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Court of Criminal Appeal 25 March 2020

Kennedy v R

[2020] NSWCCA 49

Drugs
SENTENCE

Citation: Kennedy v R [2020] NSWCCA 49
Court: Court of Criminal Appeal, NSW
Date: 25 March 2020
Judges: R A Hulme J, Adamson J, Ierace J

Background

The applicant was a 20-year-old university student and part-time childcare worker who supplied small quantities of MDMA on three occasions, all to undercover police officers. Each transaction involved less than one gram of MDMA, and the applicant made a total estimated profit of $150. The sentencing judge accepted that these were the only occasions on which she had ever supplied a prohibited drug.

The applicant had a troubled background including childhood exposure to domestic violence and parental drug use, a history of anxiety and depression, and significant health difficulties during her university years. She had turned to MDMA as a user before an acquaintance passed her number to an undercover officer. She had no prior criminal record and was attending psychological treatment at the time of sentencing.

In the District Court, the applicant was convicted of supplying a prohibited drug on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) and sentenced to 15 months' imprisonment to be served by way of an intensive correction order (ICO), with 100 hours of community service. She sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by treating all s 25A offences as far more serious than ordinary supply offences, regardless of the specific circumstances
  • Whether the sentencing judge failed to take into account the applicant's youth in assessing her moral culpability
  • Whether the sentencing judge failed to consider that the offending was police-initiated
  • Whether the ICO was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on the ground that the sentence was manifestly excessive. The court did not find it necessary to determine grounds 1, 2, and 3 as separate errors, because even if those grounds were technically made out, the court was not persuaded that a different sentence would necessarily have followed from those errors alone. Ground 4, manifest excess, was the basis on which the appeal succeeded.

Adamson J, with whom Hulme J and Ierace J agreed, found that the applicant's subjective case was strong. By the time of the appeal, Community Corrections had assessed her as not requiring supervision, she had completed her 100 hours of community service, and her prospects of rehabilitation were excellent. The likelihood of reoffending was considered negligible.

Hulme J added observations on the nature of the s 25A offence. The section targets persons engaged in a practice or business of supplying drugs, characterised by repetition, system and organisation. The applicant's conduct, three small supplies made exclusively to undercover police at their instigation, for a paltry profit and with no other supply activity whatsoever, reflected the lowest tier of that offence's objective seriousness. The persistence of the undercover officer in approaching her twice before she agreed to supply was also noted.

Adamson J concluded that, given the circumstances, recording a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) without imposing any further penalty was the appropriate outcome. The conviction itself was regarded as sufficiently punitive: it would require disclosure and could affect the applicant's vocational opportunities. No utility was identified in adding a conditional release order or any other penalty.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Hoy SC DCJ on 20 May 2019 set aside
  • In lieu of the previous sentence, the Court noted the applicant's conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the offence of supply of a prohibited drug on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW), and ordered that no other penalty be imposed

Key Takeaways

  • Section 25A of the Drug Misuse and Trafficking Act 1985 (NSW) is directed at repetition, system and organisation in drug supply; objective seriousness under that provision must be assessed against those features, not merely the number and quantity of individual supplies.
  • A sentence imposed at first instance may be manifestly excessive even where no discrete error on specific grounds is demonstrated, if the overall sentencing outcome is disproportionate to the objective and subjective circumstances of the case.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may record a conviction and impose no further penalty; the Court of Criminal Appeal applied that provision here, treating the conviction itself, with its ongoing consequences for the offender's record and career, as a sufficient punishment.
  • Police instigation of offending and an offender's youth are relevant circumstances to weigh in sentencing, even where they do not, on their own, produce appellable error.
  • Post-sentence conduct, including completion of community service and a Community Corrections assessment that supervision was unnecessary, formed part of the factual matrix on resentencing before the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10, 10A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Baker [2000] NSWCCA 85
- R v Burns [2007] NSWCCA 228
- R v Chant [2009] NSWSC 290
- R v Hoon; R v Pouoa [2000] NSWCCA 137
- R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47