period of 10 years.

6. In sentencing the applicant on count 2, the Court took into account two further matters on a Form 1. They were a third offence of supplying a prohibited drug (methylamphetamine) contrary to s 25(1) of the Act and an offence of dealing in proceeds of crime contrary to s 193(B)(2) of the Crimes Act 1900. The maximum sentence for each of those offences is imprisonment for 15 years.

7. The Court also dealt with two related offences which had been transferred to it pursuant to s 166 of the Criminal Procedure Act 1986, being a fourth charge of supply and an offence of possession of cannabis (two grams).

Circumstances of the offences

1. The applicant was arrested following a police investigation into the activities of his co-offender, John Kane. The investigation involved the use of an under cover policeman referred to as "Luke", covert recording devices and telephone intercepts.

2. Shortly before 10 August 2011, undercover police negotiated the purchase of five ounces (approximately 140 grams) of amphetamines from Kane. Kane sent a message to the applicant which said "hi Ben, that farmer wants five big bales if you can get them". The applicant sent a reply which read "I'll have them. I'll ring u 2nite about 6".

3. Those are the facts giving rise to count 1. So far as the agreed statement of facts reveals, the transaction did not proceed. The charge was based on the fact that the applicant agreed to supply five ounces of amphetamine, as requested by Kane.

4. During a telephone conversation the following day, Kane said to the applicant (apparently referring to the undercover policeman) "this other bloke's worth cultivating mate ... he's a big timer". They agreed to talk about it the next day. They also agreed that it would be better if all dealings went directly through Kane.

5. The following week, Luke negotiated with Kane to buy a pound of methylamphetamine. Kane contacted the applicant saying that one of the "blokes up north" wanted "one big bale". The applicant said "yeah that'll be good. We'll have to have a good talk about it when I see it". After further communications, the applicant met Kane in a car park that Friday, 19 August 2011. He handed Kane a package and Kane left. Police then arrested the applicant. The applicant told them that there was a small amount of cannabis in his car and about $20,000 cash in the boot.

6. Shortly afterwards, police attended Kane's premises where they purchased a quantity of methylamphetamine for $37,000 and a quantity of crystalline methylamphetamine for $2,200. Each had been supplied to Kane by the applicant at their meeting earlier that day. The quantity of methylamphetamine was 446.7 grams of 10.5 per cent purity. That was the subject of count 2 against the applicant. The quantity of crystalline methylamphetamine was 3.24 grams of 75 per cent purity. That was the subject of an offence of knowingly taking part in the supply of a prohibited drug, which was one of the charges transferred under s 166 of the Criminal Procedure Act.

7. Police searched the applicant's car and found the cash in the boot and further cash in the glove box. The total amount of cash was $23,900. That was the subject of the offence of knowingly dealing with proceeds of crime dealt with on the Form 1. Also during the search, police found a small bag of crystalline methylamphetamine (27.2 grams) of 82 per cent purity. That was the subject of count 3. In an esky in the boot, police found a further quantity of methylamphetamine (12.1 grams). The purity of that quantity was not tested. That was the second offence dealt with on the Form 1. They also found the cannabis (about 2 grams). That was the basis of the second charge transferred under s 166 of the Criminal Procedure Act.

Applicant's personal circumstances

1. The applicant did not give evidence at the proceedings on sentence. A pre-sentence report was tendered which provided information as to his personal circumstances. He was aged 47 at the time of the offences and is now aged 50 years. He was born in New Zealand, the fifth of eight siblings. Both of his parents are deceased. He has one sister in Australia and maintains regular contact with her and his other siblings in New Zealand. At the time of the offences, the applicant had, for approximately eight months, been living in his car with his dogs. When he first moved to Australia, he was in regular employment as a shearer but his participation in the work force had declined in recent years due to his health.

2. His explanation for becoming involved in the offences was that he had been experiencing severe financial stress. He had borrowed money from his co-offender, Kane (also a former shearer) and had, at Kane's request, agreed to become involved in the offences in order to repay that debt. The author of the pre-sentence report formed the view that, although the applicant expressed a level of regret in relation to his offending, he "appeared to fail to accept full responsibility for his ongoing involvement", placing blame on Kane for "abusing his trust".

3. The applicant pleaded guilty on the morning the proceedings were listed for trial and accordingly received a discount in the order of 10 percent to reflect the utilitarian value of the pleas.

Sentences imposed

1. The applicant was sentenced to terms of imprisonment as follows:

   (a)for the offence of supply based on the agreement to supply 140 grams of methylamphetamine to Kane (count 1), 2 years and 8 months with a non-parole period of 18 months commencing on 19 August 2011 and a balance of term of 14 months;

   (b)for the offence of supply based on the amount of 27.2 grams of methylamphetamine found in the applicant's car (count 3), 2 years and 8 months with a non-parole period of 18 months commencing on 19 August 2012 and a balance of term of 14 months;

   (c)for the offence of supplying not less than the commercial quantity (the 446.7 grams supplied to Kane)(count 2), 9 years with a non-parole period of 6 years commencing on 19 August 2013 and a balance of term of 3 years.

2. The Form 1 offences were taken into account on count 2. For the two charges transferred under s 166, his Honour imposed fixed terms of six months and 12 months respectively, each commencing on 19 August 2013 and accordingly wholly subsumed within the sentence for count 2.

3. The overall effective sentence was accordingly one of imprisonment for 11 years with a non-parole period of 8 years and a balance of term of 3 years.

4. Kane had been sentenced earlier by a different judge. Kane pleaded guilty to two offences. The first was an offence of ongoing supply between 21 July 2011 and 15 August 2011. The second was the same offence as count 2 against the applicant, relating to the 446.7 grams of methylamphetamine supplied by the applicant to Kane and supplied shortly afterwards by Kane to the undercover police officer. Kane had 8 further offences taken into account on a Form 1 on count 2, including 7 further drug offences and an offence of dealing in proceeds of crime involving over twice the amount of cash as the applicant. He pleaded guilty at the earliest opportunity and received a discount of 25 percent.

5. Kane was sentenced as follows:

   (a)for count 1, the offence of ongoing supply, a term of imprisonment with a non-parole period of 14 months and a balance of term of 16 months;

   (b)for count 2, in which he was a co-offender with the applicant, a term of imprisonment with a non-parole period of 18 months accumulated by 10 months on the sentence for count 1 and a balance of term of 3 years.

6. The total sentence was accordingly a head sentence of 5 years and 4 months with a non-parole period of 2 years and 4 months.

   Grounds of appeal

7. The applicant relies upon two grounds of appeal.

8. Ground 1 is:

   "The applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender, Mr John Ignatius Kane."

9. Ground 2 is:

   "The sentence imposed was, in all the circumstances, manifestly excessive. "

Role of the offender

1. An important consideration for the purpose of determining both grounds of appeal is the role played by the applicant in the drug enterprise which gave rise to the charges. The applicant stood to be sentenced in accordance with an agreed statement of facts tendered at the proceedings on sentence. That statement revealed that he came to the attention of police during an investigation into the ongoing supply of methylamphetamine by Kane. There was no suggestion that the applicant became involved in Kane's enterprise any earlier than 10 August 2011.

2. The statement of facts further revealed that, for the transactions with which the applicant was charged, the undercover police officer sought to acquire a nominated quantity of drugs from Kane; Kane sought to acquire that quantity from the applicant and the applicant obtained the drugs from another person and supplied them to Kane for on-sale to the undercover officer. There were conversations and messages between the two men consistent with those arrangements which otherwise shed little light on their dealings.

3. The only other material before the sentencing judge relating to the applicant was a pre-sentence report prepared by a probation and parole officer. That report recorded the applicant's explanation that, at the time of the offences, he had been experiencing significant financial stressors. He stated that he had borrowed money from "his co-offender" (clearly a reference to Kane) and had consented to become involved in the offences in order to repay the debt and achieve further financial benefits. In his assessment of the applicant's attitude to the offences, the author of the pre-sentence report said:

   "whilst expressing a level of regret in relation to his offending Mr Kemp, during interview, appeared to fail to accept full responsibility for his ongoing involvement, rather placing blame on the co-offender for 'abusing his trust'".

4. In written submissions provided to the sentencing judge, the Crown submitted that the following matters were relevant to the assessment of the objective seriousness of the applicant's offending and his role in the enterprise:

   "This offender was a distributor of the prohibited drugs sold by the end-seller to the UCO.

   This offender was not simply a courier.

   This offender had the contacts within the chain of distribution to source large quantities of prohibited drugs at relatively short notice.

   ·

   The threshold for "commercial" quantity is 250 grams. This case involved nearly twice that amount.

   ·

   This was not an isolated incident of supply of prohibited drugs but rather was one of ongoing business relationship between this offender and the end-seller, Mr Kane, and

   ·

   This is not a "user/dealer" case. That is, Mr Kemp was engaged in the business of selling prohibited drugs for profit and not to finance his own "habit"."

5. The submission that the incident was part of an ongoing business relationship between the applicant and Kane finds no support in the agreed statement of facts, unless it was a reference to the agreement to supply a week before the actual supply. As already noted, Kane was charged with ongoing supply commencing in July but the applicant was not.

6. At the proceedings on sentence, counsel for the applicant indicated that he accepted the Crown's submissions except where indicated otherwise. As to the applicant's role, he made reference to a psychiatrist's report that had been relied upon by Kane at his proceedings on sentence. That report was included in the material handed to the sentencing judge in the applicant's case, presumably to allow comparison for the purpose of parity. In that report, the psychiatrist recorded Kane's explanation that he was able to obtain amphetamine when approached by the undercover policeman "because of his association with somebody who worked in the trucking industry". Counsel for the applicant informed the judge that that was not a reference to the applicant. He submitted that the applicant was "the conduit" between Kane and the man in the trucking industry. The Crown did not dispute those matters.

7. However, at a later point in his submissions, counsel for the applicant volunteered that the applicant was "higher up in the chain" than Kane. In my respectful opinion, that concession was misconceived. It appears to reflect what Adams J has referred to as the "hypnotic" effect of the chain metaphor frequently adopted in the discussion of drug supply. It is often assumed, without analysis, that the supply of drugs involves a vertical or linear hierarchy from manufacturer to end buyer (here, the undercover police officer) in which the seriousness of the role of any individual participant is necessarily greater the closer that person is to the ultimate supplier. That may in fact be the case in some instances but the experience of other cases cannot be elevated to the status of a legal principle or presumption. Each case must be assessed on its own facts according to the material before the court.

8. On the strength of the relatively limited material before the sentencing judge in the present case, I am unable to discern any convincing basis for a differential assessment of the seriousness of the role played by each of the applicant and Kane. It may be accepted that, on the occasion the subject of count 2, the applicant evidently had access to a person able to provide drugs in the quantity sought by the undercover officer. Conversely, however, there was material to suggest that it was Mr Kemp who seconded him to an established arrangement.

9. In the appeal, the Crown (not unreasonably) drew attention to the concession made at first instance by counsel for the applicant. Generally speaking, there is good reason for this Court to confine argument within the premises established by the manner in which a case was conducted at first instance. However, as with any general principle, that approach should not be applied inflexibly so as to exclude consideration of the interests of justice. Where, as I think occurred here, a concession made on behalf of an offender reflects a misconception of the relevant principle, the point should not be regarded as being foreclosed only because it was the subject of a concession below.

10. There is nothing in the material before this Court to suggest that the concession reflected any specific instruction given by the applicant. Rather, it appears to reflect a misconception of the law. My consideration of the relevant material has persuaded me that the applicant ought to have been sentenced on the basis that his role in the offence in count 2 was not more serious to any significant degree than that of the co-offender, Kane.

Consideration of the grounds of appeal - manifest excess

1. That conclusion has persuaded me that each of the grounds of appeal is made out. As to the contention that the sentence was manifestly excessive, the applicant accepted that it is necessary for him to show that the sentence is unreasonable or plainly unjust. I do not think that conclusion can be reached in respect of either count 1 or count 3.

2. In my view, however, the sentence imposed for count 2 was unreasonable. Taking account of the 10 per cent discount for the plea, the notional starting point for the applicant on that count was 10 years. The quantity of drug supplied (446.7 grams) was significantly greater than the minimum commercial quantity in that category (250 grams) but well short of the large commercial quantity. So far as the agreed statement of facts reveals, the applicant was correctly described as a "conduit". As accepted by the sentencing judge, he could scarcely be described as being involved in a sophisticated undertaking. Although he committed the offences for financial gain, that was in the context that he was destitute. As recorded by the sentencing judge, the applicant was unemployed and was "living in his car with the company only of his dogs".

3. Counsel for the applicant in the appeal provided statistics for the offence from the Judicial Commission of NSW. In doing so, he acknowledged that those statistics are of limited utility and that they do not establish any "correct" range. Even so, the statistics provided reinforce the conclusion that the starting point in the present case was too high. They reveal a median sentence of 5 years, with the applicant's sentence falling in the top 7 per cent of the sample size.

Parity

1. Taking account of the different discounts for their pleas of guilty, the notional starting point for the sentence imposed on Kemp for count 2 was 6 years compared with a notional starting point of 10 years for the applicant. The starting point for the total sentence imposed on Kane was just over 7 years compared with more than 12 years and 2 months for the applicant.

2. The sentences imposed on Kemp also reflected a generous adjustment to the statutory ratio between the non-parole period and the balance of term (see s 44(2) of the Crimes (Sentencing Procedure) Act 1999). Mr Edwards, who appeared for the applicant, disavowed any reliance on a comparison of the respective ratios for the two offenders, very properly drawing our attention to the remarks of this Court in Tan v R [2014] NSWCCA 96. In that case, the Court held that any disparity between the non-parole proportions of the sentences imposed on co-offenders is in itself of no significance in considering a parity ground: at [40] per R A Hulme J; Leeming JA and Fullerton J agreeing at [1] and [2]. However, that is not to say that the length of the minimum period of actual incarceration for each co-offender can have no significance in the determination of a parity ground. The significance of the non-parole period of a sentence was explained in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [58], the very passage cited by R A Hulme J in Tan. The minimum period for which Kemp must be kept in detention (2 years and 4 months) is significantly shorter than that for the applicant (8 years).

3. The applicant was sentenced after Kane. Referring to the issue of parity, the judge who sentenced the applicant expressed the view that there were "contrasts rather than comparisons to be made between the two". His Honour recorded a concession made on behalf of the applicant that parity was "not strictly applicable". That concession was an aspect of the concession (in my view wrongly made) that the applicant was "up the hierarchy" (see T7.5).

4. A submission or concession that "parity does not apply" must be approached with caution. As explained by the High Court in Green v R; Quinn v R [2011] HCA 49; (2011) 242 CLR 462, the parity principle is a reflection of the norm of equal justice. The application of such a norm is not able to be dispensed with by concession of counsel. A concession that parity does not apply often means no more than that the circumstances of two offenders are not exactly the same but even where that is true (which it probably always is), it remains necessary to assess the significance of the differences in order to afford equal justice.

5. In the present case, the sentencing judge saw relevant distinctions in the two offenders' ages, their criminal histories, their levels of involvement, their health and their prospects of rehabilitation. The issues of age and health were related. Each man was old enough to be visited with full responsibility for his actions. The applicant was 46 while Kane was 67. The relevance of Kane's age lay in the fact that he was also in a state of poor health. He underwent major heart surgery whilst in prison following his arrest and was also suffering from a depressive illness as a result of a combination of events. He had been a shearer but had acquired a chronic back disability as a result of that employment. The different ages of the two men does not otherwise appear to have been significant.

6. Kane had no prior convictions, while the applicant did, but the judge acknowledged that his record was not such as to disqualify him from receiving any leniency.

7. The allegedly different levels of involvement have already been considered.

8. As to the different prospects of rehabilitation, the judge referred to the comments of the parole officer in the pre-sentence report set out above. His Honour said:

   "The officer comments that this prisoner does not seem to accept full responsibility for his activities, preferring instead to blame some man whom he says he believed was offering him a legitimate employment opportunity which turned out to be this selling of innocent drugs."

9. His Honour does not appear to have appreciated that the man referred to was clearly the co-offender, Kane.

10. In my assessment, the points of distinction between the offending and the circumstances of the two men were not such as to warrant so great a difference between their sentences. I am satisfied that the applicant has a justifiable sense of grievance at the significantly harsher sentence imposed upon him. For all of the foregoing reasons, I consider a less severe sentence is warranted in law.

11. The applicant swore an affidavit to be relied upon in the event of re-sentence. The affidavit addresses the issue of responsibility for the offences. Specifically, the applicant states that, during his time in custody, he has acquired a greater understanding of the damage drugs cause and that he now feels very ashamed and embarrassed knowing that his actions have contributed to those problems.

12. Separately, an affidavit sworn by the applicant's solicitor reveals that the applicant has been a model prisoner. He keeps to himself and spends most of his time reading.

13. In all the circumstances, I consider that the sentence imposed on the applicant for count 2 should be reduced significantly so as to result in the imposition of total sentences similar to those imposed on Kemp, making due allowance for the different discounts for the pleas of guilty entered at different times. I have read the additional remarks of Simpson J as to the orders I propose and would respectfully adopt those remarks.

14. The orders I propose are:

    (1)that leave to appeal be granted;

    (2)that the appeal be allowed;

    (3)that the sentence imposed for count 2 be quashed and in substitution therefore that the applicant be sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 19 August 2013 and expiring on 18 August 2016 and a balance of term of 2 years expiring on 18 August 2018.

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