R v Kennedy[2000] QCA 140

COURT OF APPEAL

de JERSEY CJ

McMURDO P

HELMAN J

[R v KENNEDY]

CA No 23 of 2000

THE QUEEN

v.

JAMIE EVAN KENNEDY Applicant

BRISBANE

DATE 14/04/2000

JUDGMENT

THE CHIEF JUSTICE:  I will ask Mr Justice Helman to deliver the first judgment.

HELMAN J:  On 18 January this year the applicant pleaded guilty to two offences against the Drugs Misuse Act 1986 committed on 18 March 1999:  unlawful possession of the dangerous drug methylamphetamine, and unlawful possession of the dangerous drug cannabis sativa.  There was a circumstance of aggravation in relation to the methylamphetamine:  the quantity was 7.147 grams, which is in excess of the quantity specified for that drug in the third schedule of the Drugs Misuse Regulation 1987, 2 grams.  The learned sentencing judge imposed concurrent sentences of imprisonment for the offences:  eighteen months for unlawfully possessing methylamphetamine, and six months for unlawfully possessing cannabis sativa. 

The applicant seeks leave to appeal against the sentence of imprisonment for eighteen months, which he asserts is manifestly excessive.

The applicant was born on 13 April 1971 and so was twenty-seven years old when he committed the offences.  He was found to be in possession of the drugs when police officers executed a search warrant at a house he occupied with others.  He had the drugs in his bedroom.  They were for his own use.  There were 10.054 grams of cannabis sativa.

The matter had been listed for trial on the day the applicant was sentenced, and it was only on the day before that that the Crown was notified of the applicant's intention to plead guilty. 

The applicant had had a good employment history including work in the building trade and the fishing industry.  He supported a daughter, now six years old, the issue of a failed union with a woman who had introduced him to drugs.  His relationship with the woman came to an end shortly after the child's birth.  His counsel told his Honour that the applicant recognised and conceded that he "probably does have a problem with drugs",  even though that recognition was something that had been "brought into focus" only in the few months prior to his sentence day, and particularly while he was in prison in connexion with other charges.

The applicant has a criminal history beginning in July 1990 which includes convictions for assault occasioning bodily harm (May 1991), common assault (May 1998), bail offences, four instances of unlawfully possessing cannabis sativa (in May 1992, August 1997, February 1998, and December 1998), as well as some less serious offences.  The penalties imposed on the applicant for those previous offences were all non-custodial: fines, fine option orders, and community service orders. 

In sentencing the applicant the learned sentencing judge referred to his four prior convictions for the possession of cannabis and to the fact that the quantity of the methylamphetamine was more than three times the quantity specified in the schedule.  His Honour observed that methylamphetamine is a drug which can cause people to act violently.  His Honour took into account that the applicant was, it appeared, a responsible and affectionate father who had the sole custody of his daughter and that he had a good work history.  He also referred to the need for general deterrence and the fact that, in spite of the warnings that no doubt had been given to the applicant when he had been sentenced for his prior drug offences, the applicant had continued to offend, and so had been discovered to be guilty of these offences.  His Honour took into account that the applicant had pleaded guilty although, of course, that plea had been made at a very late stage in the proceedings.

Before us, on behalf of the applicant, there was reference to the fact that in the course of sentencing him his Honour had referred to the circumstance that there had been found to be a set of electronic scales in the bedroom where the drugs were found. 

His Honour said that he accepted that he had to act on the basis that had been put to him, that the applicant did not know they were there, and made it clear that he proceeded to sentence on that assumption.  He said the law being as it is he would proceed on the basis that he could not be satisfied that the scales were the applicant's.

It was submitted that in some way his Honour may have been influenced by the fact that the scales had been found in the applicant's bedroom.  But it is quite clear from his Honour's sentencing remarks that that feature of the case was treated as irrelevant in arriving at the appropriate sentences, and consequently there is, in my view, no merit whatever in that aspect of the argument advanced on behalf of the applicant.

We were referred, on behalf of the applicant, to two previous cases in which sentences for possession of amphetamine were considered by this Court.  The first was Richardson, CA 159 of 1997 decided on 18 May 1997. 

Richardson was a member of the Australian Navy who had pleaded guilty to supplying and possessing amphetamine, and to supplying and possessing cannabis sativa.  He had been sentenced to imprisonment for six months on each charge which sentences were to be suspended after two months with an operational period of two years.  His application to the Court of Appeal was granted, his appeal allowed, and a community service order of 160 hours and a probation order for 12 months were substituted for the sentences of imprisonment.  No convictions were to be recorded.  That case is clearly distinguishable from this case in that Richardson had no prior criminal history.  He was a recent drug user, and his cooperation with the investigating police officers resulted in his supplying them with the only evidence of the commission of the offences.  The charges resulted solely from Richardson's own admissions, and the police officers had found no evidence of his possessing drugs. 

It appears to me that this case is quite different in view of the applicant's criminal history, and there is no evidence here of his cooperating with the investigating police officers although in the end, of course, as I have related, he pleaded guilty to the commission of the offences thereby saving the expenditure of public resources in proceeding to a trial.  It is also to be noted that in the case of Richardson the appeal was from a sentence imposed in a Magistrates Court in which the maximum penalty provided for the commission of the offences was imprisonment for two years.  That is to be contrasted with this case where the maximum penalty available to the sentencing judge for the possession of the amphetamine was imprisonment for twenty years.

So too was another case referred to in the course of the submissions on behalf of the applicant a case of an application to this Court from a sentence imposed by a magistrate.  It was Pettigrew CA 364 of 1995 decided on 4 October 1995.  In that case a man of similar age to this applicant was sentenced to imprisonment for eighteen months on each count of possessing amphetamine and a sum of money derived from the commission of an offence.  He had a bad criminal record which included offences of dishonesty and violence and had been sentenced to imprisonment on eleven previous occasions.  When he was arrested for the offences the subject of the sentences he complained of he was found with a sawn-off rifle, a shot-gun and 3.368 grams of amphetamine.  He had, it appears, also threatened the proprietor of a hotel.  This Court did not disturb the sentences.

It should be noted that the quantity of the amphetamine in that case was considerably less than that with which the applicant was found; and, as I have mentioned, the case was one of an appeal from a magistrate's order where a considerably lower maximum penalty was available.

Giving due weight to all of the matters which can be put forward in favour of the applicant in this case I nonetheless conclude that the sentence imposed has not been demonstrated to have been manifestly excessive.  It is important to remember that one of the purposes for which sentences in cases of this kind are imposed is that of deterring the offender and other persons from committing the same or a similar offence.  There is no doubt that methylamphetamine is a drug which can have serious consequences for those who use it, and it is made a dangerous drug for a very good reason.  It is important that when large quantities of it are found in the possession of an offender that an appropriate sentence be imposed.

In the circumstances, I should refuse the application.

THE CHIEF JUSTICE:  I agree.

THE PRESIDENT:  I agree. The sentence is, in my view, heavy.  The applicant had a drug problem which was reflected in his criminal history.  He had not, however, previously been sentenced to imprisonment.  He was in employment and references tendered showed he was, in many ways, a responsible father to his six year old daughter whom he was raising as a sole parent.  The applicant was also supported by his mother and step-father. 

A 12 month term of imprisonment to be served by way of an intensive correction order with strict conditions as to drug testing and the completion of a drug rehabilitation program would have imposed a salutary penalty whilst still enabling the applicant to keep his job and to continue his parenting responsibilities under a strictly supervised rehabilitative regime, a breach of which would have resulted in imprisonment.

As Mr Justice Helman has demonstrated, there are no truly comparable sentences which have been placed before this Court.  I particularly agree with the comments of Justice Helman as to the dangerous nature of the drug amphetamine.  In the end, the large quantity of amphetamines involved, the comparative maturity of the applicant at 28 and his prior criminal history mean that the sentence imposed, although heavy, cannot honestly be said to be manifestly excessive.  I agree that the application for leave to appeal against sentence should be refused.

THE CHIEF JUSTICE:  The application is refused.  We particularly commend you Mr Maher and your solicitor

Mr Bennett for appearing on a pro bono basis in this matter and for having presented the applicant's case competently.

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