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Court of Criminal Appeal 27 April 2022

Kemal v R

[2022] NSWCCA 83

Drugs
CRIMINAL LAW SENTENCE APPEAL NO ERROR ESTABLISHED LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Kemal v R [2022] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 27 April 2022
Judge(s): Simpson AJA, Adamson J, Bellew J

Background

The applicant pleaded guilty in the District Court to importing a commercial quantity of methamphetamine, concealed within the lining of a double-layered suitcase, at Sydney Airport in October 2018. The Crown did not allege actual knowledge of the drugs. Instead, the prosecution proceeded on the basis of recklessness, the fault element applicable under the relevant provision of the Criminal Code 1995 (Cth).

The applicant was sentenced to 7 years and 6 months imprisonment with a non-parole period of 4 years. He sought leave to appeal, contending that the sentencing judge had applied an incorrect legal test when assessing his degree of recklessness.

The applicant's complaint centred on a passage in the sentencing remarks in which her Honour described him as having "turned his mind to that possibility" that the suitcase contained drugs. Under the Criminal Code, recklessness requires awareness of a "substantial risk," not merely the recognition of a "possibility," and the applicant argued this language revealed a legally flawed assessment.

  • Whether the sentencing judge applied an erroneous test for recklessness under s 5.4 of the Criminal Code 1995 (Cth) when assessing the objective seriousness of the offence.
  • Whether the sentencing remarks, read as a whole, disclosed error in the approach taken to evaluating the applicant's degree of moral culpability.

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach. The court emphasised that once the applicant pleaded guilty, the existence of recklessness (as defined by s 5.4 of the Code, including awareness of a substantial risk) was already admitted and established. The sentencing judge was not required to re-determine whether the applicant was reckless. Her task was to assess the degree of recklessness for the purpose of evaluating objective gravity.

The Court held that the impugned passage did not reflect the application of an incorrect test. Rather, her Honour was paraphrasing, in accessible terms, what the applicant himself had said about his state of mind. The language of "possibility" tracked the applicant's own evidence about his thinking at the time, and was used as factual background to contextualise the assessment of culpability, not as a legal standard.

Simpson AJA observed that the sentencing remarks, in fact, understated what the applicant had admitted. A plea of guilty to the charge carried an acknowledgment of awareness of a substantial risk, which is a higher threshold than merely recognising a possibility. Bellew J reinforced the fundamental principle that reasons for sentence cannot be parsed in isolation: they must be read as a whole. Doing so made clear that her Honour had correctly identified recklessness as the operative fault element, contrasted it with the higher fault element of knowledge, and assessed culpability accordingly.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 5.4 of the Criminal Code 1995 (Cth), recklessness requires awareness of a "substantial risk" that a relevant circumstance exists, not merely recognition of a possibility. A guilty plea to an offence carrying recklessness as its fault element constitutes an admission of that statutory standard.
  • Where recklessness is admitted by plea, the sentencing court's function is not to re-determine whether the fault element is established. The relevant task is to assess the degree or extent of that recklessness as part of the evaluation of moral culpability.
  • Reasons for sentence cannot be read in a piecemeal or isolated way. A passage that appears problematic when extracted from its context may disclose no error when the reasons are considered as a whole.
  • No error was established where the sentencing judge used "possibility" language to paraphrase the applicant's own evidence about his state of mind, rather than to state the legal test for recklessness.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may properly refer to a defendant's own account of their mental state when assessing the degree of a statutory fault element, provided the legal standard remains correctly identified elsewhere in the reasons.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 3.1, 4.1, 5.1, 5.4, 307.1
- Crimes Act 1914 (Cth), s 16A(2)(a)

Cases:
- Ke v R [2021] NSWCCA 117
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA