R v Kernaghan

[2018] NSWDC 205

District Court

New South Wales

Medium Neutral Citation:	R v Kernaghan [2018] NSWDC 205
Hearing dates:	6 July 2018
Date of orders:	06 July 2018
Decision date:	06 July 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order.
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – S166 Certificate – Ongoing supply – Drug supply – Tampering with evidence – Possession of ammunition
Category:	Sentence
Parties:	The Crown Peter Francis Kernaghan
Representation:	Counsel: Mr B Costello- Crown Mr J Booth - Offender   Solicitors: Director of Public Prosecutions – Crown Legal Aid Commission - Offender
File Number(s):	2016/1904242015/123324

Judgment

1. HIS HONOUR: The ultimate purpose of the criminal law is to protect society and its members. Often that is done by imposing sentences upon offenders which deter other people who might be tempted to commit crimes, but there are some occasions when sentencing judges focus more on the individual offender. If an individual offender can be assisted to give up criminal behaviour then the community benefits. The question is whether this is a case where general deterrence should be of prime importance or whether the offender’s rehabilitation should be the focus of my decision.

2. The offender has pleaded guilty to an offence of ongoing drug supply. When I sentence him for that matter he asks that I take into account two other matters, one a separate act of supplying drugs and the second an act of tampering with evidence. There has been some dispute as to the exact nature of the tampering in court today but it is clear that the offence was committed, something Mr Kernaghan admits.

3. Mr Kernaghan ran a butcher shop in Dungog but he had a sideline as a drug dealer. Police investigated his drug dealing activities. Part of that investigation involved bugging his phone. Thus police were able to listen as the offender made a number of agreements to supply drugs to a number of people.

4. On 9 August he agreed to supply 3.7 grams to Peter.

5. On 13 August 2014 there was another agreement to supply perhaps the same person.

6. On 15 August 2014 there was an agreement to supply a Donna Matuzinski, and

7. On 15 August 2014 there was a further agreement to supply.

8. Then on 25 August the offender agreed to supply amphetamine to a Michael Broughton.

9. The separate act of supply on the Form 1 relates to a telephone call that the offender had on 25 October 2014 in which he agreed to supply an unknown female’s friend, someone the offender did not know.

10. Matters all came to a head on 28 October 2014. Police turned up at the butcher’s shop intending to search it. The offender stopped someone who was driving his car, he said, “You’ve got to take me home, give me a lift home”. The person said, “No, go inside the butcher shop and sort this out, mate” but Mr Kernaghan insisted on being taken home which he was. When he got home he started running towards the house. He was asked what was going on by a lady who lived with him. He said, “Get the fuck out of the way”. When he got into the house he emptied a bag containing methylamphetamine either down the kitchen sink as the agreed facts suggest or on the lawn outside as the accused said in evidence.

11. When police searched they found what were clearly drug ledgers indicating supply of drugs to a number of people, Nick, Howie, Tra, Donna, Nick again, Scott and Ken. Police also found scales and four small‑sized resealable bags, one of which contained a residue of a white or crystalline substance. And finally, the offender was found to be in possession of four .45 calibre rounds of ammunition. His plea of guilty to that matter is on a s 166 certificate.

12. Mr Kernaghan probably does not like the description but it is an accurate one, he was a drug dealer. He was supplying drugs to his friends for money. He was also prepared to supply drugs to people he did not know for money. Mr Kernaghan has shown throughout these proceedings, whether speaking to his own psychologist, Probation and Parole or giving evidence, that he wishes to minimise the criminality of his behaviour. His behaviour was in truth seriously criminal. Drugs do terrible harm to the community and the individual members of it and Mr Kernaghan was prepared to harm such people.

13. We all suffer through drug use in the community. The form of drug that Mr Kernaghan supplied is especially addictive. When addicts need to fund their own drug habits they resort to crime often enough, as Mr Kernaghan himself did. So drug supply is not the sort of offence that can be easily forgiven.

14. The offender was born in Albury‑Wodonga. His father was abusive towards his mother and their relationship was one punctuated with violence by his father towards his mother. His father would yell at Mr Kernaghan and his siblings when they would attempt to intervene. His parents divorced when he was about 12 and for a while he and his family lived in a caravan park before being placed in a Department of Housing home. His mother formed a new relationship. Her new partner was an alcoholic although never violent.

15. The offender went to a number of different schools because of the itinerant nature of his father’s employment. After leaving school he got a number of jobs before moving into butchering. He owned the butcher shop in Dungog from 2008 to 2014 after his arrest on this matter.

16. Although he used alcohol and cannabis from a relatively young age he told the psychologist that it was not until he was 41, he is now 44, when he first tried amphetamines. He told the psychologist that a customer of his suggested that he use amphetamines in order to enable him to work the long hours required. He claims that he has been drug free since his arrest. I will return to that issue in a little while.

17. At the moment Mr Kernaghan is engaged to be married, living with him and his fiancé is his daughter. I am not going to, in these public remarks, detail the challenges that his daughter has faced over her life. I am going to say that the hardship that she would experience if Mr Kernaghan went to gaol is exceptional such that I can take it into account when I decide what sentence to impose upon him. There are other arrangements that can be made for her but they are much less satisfactory than the present arrangement where she lives with her father and his fiancé.

18. Often enough people come to Court relying on what will happen to their children or their parents or someone else if they are sent to gaol, and there is something a bit distasteful about that because at the very time they committed their offences they were aware that if they were caught their children, their parents or someone else would suffer, and yet they went ahead anyway. Mr Kernaghan is not in that category. His daughter was not living with him at the time of his drug offending.

19. I said I would return to the issue as to whether Mr Kernaghan was using drugs or not. Now is the time I will do so. When Mr Kernaghan was first before me on 27 October 2017 there were suggestions that Mr Kernaghan had given up drugs at that stage. Sceptical as I am of such claims because they are often made and often proved to be wrong, I allowed Mr Kernaghan the opportunity of proving the truth of what he said. The matter was adjourned to today 6 July 2018 and I made it a condition of Mr Kernaghan’s bail that he undergo fortnightly urinalysis. Reports which have been received show no drug use. There are a couple of gaps, one explained by the circumstance that Mr Kernaghan was initially drug tested by Probation and Parole, and the other is unexplained. Fortunately for Mr Kernaghan it was not he that obtained the results of urinalysis but his solicitor. He had no opportunity therefore to pull out a dirty result. I will accept that Mr Kernaghan has not used drugs during the period of the remand and that supports his assertion made earlier that he in fact has not used drugs since he was arrested.

20. Consistent with Mr Kernaghan’s minimisation of his criminal behaviour his plea of guilty came somewhat late. He has always been charged with an offence of ongoing supply. The trial date was set and later vacated for a reason I do not know, and it was only after that occurred that Mr Kernaghan indicated a willingness to plead to the offence for which I must now sentence him. In such circumstances the discount is reduced, were I to have to quantify it I would have said that it was about 10%, but in this one the plea of guilty is one of a number of factors which have led to me deciding to impose a different form of sentence from that I would otherwise have imposed.

21. As I said, all drug dealing involves serious offending. In this case the offender supplied, he says only his friends but the evidence suggests otherwise. The offender was not supplying at a high level but nor was he supplying at a low level either. Certainly he was a drug user. He was in that category of offender described as a user dealer, as are most offenders appearing before the Court for sentence on charges of this nature.

22. He has a criminal history but there is no drug dealing on it. He has served no time in custody in relation to this offence. He has committed no further offences since his arrest.

23. For the reasons I have explained I intend to focus on Mr Kernaghan’s rehabilitation. Of course he has to be punished as well but taking into account the matters that I have referred to I am satisfied that whilst a custodial sentence is required it is likely to be two years or less, and if suitable it should be ordered to be served by way of an intensive corrections order. I will therefore adjourn this matter to 7 September 2018 for consideration as to the results of the assessment.

24. HIS HONOUR: On the next occasion someone better remind me not to overlook the s 166 matter when I come to sentence

25. COSTELLO: Your Honour, it’s not listed on the sentence summary but I’m sure that your Honour is both reminded about it on the next occasion as well as appraised of the maximum penalty.

26. HIS HONOUR: Right. Yes. Thanks very much.

27. ADJOURNED TO FRIDAY 7 SEPTEMBER 2018

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Decision last updated: 03 August 2018