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Court of Criminal Appeal 23 February 2000

R v Kenny

[2000] NSWCCA 92

Drugs
CRIMINAL LAW SENTENCE WHETHER MANIFESTLY EXCESSIVE DRUG MISUSE AND TRAFFICKING ACT S25(1) USER

Citation: R v Kenny [2000] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 23 February 2000
Judge(s): Hidden J; Carruthers AJ

Background

The applicant, a 24-year-old with no prior criminal record, pleaded guilty in the District Court to supplying methyl-amphetamine under s 25(1) of the Drug Misuse and Trafficking Act 1985. Police stopped him in a vehicle in the Chippendale area in the early hours of 26 January 1999 and found approximately 58 grams of methamphetamine. The quantity was below the commercial threshold, which carries a maximum penalty of 15 years imprisonment.

The applicant gave evidence that he intended to use some of the drug himself and supply the remainder to a friend. He also admitted to dealing in the drug for about two months before his arrest, describing a pattern consistent with a "user/dealer": someone who occasionally gives drugs away and sells drugs, but only to fund their own use.

At the time of sentencing, the applicant was in stable employment, in a de facto relationship, and had ceased using illicit drugs. The sentencing judge found special circumstances and imposed a sentence of two years imprisonment, with a minimum term of one year and an additional term of one year.

  • Whether the two-year sentence was manifestly excessive in all the circumstances
  • Whether evidence of the applicant's prior course of drug dealing over the preceding months was admissible at sentencing
  • Whether the applicant's status as a user/dealer, rather than a commercial dealer, was relevant to the appropriate sentence

Decision

The Court granted leave to appeal and allowed the appeal, finding the two-year sentence manifestly excessive. Hidden J accepted that a custodial sentence was appropriate given the circumstances, but concluded the sentence imposed was more than the case called for.

On the admissibility question, Hidden J noted the submissions were of substance and may raise an important sentencing policy question in an appropriate case, but declined to resolve them. He was satisfied the evidence of prior dealing was admissible because it showed the offence was not an isolated incident, meaning the applicant could not claim leniency on that basis.

The Court had regard to Judicial Commission statistics on sentences for this class of offence. While emphasising those statistics must be approached with caution, Hidden J observed that custodial sentences in this category are frequently quite low and that two years appeared relatively high in the range. Taking into account the quantity involved (substantial but well below commercial), the applicant's prior good character, and his rehabilitation prospects, the Court reduced the sentence by six months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Applicant re-sentenced to 18 months imprisonment, comprising:
  • Minimum term of 6 months commencing 16 November 1999, expiring 15 May 2000
  • Additional term of 12 months commencing 16 May 2000, expiring 15 May 2001
  • Applicant to be released on parole at the expiration of the minimum term, subject to supervision by the Probation and Parole Service and compliance with reasonable directions of officers of that Service
  • Form 1 matters taken into account in arriving at the re-sentence

Key Takeaways

  • The Court of Criminal Appeal confirmed that Judicial Commission sentencing statistics, while approached with caution, can support a finding of manifest excess where an imposed sentence sits relatively high in the range for the relevant offence category.
  • A user/dealer, described as someone who sells drugs solely to finance their own use rather than for commercial profit, occupies a less serious position in the sentencing hierarchy than a commercial dealer.
  • Evidence of a defendant's prior course of dealing in the months before arrest is capable of being admissible at sentencing to show the charged offence was not an isolated incident, thereby limiting any claim to leniency on that basis.
  • In dismissing the need to resolve the admissibility argument fully, the Court signalled that the question of when prior uncharged dealing conduct can be placed before a sentencing court remains an open and potentially significant policy question.
  • Good character, stable personal circumstances, cessation of drug use, and genuine rehabilitation prospects are relevant mitigating factors, but do not displace the need for a custodial term in supply cases involving substantial quantities.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- R v Cacciola (NSW Court of Criminal Appeal, unreported, 15 October 1998)
- R v Wotan (NSW Court of Criminal Appeal, unreported, 4 February 1988)