Kennedy v The Queen

[2016] NSWCCA 187

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kennedy v R [2016] NSWCCA 187
Hearing dates:	17 August 2016
Date of orders:	24 August 2016
Decision date:	24 August 2016
Before:	Hoeben CJ at CL at [1] Campbell J at [2] Button J at [27]
Decision:	(1) Grant leave to appeal and allow the appeal; (2) Quash the sentence passed in the District Court on 20 March 2015 and instead sentence the applicant to a term of imprisonment having a non-parole period of 3 years and 4 months commencing on 19 February 2014 and expiring on 18 June 2017 with a balance of term of 1 year and 8 months commencing on 19th June 2017 and expiring on 18 February 2019; (3) The applicant will be first eligible for parole at the expiration of the non-parole period on 18 June 2017.
Catchwords:	CRIMINAL LAW– appeal against sentence– finding of special circumstances made– where not reflected in sentence–whether error– whether a lesser sentence is warranted
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases Cited:	Caristo v R [2011] NSWCCA 7 Heron v Regina [2006] NSWCCA 215 House v the King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Tsakonas v R [2009] NSWCCA 258; 197 A Crim R 581 Veen v the Queen (No 2) [1988] HCA 14; 164 CLR 465
Category:	Principal judgment
Parties:	Clint Jeffrey Kennedy – Applicant Regina – Respondent Crown
Representation:	Counsel: S Healy – Applicant S Dowling SC – Respondent Crown   Solicitors: Phoenix Legal Consulting– Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2013/320005
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 20 March 2015 Before: Judge Arnott SC File Number(s): 2013/320005

Judgment

1. HOEBEN CJ at CL: I agree with Campbell J.

2. CAMPBELL J: The applicant seeks leave to appeal from the sentence passed on him in the District Court of New South Wales on 20 March 2015 on a charge of supplying a commercial quantity of methylamphetamine between 11 July 2013 and 23 October 2013 contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW). This offence carries a maximum penalty of 20 years and a standard non-parole period of 10 years.

3. The applicant pleaded guilty in the Local Court and was sentenced by his Honour Judge Arnott SC to a term of imprisonment having a non-parole period of 3 years and 9 months commencing on 19 February 2014 and expiring on 18 November 2017 with an additional term of 1 year and 3 months commencing on 19 November 2017 and expiring on 18 February 2019.

Ground of Appeal

4. The sole ground of appeal is that his Honour erred by imposing a sentence that failed to reflect the finding of special circumstances that he had made.

Consideration

5. When passing sentence, the learned sentencing judge said (at page 12 of the Remarks on Sentence (“ROS”)):

“I find special circumstances in the need for [the applicant] being assisted upon release from custody with his drug and alcohol issues, to encourage him to socially engage and monitor his peer connections, to assist him to re-engage with some form of work or community activity, and to monitor his susceptibility to psychological instability and activate early intervention should this arise.

These are all matters recommended in [the psychologists report tendered in the applicant’s case] and I direct that her report be brought to the attention of Community Corrections.”

6. A finding of special circumstances generally signifies satisfaction of the statutory condition for altering the statutory ratio between the non-parole period and the balance of the term fixed by s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW); a finding of special circumstances justifies imposing a sentence where the additional term may exceed one-third of the non-parole period.

7. It is obvious that the learned sentencing judge has imposed a sentence which maintains the statutory ratio, notwithstanding his finding.

8. In his helpful written submissions Mr Healy of Counsel, who appears for the applicant, has referred to a long line of authority explaining this Court’s approach to questions of the type raised here. I will not review the many cases referred to. In Heron v Regina [2006] NSWCCA 215 at [31] Hoeben J (as the Chief Judge at Common Law then was), with whom Mason P and Kirby J agreed, said:

“Just because a finding of special circumstances is made, does not mean that a judge must vary the statutory ratio. Where a finding of special circumstances is made, however, it seems to me that the sentencing judge ought to give some reasons why the statutory ratio is not being varied despite such a finding. The variation here was so small as to not amount to an allowance for special circumstances and no reasons were given by his Honour for adopting that approach.”

It is clear that his Honour’s statement of principle is apposite here.

9. In Caristo v R [2011] NSWCCA 7 at [36] RA Hulme J said:

“Where this court has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation. Often this has occurred where sentences have been accumulated, but it has occurred in single sentencing exercises as well.”

(See also MD v R [2015] NSWCCA 37 at [38] – [43] per Gleeson JA)

Again, this statement of principle is engaged by the circumstances of this case. This was, in RA Hulme J’s terms, a “single sentencing exercise”. The sentencing judge’s failure to “give some reasons why the statutory ratio is not being varied despite such a finding”, as Hoeben J put it, strongly suggests that his Honour’s failure to vary the statutory ratio favourably to the applicant was through “inadvertence”. Indeed so much is quite properly conceded by Ms Dowling of learned Senior Counsel, Crown Prosecutor, in her written submissions where she states that “it appears that his Honour overlooked that the non-parole period was 75 per cent of the total term” (Crown Submissions at [14]).

10. Although it is evident from his comprehensive reasons that the learned sentencing judge approached his task with great care, I am satisfied that he fell into error through oversight or inadvertence by failing to give effect to his finding of special circumstances by which he clearly intended to facilitate the applicant’s rehabilitation in the community for a longer than usual period. In House v the King [1936] HCA 40; 55 CLR 499 terms, I would categorise this error as a failure to take into account, and give effect to, a “material consideration”. It follows that it is necessary for this Court to consider whether to re-sentence the applicant in accordance with the principles discussed in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 to determine whether some other sentence is warranted in law.

Re-sentencing – objective seriousness

11. As, except in one respect which I will refer to in a moment, there is no challenge to the sentencing judge’s approach, it is appropriate for me to approach the matter in generally the same way based on the facts, matters and circumstances relevant to sentencing as his Honour found them to be.

12. The applicant’s offending occurred when he was the subject of a controlled operation by police involving him supplying methylamphetamine to an undercover police officer on four occasions, being 11 July 2013, 12 September 2013, 20 September 2013 and 23 October 2013. During this period, the applicant agreed to supply just over 450 grams of methylamphetamine, approaching twice the commercial quantity of 250 grams. It is relevant to record that on the last occasion he supplied salt rather than methylamphetamine as agreed. His Honour found (and the Crown accepted, see Proceedings on Sentence, at 20.15–25T) that this was not a calculated “rip-off”, but nor was his Honour convinced that it was an attempt by the applicant to discontinue his involvement in the criminal activity. Rather, his Honour was persuaded that the substitution of the inert substance was borne of the applicant’s troubled conscience and uncertainty about whether he wished to continue his criminal lifestyle.

13. Accordingly, the total amount of methylamphetamine actually supplied was about 337 grams, still well over the commercial quantity. He also remains criminally responsible for agreeing to the fourth supply. The total sum received by him was $130,400 of which $32,800, the proceeds of the fourth supply, was recovered upon his arrest a short time later. The street value of the drugs was estimated to be in excess of $170,000.

14. His Honour found the applicant to be a mid-level drug dealer and the modus operandi adopted for his arrangements with the undercover operative had about them a level of sophistication suggesting a degree of experience in activities of this type. The applicant’s motivation was mixed, being both to finance his own drug habit and to profit financially.

15. The learned sentencing judge assessed the objective seriousness of his offending as “at a mid-point between the bottom of the range and the middle of the range for offences of this type”. I agree.

16. Clearly, for offending of this type, no penalty other than imprisonment is appropriate and no submission was made to the contrary.

Subjective circumstances

17. The applicant was 39 years of age at the time of the offending; 41 when sentenced; and 42 now. He is unmarried, but in a permanent domestic relationship with a supportive partner. He had a difficult relationship with his step-father, who was a harsh disciplinarian and he left school at 16 due to conflict at home. He started but did not complete an apprenticeship as a butcher, but received other training in hospitality and in financial planning in his twenties. As the sentencing judge found, he has had trouble sticking at one job, having worked about 15 different jobs over the course of his adult life, seldom lasting for more than 12 months.

18. He suffered a severe orthopaedic injury in an industrial accident in 2002, for which he eventually received a six-figure compensation payout. However, the pain and suffering from the injury apparently lead to an adjustment disorder, the abuse of prescription medication and the development of an illicit drug habit, eventually progressing to the use of the destructive drug ice.

19. He failed to complete a full time residential course of rehabilitation for which he was granted bail whilst on remand for this charge, lasting only two months before relapsing. But apparently has engaged with Alcoholics and Narcotics Anonymous while in custody. The punishment details in his custodial history do not record any breaches of prison discipline of a type suggesting continuing drug use.

20. His Honour was satisfied that the applicant had displayed contrition and remorse and now regarded his previous criminality as “deplorable”. This finding was based upon the oral testimony given by the applicant and an account written in his own hand on which he exposed himself to cross-examination. I would not disturb his Honour’s finding and, like him, on the basis of his remorse, I would be inclined to find that he has good prospects of rehabilitation. It was to facilitate this that his Honour made his finding of special circumstances, which I also would maintain.

Crown argument

21. The only issue agitated before this Court about his Honour’s findings relates to the applicant’s criminal history. His Honour laid emphasis upon the absence of previous drug offending, other than a conviction for possession of a prohibited drug for personal use in 2006, for which the applicant was fined. The sentencing judge treated a large number of convictions for what he referred to as “driving matters” involving driving whilst disqualified from holding a licence as not “of great relevance … except to the extent that he is not a person of prior good character”.

22. Although there is no Crown appeal, the Crown argue in effect that this was an erroneous approach and submit that this Court should take a different view for the purpose of re-sentencing, and for declining to give effect to the finding of special circumstances by varying the statutory ratio in the applicant’s favour.

23. Ms Dowling SC points out that there are eight prior convictions, or offences, of driving whilst disqualified between 8 September 2000 and 21 January 2013. The penalties for these offences, as one often sees, escalated from a bond, through to a community service order, suspended sentence and finally a three month fixed term of imprisonment which he served following his arrest between 24 October 2013 and 23 January 2014. Ms Dowling submits by reference to Tsakonas v R [2009] NSWCCA 258; 197 A Crim R 581 [38] – [44] that this poor record of serious driving matters displays a significant attitude of ongoing disobedience to the law attracting the application of the principles laid down in Veen v the Queen (No 2) [1988] HCA 14; 164 CLR 465, enhancing the need to significantly factor the element of specific deterrence into the appropriate sentence for this offence and this offender.

Lesser sentence warranted

24. There is much force in Ms Dowling’s submission. However, specific deterrence is a factor which feeds directly into the components of the non-parole period and the additional term that must be fixed when passing sentence, rather than a finding of special circumstance. Specific deterrence may be a reason for not giving effect to a finding of special circumstances. In some cases that consideration may justify a finding, notwithstanding error of this type at first instance, that no lesser sentence is warranted in law.

25. I accept that the learned sentencing judge may have taken a somewhat benign approach to the question of the applicant’s criminal history. But given the careful and balanced way he approached the sentencing task generally, the conclusion he drew about the applicant’s prior record was open and in making my own assessment I am not driven to a different conclusion.

26. Bearing in mind the maximum term available and the standard non-parole period, giving effect to a 25 per cent discount for the early plea and having regard to a finding of special circumstances, I propose the following orders to re-sentence the applicant:

Orders:

1. Grant leave to appeal and allow the appeal;

2. Quash the sentence passed in the District Court on 20th March 2015 and instead sentence the applicant to a term of imprisonment having a non-parole period of 3 years and 4 months commencing on 19th February 2014 and expiring on 18th June 2017 with a balance of term of 1 year and 8 months commencing on 19th June 2017 and expiring on 18th February 2019;

3. The applicant will be first eligible for parole at the expiration of the non-parole period on 18th June 2017.

27. BUTTON J: I agree with Campbell J.

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Decision last updated: 04 April 2018