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Court of Criminal Appeal 15 October 2001

Regina v Kenneth Robert Derley

[2001] NSWCCA 419

Also reported as 125 A Crim R 308
DrugsFraud & dishonesty

Citation: Regina v Kenneth Robert Derley [2001] NSWCCA 419
Court: NSW Court of Criminal Appeal
Date: 15 October 2001
Judge(s): Grove J; Bell J

Background

The applicant pleaded guilty in the District Court to supplying methylamphetamine in a commercial quantity (901.4 grams at 34-36% purity), an offence carrying a maximum of 20 years imprisonment. The supply was uncovered through a National Crime Authority investigation and involved concealing the drug in a vehicle's rear wheel arch. The sentencing court also took into account, on a Form 1 document, four additional matters: two charges of making a false statement to obtain a financial advantage, one charge of using a false instrument, and one charge of possessing three ecstasy tablets found at the time of arrest. The fraud charges related to a staged vehicle theft and a fraudulent insurance claim for approximately $22,000.

The Chief Judge of the District Court sentenced the applicant after accepting evidence about his financial pressures, family circumstances, early guilty plea, assistance to authorities, and health difficulties. The sentencing judge applied a combined discount of 33% for the plea of guilty and assistance, and found special circumstances justifying adjustment to the non-parole period ratio.

The applicant sought leave to appeal on the ground that the sentence was excessive, not on any identifiable error of principle or fact.

  • Whether the sentencing discretion miscarried by producing a sentence that was manifestly excessive
  • Whether the starting point of 12 years imprisonment before discounts was within the proper range for a commercial quantity methylamphetamine supply offence
  • Whether undue weight was given to the Form 1 matters, particularly the fraudulent insurance claim, in arriving at the overall sentence
  • Whether the 33% discount for the guilty plea and assistance to authorities was applied appropriately

Decision

Bell J (with Grove J agreeing) found no identifiable error of principle, mistake of fact, or error of law in the sentencing judge's reasons. The applicant's counsel expressly accepted that no such error existed, and the appeal was run solely on the basis that the sentencing discretion had miscarried by producing a manifestly excessive result.

The Court was not persuaded that a starting point of 12 years was outside the range of the proper exercise of sentencing discretion for an offence of this seriousness. The applicant had a prior conviction for conspiracy to import cannabis resulting in a sentence of eight years and six months, though he had remained largely out of trouble since his release in the early 1980s. The sentencing judge accepted that financial hardship and family pressures drove the offending, and that the applicant had not engaged in the enterprise to fund a drug addiction.

On the Form 1 matters, the Court noted that counsel's challenge was limited to the argument that the starting point of 12 years suggested undue weight had been given to the fraudulent insurance claim. The Court rejected this, having already found the starting point was within range. The Court also noted that there appeared to be some divergence among members of the Court of Criminal Appeal between two approaches to sentencing for Form 1 matters: the "additional penalty should be significantly less" approach and the "penalty should reflect the total criminality" approach. However, a two-judge bench considered it inappropriate to attempt to resolve that divergence.

Orders Made

  • Application for leave to appeal allowed
  • Appeal dismissed

Key Takeaways

  • A starting point of 12 years imprisonment for commercial quantity methylamphetamine supply (901.4 grams at 34-36% purity), before a combined one-third discount for guilty plea and assistance, was within the proper range of sentencing discretion on these facts.
  • Where an appellant cannot identify any error of principle, mistake of fact, or error of law, an appeal against severity alone requires the court to be satisfied that the sentencing discretion itself miscarried, a high threshold to meet.
  • A combined discount of 33% for an early guilty plea and assistance to authorities was accepted without challenge as an appropriate approach on the facts.
  • The Court of Criminal Appeal noted an unresolved tension between two approaches to Form 1 sentencing: whether the additional penalty for Form 1 matters should be "significantly less" than if separately prosecuted, or whether the sentence should reflect the "total criminality" including those matters. A two-judge bench declined to resolve this divergence.
  • Prior criminal history, including a serious drug offence decades earlier, remained a relevant consideration at sentencing even where the offender had otherwise maintained a largely law-abiding life since release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- R v Barton [2001] NSWCCA 63
- R v Bavadra [2000] NSWCCA 292
- R v Harris [2001] NSWCCA 322
- R v Lemene [2001] NSWCCA 5
- R v Olbrich [1999] HCA 54; 199 CLR 270