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District Court 18 August 2023

R v Kennedy

[2023] NSWDC 579

DrugsFirearms & weapons
CRIMINAL SENTENCE TYPE DEVICE SUBJECTIVE MATTERS

Citation: R v Kennedy [2023] NSWDC 579
Court: District Court of New South Wales
Date: 18 August 2023
Judge: King SC DCJ

Background

NSW Police established Strike Force Melkarth in January 2022 to investigate drug supply activity in Sydney. The offender, Jesse Kennedy, operated as the head of a drug supply syndicate, directing associates, including his then-girlfriend, in the supply of prohibited drugs to customers. Intercepted telephone communications, search warrants, and physical evidence connected Kennedy directly to the offending.

Police arrested Kennedy on 16 February 2022 and executed search warrants at his Hurstville residence and at the Crown Hotel, Barangaroo. Evidence recovered included a taser-type device (a Chinese-manufactured stock prod adapted to deliver electric shocks), approximately 1,883 grams of 1,4-butanediol (a prohibited drug exceeding the commercial quantity threshold), and heroin weighing 15.75 grams. Kennedy's DNA was found on batteries inside the taser.

Following his arrest, Kennedy attempted, through an associate, to retrieve a package of 1,4-butanediol addressed to a false identity from the Hurstville Post Office. That package had already been seized by police. A false NSW driver's licence bearing Kennedy's photograph under another name was also found at the hotel room.

  • What sentence was appropriate for possession of a prohibited weapon (a taser-type device) without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998?
  • What sentence was appropriate for supply of a prohibited drug exceeding the commercial quantity (1,883 grams of 1,4-butanediol), contrary to the Drugs Misuse and Trafficking Act 1985?
  • What sentence was appropriate for supply of a prohibited drug exceeding an indictable quantity but below the commercial quantity (15.75 grams of heroin)?
  • How should the totality principle apply to an aggregate sentence across three distinct offences?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence.

Decision

King SC DCJ sentenced Kennedy on all three offences, applying a 25% discount to each indicative sentence to reflect Kennedy's early guilty plea entered at committal and maintained in the District Court. The sentencing judge identified Kennedy's role as an operator and employer within a drug supply syndicate as an aggravating feature that elevated the objective seriousness of the offending.

On subjective matters, the court accepted that Kennedy's offending was causally connected to a difficult early life, adverse influences, and entrenched drug and alcohol dependency. Consistent with principles from Bugmy v The Queen, the court found that these circumstances reduced Kennedy's moral culpability and, to a degree, the weight to be given to general deterrence in the sentence. The court also found that Kennedy was institutionalised, having spent much of his life in custody.

Special circumstances were found on the basis of Kennedy's institutionalisation and his need for a longer period of supervised integration into the community to address drug addiction. This finding justified a departure from the standard non-parole period ratio. The court applied the totality principle to the aggregate sentence, noting that some accumulation was necessary given the different nature of the offences and the different occasions on which they were committed.

The aggregate sentence was five years imprisonment, with a non-parole period of three years. The sentence was backdated to 16 August 2022, approximately three months before the formal commencement date of 16 November 2022, to account for time already served on these offences.

Orders Made

  • Aggregate sentence of five years imprisonment imposed, commencing 16 August 2022 and expiring 15 August 2027.
  • Non-parole period of three years, with Kennedy first eligible for parole on 15 August 2025.
  • Balance of term: two years.
  • A 25% discount applied to each indicative sentence for the early guilty plea.
  • Special circumstances found, resulting in a non-parole period proportionally shorter than the statutory default.

Key Takeaways

  • The District Court treated Kennedy's role as the operator and employer of a drug supply syndicate, directing associates in the day-to-day conduct of drug sales, as a significant aggravating factor in assessing objective seriousness.
  • Under the principles confirmed in Bugmy v The Queen, a background of childhood deprivation and longstanding substance dependency can reduce an offender's moral culpability, even where the offending is serious and organised in nature.
  • A taser-type device manufactured as a livestock stock prod falls within the definition of a prohibited weapon under the Weapons Prohibition Act 1998 when possessed or used outside its permitted purpose under the Prevention of Cruelty to Animals Regulation 2012.
  • Special circumstances justifying a longer balance of term can be established on the basis of institutionalisation, where an offender requires extended post-release supervision to address addiction and difficulties reintegrating into the community.
  • Where an offender faces multiple charges arising from distinct conduct on separate occasions, the totality principle requires the court to impose some accumulation in the aggregate sentence while ensuring the overall sentence remains proportionate.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1); cl 2(18) Schedule
- Prevention of Cruelty to Animals Regulation 2012 (NSW), reg 408, Schedule 3

Cases:
- Bugmy v The Queen [2013] HCA (CLR 571)
- Tran v R [2010] NSWCCA 183