AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 28 April 2026

R v Kemp

[2026] NSWDC 164

Drugs

Citation: [2026] NSWDC 164
Court: District Court of New South Wales
Date: 28 April 2026
Judge(s): Everson SC DCJ

Background

The offender, a 51-year-old Aboriginal man, pleaded guilty to two counts of drug supply. Count 1 involved supplying a large commercial quantity of methylamphetamine (835.62 grams), carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Count 2 involved supplying a commercial quantity of heroin (538.62 grams), carrying a maximum of 20 years' imprisonment and a standard non-parole period of 10 years. An additional offence of possessing approximately $55,000 in cash was taken into account on a Form 1.

The offending came to light when a Highway Patrol officer stopped the offender's vehicle. Inside the car, police located the drugs, the cash (secreted in socks), scales, Cryovac bags, five mobile phones (two with encryption software, one being remotely wiped), and Faraday bags used to prevent phone tracking. There was no evidence the offender had handled the scales, bags, or phones.

The offender told a forensic psychiatrist he did not know the drugs were in the car and was engaged only as a delivery driver to travel from one point to another. He was on parole at the time of the offences. Defence counsel tendered extensive material regarding the offender's profoundly disadvantaged upbringing, including six executive summaries from the Bugmy Bar Book.

  • What was the objective seriousness of each supply offence, having regard to the quantities involved, the offender's role, and whether the drugs reached the community?
  • What findings of fact could be made about the offender's role in the supply network, applying the criminal standard of proof for aggravating facts and the balance of probabilities for mitigating facts?
  • How should the offender's childhood deprivation and disadvantage, as supported by the Bugmy Bar Book, bear on his moral culpability and the sentencing discretion?
  • What weight should be given to the early guilty plea, remorse, the offender's criminal history, and the fact he was on parole at the time of offending?

Decision

The court found the offences were objectively serious but assessed the offender's role as limited. Everson SC DCJ was not satisfied beyond reasonable doubt that the drugs and money belonged solely to the offender, nor that the offender was involved in the planning, financing, or organisation of any intended supply. The court accepted the offender acted as a courier for a relatively short period in return for an unidentified sum, assuming significant personal risk. The fact that the drugs were not disseminated into the community was afforded appropriate weight. The court also noted that no evidence linked the offender to direct handling of scales, phones, or packaging.

On the offender's subjective circumstances, the court recognised that being on parole at the time of offending was an aggravating factor, casting doubt on rehabilitation prospects and warranting greater weight on personal deterrence. However, this was balanced against evidence of significant periods of crime-free life, strong family support, and complicated personal circumstances that made rehabilitative prospects uncertain rather than poor.

The court engaged in a detailed assessment of the offender's childhood disadvantage following the principles in Bugmy v R. The offender grew up in circumstances marked by parental mental illness, family violence, neglect, chronic hunger, exposure to substance misuse, gambling, frequent school changes, and a lack of supervision. The court accepted the Bugmy Bar Book as a reliable, evidence-based resource for understanding the impacts of nationally recognised forms of disadvantage. However, consistent with R v Campbell [2024] NSWDC 413, the court emphasised that specific evidence of disadvantage relevant to a particular chapter must first be established before the generalities in the research can be drawn upon.

The early guilty plea attracted a 25 per cent discount and was also treated, together with other material, as an indication of genuine remorse. The court applied the principle from R v Shi that the culpability of participants at any level of a drug supply network is significant and that deterrent sentences are necessary to prevent these networks from functioning.

Orders Made

  • The text available was truncated before the final sentence was pronounced. The judgment records the court's assessment of objective seriousness, subjective factors, and applicable discounts, but the specific term of imprisonment and non-parole period imposed are not contained in the extract provided.
  • A confiscation order in respect of the $55,000 in cash appears contemplated under s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW), as the cash formed the subject of the Form 1 offence.

Key Takeaways

  • Where an offender's role in a drug supply operation is disputed, findings of fact that aggravate the offence must be proved beyond reasonable doubt, while mitigating facts need only be established on the balance of probabilities. The District Court applied this standard in concluding the offender was a courier rather than a principal.
  • The Bugmy Bar Book was recognised as a reliable, evidence-based resource, but its use requires a threshold of "specifics": the sentencing court must first have evidence establishing a form of disadvantage relevant to the particular chapters relied upon before drawing on the research's generalities.
  • Childhood deprivation and disadvantage can reduce an offender's moral culpability in accordance with Bugmy v R (2013) 249 CLR 571, and the effects of such experiences do not necessarily diminish over time.
  • An offender's commission of serious offences while on parole was treated as an aggravating subjective factor that increased the weight to be given to personal deterrence, even where other indicators of rehabilitation were present.
  • The non-dissemination of prohibited drugs into the community was a relevant consideration that reduced objective seriousness, consistent with the logical converse of treating actual distribution as increasing harm.

Legislation and Cases Referenced

Legislation:
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Bugmy v R (2013) 249 CLR 571
- DG v R [2025] NSWCCA 137
- Dungay v R [2020] NSWCCA 209
- NK v R [2025] NSWCCA 73
- R v Campbell [2024] NSWDC 413
- R v De Simoni (1981) 147 CLR 383
- R v Shi [2004] NSWCCA 135
- R v Stanley (No 2) [2023] NSWSC 74
- R v Tsingolas [2022] NSWDC 34
- Robertson v R [2024] NSWCCA 22
- Weininger v R (2003) 212 CLR 629