R v Kelly

[2020] NSWDC 232

District Court

New South Wales

Medium Neutral Citation:	R v Kelly [2020] NSWDC 232
Hearing dates:	14 May 2020
Date of orders:	22 May 2020
Decision date:	22 May 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [74]
Catchwords:	Drugs Misuse and Trafficking Act 1985 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Legislation Cited:	Drugs Misuse and Trafficking Act 1985 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v Way [2004] NSWCCA 131 Muldrock v The Queen [2011] HCA 39 Newman (a pseudonym) v R [2019] NSWCCA 157 Wong v The Queen [2001] HCA 64 Yun v R [2017] NSWCCA 317 DPP v De La Rosa (2010) 79 NSWLR 1 BP v R [2010] NSWCCA 159 R v Farah (Unreported CCA 11 December 1998) Parente [2017] NSWCCA 284 Markarian v The Queen (2005) 228 CLR 357 R v Fangaloka [2019] NSWCCA 173 R v Qi [2019] NSWCCA 73 R v Lattouf (Unreported NSWCCA 12 December 1996) Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.
Category:	Sentence
Parties:	Regina (Crown) Kelly (Accused)
Representation:	Counsel: Ms Oliver for the Crown Ms Graham for the offender     Solicitors:
File Number(s):	2018/00393608
Publication restriction:	Unrestricted

Judgment

Introduction

1. The offender appears for sentence on 3 very serious charges committed in breach of section 25(2) of the Drugs Misuse and Trafficking Act (“the Act”). The offences occurred within one month. Two of them are supplying a prohibited drug, specifically methylenedioxyamphetamine (MDA) in an amount not less than the commercial quantity (counts 1 and 2). Count 3 was of supplying MDA in an amount not less than the large commercial quantity.

2. Counts 1 and 2 have a maximum sentence of 20 years imprisonment and/or a penalty of 3500 penalty units, and a standard non-parole period of 10 years. Count 3 has a maximum penalty of life imprisonment and/or a penalty of 5000 penalty units, with a 15 year standard non-parole period.

Standard non parole period

3. The standard non-parole periods are to be considered a guidepost in the same way as the maximum sentence is to be considered a guidepost. I take the view that there is nothing in the Division 1A Crimes (Sentencing Procedure) Act (“the Act”) provisions to the effect that these provisions only apply to matters that have been determined by a trial, and not those that have proceeded by a plea. I note in R v Way [2004] NSWCCA 131, the Court of Criminal Appeal had held that the standard non-parole period only applies to sentencing for an offence after conviction at trial. This point was noted in Muldrock at [23]. Then at [29] of Muldrock it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that “the obligation applies in sentencing for all…