Kennedy v R [2020] NSWCCA 49
Kennedy v R [2020] NSWCCA 49 · Read the judgment on AustLII
Catchwords: Ongoing supply – sentencing range
The Court of Criminal Appeal (‘CCA’) has examined the sentencing range for ongoing supply – which is due to become a Table 1 offence soon – and held that at least in the circumstances of this case, no penalty other than a conviction was necessary.
The applicant was a 20-year-old university student and user of MDMA and LSD. Undercover police officers convinced her to supply them MDMA on three occasions, to a total amount of 2.79g; the sentencing judge was satisfied that these were the only occasions on which she had ever supplied a prohibited drug. Having herself developed a habit, the applicant started buying MDMA in bulk. A friend, having seen the applicant’s drug use, gave the applicant’s number to an undercover officer who was looking to buy drugs in Newtown. The applicant denied initiating contact with the police or encouraging any repeated contact. Nevertheless, having received a financial reward on each occasion (amounting to an estimated profit of $50 each time) she was duly charged with ongoing supply.
The applicant pleaded guilty and was committed for sentence to the District Court: at the time of offending (and at the time of writing) ongoing supply remained strictly indictable. Note however that legislation has been passed (but not yet commenced) which will render ongoing supply a Table 1 offence capable of being dealt with in the Local Court: Justice Legislation Amendment Bill (No 2) 2019, Schedule 1.10, item [15].
The applicant’s subjective case on sentence was persuasive. During childhood during she witnessed domestic violence. From her adolescence onwards she suffered from anxiety and depression and she regularly self-harmed with a razor, leading to referral to a psychologist at age 13. In her final year at school her mother was diagnosed with breast cancer, ultimately leading to the applicant caring for her. The applicant developed a significant MDMA habit, though she gave up between the time of (unknowingly) having supplied to police officers and the execution of a search warrant. When the search warrant was executed, police found a small amount of LSD (which the applicant was using to self-medicate for her depression) but no MDMA. The search warrant was executed while she was in the shower, leading to her being pushed to the ground and eventually sent out onto the street before being allowed to get dressed. She pleaded guilty to the offences at the first opportunity.
The sentencing judge in the District Court imposed a sentence of imprisonment for 15 months, to be served by way of Intensive Correction Order. The applicant appealed on grounds alleging, amongst other things, that the sentence was manifestly excessive.
The CCA (Adamson J; R A Hulme J agreeing with some additional remarks; Ierace J agreeing with each) found that it was difficult to conceive of a substantially less serious offence than this one (at [42]). No MDMA was found in the applicant’s home, and that was an important factor since it showed she was attempting to rehabilitate herself and had desisted from criminal conduct before she had any appreciation she had been detected. She was naïve and the profit was relatively small having regard to the risk (at [43]). General deterrence was the most significant factor, given there was no particular need to ensure the applicant was further punished; the search warrant was humiliating and traumatic, given she was naked and defenceless. A conviction itself would be a significant factor hanging over her future. She had self-rehabilitated, so that specific deterrence was not required, and her evidence attested to her appreciation of the harm she had done (at [44]). In all of those circumstances it was not open to the sentencing judge to find that imprisonment was the only available option (at [45]). Although the sentencing judge gave the involvement of undercover police little or no weight, it was in fact a relatively significant matter. The applicant was not looking to deal to fund her habit. The profit she made was, in the circumstances, paltry. She was earning money from a legitimate job at the time. But for the involvement of police, she may have given up MDMA without ever having supplied to anyone else (at [50]). Having found error, and bearing those factors in mind, on resentence the court held that the order for conviction was the most punitive consequence for the applicant, since it may well limit her vocational opportunities. No other penalty was required, having regard to the fact that she had already completed the Community Service component of the original ICO, the fact she was assessed as not requiring supervision, and was not a risk to the community (at [53]).
R A Hulme J, in his additional observations (with whom Adamson and Ierace JJ agreed) also observed that the offence of ongoing supply was originally directed to the concepts of repetition, system and organisation – but none of those things were involved here (at [3]-[4]). There was, however, a degree of persistence from the police officer: after the officer made the first approach, the applicant knocked him back on two consecutive days, and if the prospective purchaser hadn’t been a police officer, he or she may well have gone elsewhere to get their drugs (at [5]). It is however worth observing that his Honour observed in passing that the outcome was justified in the ‘unusual circumstances of this case’ (at [8]).
Unusual though the facts here might have been, as pointed out above ongoing supply will become a Table 1 offence upon proclamation of the relevant part of the Bill. That was previously rumoured to be planned for July 2020, although COVID-19 changes all things. When it happens, it will be important for practitioners to bear in mind the very wide range of sentences for these matters, notwithstanding the maximum penalty of 20 years and the sentencing patterns which pre-existed the change (and this decision).