Citation: R v Kemp [1999] NSWCCA 404
Court: NSW Court of Criminal Appeal
Date: 6 December 1999
Judge(s): James J; Sperling J
Background
The applicant pleaded guilty in the District Court to two charges: supplying heroin over a period of more than a year, and supplying not less than a commercial quantity of methylamphetamine on a single date in June 1997. The sentencing judge, McGuire DCJ, also took into account ten further offences, including fraud, drug possession, and multiple failures to appear on bail.
The facts revealed a substantial drug operation. The applicant had distributed large amounts of heroin across Port Macquarie and surrounding areas, received payments through bank accounts opened in false names using forged documents, and was found in possession of 262 grams of methylamphetamine at the time of his arrest. Total deposits across the three false-name accounts exceeded $300,000.
The applicant was sentenced to a fixed term of five years for the heroin supply charge, and nine years (with a minimum term of six years and nine months) for the methylamphetamine charge. He sought leave to appeal against those sentences in the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge applied an insufficient discount for the assistance the applicant had provided to authorities, in particular by failing to follow the approach taken in comparable cases such as R v Winowiecki
- Whether the sentencing judge erred in declining to find "special circumstances" under section 5(2) of the Sentencing Act, which would have allowed the additional term (the non-parole portion of the sentence) to exceed one-third of the minimum term
Decision
On the question of the discount for assistance, the Court accepted that the assistance the applicant had provided was considerable. However, the Court held that the extent of any discount for such assistance falls squarely within the sentencing judge's discretion. The Court found that McGuire DCJ had correctly distinguished the present case from R v Winowiecki, noting that the applicant had continued offending contemporaneously with and after providing assistance, had not offered to give evidence as part of that assistance, and had not been placed on protection while in custody.
On the question of special circumstances, the applicant argued that several factors identified in R v Moffitt (1990) 20 NSWLR 114 were present and warranted a longer additional term. The Court disagreed. It found that the sentencing judge had expressly turned his mind to section 5(2) and, having done so, exercised his discretion to conclude that no special circumstances warranted departing from the standard ratio. The sentencing judge had also expressly found that the additional term would be sufficient for rehabilitation purposes.
The Court noted more broadly that the criminality involved in the heroin supply offence was considerable, the further offences demonstrated a complete disregard for the law, and the commission of offences while on bail constituted serious aggravating factors. No error in the construction of the sentences was established, and the appeal was dismissed.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the degree of discount granted for assistance provided to authorities rests largely within the sentencing judge's discretion, and is not determined by mechanical comparison with other cases.
- A sentencing judge may properly reduce a cooperation discount where the offender continued to offend while providing assistance, did not offer to give evidence, and was not placed on protection.
- Under section 5(2) of the Sentencing Act, a finding of "no special circumstances" does not necessarily mean the judge considered no relevant circumstances to exist; it may reflect a considered exercise of discretion that the circumstances present did not warrant extending the additional term beyond the statutory ratio.
- Committing further offences while on bail, and failing to appear in accordance with bail undertakings, were treated as serious aggravating factors in sentencing.
- In dismissing the appeal, the Court emphasised that a high position in the hierarchy of drug supply, a prolonged course of offending, and a substantial criminal history (including prior drug and violence offences) are weighty factors that significantly limit the scope for appellate intervention.
Legislation and Cases Referenced
Legislation:
- Sentencing Act (NSW), section 5(2) (special circumstances provision relating to the ratio of additional term to minimum term)
Cases:
- R v Winowiecki (cited in argument regarding the appropriate discount for assistance to authorities)
- R v Moffitt (1990) 20 NSWLR 114 (factors relevant to a finding of special circumstances)