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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kemp v R

Details

AGLC: Kemp v The Queen [2014] NSWCCA 153
Case: [2014] NSWCCA 153
Decision Date: 11 August 2014

CaseChat Overview and Summary

In the matter of Kemp v The Queen, the appellant sought to appeal against his sentence for drug offences. The case came before the High Court of Australia. The appellant, Kemp, was convicted for his involvement in a series of drug transactions. The primary legal issue before the court was whether the trial judge had erred in assessing the appellant's role in the drug transactions, and if the sentence imposed was appropriate given the roles of co-offenders. The court had to consider the principles of parity in sentencing for co-offenders engaged in similar criminal activities.

The High Court examined the trial judge's assessment of the appellant's role and determined that the trial judge had not erred in concluding that Kemp played a significant role in the drug transactions. The court held that the trial judge had appropriately considered the roles of co-offenders and the principle of parity. The court found that the sentence imposed was proportionate to the appellant's role in the drug offences and was not manifestly excessive. The appeal was dismissed as the court found no error in the trial judge's assessment or the sentence imposed.

The High Court confirmed that in cases involving co-offenders engaged in the same drug transactions, the trial judge must assess the roles of each offender and ensure that the sentence reflects the individual culpability. The court held that the trial judge had correctly applied these principles in the present case. The court did not find any error in the trial judge's assessment of the appellant's role or in the sentence imposed. Consequently, the appeal was dismissed and the original sentence was upheld.

Orders