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Court of Criminal Appeal 20 November 2003

R v Kamminga

[2003] NSWCCA 337

Drugs
CRIMINAL LAW SENTENCING ONGOING SUPPLY OF PROHIBITED DRUGS

Citation: R v Kamminga [2003] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 20 November 2003
Judge(s): Barr J; Miles AJ

Background

The appellant pleaded guilty in the Local Court to ongoing supply of prohibited drugs, specifically amphetamine and methylamphetamine, under s 25A(1) of the Drug Misuse and Trafficking Act 1985. The offending involved three controlled sales to an undercover police operative over a period of approximately three weeks in late 2002, with a total sale price of $2,800. Police had also recorded around 400 drug-related telephone calls on the appellant's mobile phone over roughly fifteen days.

The District Court sentenced the appellant to six years' imprisonment with a non-parole period of three years. The sentence was imposed by Stewart ADCJ, who acknowledged the appellant's significant mental health condition, a chronic affective disorder, and gave reduced weight to general deterrence on that basis.

The appellant was 49 years old at the time of sentencing. He had a history of prior drug-related offences from 1997 onwards, had been receiving a disability support pension, and was living in very modest circumstances with significant psychiatric supervision. Medical evidence described marked social and occupational decline over many years, with periods of psychosis, and the sentencing court was told the appellant had expressed suicidal ideation in response to a lengthy custodial sentence.

  • Whether the six-year head sentence was manifestly excessive in all the circumstances, having regard to the objective seriousness of the offending, the appellant's mental illness, and the available range for this class of offence.
  • Whether the sentencing judge gave sufficient weight to the reduced role of general deterrence arising from the appellant's chronic affective disorder.

Decision

No error of principle was alleged. The sole ground of appeal was that the sentence of six years' imprisonment was so high as to fall outside the proper range of sentencing discretion for this type of offence.

Barr J examined sentencing statistics for s 25A(1) offences drawn from 81 comparable cases and reviewed prior Court of Criminal Appeal decisions dealing with the offence. The statistics showed a median head sentence of around three years, and no case in the sample exceeded five years. While the Court accepted that this did not conclusively place a six-year head sentence outside the range, it concluded that such a sentence was "remarkably high" and would ordinarily require particularly serious features of criminality to justify it.

The objective criminality in this case was not found to be at a particularly high level. The three sales were modest in quantity and value. The large number of recorded telephone calls was noted, but the Court observed that the evidence did not establish whether that volume was unusually high for this type of offending.

Critically, the principal sentencing purpose for this category of offence, general deterrence, had to be given little weight because of the appellant's mental condition. Once that reduced weight was applied, the six-year sentence was found to be manifestly excessive. The Court substituted a sentence of three years' imprisonment with a non-parole period of two years. The extended parole period, beyond the standard one-quarter of the head sentence, was fixed to accommodate the appellant's need for continued medical supervision and drug and alcohol counselling upon release.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed and original sentence quashed.
  • Sentence of three years' imprisonment imposed, commencing 11 October 2002 and expiring 10 October 2005.
  • Non-parole period of two years fixed, expiring 10 October 2004.
  • Appellant directed to be released to parole on 10 October 2004.

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, general deterrence is the primary sentencing consideration for ongoing drug supply, but its weight is reduced where the offender suffers from a significant mental illness that impaired their judgment at the time of the offending.
  • A six-year head sentence for this offence was found to be manifestly excessive in the absence of particularly serious objective features, with the Court of Criminal Appeal observing it was well above the statistical median drawn from 81 comparable cases.
  • Sentencing statistics, while not determinative on their own, were treated as a reasonably reliable indicator of the available range when drawn from a substantial number of comparable cases.
  • A non-parole period exceeding one-quarter of the head sentence may be justified where the offender requires continued medical supervision and treatment as a condition of safe reintegration into the community.
  • In dismissing the contention that any error of principle had occurred, the Court of Criminal Appeal nonetheless intervened on the single ground of manifest excess, confirming that appellate review remains available on that basis even where the sentencing judge's approach was otherwise sound.

Legislation and Cases Referenced

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

Cases:
- R v CBK [2002] NSWCCA 457
- R v Connell [2003] NSWCCA 90
- R v Fogg [2002] NSWCCA 395
- R v Hofer [2001] NSWCCA 544
- R v Meres [2003] NSWCCA 193