R v Kenny [2000] NSWCCA 92

New South Wales Court of Criminal Appeal

CITATION : R v Kenny [2000] NSWCCA 92 FILE NUMBER(S) : CCA 60709/99 HEARING DATE(S) : Wednesday 23 February 2000 JUDGMENT DATE : 23 February 2000

PARTIES : Ryan Kenny (applicant) Regina (respondent) JUDGMENT OF : Hidden J at 1; Carruthers AJ at 11

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0453 LOWER COURT JUDICIAL Woods DCJ OFFICER :

COUNSEL : P Byrne SC with G Ikners (applicant) D M Woodburne (Crown) SOLICITORS : Hardinlaw (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - Sentence - whether manifestly excessive - Drug Misuse and Trafficking Act s25(1) - user/dealer LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 CASES CITED: R v Cacciola (CCA unreported 15 October 1998) R v Wotan (CCA unreported 4 February 1988) DECISION : Leave to appeal granted. Appeal allowed. Sentence reduced

IN THE COURT OF CRIMINAL APPEAL 60709/99

HIDDEN J CARRUTHERS AJ

Wednesday 23 February 2000 Regina v Ryan Kenny

Judgment

1 HIDDEN J: The applicant, Ryan Kenny, pleaded guilty in the District Court to a charge of supplying methyl-amphetamine. That was a charge under s25(1) of the Drug Misuse and Trafficking Act, the quantity involved being less than the commercial quantity, and the maximum sentence is fifteen years imprisonment. He asked the sentencing judge to take into account certain matters on a Form 1, which were related to the circumstances of his arrest and to which I do not think I need make any further reference. 2 His Honour sentenced him to imprisonment for two years, comprising a minimum term of one year and an additional term of one year, and he seeks leave to appeal against that sentence. 3 Shortly stated, the facts are that the applicant was stopped in a motor vehicle in the small hours of 26 January 1999 in the Chippendale area. There the methyl-amphetamine was found in a bag, its quantity being about fifty-eight grams. In evidence before his Honour, the applicant said that he intended to use some of the drug himself and to supply the rest to a friend. 4 In the course of his evidence, both in chief and under cross-examination, the applicant admitted having dealt in the drug for a couple of months prior to his arrest. The precise extent of his dealings and the measure of his profit from them was not explored. What can be said, however, is that the picture which emerged was of a user/dealer, that is a person who, from time to time, gives drugs away and, at other times, sells drugs, but sells them for the purpose only of financing his own drug use. 5 The applicant is now twenty-four years old. He has no criminal record. Apart from his drug abuse, his background is quite creditable, despite some significant difficulties in his earlier family life. At the time of sentence he was in a stable de facto relationship and he was in employment and had had a good work record. He gave evidence, which apparently his Honour accepted, that he had ceased using illicit drugs and broken off his associations in the drug sub-culture. His Honour found special circumstances, fixing a longer than usual additional term to foster the rehabilitative process. 6 In the application in this Court, Mr Byrne SC, who appeared with Mr Ikners for the applicant, presented an interesting argument about the relevance, indeed the admissibility, of the applicant's evidence of his course of drug dealing over the month prior to his arrest. I find it unnecessary to deal with those submissions, which were of substance and which may well raise, in an appropriate case, an important question of sentencing policy. 7 I am content to say that it appears to me the material was admissible on the basis that it tended to show that the applicant's possession for supply on the occasion in question was not an isolated incident and the applicant would not have been entitled to leniency on that basis: see R v Wotan (CCA unreported, 4 February 1988). 8 The final submission of Mr Byrne, and the one which I think is in any event made out, was that the sentence of two years imprisonment is manifestly excessive. In all the circumstances, it appears to me that a custodial sentence was called for in this case, but we have had the benefit of statistics maintained by the Judicial Commission of New South Wales in relation to sentence for this class of offence. Those statistics, of course, must be approached with caution for the reasons identified in many decisions of this Court since they came into being. 9 Nonetheless, they confirm, as Priestley JA had occasion to observe in R v Cacciola (CCA unreported, 15 October 1998), that where custodial sentences are imposed for this type of offence, they are frequently quite low. Without analysing those statistics, it is sufficient to say that a sentence of two years appears relatively high in the range, and when one examines the amount involved here, which was substantial but still a great deal less than the commercial quantity, and when one has regard to the applicant's prior good character and prospects of rehabilitation, it appears to me that the two-year sentence imposed was more than was called for. 10 The reduction I consider appropriate is of six months. I would propose that the additional term of twelve months be maintained, but that the minimum term be reduced to six months. The convenient course I think to give effect to my proposal would be to grant leave to appeal, allow the appeal, quash the sentence imposed by his Honour and in lieu sentence the applicant to imprisonment for eighteen months, comprising a minimum term of six months to commence on 16 November 1999 and to expire on 15 May 2000, and an additional term of twelve months to commence on 16 May 2000 and to expire on 15 May 2001. 11 CARRUTHERS AJ: I agree. 12 HIDDEN J: The orders of the Court then will be as I have proposed. I should add this, however, the applicant is to be released on parole at the expiration of the minimum term which has been ordered. That being so, it will be a condition of his release to parole that he submit himself to the supervision and guidance of the Probation and Parole Service and obey all reasonable directions of officers of that Service. 13 In arriving at that sentence, we have taken into account the matters on the Form 1. I should also record, although I did not specifically say so, we have had regard to certain material tendered only this morning on the question of re-sentence. **********