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Court of Criminal Appeal 20 November 2019

Kay v R

[2019] NSWCCA 275

Drugs
CRIME SENTENCE APPEAL PAROLE PERIOD OF 1 YEAR AND 8 MONTHS WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL ALLOWED RESENTENCE

Citation: Kay v R [2019] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 20 November 2019
Judge(s): Payne JA, Harrison J, N Adams J

Background

The appellant was a "runner" for a drug distribution syndicate who pleaded guilty to supply of cocaine on an ongoing basis, contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). On 1 September 2017, she conducted 15 separate cocaine transactions across Sydney over a ten-hour period, supplying 9.34 grams for $3,150. A further offence of the same character, involving 14 transactions and 17.07 grams of cocaine between 1 and 8 October 2017, was taken into account on a Form 1.

The appellant was originally arrested on 9 November 2017 and spent time in pre-sentence custody before being granted conditional bail, which was later revoked following a breach. At the time of sentencing in the Parramatta District Court on 17 April 2019, the appellant's personal circumstances had improved: she was the sole carer for her ill grandmother, was employed part-time, and was engaged in drug rehabilitation and psychological treatment.

The sentencing judge imposed a term of four years imprisonment with a non-parole period of one year and eight months. The appellant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was infected by error and was manifestly excessive.

  • Whether the sentencing judge failed to take into account, or give adequate reasons for taking into account, the appellant's limited criminal history and prior good character under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge failed to take into account the appellant's mental health condition adequately, or failed to give sufficient reasons for doing so
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending
  • Whether the sentence imposed was manifestly excessive in all the circumstances

Decision

Harrison J (with Payne JA and N Adams J agreeing) allowed the appeal, finding that the sentence was manifestly excessive. The court accepted that the sentencing judge had erred in assessing the objective seriousness of the offence, determining this was sufficient to warrant resentencing without the need to resolve the first two grounds of appeal concerning character and mental health.

The court adopted the sentencing judge's finding of special circumstances justifying a departure from the standard ratio between the non-parole period and balance of term. The existence of special circumstances reflected the appellant's personal background, her role as a carer for her grandmother and children, and her demonstrated rehabilitation.

In resentencing, the court took into account the approximately ten months the appellant had already spent in custody referable to the offending. Under ss 24(a) and 47 of the Crimes (Sentencing Procedure) Act 1999, the court backdated the commencement of the new sentence to account for pre-sentence custody, resulting in the appellant needing to serve only approximately two further months before becoming eligible for parole.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Delaney A-DCJ on 17 April 2019 quashed
  • Appellant resentenced to a non-parole period of 12 months commencing 20 January 2019 and expiring 19 January 2020, with a balance of term of 17 months expiring 19 June 2021

Key Takeaways

  • An error in assessing the objective seriousness of an offence can, on its own, be sufficient to vitiate a sentence and warrant resentencing, without the appellate court needing to determine all other grounds of appeal.
  • Under ss 24(a) and 47 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to take into account pre-sentence custody and has a discretionary power to backdate a sentence accordingly; the Court of Criminal Appeal applied these provisions on resentencing to reflect the ten months already served.
  • A finding of special circumstances justifying a longer parole period may be supported by factors including a demonstrated rehabilitation trajectory, primary caring responsibilities, and a need for supervised reintegration.
  • The Court of Criminal Appeal confirmed that, where the lower court's finding on special circumstances was not itself in error, it can properly be adopted on resentencing rather than revisited afresh.
  • Acting as a street-level "runner" in a drug distribution syndicate, conducting multiple transactions over extended periods for financial reward and personal drug supply, was assessed as just below the mid-range of objective criminality for the offence of ongoing supply under s 25A of the Drug Misuse and Trafficking Act 1985.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (offence of supply prohibited drug on an ongoing basis; maximum penalty 20 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 47 (pre-sentence custody; commencement of sentences)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c) (appeal against sentence)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54