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Court of Criminal Appeal 11 August 2014

Kemp v R

[2014] NSWCCA 153

Drugs
CRIME SENTENCE DRUG OFFENCES ASSESSMENT OF ROLES OF CO PARITY

Citation: Kemp v R [2014] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 11 August 2014
Judges: Simpson J, Adams J, McCallum J

Background

The appellant pleaded guilty in the District Court to three offences under the Drug Misuse and Trafficking Act 1985, arising from his involvement in supplying methylamphetamine to and through a co-offender, Kane. The offences included agreeing to supply 140 grams of methylamphetamine, supplying a commercial quantity of 446.7 grams, and possessing 27.2 grams found in his vehicle. The offending came to light through an undercover police operation targeting Kane.

The appellant, aged 50 at the time of sentencing, had been living in his car and claimed he became involved in the drug supply to repay a debt owed to Kane, a former acquaintance. He pleaded guilty on the morning of trial and received a discount of approximately 10 per cent for the utilitarian value of his pleas.

Kane had been sentenced earlier by a different judge for related offences, including the same count 2 commercial supply transaction. The disparity between the sentences imposed on the two men was at the heart of the appeal.

  • Whether the sentence imposed on the appellant for count 2 (supplying a commercial quantity of methylamphetamine) was manifestly excessive.
  • Whether the parity principle required a reduction of the appellant's sentence to align it more closely with the sentence imposed on Kane for substantially the same transaction.
  • Whether the sentencing judge properly assessed and distinguished the roles and circumstances of the two co-offenders.

Decision

McCallum J, with whom Simpson J and Adams J agreed, found that the sentence on count 2 was manifestly excessive. The original sentence of nine years imprisonment with a six-year non-parole period, producing a total effective sentence of 11 years with an eight-year non-parole period, was substantially harsher than the sentence imposed on Kane for the same transaction.

The Court examined the differences between the two co-offenders, including their respective roles, pleas, discounts, and prospects of rehabilitation. While some distinctions existed, the Court found they did not justify the significant gap between the sentences. In particular, the sentencing judge appeared to have misread the pre-sentence report: a reference to a man who had "abused the appellant's trust" was clearly a reference to Kane himself, not an unidentified third party.

The Court accepted that the appellant had a justifiable sense of grievance at the severity of his sentence relative to Kane's. Applying the parity principle from Lowe v The Queen, the sentence on count 2 was reduced substantially.

Simpson J added a notable observation: a proper sentence for count 2, considered in isolation, would ordinarily have been somewhat higher than the reduced sentence now imposed. The reduced sentence was appropriate only because of the operation of the parity principle. This, Simpson J noted, is one of those cases where parity requires imposition of a sentence that would otherwise be regarded as inadequate, in the interests of individual justice.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence for count 2 quashed and replaced with a term of imprisonment comprising a non-parole period of 3 years commencing 19 August 2013 and expiring 18 August 2016, with a balance of term of 2 years expiring 18 August 2018.

Key Takeaways

  • The parity principle, as stated in Lowe v The Queen, can require a sentencing court to impose a sentence that would otherwise be considered inadequate, where a co-offender has received a sentence that is itself arguably lenient and the differences between the offenders do not justify a substantially greater differential.
  • A sentence need not mirror a co-offender's sentence exactly; the court must assess whether the differences in culpability, role, plea discount, and personal circumstances justify the gap between the sentences as imposed.
  • Where a sentencing judge misreads the factual basis of a pre-sentence report in a way that affects the assessment of an offender's rehabilitation prospects, that misreading can constitute error capable of vitiating the sentence.
  • In applying the parity principle, the Court of Criminal Appeal acknowledged openly that Kane's sentence could be viewed as artificially lenient, even though it was not the subject of appeal and could not be formally characterised as manifestly inadequate.
  • Upholding the appeal did not require the Court to find that Kane was treated too leniently; it was sufficient that the differences between the co-offenders did not warrant so great a divergence in their sentences.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Tan v R [2014] NSWCCA 96