Citation: Kirkbride v R; Knight v R & McIlrey v R [2011] NSWCCA 268
Court: Court of Criminal Appeal, New South Wales
Date: 14 December 2011
Judge(s): McClellan CJ at CL, Hidden J, Johnson J
Background
Three co-offenders sought leave to appeal against sentences imposed in the District Court following guilty pleas to commercial drug supply offences. Ryan Kirkbride pleaded guilty to two counts of supplying a prohibited drug in a commercial quantity under the Drug Misuse and Trafficking Act 1985. Shannon Knight and Wade McIlrey each pleaded guilty to knowingly taking part in Kirkbride's second supply offence. A fourth offender, Dean Eedens, had also been sentenced for his involvement in that same offence but did not appeal.
The offending arose from a controlled police operation in early 2009. Kirkbride agreed to supply 2,000 tablets to an undercover officer. McIlrey was tasked with sourcing the drugs and required payment before supplying them. Knight communicated with Eedens about the quality of the drugs, acting as a link between Kirkbride's side and the ultimate supplier's contact. All four were arrested together in a car park at Penrith on 4 March 2009 when police moved in.
The sole basis for each appeal was the relativity between the applicant's sentence and those received by the other offenders. Each applicant contended that the comparison between sentences gave rise to a justifiable sense of grievance.
Legal Issues
- Whether the sentences imposed on Kirkbride, Knight, and McIlrey were properly calibrated relative to each other and to Eedens' lower sentence.
- Whether the sentencing judge correctly assessed the different roles of each offender in the offence of 4 March 2009.
- Whether Knight and McIlrey had been sentenced more harshly than their relative culpability warranted, particularly when compared to Eedens.
Decision
Hidden J (with whom McClellan CJ at CL and Johnson J agreed) examined the role each offender played in the 4 March 2009 supply offence. Her Honour at first instance had described Kirkbride as the principal of the enterprise, found the second count to fall within the mid-range of objective gravity, and imposed an aggregate sentence of 9.5 years with an effective non-parole period of just under six years. Knight and McIlrey each received 4.5 years, while Eedens received three years.
The Court of Criminal Appeal found that the sentencing judge was entitled to distinguish between Eedens and the other offenders. McIlrey had been given the task of sourcing the drugs directly by Kirkbride and had taken the initiative of requiring payment before supply. Knight had actively pursued the drugs through contact with Eedens, enquiring into their quality. Critically, the sentencing judge found that both McIlrey and Knight knew they were involved in the supply of a significant quantity of drugs intended for distribution in the community.
No equivalent finding was made against Eedens. The evidence before the sentencing judge was that Eedens did not ask what the drugs were for when approached about accessing them. The Court accepted that the sentencing judge's characterisation of Eedens as a courier, less culpable than McIlrey and Knight, was open on the facts. The Form 1 offence in Eedens' case (possession of an anabolic steroid) was also of minimal significance.
Hidden J noted that all four offenders had been sentenced by the same judge on the same day, placing that judge in an advantageous position to assess relative criminality and to mark relevant distinctions through the sentences imposed. Neither Knight's nor McIlrey's complaint about sentencing relativity was made out.
Orders Made
- Leave to appeal granted in each application.
- Each appeal dismissed.
Key Takeaways
- A sentencing judge who deals with multiple co-offenders in the same proceedings is well placed to assess relative criminality and to mark distinctions through the sentences imposed, as confirmed by the Court of Criminal Appeal applying Dwayhi and Bechara v R [2011] NSWCCA 67.
- Sentencing relativity complaints require more than a bare comparison of sentences. The court examines the specific role, knowledge, and culpability of each offender before concluding that a disparity gives rise to a justifiable sense of grievance.
- Where one co-offender lacked the knowledge that others possessed (here, that the supply was of a significant quantity intended for community distribution), the sentencing court was entitled to treat that offender as materially less culpable and impose a substantially lower sentence.
- Leave to appeal against sentence may be granted even where the appeal itself is ultimately dismissed, reflecting the court's willingness to scrutinise co-offender sentencing disparities as a legitimate ground of challenge.
- No error was established in the sentences passed on Kirkbride, Knight, or McIlrey, and the appeals against all three sentences were dismissed.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply of a prohibited drug in a commercial quantity; maximum 20 years imprisonment; standard non-parole period of 10 years)
Cases:
- Jimmy v R [2010] NSWCCA 60, 77 NSWLR 540
- Muldrock v The Queen [2011] HCA 39
- Dwayhi and Bechara v R [2011] NSWCCA 67, 205 A Crim R 274