R v Kennedy

TELEPHONE INTERCEPT OF OFFENDER'S PHONE 6. Below is a summary of the telephone calls intercepted by police from and to the offender's phone. The messages relate to the offender supplying illicit drugs and some clearly identify supplies by the offender. [Then set out in the agreed facts are four specific conversations, or parts of conversations by way of text messages, and just-referred-to conversations. The full text is set out in the facts. I will simply refer to the relevant parts of each.] On 11 February 2022, Saturday, at 17.51, an unknown person contacted the offender to enquire whether he still had a "hot". The effect of the conversation, encrypted in coded language, was an arrangement to supply a half ball of heroin, which is 1.75 grams. In a following call on 12 February 2022 at 04.39, the offender had a conversation with a person known as "Whitey". During the course of the conversation, the offender stated, "I said I'm a drug dealer, not a millionaire." On 12 February 2022 at 14.09, the offender, in a conversation with an unknown person quoted a price of $2,000 for half an ounce of heroin, the heroin being referred to in the call as, "Down".

ARREST OF OLSEN AND PANSELIOS AT THE CROWN CASINO HOTEL 7. On 15 February 2022, Olsen had checked into Room 1721 at the Crown Plaza, Sydney. The room was invoiced to her, showing a given address in Porteous Road, Sorrento, Western Australia, and the invoice was for a total of $3,764 for a two-night stay. Olsen informed the offender of the room number on 15 February 2022. 8. At about 10.30pm on 15 February 2022, investigators observed both Olsen and Panselios enter. At 9.30am on 16 February 2022, after the arrest of Kennedy, police attended the Crown Hotel at Barangaroo for the purpose of stopping Kate Olsen. Olsen was seen leaving the entrance door and entering a taxi. The taxi was stopped by police, and Olsen was searched and arrested. 9. Panselios was later arrested by police, and he admitted that he had been asked to "clean" the room that Olsen had been occupying. He was there arrested by police, and prohibited drugs were found on his person as were items being indicia of drug supply and/or use. 10. Panselios and Olsen were charged with possession and deemed supply of the drugs seized by police. 11. At 5pm on 16 February 2022, police executed a search warrant on Room 1721 at the Crown Hotel, Barangaroo. At that time, the room was unoccupied, having been vacated by the offender and the co-offender and Panselios earlier that day. During the search, a number of items were located. 1. A piece of paper with drug prices written on it. 2. A false New South Wales driver's licence with the name "Luke Andrew Costin" on it but the photograph of the offender, Jesse Kennedy. 12. Also noted were items which police believe were consistent with administering drugs, such as small vials which could hold GBH, a large number of small zip lock bags, a glass waterpipe and a used syringe. Items in the room had the fingerprints and DNA of Olsen and Panselios.

SEARCH WARRANT FORREST ROAD HURSTVILLE 13. At 12.37 on 16 February 2022, police executed a search warrant at premises in Forest Road, Hurstville, being the residence of the offender. 14. At about 2.11pm in the laundry sink, one 5 litre demineralised water container, which was approximately two‑thirds full of a clear liquid, was located. At about 2.37pm in Bedroom 2, a container of "NANO-GW peptides" was located on a cupboard shelf. 15. Also, during the search, police located a black Conducted Energy Device, commonly referred to as a "Taser" in a Priceline paper bag in the TV cabinet drawers (Sequence 11). 16. The Taser was examined, found to be a Chinese manufactured Stock Prod designed to deliver an electric shock on contact to livestock. It was determined that if the taser was used outside its purpose pursuant to Column 2, Schedule 3 of the Prevention of Cruelty to Animals Regulation it would fall within the definition of a prohibited weapon, as per Clause 2(18) Weapons Prohibition Act 1998. The offender's DNA was located on 4 x AA Duracell Ultra batteries inside the Taser, and it was of "Evidentiary" strength.

HURSTVILLE POST OFFICE 17. On 11 February 2022, the offender sent a message to a mobile phone in respect of which the recipient is unknown. The message contained the name: "Christopher Davey Employer: Alpha and Omega Construction Role: builder Super MTA $2,763 per fortnight" 18. Following his arrest, Kennedy was in contact with Asplonde requesting she pick up a package under the name of Christopher Davey from the Hurstville Post Office. The telephone conversations in relation to this are summarised in the facts, and I will summarise them further by simply indicating that in effect, Asplonde was to arrange through Airtasker for someone to attend with credentials, or apparent credentials, to collect a package for Christopher Davey. Apparently, the person who attended was unable to obtain the package because it could not be located at the post office at the time. 19. On 7 March 2022, police obtained a search warrant for the Hurstville Post Office and seized two cardboard boxes addressed to Christopher Davey at the Forest Road, Hurstville, address. The two boxes were opened, and each contained ten white plastic bottles covered in bubble wrap. Each bottle contained liquid. 20. The packages were addressed to Christopher Davey at premises in Forest Road, Hurstville, with an iPhone number supplied. The contents of the packages were described as decolouriser. 21. The liquid was analysed to be 1,4-butanediol and of a total weight of 1,883 grams (Sequence 14). 22. On 9 March 2022, a person I will refer to as "AS" saw a job on Airtasker to collect a package from Hurstville Post Office and deliver it to someone by the name of 'Christopher D', due to him having COVID. The due date of the job was 9 March 2022. AS had a text message conversation with "Christopher" using a number 0422 424 656 and provided him his driver's licence so that Christopher D could provide him with a permission slip to collect the parcel on his behalf. The permission slip was produced by Christopher with the address of a unit at specified premises in Forest Road, Hurstville. AS attended the post office to collect the package, though staff informed him that they could not locate the package, which had previously been seized by police. AS informed Christopher and waited at the post office should the package be located. During that time, AS then received a cancellation request on the Airtasker application, which he accepted. 23. Police obtained information from Airtasker confirming AS's account. The job was posted by "Christopher D" on 9 March 2022 for $111. 24. An investigation into the IP address responsible for creating the Airtasker job request confirmed that it was done from the address of 'Asplonde.' CCTV from Asplonde's address confirms that Asplonde and a person called Austin were at the address at the time of the advertisement on Airtasker being posted. 25. On 6 April 2022 at Tamworth Police Station, the offender was arrested. He consented to the police undertaking a buccal swab and taking photographs of him. The offender declined participating in an electronically recorded interview.

1. As to the offence of possess prohibited weapon, being the Taser, I note that the offender was clearly aware of its presence and has admitted the offence. Indeed, his fingerprints were on the batteries inside the device.
2. Schedule 1 of the Weapons Prohibition Act defines prohibited weapons and includes a wide variety of items of varying dangerousness. They include flick knives, ballistic knives and a variety of other kinds of obviously dangerous knives, bombs, grenades, rockets, missiles and mines in the nature of explosives or incendiaries, flame throwers, darts, dart projectors and devices capable of administering electric shocks.
3. In my view, a Taser-type device falls significantly below the midrange of objective seriousness when taking into account the range of prohibited weapons covered by the schedule, as referred to in Tran v R [2010] NSWCCA 183 at para 23.
4. As to the offence of supply prohibited drug in respect of the 1,883 grams of 1,4-butanediol, I note that this is a commercial quantity, and the next more serious category in relation to this prohibited drug is a large commercial quantity, which is 4,000 grams. Accordingly, the offence related to approximately half of a large commercial quantity, which is not an insignificant amount.
5. The offender's role as disclosed by the telephone messages was a senior role in relation to trying to organise the collection of the drug which had been sent in the name of another person. Relevant to the assessment of objective seriousness is that the amount was well above a commercial quantity, and, as I have said, close to half the large commercial quantity. It was the offender who was directing and providing the detailed instructions to his associates to obtain the drugs, at a time when he was in fact in custody. This is indicative of his senior role within the syndicate.
6. The scheme to collect the drugs involved evading police detection by using the identity of an unknown person for the package to be delivered to, and also utilising someone from Airtasker to collect the drugs. While the quantity of drugs is not a sole or principal determinative for sentencing in relation to a drug offence, the offender's role and level of participation was a significant one, and it is reasonable to refer to him as a principal in relation to that particular offence.
7. No drugs were in fact obtained, although that was because of the fortuitous interception by the police. In my view, the offending can be said to fall within the midrange of objective seriousness.
8. As to the third offence, involving 15.75 grams of heroin, a trafficable quantity heroin is 3 grams, an indictable quantity is 5 grams, and the next more serious level of seriousness is a commercial quantity, which is 250 grams. 15.75 grams is significantly less and falls at the lower end of the range before one reaches a commercial quantity. The offender was asked to supply on two occasions and agreed to supply.
9. On the second occasion, the half-ounce was to be supplied for $2,000. It is evident from the recorded conversation and other conversations that this was not an isolated incident, and it was motivated by the desire to obtain a financial reward, and it was intended to fulfil the order. Although there is no evidence of the actual supply, it is the agreement to supply which is as significant in my view as an actual supply, and again in circumstances where the offender was significantly involved in the arrangements and can be regarded as being in the role of a principal. Again, I would find that it falls in the midrange of objective seriousness, even though the amount, 15.75 grams, is significantly towards the lower end of the range covered by s 25(1).

SUBJECTIVE MATTERS

1. Before the Court is the offender's criminal history, as part of Exhibit 1; a New South Wales Department of Corrective Services "Convictions, Sentence and Appeals Report". Also, part of Exhibit 1: a Sentencing Assessment Report under the hand of Nicole Hartnett, Community Corrections Officer, dated 7 June 2023; an affidavit from the offender, dated 8 August 2023, Exhibit K2; an affidavit of Sara Katherine Rickuss, Exhibit K3; and a psychological assessment report, dated 24 July 2023, under the hand of Andrew Wong, psychologist. Subjective matters are taken from that material.
2. Mr Kennedy was 34 years of age at the time, and is now 35, having been born on 12 September 1988. He has a fraternal twin brother, and a half‑sister. In his early years he lived in Forster with his parents and siblings. At eight years of age, his father died in the offender's bedroom while the offender was nearby. His father apparently died of a drug overdose, which led his mother to increase her dependence on prohibited or prescribed drugs, and the offender was frequently with her when she went doctor‑shopping. She apparently regularly left the twins at home with some money, and the boys were left to make their own arrangements for food.
3. In the year that his father died, Mr Kennedy and his twin brother were walking to the shops to buy food, when his brother was hit while on a pedestrian crossing, and badly injured. His brother spent approximately two months in hospital. Within three months of his brother's injury, his mother, then a widow, was diagnosed with cancer, requiring treatment. He described this period as everyone "was trying to survive while my brother and Mum needed treatment."
4. Prior to his death, Mr Kennedy's father was the income earner, and after his overdose, Mrs Kennedy was left with little income. As a result, the family moved around a lot, and eventually settled in Western Sydney. When they left Forster, he was not aware that they were moving, and did not get to say goodbye to his friends or pack his belongings. The move to Sydney was a move into poverty, with the family then residing in housing commission accommodation, which had not previously been required. He commenced at an early age using drugs, having already been exposed to them by his parents' use, and he was, in Sydney, surrounded by peers who were already in trouble with police.
5. He apparently had his first sip of alcohol at the age of 12 with friends on a weekend. He typically drank a couple of bottles of pre‑mixed drinks at a local park, although he describes himself as not being a big drinker. At 15, he started mixing around 0.5 grams of amphetamine in his drink. By the age of 16, he was using 3 to 4 grams daily, which stopped at about the age of 18. From the age of 18 to his early 20's, he reported that he was using 3 to 4 capsules of MDMA on Fridays and Saturdays.
6. Between the ages of 18 and 25, he started using around 3 to 4 grams of cocaine with his associates each weekend. From the age of 25, he started using 1.5 grams of methamphetamine ("Ice") daily and gradually increased to 3.5 grams around the time of this offending. From the age of 32 to the date of the index offences, he was using around 15 grams of GHB daily.
7. He has never sought drug rehabilitation in the past but has indicated that he is willing to engage in it. I note that while in custody he has had the assistance of an opioid replacement therapy, being depot buprenorphine. He has indicated that he believes that has helped him clear his mind and make better decisions.
8. I accept that the offender had a very poor start to life, and indeed it only got worse.

Ongoing exposure to criminal activity.

1. He was detained in Cobham at the age of 17 and asserts that he was sexually abused by a Juvenile Justice officer. After the age of 18, he reports that he went to the gym, joined gangs, and covered himself in tattoos because he wanted to make himself as intimidating as possible. He has previous involvement with an outlaw motorcycle gang, being the Rebels, and also the Finks, which has led to non‑association restrictions placed on him while in custody.
2. He has had a significant prior record of offending and Mr Wong has described him as being highly institutionalised. In my view on perusal of the information before me, and his custodial history and the short periods of time that are generally evident that he has had in the non‑custodial community, he has clearly become institutionalised.
3. I note that he has spent several periods of time in custody from 2007 through to date. Of significance, the Department of Corrective Services Report indicates that when on parole at various occasions during the time covered by the report he managed to remain at large for only short periods of time. He was paroled on 21 October 2008, but he was back in custody by 3 January 2009, a period of approximately two months in the community. He was paroled again on 22 July 2009 and returned to custody on 11 October 2009, a period of approximately two and a half months at large in the community.
4. He was paroled again on 11 November 2010 and managed to remain in the community for a period of approximately two years, then being returned to custody on 23 November 2012 and released again on parole on 20 February 2013. Again, he managed to stay in the community for approximately one year before returning to custody on 26 February 2014.
5. He was again paroled on 26 May 2015 but was at liberty for only approximately three months before returning to custody. There are other periods in 2018, 2020, and 2021 where he managed to remain at liberty for periods such as one and a half months, six months, and perhaps two weeks. Since turning 18, he has had some ten birthdays in custody and nine Christmases.
6. On 22 March 2023, he was sentenced to a number of Community Corrections Orders for various offences, and he has effectively been in custody continuously since 26 May 2016. At the time of two of these offences he was subject to parole.
7. In respect of the present matters, he has been in custody as a result of being charged with them since 16 November 2022, although he had in fact been in custody since 12 May 2022 in relation to other matters.
8. His criminal history commenced as a juvenile when he was approximately 16 years of age and there is a significant number of offences, indicating repeated offending of the same nature such as drive vehicle recklessly, furiously or speed manner dangerous, take and drive conveyance without consent of owner, unlicensed for class, use unregistered, drive uninsured, drive while disqualified and goods in personal custody suspected of being stolen, break and enter building, steal from a person, enter enclosed lands not prescribed premises, and larceny, and it is clear that when being dealt with as a juvenile every effort has been made to keep him out of custody. In relation to penalties imposed he has frequently been called up in breach of the sentence imposed. Even as an adult he has continued to commit similar offences in relation to the use of motor vehicles as I have referred to him committing as a juvenile. As well as such offences as shoplifting, give false name, goods in personal custody suspected of being stolen, not wear motor bike helmet. Indeed, his driving whilst disqualified reached a point where, in effect, whenever he was detected driving whilst disqualified, he actually received a term of imprisonment. He would also state false names in relation to driving or riding and be charged with driving while disqualified.
9. In 2015, he first started to have problems in terms of being in breach of offences involving prohibited drugs, or possessing or attempting to possess prescribed, restricted substances. There are also on his record offences such as affray, acquire ammunition subject to prohibition order, possess ammunition without holding an authority, possessing or using a prohibited weapon without permit, possess or attempt to possess prescribed restricted substances, and in relation to many of those there are more than one particular entry on his record.
10. In addition, there are offences of assault officer in the execution of duty, intimidate police officer and resist or hinder police and failing to appear. While in custody between 2017 and May 2023 there are a significant number of breaches of prison discipline including intimidation, possessing prohibited goods, fighting or other physical conduct, failing prescribed urine tests, failing prescribed drug tests, smoking, using or possessing tobacco, refusing to provide a drug sample and he was charged in April of 2017 by the Raptor Squad as being an inmate in possession of a mobile phone SIM card while in custody.
11. Of note, relevant to this matter, he committed an offence on 26 May 2017 of supplying a commercial quantity of a drug, in respect of which he received a sentence of four years' imprisonment with a two-year non-parole period. There were further offences on 13 July 2018 of acquire ammunition subject to a prohibition order, possess prohibited weapon, being three weapons, possess two prohibited drugs and possessing a prescribed substance for which he received two years' imprisonment with an 18-month non-parole period, and on 18 February 2021, two offences of supply a prohibited drug more than indictable quantity and possess prohibited drug in respect of which he received a sentence of 14 months with a 6 month non-parole period.
12. He expressed to the psychologist that he wished to change and was open to obtaining both appropriate treatment and counselling in respect of his problems, particularly drugs. His criminal history shows that in relation to many of his past offences, when dealt with in a lenient or sympathetic fashion, that he thereafter breached the terms of the sentence and had been called up, that is, he has a poor history of compliance which means that the prospect of rehabilitation must be guarded, and that he is at least a medium to high risk of reoffending, as is referred to in the Sentence Assessment Report of Nicole Hartman, and he is referred to by the psychologist, Mr Wong, as being a high risk of reoffending.
13. I note that the offender did not give evidence on sentence, and any evidence of remorse or contrition is only as contained in the documentation that has otherwise been provided and is essentially hearsay statements from third parties as to their belief about the offender, such as the psychologist and the Community Corrections officer.
14. Under "Response to Supervision," the Sentence Assessment Report refers to the following: "Mr Kennedy's first period of supervision by Community Corrections was in July 2016 for a juvenile parole order. He has subsequently been subject to multiple periods of supervision, including home detention, Drug Court and parole. While he has successfully completed some orders, he has breached multiple by way of reoffence."
15. After being released on 9 November 2021, in relation to drug offending, he did not follow directions in relation to engaging with external agencies to address any mental health concerns, although he attended supervision and participated in intervention workshops.
16. As to any insight into the impact of his offending, the Sentence Assessment officer states, under "Insight into Impacts of Offending", "Mr Kennedy believed at the time that he was not committing an offence due to being able to purchase the drug online, being a synthetic form and not genuine illicit substance... …On reflection Mr Kennedy displayed insight into his offending behaviour and acknowledged his actions were impulsive and he did not think about the consequences."
17. I note that while he has embarked well in custody on the depot buprenorphine program since 17 November 2022, that is a program that provides relief to offenders who have a drug addiction while in custody. It is in no way a cure for a drug addiction. it is evident in relation to this offender that despite any profession of being prepared to participate in addressing his drug problem or believing that he would benefit from supervision focused on assisting him with his mental health - "I think I'm going to benefit from it and it will keep me on the right track" - that the prospect of success can only be assessed as very guarded.
18. He has a criminal history, and his conduct in committing these offences, and particularly when subject to conditional liberty, indicates that it cannot be said that there is a good prospect of rehabilitation or a high prospect that he will not reoffend. That is of course not to say that he will commit further offences, or that he will not be able to rehabilitate. It is frequently the observation of Courts that offenders who reach the age he is now at realise that further offending is going to result in significant periods of custody and that they need to make a substantial change in life and how they relate to the community, that is to stop abusing those things which create the problems, such as the use of prohibited drugs and/or restricted drugs so that they do not have to commit offences in order to obtain the money in order to be able to supply their own addiction.
19. It can only be hoped that Mr Kennedy has finally reached that point in his life where he realises the absolute stupidity of his past conduct and the significantly adverse effect it will have on his life hereafter if he continues in like manner.
20. I note the affidavit of Sara Rickuss indicates that she is someone who has known the offender since September 2020, after he was then released from custody, and they commenced a relationship. Unfortunately, in February 2021 he was returned to custody so there was only the period between September 2020 and February 2021 when they maintained a relationship. He was again released in November 2021, and he lived with her for what is said to be "a little while" before returning to custody in February 2022. These are significantly short periods of time in which he has had a relationship with Sara Rickuss; the first period of approximately six months, the second period of only some two or three months.
21. According to her he has completed the EQUIPS addiction program while in custody. Other than that statement there is nothing before me which indicates he has done so.
22. She indicates that she is willing to support him when released and that if he receives appropriate supervision and assistance, he will abstain from drug use and further offending. In my view, the period of time over which she has known him, considering the activities that he was engaged in during that period and his overall criminal history, indicates that Ms Rickuss's view can be reasonably referred to as wishful thinking. However, I note that it certainly would assist him if when released she is prepared to provide pro-social support and encourage him to continue any actions or treatment to deal with his psychological problems and/or drug addiction.
23. I note that his early childhood was in my view relatively tragic, and as I said before, it seems to have only gotten worse in the intervening period. In my view, Bugmy is an appropriate case to take into account in respect of his early childhood and even his teenage and adult years. He got off to a bad start and never got back on track as far as I can see, with the exception of perhaps the period between 2010 and 2013, where whatever he was doing, he was not detected committing any offences. That period holds out some hope that if he receives ongoing assistance there might be some reasonable hope of rehabilitation and that he will not reoffend, although that is a guarded hope.
24. I have taken all of those matters into account in determining the sentence. I note that there is little acceptable evidence of remorse, but I am prepared to give him the benefit of finding that he is genuinely remorseful despite my scepticism.
25. I note in relation to this matter that each of the parties has submitted that the s 5 threshold has clearly been exceeded in relation to each of the three offences and he is convicted in relation to each.
26. I intend to proceed by way of an aggregate sentence, and accordingly, I am required to indicate an indicative sentence in respect of each of the individual sentences. In respect of the offence involving the possession of the Taser contrary to s 7(1) the indicative sentence is imprisonment for nine months. I am required to provide an indicative non‑parole period, in which case I will indicate that the indicative non‑parole period is six months, having found special circumstances.
27. In respect of the offence contrary to s 25(2) the indicative sentence is four years' imprisonment, and again, as there is a standard non‑parole period, I must provide an indicative non‑parole period, in which case it is two years and nine months. That was, of course, the butanediol offence.
28. In respect of the offence contrary to s 25(1), being the 15.75 grams of heroin, the indicative sentence is three years and as there is no standard non‑parole period I am not required to provide an indicative non‑parole period.
29. In respect of each of those individual sentences in relation to the two offences that had standard non‑parole periods I have found special circumstances and accordingly adjusted the statutory relationship, so that the indicative non‑parole period represents approximately two‑thirds of the overall sentence.
30. In respect of the aggregate sentence, the offences require of necessity some accumulation to reflect the fact that they are of a different nature and on different occasions, and I further note, since I sometimes forget, that in relation to each of the indicative sentences I have provided a 25% discount as indicated at the commencement of these reasons.
31. The sentence will be one of a non‑parole period of three years, and the balance of term of two years; that is a sentence of five years with a three year non‑parole period. I have taken into account the principle of totality. I have given him the benefit of backdating the sentence to a period prior to the commencement of the term of imprisonment which he has been serving only in relation to these offences by backdating by approximately three months from 16 November 2022. Accordingly, the sentence of five years will commence on 16 August 2022. He will be first eligible for parole on 15 August 2025, at the conclusion of the non‑parole period of three years. The balance of term is two years, and the total sentence of five years will expire on 15 August 2027.
32. I have found special circumstances on the basis of the finding that the offender is institutionalised and requires a longer period of supervision in the community to assist him to resolve his problems of drug addiction and institutionalisation.
33. Although I have not previously said it, I accept that his offending is a consequence of his poor start to life and his exposure in the past to adverse influences, including the fact that those matters have caused him to turn to alcohol and prohibited drugs simply in order to deal with his life, and that his moral culpability in relation to the offending was accordingly reduced, which also means that the need for general deterrence to be reflected by the sentence is also somewhat reduced. Is there any error, or anything I have omitted? VELCIC: Nothing from the Crown, your Honour. HIS HONOUR: All right. Ms Carr? Sorry, we can't hear you, you've probably turned your speaker off. We can hear you now, I think. CARR: No error, but I ask that a copy of Mr Wong's report is attached to the warrant please. HIS HONOUR: I don't have a spare copy so I'm not going to do that. There is no reason you can't supply that. Hang on, just a sec. I suggest that you send it to the appropriate authority, Ms Carr. CARR: Thank you, your Honour.

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