New South Wales Court of Criminal Appeal CITATION : R v Kemp [1999] NSWCCA 404 FILE NUMBER(S) : CCA 60839/99 HEARING DATE(S) : 06/12/99 JUDGMENT DATE : 6 December 1999 PARTIES : Regina v Kevin James Kemp JUDGMENT OF : James J; Sperling J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0036 LOWER COURT JUDICIAL OFFICER : McGuire DCJ COUNSEL : LMB Lamprati (Crown) SR Norrish QC (Applicant) SOLICITORS : SE O'Connor (Crown) Crighton-Browne's (Applicant) CATCHWORDS : Criminal Law and Procedure: DECISION : Leave to appeal against sentence granted - Appeal Dismissed IN THE COURT OF CRIMINAL APPEAL 060839/98 JAMES J SPERLING J Monday 6 December 1999. REGINA v KEVIN JAMES KEMP. JUDGMENT 1 JAMES J: Kevin James Kemp has applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge McGuire on 11 December 1998, after he had pleaded guilty to: (1) a charge of supplying a prohibited drug, heroin, between 8 May 1996 and 25 June 1997. (2) a charge of supplying not less than a commercial quantity of a prohibited drug, methylamphetamine, on 24 June 1997. 2 The maximum penalty for the first offence is imprisonment for fifteen years or a fine of $200,000 or both; the maximum penalty for the second offence is imprisonment for twenty years or a fine of $350,000 or both. 3 In sentencing the applicant for the offence of supplying not less than a commercial quantity of methylamphetamine, the sentencing judge took into account ten further offences, including three drug offences namely supplying a small quantity of cocaine, possessing a small quantity of cocaine and possession of cannabis. The other offences included three offences of failure to appear and three offences of fraudulent personation. 4 On the first charge the applicant was sentenced to a fixed term of imprisonment of five years to date from 24 June 1997, the date on which the applicant was taken into custody; on the second count he was sentenced to imprisonment for nine years, consisting of a minimum term of six years nine months and an additional term of two years three months. 5 In his remarks on sentence the sentencing judge set out verbatim the statement of facts which had been admitted into evidence in the proceedings on sentence. The statement of facts included that:- "On 9 May 1996 the applicant was stopped by police in Port Macquarie and found to be in possession of 7.1 grammes of heroin. The applicant was arrested and was later released on bail. He gave a false name to police when he was arrested and he subsequently failed to appear in Court in accordance with the bail undertaking." 6 It was further stated in the statement of facts that the applicant was responsible for the distribution of large amounts of heroin in Port Macquarie and neighbouring areas. Payments for the distribution of heroin were made to the applicant by payment into one or other of three bank accounts which the applicant had opened in false names, using false or forged documents. The opening of those accounts gave rise to the charges of fraudulent personation. Large amounts were deposited to those accounts. The total deposits made to one account between April 1996 and June 1997 were in excess of $141,000; the total deposits made to another account between August 1996 and July 1997 were approximately $35,000; the total deposits made to the third account between August 1995 and October 1996 were in excess of $130,000. 7 From 16 June 1997 telephone calls on a telephone service operated by an accomplice of the applicant were legally intercepted and by those means telephone conversations between the applicant and the accomplice concerning the supply of heroin were intercepted. 8 On 24 June 1997 a conversation in which the applicant and the accomplice made arrangements for a meeting was intercepted. A car in which the applicant was travelling was stopped by police near the meeting place and the applicant was seen to drop on the roadway two packages containing 44 grammes of heroin. When the applicant was searched a small quantity of cocaine was found in one of his pockets and a small quantity of cocaine was also found on the floor of the car, near where the applicant had been sitting. 9 At the time of his arrest the applicant was in possession of a St George Bank freedom account card in the name of a person having an address at Werris Creek. The police attended those premises and found a suitcase owned by the applicant in a bedroom which had been occupied from time to time by the applicant. Inside the suitcase police found a bag containing 262 grammes of methylamphetamine and two packages containing a total of 28 grammes of heroin. 10 In his remarks on sentence the sentencing judge made a number of findings with respect to the supplying of heroin. The sentencing judge found that the applicant had been supplying substantial amounts of heroin, including supplying dealers, over a prolonged period. The sentencing judge rejected evidence given by the applicant about what amounts of money he had been receiving and the sentencing judge also rejected the applicant's evidence that he himself had a drug habit costing about $1,000 a day. 11 His Honour found that the applicant was "no small time street corner dealer" and that the applicant had a high position in the hierarchy of drug suppliers. His Honour found that the applicant had introduced substantial quantities of drugs into the Taree area and had organised the distribution of these drugs, including devising a clever method of payment. 12 With respect to methylamphetamine, his Honour noted that the applicant had declined to volunteer any information, either to the police or when he gave evidence in the proceedings on sentence. However, notwithstanding the absence of evidence, his Honour proceeded to make a number of findings. His Honour said:- "I believe he was playing a major role in dealing with that drug. Small time operators are not in possession of such a quantity. While there is no valuation before me as to the methylamphetamine, from my experience of over 16 years in dealing with matters such as this, I recognise that this was an extremely valuable quantity of drugs. After listening to the tragic accounts of many, many amphetamine addicts I consider that methylamphetamine is an even a more dangerous drug than heroin". 13 His Honour noted that the offences for which he was sentencing the applicant had been committed while the applicant was on bail. He had abused the liberty he had been given on 8 March 1994 and 9 May 1996 by failing to appear at Court in accordance with the bail undertaking and by committing further offences whilst at liberty on bail. 14 The applicant has a substantial criminal history, including convictions for armed robberies and for the supply of drugs. His Honour observed "his persistent misconduct in repeating drug dealing offences is a matter which looms large on sentence", and "thus far he has not been deterred...". His Honour found that the applicant's motivation was "simply greed". 15 In his remarks on sentence his Honour referred to the following subjective matters. The applicant is of aboriginal descent and was 46 years old at the time of sentence. His parents had separated when he was a small child and he was clearly disadvantaged in his childhood. He had been in institutions or gaols for a substantial part of his life. 16 His Honour found the applicant had made a contribution to the community by the assistance he had given to the prison authorities as a delegate for Aboriginal prisoners at the Metropolitan Remand and Reception Centre. His Honour noted that the applicant had made pleas of guilty at the first opportunity, "albeit that the case against him was overwhelming". He had attended an open learning course whilst in custody. The applicant suffers from hepatitis C. 17 A confidential document relating to assistance which had been provided by the applicant was placed before the sentencing judge and his Honour found that, by providing this assistance, the applicant had made a real, important contribution to the administration of justice, for which the applicant would receive a substantial discount in sentencing. 18 However, his Honour qualified what he had said about the assistance provided by the applicant by saying that he did not regard the providing of such assistance as demonstrating remorse on the applicant's part, as the applicant had continued to offend contemporaneously with, and subsequently to, providing the assistance. His Honour also said that the applicant had not offered to give any evidence as part of the assistance. His Honour added that the fact that the applicant had been prepared to assist was not known to those affected and that while he had been in custody the applicant had not been on protection. Accordingly, his Honour found that the discount the applicant should receive for assistance should not be as great as the discount allowed in cases such as Regina V Winowiecki, (unreported, Court of Criminal Appeal, 10 October 1994). 19 His Honour considered the question whether there were special circumstances and said that he could find none. 20 Towards the end of his remarks on sentence his Honour said: "The crimes he committed were separate and deserving of cumulative penalties. I will not however accumulate penalties and I will fix a sentence which reflects the overall criminality and a fixed term on the other count." 21 In my opinion, it is quite clear that the crimes the sentencing judge was here referring to were the crimes of supplying heroin and supplying methylamphetamine, with which the applicant had been charged. 22 On the hearing of this application two principal submissions were put by senior counsel for the applicant. The first of these principal submissions was that the sentence for the offences of supplying methylamphetamine was manifestly excessive, having regard to: (1) the range of sentences appropriate to the offence (2) the plea of guilty (3) the assistance which the applicant had provided (4) the steps taken by the applicant to rehabilitate himself 23 Three findings made by the sentencing judge in his remarks on sentence with respect to methylamphetamine were challenged. The first finding challenged was that the applicant had played a major role in dealing in methylamphetamine. It was submitted on behalf of the applicant that, as the sentencing judge had himself acknowledged, there was no evidence before his Honour about the source of the drug or the course of dealings in the drug and therefore the sentencing judge must have made his finding as a result of an inference drawn merely from the quantity of the drug. It was pointed out that the quantity of the drug was 262 grammes, which was only 12 grammes above the upper limit of a merely trafficable quantity of the drug. 24 A second finding challenged was that the quantity of methylamphetamine was "extremely valuable". The Court's attention was drawn to a number of reported cases in which particulars of sales of methylamphetamine are recorded. These cases included: R v Gudge and Brown, (unreported, Court of Criminal Appeal, 3 April 1995); R v Langton, (unreported, Court of Criminal Appeal, 18 November 1996), and R v Davis, (unreported 21 May 1997). Particulars of sales recorded in the judgments in those cases include the sale of 450 grammes in March 1993 for $18,000 - (R v Gudge and Brown); the sale of 173 grammes on 19 April 1995 for $6,500 and the sale of 1 pound for $12,500 on 15 June 1995 (R v Langton); and the sale of 411.6 grammes on 27 April 1995 for $11,850 (R v Davis). 25 It was submitted that the evidence of the prices on the sales recorded in those decisions demonstrated the absence of any justification for the sentencing judge concluding in the present case that the quantity of methylamphetamine was "extremely valuable". 26 The next finding that was challenged was his Honour's view that methylamphetamine is a more dangerous drug than heroin. His Honour had reached this view on the basis that in the course of his judicial duties he had listened to the accounts of "many, many methylamphetamine addicts". It was submitted that the sentencing judge was not entitled to form this view merely on the basis of his own experience as a judge. 27 In addition to the submission that his Honour should not have made these three findings, it was submitted that his Honour had not sufficiently allowed for the early pleas of guilty, the significant assistance that the applicant had given the authorities and the evidence of rehabilitation. 28 I will deal first with the submission that his Honour erred in making the findings he did with respect to methylamphetamine. 29 Finding 1: In my opinion, it was open to his Honour to find that the applicant was playing a major role in dealing in methylamphetamine. The quantity the applicant was in possession of was a quantity recognised by the legislature as being a commercial quantity. In my opinion, the evidence about the applicant's dealings in heroin rendered it likely that the applicant was playing a similar role in dealing in methylamphetamine. The inference that he was playing a major role could be drawn more confidently in the absence of any information being offered by the applicant. 30 Finding 2: His Honour was entitled to find, even in the absence of evidence of value, that, as the quantity of methylamphetamine was a quantity recognised by the legislature as being a commercial quantity, it was valuable. It may be that in the absence of evidence of value the sentencing judge was not entitled to find that the quantity of methylamphetamine was "extremely" valuable but I do not consider that his Honour's characterisation of the quantity as being "extremely" valuable played any material part in his Honour's reasoning process over and above the finding, which his Honour was entitled to make, that the quantity was valuable. 31 Finding 3: I would agree with the submission made by counsel for the applicant to this extent, that whatever the extent of his Honour's own previous experience as a judge in cases concerning persons addicted to methylamphetamine, his Honour was not entitled, in the absence of any evidence given by some qualified person or any indication in legislation or any authoritative statement of an appeal court, to form a view that methylamphetamine is a more dangerous drug than heroin. 32 There is some discussion in the cases about whether methylamphetamine is a mid-range drug or whether, on the other hand, it is a high range drug and, accordingly, comparable with heroin, which is undoubtedly regarded as being a high range drug. We were not referred to any authority which would support the view that methylamphetamine is to be regarded as a more dangerous drug than heroin. 33 However, this much having been said, I do not consider that this remark made by the sentencing judge, in the course of what were long remarks on sentence, entered in any material way into his Honour's reasoning process. His Honour was clearly entitled to regard methylamphetamine as being a dangerous drug. 34 I do not consider that the sentence imposed for the supply of methylamphetamine was manifestly excessive. We were referred to sentencing statistics for sentences imposed for the supply of commercial quantities of methylamphetamine. However, in the present case, it has to be recognised that the sentence which was imposed for the supply of methylamphetamine was clearly intended by his Honour to reflect the applicant's overall criminality, including the criminality in the first offence and the criminality in the ten further offences. 35 It may be that since the decision of the High Court in Pearce v The Queen, the course taken by his Honour of seeking to reflect the total criminality of the applicant, including the criminality manifested in the first offence, in the sentence for the second offence is no longer permissible. However, neither party sought to argue this point and, in the absence of argument, I do not consider this Court should interfere in the way in which his Honour constructed the sentences he imposed. 36 The criminality manifested in the first offence of supplying heroin was considerable. The further offences to be taken into account were unrelated to the principal offences, were serious in themselves and justified his Honour's stricture that they demonstrated a complete disregard of the law by the applicant. 37 The applicant had absconded whilst on bail and committed offences whilst on bail and these were serious aggravating circumstances. 38 On the hearing of this application the Court perused the letter giving details of the assistance the applicant had given, which had been provided to the sentencing judge. The assistance which the applicant had provided was considerable. However, the amount of the discount to be allowed for that assistance was very much within the discretion of the sentencing judge. Furthermore, his Honour, in my opinion, was correct in distinguishing the present case from R Winowiecki. 39 The second principal submission made by senior counsel for the applicant was his Honour erred in not finding special circumstances. I have already quoted what his Honour said in his remarks. Senior counsel referred to part of the judgment of Wood J in R v Moffitt (1990) 20 NSWLR 114. It was submitted that a number of the factors identified by Wood J in Moffitt were to be found in the present case. 40 I do not consider that the submissions based on section 5 (2) of the Sentencing Act should be upheld. In his remarks on sentence his Honour expressly considered section 5 (2) and his Honour's statement: "I have considered the question of special circumstances and I can find none" does not mean, in my view, that his Honour considered there were no circumstances capable of amounting to special circumstances, so that his Honour did not arrive at the point of exercising a discretion but that his Honour, having given consideration to the question, had decided that there were no special circumstances such as would warrant the setting of an additional term exceeding one third of the minimum term. His Honour expressly found that the additional term under the sentence he proposed would be sufficient and, indeed, ample for the purposes of rehabilitation. 41 In my opinion leave should be granted to appeal against sentence but I would dismiss the appeal against sentence. 42 SPERLING: I agree with the orders proposed and his Honour's reasons. 43 JAMES: The orders of the Court will be as proposed by me. ********** 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.