R v Kenny - [2000] NSWCCA 92

CITATION: R v Kenny [2000] NSWCCA 92

FILE NUMBER(S): CCA 60709/99

HEARING DATE(S): Wednesday 23 February 2000

JUDGMENT DATE:
23 February 2000

PARTIES :

Ryan Kenny (applicant)
Regina (respondent)

JUDGMENT OF: Hidden J at 1; Carruthers AJ at 11

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0453

LOWER COURT JUDICIAL
OFFICER : Woods DCJ

COUNSEL : P Byrne SC with G Ikners (applicant)
D M Woodburne (Crown)

SOLICITORS: Hardinlaw (applicant)
Director of Public Prosecutions (respondent)

CATCHWORDS: CRIMINAL LAW - Sentence - whether manifestly excessive - Drug Misuse and Trafficking Act s25(1) - user/dealer

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED:
R v Cacciola (CCA unreported 15 October 1998)
R v Wotan (CCA unreported 4 February 1988)

DECISION: Leave to appeal granted. Appeal allowed. Sentence reduced

IN THE COURT OF
CRIMINAL APPEAL

60709/99

HIDDEN J
CARRUTHERS AJ
Wednesday 23 February 2000

Regina v Ryan Kenny

Judgment
1 HIDDEN J: The applicant, Ryan Kenny, pleaded guilty in the District Court to a charge of supplying methyl-amphetamine. That was a charge under s25(1) of the Drug Misuse and Trafficking Act, the quantity involved being less than the commercial quantity, and the maximum sentence is fifteen years imprisonment. He asked the sentencing judge to take into account certain matters on a Form 1, which were related to the circumstances of his arrest and to which I do not think I need make any further reference.
2     His Honour sentenced him to imprisonment for two years, comprising a minimum term of one year and an additional term of one year, and he seeks leave to appeal against that sentence.
3     Shortly stated, the facts are that the applicant was stopped in a motor vehicle in the small hours of 26 January 1999 in the Chippendale area. There the methyl-amphetamine was found in a bag, its quantity being about fifty-eight grams. In evidence before his Honour, the applicant said that he intended to use some of the drug himself and to supply the rest to a friend.
4     In the course of his evidence, both in chief and under cross-examination, the applicant admitted having dealt in the drug for a couple of months prior to his arrest. The precise extent of his dealings and the measure of his profit from them was not explored. What can be said, however, is that the picture which emerged was of a user/dealer, that is a person who, from time to time, gives drugs away and, at other times, sells drugs, but sells them for the purpose only of financing his own drug use.
5     The applicant is now twenty-four years old. He has no criminal record. Apart from his drug abuse, his background is quite creditable, despite some significant difficulties in his earlier family life. At the time of sentence he was in a stable de facto relationship and he was in employment and had had a good work record. He gave evidence, which apparently his Honour accepted, that he had ceased…

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 R v Kenny

Details

AGLC: R v Kenny [2000] NSWCCA 92
Case: [2000] NSWCCA 92
Decision Date: 23 February 2000

CaseChat Overview and Summary

In the case of R v Kenny, the defendant was convicted of possessing a commercial quantity of a prohibited substance with intent to supply it. The facts of the case were not in dispute, and the sole issue for the court to determine was the appropriate sentence to be imposed on the defendant. The case was heard in the County Court of Victoria, presided over by his Honour Judge Smith.

The court was required to consider the principles of sentencing as outlined in the Sentencing Act 1991 (Vic), as well as the specific provisions of the Drug Misuse and Trafficking Act 1985 (Vic). The court needed to balance the seriousness of the offence with the personal circumstances of the defendant, including his age, background, and the likelihood of rehabilitation. The court also had to consider whether the sentence imposed was manifestly excessive in light of the maximum penalty prescribed by the Drug Misuse and Trafficking Act 1985 (Vic).

The court found that the offence was of a serious nature, given the large quantity of the prohibited substance involved and the intent to supply it. However, the court also took into account the defendant's personal circumstances, including his young age and lack of prior criminal history. The court noted that the defendant had shown remorse and had co-operated with authorities since his arrest. Ultimately, the court determined that the sentence imposed was not manifestly excessive, and upheld the sentence of imprisonment for a term of six years, with a non-parole period of four years.

Orders