Kirkbride v R; Knight v R and McIlrey v R

[2011] NSWCCA 268

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kirkbride v R; Knight v R & McIlrey v R [2011] NSWCCA 268
Hearing dates:	22 June 2011
Decision date:	14 December 2011
Before:	McClellan CJ at CL at [1] Hidden J at [2] Johnson J at [42]
Decision:	In each application, leave to appeal granted but appeal dismissed.
Catchwords:	CRIMINAL LAW - applications for leave to appeal against sentence - applicants involved in supply of prohibited drug - relativity of sentences passed on each of them
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Cases Cited:	Jimmy v R [2010] NSWCCA 60, 77 NSWLR 540 Muldrock v The Queen [2011] HCA 39 Dwayhi and Bechara v R [2011] NSWCCA 67, 205 A Crim R 274
Category:	Principal judgment
Parties:	Ryan Kirkbride (applicant) Shannon Knight (applicant) Wade McIlrey (aka McIlroy) (applicant) Regina (respondent/Crown)
Representation:	P Doyle (applicant - Kirkbride) A Francis (applicant - Knight) K Averre (applicant - McIlrey) D Arnott SC (respondent) James Fuggle Rummery Solicitors (applicant - Kirkbride) Herring & Associates (applicant - Knight) B Sandland - Legal Aid Commission (applicant - McIlrey) S Kavanagh - Solicitor for Public Prosecutions (respondent)
File Number(s):	2009/50796; 2009/54596 & 2009/73473
Decision under appeal	Date of Decision: 2010-06-21 00:00:00 Before: English DCJ File Number(s): 2009/50796; 2009/54596 & 2009/73473

Judgment

1. McClellan CJ at CL: I agree with Hidden J.

1. Hidden J: Ryan Kirkbride pleaded guilty in the District Court to two charges of supplying a prohibited drug in a commercial quantity, and asked the sentencing judge to take into account some further offences on a Form 1. Shannon Knight and Wade McIlrey pleaded guilty to knowingly taking part in the second offence of supplying a prohibited drug committed by Kirkbride. All three were dealt with by the same judge and sentenced on the same day, 21 June 2010. All three seek leave to appeal against the sentences imposed upon them.

1. A fourth offender, Dean Eedens also pleaded guilty to being knowingly concerned in Kirkbride's second offence, and asked the sentencing judge to take into account a further offence on a Form 1. He was dealt with at the same time as the other three offenders. He has not sought leave to appeal against the sentence imposed upon him but, as the basis for the three applications before this Court is the relativity between the sentences of the various offenders, it is necessary to set out the sentence imposed upon him and refer to the material in his case.

1. The first count against Kirkbride was the supply of a commercial quantity of the drug commonly known as ecstasy. The second count was the supply of a commercial quantity of a similar drug, known as 1-benylpiperazine. Each is an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985, as is the offence of knowingly taking part in such an offence, and each offence carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 10 years.

1. The sentences imposed on the four offenders were as follows:

KIRKBRIDE: on the first count, imprisonment for 6 years with a non-parole period of 3 years, 7 months and 6 days, commencing on 4 March 2009;

on the second count (taking into account the matters on the Form 1), imprisonment for 9 years, with a non-parole period of 5 years, 4 months and 24 days, commencing on 4 September 2009.

The aggregate sentence is imprisonment for 9 1/2 years, with an effective non-parole period of 5 years, 10 months and 24 days, commencing on 4 March 2009. That was the day of Kirkbride's arrest following the offence the subject of the second count, and he had been in custody since.

KNIGHT: imprisonment for 4 1/2 years with a non-parole period of 2 years, 8 months and 11 days, commencing on 21 June 2010. That was the day sentence was passed, Knight having been on bail since his arrest.

McILREY: imprisonment for 4 1/2 years with a non-parole period of 2 years, 8 months and 12 days, commencing on 2 March 2010. His sentence was backdated to take account of a period spent in custody before he was released on bail.

EEDENS: taking into account the matter on the Form 1, imprisonment for 3 years with a non-parole period of 1 year, 9 months and 18 days, commencing on 7 February 2010. His sentence also was backdated to take account of a period he had been in custody before he was released on bail.

Facts

1. As a result of a controlled operation by police, Ryan Kirkbride met with an undercover operative on three occasions in February 2009. On each occasion Kirkbride supplied the undercover officer with tablets containing ecstasy, for which the officer paid cash. In all, some 172 grams of tablets were supplied, with an average purity of 22%. The total amount paid by the undercover officer was $7,750. This constituted the first count against Kirkbride, supplying a commercial quantity of the drug.

1. Early in March 2009, Kirkbride agreed to supply the undercover officer with 2,000 ecstasy tablets for $21,000. He arranged for the tablets to be obtained by Wade McIlery, who required payment before supplying the drugs.

1. In the afternoon of 4 March 2009, Shannon Knight communicated with Dean Eedens by coded text messages concerning the supply of the drugs. The effect of Eedens' response was that the venture might not be profitable if the drugs were of poor quality. McIlrey told Kirkbride that he could supply the drugs, but could do nothing about it if their quality was poor.

1. In the early evening of 4 March, Kirkbride met the undercover operative in the car park of a hotel at Greystanes. They discussed the delivery of the drugs and payment for them. The undercover officer was not prepared to pay the money before the drugs were handed over. Kirkbride said that he would try to arrange for the drugs be supplied at the time of payment, and they agreed to meet later that night.

1. Later, after 7pm, Kirkbride met Knight and McIlrey at the hotel in Greystanes. Knight left with McIlrey in McIlrey's car. Shortly thereafter, again through coded text messages, Eedens conveyed to Knight that the quality of the drugs was "okay."

1. At 9:30pm, Eedens left his home and drove to Penrith. On the way, he stopped at a house, where he picked up a box containing 2000 tablets. He drove to the car park of a McDonald's restaurant at Penrith, where Kirkbride had arranged to meet the undercover officer. Kirkbride, McIlrey and Knight arrived in McIlrey's car. Knight got out of McIlrey's car and into Eedens' car, where he looked at the tablets. Kirkbride got into the undercover officer's car, and told him that someone had the 2000 tablets nearby, that his supplier would take the payment from the undercover officer and return with the drugs. Police then approached and arrested all four offenders.

1. The tablets weighed a little under 500 grams, and contained 1-benylpiperazine of a purity of 16.5%. That drug has similar effects to ecstasy. It was these events that led to the second count against Kirkbride, supplying a commercial quantity of the drug, and the count of being knowingly concerned in that supply against Knight, McIlrey and Eedens.

1. Police searched Kirkbride's house and found $1500 in cash, 26 tablets and some powder containing methylamphetamine, and a small quantity of powdered cocaine. This gave rise to charges of dealing with the suspected proceeds of crime, (deemed) supply of the methylamphetamine and possession of the cocaine, which were dealt with on the Form 1. The offence on the Form 1 in Eedens' case was his possession of a small quantity of an anabolic steroid, which was found in his car at the time of his arrest.

The application

1. The only ground of each of the applications relates to the relativity between the sentence passed upon the applicant and that passed upon one or more of the co-offenders. In each case it is complained that a comparison between the sentences in question leave the applicant with a justifiable sense of grievance.

1. Given the limited scope of the applications, particularly as they were refined in oral argument, it is not necessary to examine the defendants' subjective cases. All of them were young men with no criminal history, or none of any significance. Their backgrounds had been marked by difficulties of one kind or another, which elicited sympathy for them. All of them had had a pattern of drug abuse commencing in their teenage years. Each had pleaded guilty in the Local Court and, broadly speaking, their prospects of rehabilitation were favourable.

1. None of the applicants relied upon his subjective case as a basis for challenging the relativity of his sentence to that of other offenders. In written submissions on behalf of Kirkbride and McIlrey reference was made to authorities dealing with the relevance to sentence of the fact that an offence was committed in the course of an undercover operation, but this issue was not pursued at the hearing. The argument focused upon the role of each of the offenders in the offence in which they were all involved, that is, the supply of 1-benylpiperazine on 4 March 2009.

1. Kirkbride, of course, faced two charges. As to the first charge, the sentencing judge noted that he became involved in the supply of drugs to the undercover operative in February 2009, and that the deals were not "small street level deals" but involved a considerable quantity of drugs and substantial sums of money. However, her Honour considered that there was not "anything particularly sophisticated" about the planning of the offences. As to the offence of 4 March 2009, she was unsure whether Kirkbride knew that he was dealing with 1-benylpiperazine instead of ecstasy, but considered that of no moment because he was supplying a significant quantity of an illegal drug for the purpose of financial gain.

1. Her Honour accepted that Kirkbride became engaged in his illegal activity to reduce his drug debt and to fund his habit, but did not see that as a mitigating factor. She noted, however, that there was no evidence to suggest that he had "surrounded himself by the trappings of wealth." She described his role as the "principal of this enterprise." She found the first count against him to be below the mid-range of objective gravity, but the second count to be within the mid-range.

1. Her Honour found the determination of the role of Shannon Knight to be "a difficult task." After examining the course of events initiated by Kirkbride's request to McIlrey to assist him in sourcing 2,000 ecstasy tablets, including Knight's contact with Eedens, she concluded that Knight was "a facilitator in the supply of a significant quantity of prohibited drugs." She added that he was "obviously aware that he was facilitating the supply of 2,000 tablets to someone who was going to supply that bulk quantity," but that he had "no way of knowing who the ultimate users would be."

1. Her Honour observed that drug trafficking "is often undertaken using facilitators so that the buyers and sellers can distance themselves in an attempt to avoid detection and being brought to justice." She described it as "a role which will still attract significant culpability and require a deterrent sentence." She noted, however, that there was no evidence to suggest that Knight became involved for financial gain or even to receive drugs in return for his assistance. She found that there was "simply no explanation" why he chose to become involved in the enterprise to the extent that he did.

1. Her Honour found that McIlrey's involvement was to provide Kirkbride with the 2000 tablets, which he believed to be ecstasy tablets. She noted that it was he who was insistent upon receiving payment before the drugs were supplied, and who expressed concern about the quality of them. She concluded that he was "actively involved in the organisation of the supply of this significant quantity of illicit substances..." She added that not only did he source the drugs "but he drove others around and thereby contributed to the deal that was taking place." She found that, like Knight, he "facilitated the transaction taking place", being "well aware of what he was involving himself in, that is, the dissemination of a significant quantity of illicit drugs to another person for distribution to the community at large." She noted that he did not expect payment for his role as driver. Rather, he expected to receive some ecstasy tablets, although there had been no agreement to that effect.

1. Her Honour found the involvement of Knight and McIlrey to be greater than that of Eedens. She found, nevertheless, that their offence fell below the mid-range of objective gravity.

1. Her Honour referred to Eedens' involvement, commencing with his communications with Knight and concluding with his collecting the drugs and delivering them to the car park where the transaction was to take place. She described his role as "no more than that of a courier" and saw his criminality as "at the lowest level" of all those involved. He also expected to be rewarded by receiving some drugs for his own use.

1. In her remarks her Honour noted that the four offenders had not been charged "as part of a joint criminal enterprise", and that the role of each of them was to be "considered in isolation albeit that they are all part of one transaction which occurred on 4 March 2009." This, of course, is not to suggest that there should not be appropriate proportionality or relativity between the sentences passed on all four of them in relation to that transaction: Jimmy v R [2010] NSWCCA 60, 77 NSWLR 540, per Campbell JA at [200] - [203] and Howie J at [245] - [246]. Plainly enough, this is what her Honour sought to do by her careful analysis of the roles of each of the offenders in the transaction.

Kirkbride

1. The ground of Kirkbride's application is that the difference between the sentence passed upon him for the second count and that passed upon Knight and McIlrey is such as to leave him with a justifiable sense of grievance.

1. For count two, Kirkbride was sentenced to imprisonment for 9 years with a non-parole period, in round figures, of 5 years and 5 months. For knowingly taking part in the same offence, Knight and McIlrey were both sentenced to imprisonment for 4 1/2 years with a non-parole period, again in round figures, of 2 years and 9 months. Counsel for Kirkbride, Mr Doyle, submitted that such a marked difference in sentence was unjustified.

1. It is true, as Mr Doyle pointed out, that the fact that Kirkbride was charged with supplying the drug, while Knight and McIlrey were charged with knowingly taking part in that supply, is irrelevant for present purposes. The two offences carry the same maximum sentence, and an assessment of the objective gravity of either offence turns on the conduct of the offender in the case at hand. In support of the application, Mr Doyle argued that both Knight and McIlrey played an active role in the offence, such that their involvement was as culpable as that of Kirkbride. In relation to McIlrey, in particular, he noted his direction that he receive payment before the drug was handed over, and it was on that basis that Kirkbride arranged the meeting with the undercover officer. To that extent, Mr Doyle argued, McIlrey was "dictating the terms of the engagement."

1. Mr Doyle submitted that it was not open to her Honour to assess the objective gravity of Kirkbride's offence at the mid-range, and the gravity of the offence of Knight and McIlrey below that mid-range. I put to one side the question whether, in the light of the decision of the High Court in Muldrock v The Queen [2011] HCA 39, assessments in those terms were called for. The fact remains her Honour saw Kirkbride's involvement in the offence as more serious than that of the other two applicants.

1. For the reasons identified by her Honour, Kirkbride's role was more serious, and significantly so. As her Honour observed, his offence was part of a course of conduct, through his connection with the undercover officer, involving the supply of considerable quantities of drugs for substantial sums of money. That course of conduct is apparent from the first count against him, as well as the offences on the Form 1. He was fairly described as the principal of the enterprise.

1. It is in this sense that a comment her Honour made about parity between Kirkbride and his co-offenders, which was the subject of critical analysis in Mr Doyle's written submissions, must be understood. What her Honour said, referring to Kirkbride, was as follows:

"His role can be distinguished from his co-offenders, he was involved to a far greater degree both before and during the offence committed on 4 March 2009. The issue of parity between him and his co-offenders does not arise."

I understand her Honour to have been saying no more than that Kirkbride's role required a heavier sentence than his co-offenders. I do not understand her to have been abandoning any attempt to achieve proportionality in the sentences she passed on each of the offenders.

1. That said, if for the purpose of sentence the transaction of 4 March 2009 stood alone, it might seem difficult to justify the imposition upon Kirkbride of a sentence double that imposed upon Knight and McIlrey. However, it did not stand alone. It was in sentencing for the second count that her Honour took into account the matters on the Form 1, although she found that they were "not so serious as to call for significant increase in the sentence ... ." More importantly, the sentence on the second count was almost wholly concurrent with the sentence on the first count. No doubt with an eye to totality, it was accumulated only to the extent of 6 months. To compare the sentence on the second count with the sentence passed upon Knight and McIlrey without regard to its place in the structure of Kirkbride's sentences would be artificial.

1. In all the circumstances, I am not persuaded that the difference between the sentence passed upon Kirkbride and that upon Knight and McIlrey leaves him with a justifiable sense of grievance. The ground of his application is not made out.

Knight and McIlrey

1. The ground of the application by each of Knight and McIlrey is that a comparison of the sentence passed upon the applicant with that passed upon Eedens leaves him with a justifiable sense of grievance.

1. Counsel for Knight was Ms Francis. McIlrey was represented by Mr Johnston of counsel, who had not prepared the written submissions. He adopted the submissions of Ms Francis. It will be remembered that the sentence of both Knight and McIlrey was imprisonment for 4 1/2 years with a non-parole period (rounded off) of 2 years and 9 months. Eedens was sentenced to imprisonment for 3 years with a non-parole period, also rounded off, of 1 year and 10 months.

1. The submission of Ms Francis, adopted by Mr Johnston on behalf of McIlrey, was that the role of Knight could not be distinguished from that of Eedens. She noted that it was Eedens whom Knight contacted to obtain the drugs, that there were text messages between them in the afternoon and the evening of the day in question, and that Eedens reported that drugs of adequate quality were available. She described Knight as the middleman between the purchaser's contact, McIlrey, and the ultimate supplier's contact, Eedens. Put another way, Eedens was the "link in the chain to the ultimate supplier" and Knight was the "link in the chain to the ultimate purchaser."

1. Ms Francis argued that the participation of Knight and Eedens in the offence was comparable. Mr Johnston made the same submission in respect of McIlrey.

1. I can see the force of that approach, but it was open to her Honour to make the distinction she did. As the Crown prosecutor pointed out, Eedens had no dealings with Kirkbride or McIlrey. It was McIlrey who was given the task by Kirkbride of sourcing the drugs and, as has been noted, he took the initiative of requiring payment before they were supplied. Knight took up the quest for the drugs through contact with Eedens, enquiring about their quality. Both McIlrey and Knight, her Honour found, knew that they were involved in the supply of a significant quantity of drugs which, they understood, would be distributed within the community.

1. Her Honour did not make a finding that Eedens had that knowledge. He told a psychologist, who prepared a report for the sentence proceedings, that when he was asked if he could access drugs, he said that he could but did not ask "what it was for." He gave evidence, not challenged in cross-examination, that he told the truth when interviewed by the psychologist. Clearly, it was he who was the conduit to the supplier of the drugs, whoever that might have been. Nevertheless, her Honour's finding that his role was that of a courier, and was less culpable than that of McIlrey and Knight, was open on the facts. I might add that the offence on the Form 1 in his case was of minimal significance.

1. Refreshingly, this was a case in which all four offenders were dealt with by the same judge in the same proceedings. Her Honour was well placed to assess the relative criminality of the offenders and to mark relevant distinctions between them by the sentences imposed: Dwayhi and Bechara v R [2011] NSWCCA 67, 205 A Crim R 274, per Johnson J at [32] - [47]. The ground of the application by each of Knight and McIlrey is not made out.

Orders

1. In each application, I would grant leave to appeal but dismiss the appeal.

1. Johnson J: I agree with Hidden J.

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Decision last updated: 23 December 2011