Kennedy v R

Court of Criminal Appeal (NSW)|2020-03-09|Before: Hulme J, Adamson J, Ierace J

Solicitors: Legal Aid NSW (Applicant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2018/244897 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 May 2019 Before: Hoy SC DCJ File Number(s): 2018/244897

Judgment

R A HULME J: I agree with the judgment of Adamson J and the orders she proposes but wish to add the following.
Section 25A of the Drug Misuse and Trafficking Act 1985 (NSW) has a heading which describes its provision as an "Offence of supplying prohibited drug on an ongoing basis". The reference to "an ongoing basis" is to the element that a person supplies a drug on three or more separate occasions in a 30-day period. The other element of the offence is that the supplies be made "for financial or material reward".
The offence was created by the insertion of s 25A into the Act in 1998. It has been said to be directed "to those who appear to be indulging in a practice or business of supplying prohibited drugs": R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47 at [15]. It has also been said, "The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply": R v Hoon; R v Pouoa [2000] NSWCCA 137 at [39].

The facts

At the time of the offences, the applicant was a 20-year old university student who was working part-time as a child care worker. She was using MDMA and LSD, believing that they alleviated the effects of her physical and mental health issues. At the request of undercover police officers, she supplied MDMA on three occasions. The sentencing judge was satisfied that these were the only occasions on which she had ever supplied a prohibited drug.
The circumstances of the 3 occasions of supply are summarised in the table below: Date Location Quantity Purity Price Estimated profit 23 March 2018 Oporto carpark 0.95g 53% $250 $50 24 March 2018 Applicant's home 0.87 46.5% $250 $50 13 April 2018 Oporto carpark 0.97g 69% $250 $50 Total 2.79g $750 $150

On 25 May 2018 the police executed a search warrant at the applicant's home and found a small amount (0.05g) of LSD. This was the subject of a second charge which was dismissed by the sentencing judge pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act).
The circumstances of the offending and the applicant's subjective circumstances are summarised below.
The applicant gave evidence at the sentence hearing. She had no criminal record. She grew up with her mother and younger brother on the NSW south coast. Her childhood was marred by her mother's relationship with two partners, the applicant's father having left the family home when she was young. From the time the applicant was 6 until she was 9, her mother was in a relationship which involved physical and verbal abuse. Her mother began another relationship when she was 10 which led to her mother using both drugs and alcohol.
During the applicant's adolescence she suffered from anxiety and depression. She regularly self-harmed by cutting herself with a razor. She first sought help from mental health providers at the age of about 13. When she was 16 she was referred to a male psychologist to whom she did not relate well which led to cessation of treatment. In the applicant's final year at school her mother was diagnosed with breast cancer. Her mother's then partner left because he was unable to cope with the stress of the diagnosis, which left the applicant caring for her mother. At about this time the applicant was prescribed with anti-depressant medication.
The applicant completed her Higher School Certificate at Moruya High School and achieved an ATAR score of 87 notwithstanding the adversity at home. The following year, 2016, she moved to Sydney to study for a Bachelor of Science at the University of Sydney for which she obtained a scholarship. She obtained employment for 21 hours a week at an out-of-school-hours child care centre at Leichhardt Public School.
While at university the applicant experienced difficulties with her physical and mental health. She obtained treatment and medication for depression, glandular fever and chronic fatigue.
In 2017, her second year at university, she tried MDMA which gave her a "sense of euphoria" and helped her to stay awake and socialise. By August 2017 she was using MDMA three weekends out of four and would use as many as 14 times over a weekend. She began to purchase it in bulk because it was cheaper. A housemate observed her drug use and passed her number onto one of the undercover police officers who was looking to buy drugs in Newtown.
In November 2017, the applicant began seeing a general practitioner who treated her for depression and prescribed medication. She also attended Headspace at Ashfield at about this time. In June 2018, her general practitioner referred her to a psychologist, Ms Cooper at Headspace.
In 2018 she enrolled in a Bachelor of Occupational Health and Safety at Central Queensland University, which was largely online although she attended the Sydney campus from time to time. She continued to work at the child care centre in Leichhardt although her attendance was sporadic because she was so exhausted. She continued to take drugs to make herself feel awake.
In her evidence at the sentence hearing, the applicant described her response when learning from her housemate that her number had been passed onto someone who wanted MDMA: "Q. How were you feeling then about being approached twice by this man? A. I guess I was having a bit of an internal moral debate about what I should do. It was a confusing time. Q. What do you mean by it was a confusing time? A. Well I, I just didn't really have the capacity to think straight because I was so mentally unwell and so dependent on using those drugs to stay awake."
The applicant denied that she initiated contact with the police or encouraged any repeated contact.
Some time prior to the execution of the search warrant on 25 May 2018, the applicant's partner threatened to leave her if she did not stop taking MDMA. As a result, she stopped taking it and tried to rehabilitate herself with diet, exercise and psychological treatment. In April 2018, under the supervision of her general practitioner, the applicant withdrew from anti-depressant medication. She used small doses of LSD to self-medicate for depression.
The applicant gave unchallenged evidence of the execution of the search warrant at her home. She was in the shower at about 8am when she heard screaming in the house. When she emerged from the bathroom, a female police officer pushed her to the ground and told her not to move. She was then directed to go into the street. Eventually, the police allowed her to get dressed before she went out into the street where the search warrant was explained to her. Police told her to expect a court attendance notice for possession of the LSD, which was the only prohibited drug found on the premises. She broke down. Her boyfriend took her to Royal Prince Alfred Hospital where her presenting symptoms were noted to be "acute stress reaction on background of depression and anxiety and thoughts of self-harm". Valium was prescribed.
The applicant consulted her general practitioner and continued to see Ms Cooper of Headspace, who gave her therapy to address her depression.
The applicant was arrested on 9 August 2018 and released on bail.

The sentencing judgment

As referred to above, the sentencing judge found that the three occasions set out in the table above were the only occasions on which the applicant had supplied drugs. His Honour found that the offence fell within the "lower end of objective seriousness" although the offence was nonetheless "serious". His Honour found that the harm caused by the offence was not substantial and that the offence was not part of any planned or organised criminal activity. The sentencing judge said: "…I accept this offender has insight into her offending behaviour. She knows precisely how criminal it was, how wrong it was, and whether it came through the haze of her addiction or not, I accept she knew that at the time. She knew what she was doing, and her motivations."
His Honour also found: "I think it was a naïve activity by her, selling capsules to fund her own habit or help it, however disproportionate the figures might add out [sic] for any particular profit."
His Honour found that the applicant may have been vulnerable, and suffering physically and mentally, but there was no causative link between these factors and the offending. The sentencing judge found that her home life was "sometimes difficult" and that she had been "hugely stressed" as a result of the execution of the search warrant which his Honour described as "the biggest wake-up call of [the applicant's] life". His Honour found that she had previously been of good character, had expressed remorse, had good prospects of rehabilitation and was unlikely to re-offend. His Honour held that general deterrence had a "strong role" to play in sentencing and that the applicant was entitled to a discount of 25% for the early plea of guilty.
In response to the submission that the involvement of the police lowered the applicant's criminality, his Honour said: "Submission has been made that that lowers her criminality. Submission has been made that but for their enticement she wouldn't have offended. The simple fact is, she participated. The door was opened and she walked through, willing, ready and able - not once, but three times. Hence the offence. She may well have been vulnerable emotionally and physically at the time, but it is no excuse. She may well have been unwell with some of her conditions, but it is no excuse. She may have been addicted to the MDMA at the time, but that is no excuse. They are factors I take into account insofar as her subjective circumstances are and the overall assessment of the matter, but there is no causative link between those matters and her offending behaviour."
When responding to the applicant's submission that no conviction ought be imposed, his Honour said: "…Despite those earnest submissions, this is the sort of offence for which a conviction ought flow. The question here is whether it is a case where there be a non-imposition of a full-time custodial sentence. The authorities tell us, particularly as to s 25A(1), that offences under 25A are far more serious than the usual supply drug case…" [Emphasis added.]
His Honour said further: "I accept this case falls at the lower end of objective seriousness in all these circumstances, but it is still serious. With the greatest respect, I think it is a question of whether the s 5 threshold has been reached in all the circumstances; that is, having considered all alternatives, coming to the view that nothing other than gaol, imprisonment, is appropriate. Illegal drugs and their distribution permeates our society. MDMA, one of these drugs that is apparently out there, particularly at music festivals and the like, on this occasion available through someone contacting someone in a hotel and linking up with this offender. Spreading drugs, even at this lower end scale, with respect, is disgraceful. This offender was spreading drugs. A supplier. A trafficker. She is an example of what an addiction to a drug can do. Otherwise a good person…"
The sentencing judge made a finding regarding the threshold in s 5 of the Act as follows: "But the seriousness of this offence escalates it to me to satisfy me, even against the background of these compellingly apposite factors, for me to consider in the process of sentencing. I am satisfied that this is one of those occasions where no penalty other than imprisonment is appropriate. I have considered all the other options. I think imprisonment is appropriate. That said, however, I think it can be dealt with by way of an alternative. I say immediately, I think it can be dealt with by way of a sentence of two years or less. That opens the door for me to consider an alternative to full-time custody."

Ground 1: alleged error in generalising about s 25A offences

This ground is based on the passage extracted above from the sentencing judgment that offences under s 25A of the DMT Act are more serious than "the usual supply drug case", whatever was intended by that phrase. It is difficult when assessing sentencing remarks given ex tempore at the conclusion of the sentence hearing, as these were, to work out whether an infelicity of expression is just that or whether it reveals an underlying error.
It is well established that the maximum penalty for an offence is one of the "guideposts" that a sentencing judge is required to take into account: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [27]. The maximum penalty for a statutory offence is an indication of the relative seriousness of the offence: Muldrock at [31]. However, it does not follow from the higher maximum penalty of 20 years' imprisonment that offences under s 25A of the DMT Act are always more serious than offences under s 25 of the DMT Act.
While the maximum penalty is relevant as a guidepost, it is no more than that. In Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31, the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) said at [27]: "The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence. It represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. Commonly the maximum penalty invites comparison between the case with which the court is dealing and cases falling within the category of the "worst case". As explained in Markarian v The Queen, for these reasons careful attention is almost always required to the maximum penalty. However, this is not to suggest that consideration of the maximum penalty will necessarily play a decisive role in the final determination. As also explained in Markarian, in some instances … reference to it may be of little relevance. … It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted." [Footnotes omitted.]
While it is possible that the sentencing judge approached the offence on the basis that it was necessarily more serious than "the usual drug supply case" merely by reason of having been charged under s 25A of the DMT Act (which would be erroneous), it is not clear that this was what the judge meant by the extracted portion of the sentencing judgment. I am not persuaded that ground 1 has been made out.

Ground 2: alleged failure to take into account the applicant's youth

Mr Quilter, who appeared on behalf of the applicant, submitted that although the sentencing judge referred to the applicant's "naïve activity", his Honour did not take into account the applicant's youth when assessing her moral culpability. I am not persuaded that ground 2 has been made out. The sentencing judge was, as his Honour's reasons make clear, conscious of the applicant's age and stage of life. He considered her to be intelligent but naïve. The gravamen of ground 2 appears to be that his Honour did not give sufficient weight to the applicant's youth. The weight to be accorded to relevant factors is a matter for the sentencing judge: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing). It does not amount to an error in the exercise of the sentencing discretion unless the decision is manifestly unreasonable. The question of whether the sentence was manifestly excessive arises with respect to ground 4, which is considered below.

Ground 3: alleged error in assessment of moral culpability by not taking into account that the police had initiated the offence

The applicant contended that his Honour failed to take into account as a mitigating factor that the three instances of supply which comprised the offence were initiated by the police. I accept that his Honour's reasons could be interpreted as finding that the involvement of police was irrelevant to an assessment of the applicant's criminality. However, they also bear another interpretation. I consider that his Honour, while accepting that the police initiated the three transactions, was satisfied that the applicant's response would have been similar had the approach been made by someone other than the police. In these circumstances, his Honour was entitled to place little, if any, weight on that consideration. For these reasons I am not satisfied that ground 3 has been made out.

Ground 4: alleged manifest excess

Whether a sentence is manifestly excessive is a matter of impression which does not depend on the establishment of any error in the process since it is the conclusion that is in issue: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).
The applicant was 20 years old and was emotionally and physically vulnerable at the time of the offence. She had no criminal record and was of good character and was entitled to leniency on that basis. The sentencing judge accepted that she was remorseful, had good prospects of rehabilitation and was unlikely to reoffend. The sentencing judge found that the offence was at the lower end of objective seriousness. Indeed, although it is always possible to hypothesise about a less serious offence, just as it is always possible to conceive of a worse case, it is difficult to conceive of an offence against s 25A of the DMT Act, which is of substantially lesser seriousness than the present case.
The applicant's subjective circumstances were very much in her favour. Her appreciation that what she had done was wrong was corroborated by the circumstances that no MDMA was found in her home when the police executed the search warrant. This was an important factor since it showed that she was attempting to rehabilitate herself and had desisted from criminal conduct (aside from possession of a small amount of LSD) before she had any appreciation that she had been detected: R v Burns [2007] NSWCCA 228 at [27] and [29] (Harrison J, Spigelman CJ and Simpson J agreeing). Further, while the applicant was obviously intelligent and appeared to be ambitious, intelligence is not equivalent to maturity. Her offending was, as his Honour found, naïve. The estimated amount of profit was relatively small having regard to the risk.
Of the purposes of sentencing set out in s 3A of the Act, general deterrence would appear to be the most significant. On his Honour's findings, there was no particular need to ensure that the applicant was further punished for the offence. She had already been through the humiliating and traumatic experience of being subjected to the search warrant when she was, effectively, naked and defenceless. A conviction of itself would be a significant matter which would hang over the applicant's future. Given that she herself desisted from the conduct that constituted the offence of her own volition before the search warrant was executed, specific deterrence would not appear to be required. Her remorse and prospects of rehabilitation meant that the community did not need to be protected from the applicant. Her rehabilitation was already in train even before the search warrant was executed. The seriousness of her offending did not call for particular denunciation. Her evidence at the sentence hearing, which was largely unchallenged was testament to her appreciation of the harm she had done by committing the offence.
Having regard to these matters, I do not accept that it was open to his Honour to find that no sentence other than a sentence of imprisonment was appropriate in all the circumstances. It would appear that his Honour felt obliged to impose a sentence of imprisonment to indicate that he considered ongoing drug supply offences to be serious. However, sentencing is a matter of individualised justice and it is just as erroneous to impose a sentence which is too severe as it is to impose one which fails to reflect the seriousness of the offence.
It is possible that his Honour concluded that an ICO would be the best option for the applicant and was persuaded that the s 5 threshold was met, on the basis that an ICO could only be made if it was met. If this was the reasoning that led to the imposition of a term of imprisonment, it was erroneous. However, as referred to above, it is not necessary to identify a specific error in the process if the result is erroneous. I am persuaded that ground 4 has been made out.

Re-sentencing

Manifest excess is an error in the sentencing discretion which requires this Court to re-sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. This exercise must be carried out afresh in light of any further material provided at the sentence hearing.
The sentence was imposed on 20 May 2019. Two days later, the applicant attended the Burwood office of Community Corrections NSW (CCNSW) and indicated that she would be available to participate in community service work on any day of the week but would need to liaise with her employer regarding the proposed date. On 23 May 2019, the supervision component of the ICO was suspended as the applicant was assessed as having a "low risk" of re-offending.
On 3 June 2019 the applicant attended a community service work induction session. On 20 June 2019 she was directed to attend Burwood Community Welfare Services for her community service work. By 17 October 2019 the applicant had completed the 100 hours of community service in a period of 3 months and 14 days.
Although the sentencing judge appeared to give the police involvement no, or little, weight, I consider it to be a relatively significant matter. The applicant, though a user, was not looking to deal to fund her habit. The profit she made from the transactions was, in the circumstances, paltry. Throughout the relevant period she earned money from working part-time at the child care centre. But for the police involvement she may have, with the encouragement and persuasion of her boyfriend, given up MDMA without ever having supplied it to anyone else.
The material tendered on re-sentence included a report dated 13 February 2020 from Ms Cooper, whom the applicant had first consulted in June 2018. Ms Cooper said: "… Belinda reports that her sentencing has had a significant impact on her mood and lead to an increase in her anxiety levels. Belinda has described fears that her criminal record will have a negative impact on her future career options. This is especially difficult for Belinda as she would eventually like to work in a field related to her academic studies in the social sciences. … Working towards short and long term goals in her academic/career aspect of her life has been a key factor in Belinda maintaining good mental health. I believe that the outcome of this appeal will have an impact on Belinda's mental health and her view of her career options for the future. …"
Mr Quilter submitted that this Court ought make an order pursuant to s 10(1)(a) of the Act that the relevant charge be dismissed. The result of this course would be that no conviction would be recorded. I do not consider this to be an appropriate course given the gravamen of the offence. The Crown submitted that, in the event of re-sentence (had any of grounds 1, 2 or 3 been made out) no lesser sentence was warranted. As ground 4 has been made out, a lesser sentence is warranted.
In my view, although the order for conviction is not, strictly speaking, part of the sentence, the order for conviction is the most punitive consequence of the offence for the applicant. She will have a criminal record which will require disclosure in the future and may well limit her vocational opportunities. I do not consider that any further penalty is required. She has been punished enough. The punishment will continue in the form of her criminal record. She has already completed her community service. She has not been assessed as being in need of supervision. She no longer poses a risk to the community. I am not persuaded that there is any utility in making a conditional release order.
Section 10A of the Act provides that a court that convicts an offender may dispose of the proceedings without imposing any other penalty. Section 10A was applied in R v Chant [2009] NSWSC 290 in entirely different circumstances from the present case. Howie J said at [31], in terms which I consider to be apposite to the applicant's situation: "…I think it is important that the Offender be convicted and I think that to some degree denounces what he has done and shows that these were serious matters. It would not be appropriate to proceed without conviction, he should bear conviction for his role in this unfortunate part of his life, but I see no point in doing anything else to him."
If this Court takes that course, the action is taken to be a sentence passed by the court on the conviction of the offender: s 10A(2).
Since preparing these reasons, I have had the benefit of reading the reasons of R A Hulme J in draft. I respectfully agree with his Honour's additional reasons.

Proposed orders

For these reasons, I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the sentence imposed by Hoy SC DCJ on 20 May 2019 and, in lieu thereof, note that, under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender has been convicted of an offence of supply prohibited drug on an ongoing basis under s 25A of the Drugs Misuse and Trafficking Act 1985 (NSW) and order that no other penalty be imposed upon her.
IERACE J: I agree with the reasons and orders proposed by Adamson J. I also agree with the additional observations of R A Hulme J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2020

Drugs Misuse and Trafficking Act 1985(NSW)

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