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52
Court of Criminal Appeal 4 February 2000

Regina v Leslie Kalache

[2000] NSWCCA 2

Also reported as [2000] 111 A Crim R 152
Drugs

Citation: Regina v Leslie Kalache [2000] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 4 February 2000
Judge(s): Sully J, Hulme J, Hidden J

Background

The Director of Public Prosecutions brought a Crown appeal under section 5D of the Criminal Appeal Act 1912 (NSW), challenging sentences imposed in the District Court at Sydney on 6 May 1999. The respondent had pleaded guilty to seven charges across two indictments, including two counts of taking part in the manufacture of methylamphetamine in a large commercial quantity, one count of supply of methylamphetamine in a large commercial quantity, supply of cocaine, supply of ecstasy, supply of cannabis, and one count of perverting the course of justice. Two further matters involving goods in custody and drug possession were also taken into account on a Form 1 basis.

The Crown's case was that the respondent was the leader of an organised network involved in the manufacture and distribution of prohibited drugs over a sustained period. Surveillance spanning late 1995 to September 1997 revealed large-scale production at clandestine laboratories, with the respondent directing finances, manufacture, and distribution across multiple drug types. The estimated street value of drugs supplied during the surveillance period alone exceeded $2.5 million.

The District Court sentenced the respondent to a total effective sentence of 10 years, comprising a minimum term of 7.5 years and an additional term of 2.5 years. The Director contended those sentences were manifestly inadequate given the scale and seriousness of the criminality.

  • Whether the sentences imposed at first instance were manifestly inadequate in light of the nature, scale, and duration of the offending
  • Whether the double jeopardy principle (the general reluctance to increase a sentence on appeal) was sufficient to prevent a substantial increase in penalty
  • Whether, given the respondent's position at the top of the drug supply hierarchy, the totality and structure of the sentences appropriately reflected the legislative intent and sentencing principles applicable to large commercial quantity drug offences

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentences imposed by Woods DCJ were manifestly inadequate. The majority (Sully J and Hidden J, with Hulme J in partial agreement) identified the original sentences as falling well short of what the gravity of the offending demanded. The respondent's role as the organiser and financier of a sophisticated multi-drug operation, sustained over an extended period, placed the conduct at the most serious end of the spectrum.

Sully J, with whom Hidden J agreed on orders, restructured the sentences significantly. The lead charge (large commercial quantity supply of methylamphetamine, Count 2) attracted a sentence of 23 years with a minimum term of 20 years and an additional term of 3 years. Other counts received lengthy concurrent fixed terms.

Hulme J took a different view on the appropriate structure, favouring a life sentence on one count as the minimum that should have been imposed, but this remained a minority position and did not affect the orders ultimately made. All members of the Court agreed that the double jeopardy consideration, while relevant, was outweighed by the need for sentences that properly reflected the gravity of the conduct and Parliament's intention in setting the penalty structure for large commercial quantity drug offences.

Hidden J declined to determine whether a life sentence was required but agreed that the lead charge should have attracted a very lengthy determinate sentence, and concurred with the orders proposed by Sully J.

Orders Made

  • Crown appeals allowed
  • Sentences imposed by the District Court on 6 May 1999 quashed
  • Respondent re-sentenced as follows:
  • Count 7 (perverting the course of justice): fixed term of 2 years commencing 30 September 1997
  • Count 2 (supply of methylamphetamine, large commercial quantity): 23 years comprising a minimum term of 20 years commencing 30 September 1999, expiring 29 September 2019, and an additional term of 3 years commencing 30 September 2019
  • Count 1 (manufacture of methylamphetamine, large commercial quantity): fixed term of 18 years commencing 30 September 1999
  • Count 6 (earlier manufacture of methylamphetamine, large commercial quantity): fixed term of 14 years commencing 30 September 1999
  • Count 3 (supply of cocaine, commercial quantity): fixed term of 12 years commencing 30 September 1999
  • Count 4 (supply of ecstasy, commercial quantity): fixed term of 12 years commencing 30 September 1999
  • Count 5 (supply of cannabis): fixed term of 5 years commencing 30 September 1999

Key Takeaways

  • The Court of Criminal Appeal confirmed that the double jeopardy principle applicable in Crown appeals does not automatically prevent substantial uplifts to sentence where the original sentences are manifestly inadequate, particularly when the criminality is of exceptional gravity.
  • A sustained, hierarchical drug operation involving multiple drug types, large commercial quantities, and significant financial benefit will attract sentences reflecting the maximum seriousness available under the relevant legislation.
  • Under the Drug Misuse and Trafficking Act 1985 (NSW), the Court emphasised that when offenders at the leadership level of drug supply networks are sentenced, the need for deterrence and reflection of Parliament's intention in setting heavy maximum penalties can outweigh mitigating factors, including the double jeopardy consideration.
  • The three judges diverged on whether a life sentence was warranted, demonstrating that even among appellate judges the appropriate sentence in cases of this scale can be genuinely contested; the majority resolved to impose very lengthy determinate sentences rather than life imprisonment.
  • An effective minimum term of 22 years (combining the fixed term on Count 7 and the minimum term on Count 2) was held to be justified where the need for exemplary punishment was preponderating and there was no evidence of a rehabilitation need that would call for a longer additional term.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW), s 527C
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Criminal Assets Recovery Act 1990 (NSW)
- Crimes Legislation (Amendment) Act 1990 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- Malvaso v R (cited in the judgment on the public interest consideration in Crown appeals)
- R v Jermyn (cited on the same point)
- A large number of additional cases were cited across the three judgments; the reported decision notes these were too numerous to reproduce individually in the metadata.