R v Kamminga [2003] NSWCCA 337 | Case summary

3 The police had been observing the activities of the applicant for some time and had made recordings of about seven hundred and fifty telephone calls that had been had on his mobile telephone service over a period of about fifteen days. Police estimated that about four hundred of the conversations had something to do with drugs. 4 The applicant's personal circumstances were remarkable. He was forty-nine years old when sentenced. He had led a blameless life until 1997 when, at the age of forty-six, he was given the benefit on bonds on each of five counts of possessing a prohibited drug, three of possessing a restricted substance and of possessing a prohibited article and unlawfully obtaining goods. In the following year he was dealt with on five counts of possessing a prohibited drug and four of possessing a prohibited article. On each charge he was granted a bond conditional upon his accepting the supervision of the New South Wales Probation Service and the treatment of a doctor. Early in 2002 he was dealt with for two counts of possessing a prohibited weapon without a permit and one of possessing a prohibited drug. He was fined on all counts. 5 The applicant suffers from a chronic affective disorder and has been seeing Dr Peter Anderson, psychiatrist, since 1988. Two reports of Dr Anderson were put before the sentencing judge. In his report of 19 November 2002 Dr Anderson wrote- Since Robert has attended me regularly since 1995 I have diagnosed a Chronic Affective Disorder with secondary drug and alcohol abuse, and with personality and behavioural features, which are not the primary disorder. As a result of chronic illness he has fallen into difficult social circumstances. There has been a marked occupational and social decline from my first consultation with him in 1988. He receives the disability support pension. He has attended me on a monthly basis, and I have continued the prescription of psychotropic medications in the hope of treating the illness. … Your client suffers from a Chronic Affective Disorder, which results in unstable mood and disorganisation. He was in such a condition at the time of the alleged offences, as best I can judge having seen him some short time prior.

6 In his report of 31 January 2002 Dr Anderson said- My previous comments about diagnosis and management are recalled. There has been over many years, an inexorable social decline because of the constitutional mental illness. Judgment and organisation have declined. Further exacerbation has been caused by illicit drugs used at times and by post-traumatic symptoms caused by a knife attack. He has at times been so paranoid as to be psychotic, and it appears that this was the situation at the time of the offences for which he faces sentence. 7 A pre-sentence report, written by an officer of the Probation and Parole Service, was put before the sentencing judge. It contains these passages- Mr Kamminga left high school in 1970 aged 18 years and since leaving high school he has apparently completed a number of short courses in Human Relations, bar work and gained his fork lift licence. The offender has worked as a labourer, storeman, salesperson and in panel beating and spray painting businesses. A previous report stated 'some positions were said to have been held for 3 and a half to 5 year periods and most were terminated because of strange behaviour, believed to be associated with mental illness'. Over recent years Mr Kamminga has been in receipt of a disability pension. He stated he was receiving $500 per fortnight and paying rent of $500 per week with his girlfriend contributing half the amount. He stated he had rental arrears and frequently depended on charities for food. … Mr Kamminga has received ongoing treatment for his schizophrenia and depression while in custody. He has seen the gaol psychiatrist on a number of occasions as he was finding it difficult to cope when moved from the mental health unit to the main gaol. He is now in a working pod and employed as a sweeper and appears to have settled down. Correctional Centre staff have commented on the improvement in his mental health over his period in custody and it would appear that regular medication and lack of accommodation and financial concerns experienced on the outside have contributed to this improvement. However he still reports that he is very depressed and would consider suicide if given a long custodial sentence. The psychologist will review him soon after sentencing and the RAIT team have been notified of his suicidal ideation. … Mr Kamminga presents as a vulnerable individual with few social supports. He has been a victim of violence and has often associated with people on the fringe of society. He suffers from Chronic Affective Disorder and while his mental health has apparently improved with treatment and medication in custody he is still presented as seriously depressed. The psychiatric report details a marked deterioration in his social and occupational functioning over the years. 8 Doctor Johannes Kamminga, the applicant's elder brother, gave evidence. He said that the applicant's mental disorder was something that ran in the family. He described the applicant as being in straitened financial circumstances around the time of the offence, living in extremely modest circumstances and receiving food from charities. He said that he was emaciated, distressed and had a tremor in the hands. He said that he and his siblings assisted the applicant to the extent that they could, though he was difficult to deal with. He described the applicant's personality as boastful, with illusions and obsessions about being important. The sentencing judge expressly took into account the applicant's mental disorder, agreeing with a submission that the weight to be given to the need for general deterrence in determining the sentence was lower than it ordinarily would be because of the applicant's mental condition. 9 His Honour's remarks on sentence are long and comprehensive. It Is not submitted that his Honour misunderstood the evidence or applied any wrong principle of law. The single submission is that the sentence is so great as to be manifestly outside the proper range of sentencing discretion. 10 S25A Drug Misuse and Trafficking Act was enacted in 1998 in order to provide for the punishment of persons who were in the business of dealing with prohibited drugs. Offences committed by such persons typically comprise dealing in very small amounts to retail customers and are unlikely individually to attract severe sentences. The offence of ongoing supply is a much more serious offence. The maximum penalty of 20 years' imprisonment and a substantial fine demonstrates as much. The offence differs from ordinary supply offences in that there is in it no hierarchy of commercial and less than commercial quantities and corresponding ranges of maximum sentence. 11 Before this Court counsel tendered two kinds of material on the question whether the sentence was manifestly excessive. The first comprised decided cases. I should mention at the outset that it is necessary to cautious when considering submissions of this kind. The fact that another Court might have imposed a lower sentence on facts about as serious or more serious than those of the appeal under consideration does not of itself demonstrate error. 12 In R v CBK [2002] NSWCCA 457 the applicant for leave to appeal had pleaded guilty to a number of offences of dealing in drugs. There were one count of ongoing supply and two individual counts of supply of methylamphetamine. The applicant was forty-one years old and although he had prior convictions he had not been convicted of supplying prohibited drugs and had not been imprisoned. He was on bail at the time of the two supply offences. The sentencing judge took into account ten further offences, including two of supply. The applicant was HIV positive and suffered from Hepatitis C and other health problems. Bell J, with whom Wood CJ at CL and Dowd J agreed, held that the sentence of five years was of some severity and perhaps towards the top of the range but not outside the range. The non-parole period of three years was reduced for reasons not relevant to this application. 13 In R v Connell [2003] NSWCCA 90 there was one offence of ongoing supply of amphetamine and other matters taken into account. The sentence was four years with a non-parole period of two years six months. The applicant was fifty years old and had a criminal record in three States, including property, dishonesty, drug and driving offences. He was motivated by greed but found to be remorseful. Studdert J, with whom Smart AJ agreed, regarded the sentence as a stern one but within the permissible range. 14 In R v Fogg [2002] NSWCCA 395 the applicant pleaded guilty to the ongoing supply of methylamphetamine. The head sentence was four years four months and the non-parole period three years. 26.24 grams was supplied in total over six transactions. The applicant was fifty-four years old and had criminal convictions going back to 1964. There was relevant criminal history. He had suffered depression following the death of a fourteen year old son and had started using amphetamine in order to cope. The head sentence was reduced to three years six months and the non-parole period to two years three months. 15 In R v Hofer [2001] NSWCCA 544 there was one count of ongoing supply of methylamphetamine. A minor offence was taken into account. The head sentence was five years and the non-parole period three years. The applicant had supplied methylamphetamine to an undercover police officer on five occasions over nine days. The total amount supplied was 15.5 grams. The applicant was forty-seven years old. He had been experiencing financial difficulties. The Court accepted that he had voluntarily stopped supplying drugs after the last sale and before his arrest. The sentence was reduced to four years and the non-parole period to two years four months. 16 In R v Meres [2003] NSWCCA 193 the applicant pleaded guilty on arraignment to the ongoing supply of methylamphetamine. He asked for four offences, including two of knowingly taking part in the supply of amphetamines, to be taken into account. The head sentence was four years nine months and the non-parole period three years. A period of six months' pre-sentence custody was taken into account. Accordingly the sentence was notionally one of five years three months and the non-parole period three years six months. The applicant was making sales in what was described as a busy and thriving operation at a house at Bidwill only two doors from a primary- and pre-school. A co-offender was sentenced to a head sentence of four years with a non-parole period of two years but the disparity was regarded as explicable and Meres' sentence was held not to be manifestly excessive. 17 The second kind of material put before this Court comprised Judicial Commission statistics. They show that from the commencement of s25A to December 2002 there have been eighty-one convictions in the higher Courts for this offence. Sixty-three of the offenders have been sentenced to imprisonment. The head sentences of those sixty-three cases vary between twelve months (three cases) and five years (four cases). The preponderance of head sentences range from two to four years. Non-parole periods range from six months to three years. 18 This Court has frequently observed the need for caution when approaching such figures, especially where they comprise cases which are so few as to lack statistical significance. However, it seems to me that eighty-one cases is a substantial number and I would regard the statistics as being a reasonably reliable indicator of the available range for the offence. That is not to say that a head sentence of five years is at the top of the range or that a sentence of six years is outside the range. What the statistics do show, I think, in combination with the remarks of this Court in R v CBK is that a six-year head sentence is remarkably high for this offence. One would expect to see particularly serious features in the criminality of an offender receiving such a sentence. 19 The facts of this case do not seem to me to show that the offender's objective criminality was of a particularly high order. I have not overlooked the apparently large number of telephone calls which were concerned with drugs, but the evidence does not enable me to say whether that number of calls is unusually high for activities of the kind with which the applicant was engaged. 20 Given that the principal motivation in sentencing for this kind of offence - general deterrence - has to be given little weight because of the applicant's mental condition I think that the resulting sentence is manifestly excessive. 21 The affidavit of the applicant, sworn on 16 September 2003, was read on sentence. It shows that since he entered gaol the applicant has suffered a number of assaults. However, he appears now to have been allocated to a position in which it will become easier for him to serve his sentence. He continues to be depressed but is being supplied with appropriate medicine. He has been attending drug and alcohol counselling and other courses. The prospects of his rehabilitation look reasonable. 22 His need to steer clear of drugs and maintain a proper regime of medical supervision and treatment justify fixing a parole period that exceeds one-quarter of the sentence. I would leave the formulation of parole conditions to those who will have a better appreciation of the circumstances when he is released. I propose the following orders- 1. Grant leave to appeal. 2. Allow the appeal and quash the sentence. 3. Impose in lieu a sentence of imprisonment for three years, commencing on 11 October 2002 and expiring on 10 October 2005. 4. Fix a non-parole period of two years, expiring on 10 October 2004. 5. Direct the appellant's release to parole on 10 October 2004. 23 MILES AJ: I agree. 24 BARR J: The orders of the court are as I have proposed. *********

R v Kamminga

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Cases Cited (5)

Cited By (1)