Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kennedy v R [2013] NSWCCA 104 Hearing dates: 06/05/2013 Decision date: 07 May 2013 Before: Bathurst CJ at [1] Fullerton J at [2] Campbell J at [29] Decision: 1. Leave to appeal granted. 2. The sentences imposed in the District Court on 23 February 2012 are quashed. 3. In lieu the following sentences are imposed: (a) For the offence of knowingly take part in the manufacture of not less than the commercial quantity of a prohibited drug, a fixed term of imprisonment of 3 months to commence on the 5 November 2011 and to expire on 4 February 2012; (b) For the offence of knowingly take part in the manufacture of not less than the large commercial quantity of a prohibited drug, imprisonment for a period of 10 months to commence from 7 May 2013 to be suspended in accordance with s 12 of the Crimes (Sentencing Procedure) Act on condition that the applicant enter into a good behaviour bond for a period of 10 months. 4. The order made in the District Court for the destruction of the prohibited drugs the subject of the offences specified on the Form 1 is confirmed. Catchwords: CRIMINAL LAW - appeal against sentence - knowingly taking part in the manufacture of prohibited drugs - whether sentencing judge's discretion miscarried when imposing a sentence of full-time custody Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Muldrock v R [2011] HCA 39; 244 CLR 120 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Category: Principal judgment Parties: Rachelle Kennedy (Applicant) The Crown (Respondent) Representation: Counsel: A Francis (Applicant) R Herps (Crown) Solicitors: Legal Aid Commission of NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/254334 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-02-23 00:00:00 Before: Keleman DCJ File Number(s): 2009/254334 Judgment 1BATHURST CJ: I agree with the orders and reasons of Fullerton J. 2FULLERTON J: On 18 July 2011 the applicant entered pleas of guilty in the District Court to two counts, each of which was laid contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985, alleging that between 7 October 2009 and 18 November 2009 she knowingly took part in the manufacture of prohibited drugs. The first count concerned a quantity of methamphetamine in an amount not less than the commercial quantity which attracts a maximum penalty of imprisonment of 25 years and for which a standard non-parole period of 10 years applies. The second count concerned a quantity of MDMA (or ecstasy) in an amount not less than a large commercial quantity attracting a maximum penalty of imprisonment for life for which a standard non-parole period of 15 years applies. 3By reason of the late pleas of guilty a ten per cent discount of sentence was allowed. 4On 23 February 2012 the applicant was sentenced to 7 months imprisonment with a non-parole period of 3 months on the first count, and imprisonment for 10 months with a non-parole period of 3 months on the second count. The sentences were partially accumulated resulting in an effective sentence of 12 months with a non-parole period of 5 months. Two offences on a Form 1 were taken into account in the sentence imposed on the second count. The first offence related to her possession of cannabis and the second her possession of a tablet press. 5The sentence on the first count was ordered to date from 5 November 2011 to account for a period of three months and 18 days of pre-sentence custody following the applicant's arrest on 17 November 2009. She was released to conditional bail on 6 March 2010. Structured in this way the non-parole period for the first count expired on 4 February 2012, being three weeks before the sentencing hearing. Because of the order for partial accumulation, the sentence imposed on the second count was ordered to date from 5 January 2012. This necessitated that the applicant enter into custody to serve the balance of the effective non-parole period - a term of 5 weeks and 16 days. 6On 8 March 2012, the applicant was granted conditional bail by Adamson J pending the determination of her application for leave to appeal the sentence. Her Honour was satisfied that given the length of the sentence that remained to be served (a period of just over four weeks by the time the application was heard), her appeal would be rendered nugatory were she not released to bail. The facts for sentencing purposes 7The Crown case on sentence, as reflected in the agreed statement of facts and as adopted by the sentencing judge in his remarks on sentence, was that the applicant's knowing participation in the manufacture of the drugs, the subject of both counts, was on the basis that she leased the premises where her co-offender (her partner of some years) was engaged in the manufacture of the drugs and that, as lessee of the premises, she suffered or permitted him to do so. Although the agreed facts included the evidence of a forensic chemist that a medium sized clandestine laboratory was in full operation in a shed on the leased premises at the time of the execution of the search warrant in November 2009, and that in his assessment at least 250g of methylamphetamine and 500g of ecstasy had been manufactured from the very considerable quantities of a precursor and other chemicals that were seized during the execution of the warrant, it was not the Crown case that the applicant performed any active role in the manufacturing process nor that she stood to gain financially or beneficially from the on-supply of the drugs manufactured. 8In further elaboration of what the sentencing judge should be understood to have been satisfied was the applicant's limited role as a participant in her partner's illicit drug activity, his Honour made it clear in his sentencing remarks that he accepted her evidence that she signed the lease on the premises on 8 October 2009 because she was in paid employment and had a proven credit history; that she moved into the residential part of the leased property with her partner a couple of weeks later; that she only discovered the clandestine laboratory in the shed a week after that (and within four weeks her arrest); and that her partner directed her to stay away from the shed after her discovery. (His Honour noted that this was consistent with the evidence given by her co-offender.) The applicant's subjective circumstances 9The applicant's subjective circumstances, were reflected in a pre-sentence report dated 26 September 2011, a detailed report from a forensic psychologist dated 22 February 2012 and her evidence on sentence. They included the fact that she had smoked cannabis recreationally since aged 18 but that she had never used "hard drugs". His Honour also accepted that following her arrest she has been totally abstinent from illicit drugs. 10She was aged 36 at the time of the offending and 39 at the time of sentence. She had no relevant criminal record. She was born and educated in New Zealand to Year 10. Her parents separated when she was in her mid teens after which her mother moved to Western Australia. She has worked since leaving school in a range of vocations including setting up a music store which she operated for ten years in New Zealand before moving to Australia at age 27 to reconcile with her mother. Upon learning that her father was terminally ill she returned to New Zealand to care for him. He died ten months later. After returning to Australia, and prior to her arrest, she worked for a fishing company and in the hospitality industry. She was working in a restaurant at the time of her arrest. After being released to bail she returned to full-time work in the hospitality industry for over twelve months before securing work as a supervisor at Sydney Coach Terminal in Haymarket were she was earning a substantial income. She held this position at the time of sentence. 11The psychologist reported that the applicant suffered from an anxiety disorder and depression (noted clinically and confirmed through appropriate psychometric testing) as features of a complex clinical history, which was characterised by estrangement from her mother at an early age, the death of her father and consistent themes of depression, anxiety and low self-esteem with her symptoms aggravated by the substantial change in her life circumstances following her arrest and the pending sentence proceedings. His Honour noted that the applicant reported strong memories of her time on remand and that she was fearful of a return to custody. 12It was in this context that his Honour made reference to the applicant's psychological frailty, including what was identified as a risk of suicide. He also noted that in the opinion of the psychologist the applicant would benefit from cognitive behavioural therapy (administered in a clinical context) and that with continuing support, supervision and treatment her prognosis was positive. His Honour also acknowledged that the author of the pre-sentence report considered it unlikely that the applicant would require or benefit from supervision from the Probation and Parole Service since there appeared, on her assessment, to be no criminogenic factors at play. His Honour accepted that the applicant's prospects of rehabilitation were sound and that she was unlikely to reoffend in the future. He did not comment adversely upon the psychologist's view that her remorse was genuine. The sentencing decision 13In light of her subjective circumstances his Honour considered that personal deterrence had little, if any, significance for sentencing purposes. He did, however, regard the offending as objectively serious and that general deterrence and punishment were of particular importance. He noted the need for the sentence to accord with the principles in Muldrock v R [2011] HCA 39; 244 CLR 120. 14In the result, while accepting that the applicant's role as a participant in her partner's drug activity was as reflected in the agreed facts and as supplemented by her evidence, his Honour regarded the objective seriousness of the offences as warranting nothing other than the imposition of full-time custodial sentences. He went on to find that "alternatives to full-time custody were not capable of reflecting the objective seriousness of the present offences". 15Despite the applicant's counsel urging upon his Honour an approach to sentence which would not result in the applicant being returned to custody, in particular because of her clinical profile and her established and sustained rehabilitation over the two years since her arrest, it would appear that his Honour resolved to factor in the weight of both factors by reducing the sentences of imprisonment on both counts and altering the statutory ratio between the non-parole period and the balance of term to provide for a period of supervision on parole. He came to that view despite the views of the Probation and Parole Service that supervision by the service was unlikely to be of any benefit and the assessment of the forensic psychologist that a clinical treatment program, including psychotherapy, was strongly recommended. He also ordered that the report of the clinical psychologist, which highlighted the risk of suicide, accompany the applicant's warrant of commitment. The appeal 16Although the applicant relied upon two grounds of appeal they were dealt with together in counsel's written submissions. At the hearing of the appeal those grounds effectively merged into a single ground, namely that the sentencing judge's discretion miscarried when imposing a sentence of full-time custody on the second count in circumstances where, as a result of the structure of the sentence, the lengthy period of discontinuous custody pending sentence and the need to back-date the sentence had resulted in the non-parole period on the first count having been served at the time of sentence and where the effective term remaining to be served was less than six weeks. It was submitted that having regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999, it was an erroneously inflexible approach to the sentencing exercise to reject an alternative to full-time custody by reference solely to the objective circumstances of the offending. 17The purposes for which a court may impose a sentence are provided for in s 3A of the Crimes (Sentencing Procedure) Act as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 18In Muldrock at [20] consideration was given to the statutory purposes of sentence in s 3A in the context of the common law as follows: It should also be noted that the introduction of standard non-parole periods was accompanied by the incorporation of a statutory statement of the purposes of sentencing. The purposes there stated are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law. There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v R (No 2) in applying them. 19In Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Mason CJ, Brennan, Dawson and Toohey JJ said in their joint judgment at 476: ...sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions... 20In the circumstances of this case the learned sentencing judge was confronted with a difficult sentencing decision with the principles of sentencing clearly pointing in opposite directions. Whilst general deterrence and the objective seriousness of the applicant's participation in the manufacture of large quantities of illicit drugs (albeit limited to being the lessee of premises) carried weight, the countervailing weight of the applicant's subjective circumstances was considerable. In my view, in combination, they did not sound in the need for the sentence to address the protection of the community or her rehabilitation or, in a practical sense, to make her accountable for her offending by the punishment inherent in a return to custody. 21While I am in no doubt that his Honour was acutely aware of the need for the sentence on both counts to reflect a combination of competing sentencing objectives, and while I accept that it was within his Honour's sentencing discretion to conclude that no other penalty than sentences of imprisonment were called for, I am persuaded, in the particular circumstances of this case, that the structure of the sentences, which resulted in a sentencing order requiring the applicant's return to full-time custody for less than six weeks, was productive of discretionary error and that an order for suspension of the balance of the effective sentence ought to have been made. 22The Crown's written submissions sought to defend the sentences although, at the hearing of the appeal, the Crown quite properly conceded the force of the applicant's submission that his Honour's sentencing discretion miscarried in the ultimate sentencing order, and that the purposes of punishment in this case were adequately addressed by invoking the operation of s 12 of the Crimes (Sentencing Procedure) Act. Resentencing 23Two affidavits were relied upon by the applicant on sentence, an affidavit affirmed by the applicant on 6 May 2013 and an affidavit from her solicitor of 3 May 2013. 24The applicant's affidavit details her experience on return to custody complicated by her being informed that she was seven weeks pregnant after returning a positive screening test on reception into the prison system. She was placed on suicide watch. The pregnancy has been terminated at her request. The affidavit from her instructing solicitor annexes Justice Health records which confirm this account. 25Her employment with Sydney Coach Terminal was terminated upon her return to custody despite the assurance of her employers that her position would be available to her at the expiration of the non-parole period. After some months following her release to bail pending the appeal she found work as a casual barmaid. Two weeks prior to the appeal she suffered an injury to her left hand requiring extensive suturing and immobilisation in a splint. Although this has prevented her from returning to work she has enough funds saved to ensure she is in a position to pay her rent until she is able to resume work. 26During the course of her conditional bail pending the hearing of the appeal she complied strictly with reporting conditions each Tuesday and Thursday. There is no suggestion that she did not prosecute her appeal with due diligence. She has attended upon a clinical psychologist who referred her to a psychiatrist at Westmead Hospital where she is receiving treatment. 27In my view, in all the circumstances of this case, including but not limited to the applicant's rehabilitation and what I am satisfied is the unlikelihood of reoffending in light of her overall subjective circumstances, it is appropriate to invoke the operation of s12 of the Crimes (Sentencing Procedure) Act. I am also satisfied that the contingent liability to detention were she to breach the terms of the sentencing order does not operate at the expense of the principles of deterrence, retribution and denunciation but in recognition of them. 28Given the statutory restraint in s 12(2) upon imposing a suspended sentence where an offender is subject to some other sentence of imprisonment (as is the case here by reason of the fact that the applicant was not formally released to parole following the expiration of the non-parole period imposed on the first count), and in order to ensure that on re-sentence the overall criminality as reflected in the charges on indictment (and the Form 1) is encompassed by the sentencing order, the orders I propose are as follows: 1. Leave to appeal granted. 2. The sentences imposed in the District Court on 23 February 2012 are quashed. 3. In lieu the following sentences are imposed: (a) For the offence of knowingly take part in the manufacture of not less than the commercial quantity of a prohibited drug, a fixed term of imprisonment of 3 months to commence on the 5 November 2011 and to expire on 4 February 2012; (b) For the offence of knowingly take part in the manufacture of not less than the large commercial quantity of a prohibited drug, imprisonment for a period of 10 months to commence from 7 May 2013 to be suspended in accordance with s 12 of the Crimes (Sentencing Procedure) Act on condition that the applicant enter into a good behaviour bond for a period of 10 months. 4. The order made in the District Court for the destruction of the prohibited drugs the subject of the offences specified on the Form 1 is confirmed. 29CAMPBELL J: I agree with Fullerton 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: 07 May 2014