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Court of Criminal Appeal 7 May 2013

Kennedy v R

[2013] NSWCCA 104

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE TIME CUSTODY

Citation: Kennedy v R [2013] NSWCCA 104
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2013
Judge(s): Bathurst CJ, Fullerton J, Campbell J

Background

The appellant was a woman in her late thirties who pleaded guilty in the District Court to two counts of knowingly taking part in the manufacture of prohibited drugs, contrary to the Drug Misuse and Trafficking Act 1985. The first count involved methamphetamine at no less than a commercial quantity; the second involved MDMA (ecstasy) at no less than a large commercial quantity. Her role was limited: she had signed the lease on the premises where her partner operated a clandestine laboratory, and she was found to have suffered or permitted his activities as lessee. She had no active involvement in the manufacturing process and stood to gain no financial benefit from it.

The District Court sentenced her in February 2012 to an effective term of 12 months imprisonment with a non-parole period of 5 months. A 10 per cent discount was applied for her guilty pleas. Taking into account pre-sentence custody, the structure of the sentences required her to return to full-time custody to serve approximately five weeks and sixteen days of the non-parole period.

The appellant sought leave to appeal against sentence, arguing the sentencing judge erred in imposing full-time custody without adequately weighing her rehabilitation and psychological vulnerabilities against the objective seriousness of the offences.

  • Whether the sentencing judge's discretion miscarried in imposing full-time custodial sentences rather than considering alternatives such as a suspended sentence.
  • Whether sufficient weight was given to the appellant's rehabilitation, psychological condition, and prospects of reoffending in assessing the appropriateness of full-time custody.
  • Whether a suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 was available and appropriate on re-sentence, having regard to the principles of deterrence, retribution, and denunciation.

Decision

Fullerton J, with whom Bathurst CJ and Campbell J agreed, found that the sentencing judge's discretion had miscarried. While the sentencing judge acknowledged the appellant's favourable subjective circumstances, including sound rehabilitation prospects, genuine remorse, and psychological fragility, including an identified suicide risk, his Honour treated the objective seriousness of the offences as determinative. The effect was to impose full-time custody without adequately weighing those subjective factors in the sentencing balance.

The Court accepted that the appellant's limited role as a participant, essentially permitting the use of leased premises rather than actively contributing to manufacture, placed her offending at a less serious point on the scale for offences of this type. The agreed facts made clear she had no active manufacturing role and no financial motive. This context was relevant to assessing whether alternatives to full-time custody could properly reflect the overall criminality.

On re-sentence, the Court was satisfied that the operation of section 12 of the Crimes (Sentencing Procedure) Act 1999, which permits a court to suspend a sentence of imprisonment upon the offender entering a good behaviour bond, was appropriate. The Court noted the appellant's strict compliance with bail reporting conditions during the appeal, her ongoing psychiatric treatment, and the very low likelihood of reoffending. Fullerton J was satisfied that the contingent liability to detention arising from a suspended sentence adequately served the principles of deterrence, retribution, and denunciation rather than undermining them.

Orders Made

  • Leave to appeal granted.
  • The sentences imposed in the District Court on 23 February 2012 were quashed.
  • In lieu of those sentences, the following were imposed:
  • For the first count (manufacture of not less than a commercial quantity): a fixed term of imprisonment of 3 months, commencing 5 November 2011 and expiring 4 February 2012.
  • For the second count (manufacture of not less than a large commercial quantity): imprisonment for 10 months commencing 7 May 2013, suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999 on condition the appellant enter into a good behaviour bond for 10 months.
  • The District Court's order for destruction of the prohibited drugs on the Form 1 was confirmed.

Key Takeaways

  • A sentencing court's failure to give adequate weight to compelling subjective circumstances, including genuine rehabilitation and psychological vulnerability, can constitute a miscarriage of the sentencing discretion even where the objective seriousness of drug manufacturing offences is high.
  • Where an offender's role in a drug manufacturing offence is limited to permitting premises to be used, with no active participation in the manufacturing process and no financial benefit, that limited role is a relevant factor in calibrating the sentence.
  • Under section 12 of the Crimes (Sentencing Procedure) Act 1999, a suspended sentence remains available for serious drug offences where the sentencing court is satisfied the contingent liability to detention still honours the principles of deterrence, retribution, and denunciation.
  • Sustained rehabilitation over a significant period between arrest and sentence, combined with a low assessed risk of reoffending and ongoing clinical treatment, can weigh substantially against the imposition of full-time custody even for offences carrying lengthy maximum penalties.
  • The Court of Criminal Appeal re-sentenced rather than remitting the matter, structuring the orders carefully to address a statutory restriction in section 12(2) of the Crimes (Sentencing Procedure) Act 1999 that prevents the imposition of a suspended sentence where an offender is already subject to another sentence of imprisonment.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 12(2)

Cases:
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465