AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 6 March 2008

Kerr v Regina

[2008] NSWCCA 44

Drugs
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE THREE SERIOUS DRUG OFFENCES ALL SENTENCES CONCURRENT NOT APPROPRIATE TO MAKE CONCURRENT

Citation: Kerr v Regina [2008] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 6 March 2008
Judge(s): Hodgson JA, Kirby J, Buddin J

Background

The appellant was a farmer from the Glen Innes area who pleaded guilty to three serious drug offences following a police search of his property in November 2005. Police discovered an extensive hydroponic cannabis operation across multiple structures on the property, a large outdoor cannabis crop totalling 366 plants, 44.86 kilograms of harvested cannabis heads buried in drums, and $79,700 in cash concealed underground. The operation had been running for approximately three years, with the appellant acting as the principal and employing four or five others.

The appellant was sentenced in the District Court by Chief Judge Blanch. Each of the three charges carried a maximum penalty of 15 years imprisonment. The sentencing judge imposed three identical concurrent sentences, each comprising a non-parole period of three years and an additional term of two years.

The appellant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the overall sentence of five years imprisonment (with a non-parole period of three years) was manifestly excessive for three serious drug offences
  • Whether it was appropriate for the sentencing judge to impose the three sentences concurrently, given that the offences represented distinct aspects and stages of criminal conduct
  • Whether a lesser sentence was warranted in law under section 6(3) of the Criminal Appeal Act 1912

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Kirby J, with whom Hodgson JA and Buddin J agreed, found that the overall sentence was not manifestly excessive given the serious nature and scale of the three offences, each of which carried a maximum of 15 years imprisonment.

The Court's most notable reasoning concerned the concurrent nature of the sentences. Kirby J observed that the three counts, while all part of the same broader commercial cannabis operation, represented meaningfully different stages of criminality: Count 1 concerned plants seized during the search (representing future profits); Count 2 concerned harvested cannabis available for supply (deemed supplied under the legislation); and Count 3 concerned cash inferred to be the proceeds of past supply. These were not a single, discrete episode of criminality.

Applying the High Court's reasoning in Pearce v The Queen (1998) 194 CLR 610, the Court found it was not appropriate to simply make all sentences concurrent. Following Pearce, a sentencing judge must fix an appropriate sentence for each offence reflecting the criminality of that offence individually, before considering questions of accumulation, concurrence, or totality. The distinct nature of the three offences pointed toward some accumulation rather than full concurrence.

Despite this finding, the Court declined to restructure the sentences, as it determined no lesser overall sentence than five years with a three-year non-parole period was warranted in law. Restructuring to produce the same result would serve no purpose.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, following Pearce v The Queen, a sentencing judge must fix an appropriate sentence for each offence individually before considering concurrency or accumulation, with each sentence reflecting the criminality of that offence without being distorted by the presence of the others.
  • Where multiple offences arise from the same broader criminal enterprise but represent different stages of that enterprise (for example, cultivation, supply, and dealing with proceeds), they are not necessarily a single episode of criminality justifying full concurrence of sentences.
  • In dismissing the appeal, the Court noted that comparison cases involving three serious drug offences combined are of limited assistance as sentencing precedents, since most reported cases do not involve that combination.
  • A finding that sentences should have been partially accumulated does not automatically result in the appeal being allowed: where the overall sentence imposed remains within the range of sentences warranted in law, the Court may decline to restructure the sentences if doing so would achieve no different outcome.
  • Sufficient subjective mitigation, including an early guilty plea, strong character references, and acknowledgment of responsibility, was already factored into the original sentence and did not reduce the overall term below the minimum warranted.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 25(2), 33(2)(b)
- Crimes Act 1900 (NSW), s 193B(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- AJO v R [2008] NSWCCA 28
- R v Godden [2005] NSWCCA 160
- R v Giammaria & Karagiannis [2006] NSWCCA 63
- R v Quan [2006] NSWCCA 382
- Hantzis v R [2006] NSWCCA 387