A HEROIN addict has had his sentence for drug supply slashed on appeal and has been released from jail after being given months to live.
Kevin Grant Russell was initially jailed in a Tamworth court for six-and-a-half years for heroin supply but has been released from custody after serving less than two years in prison.
The Court of Criminal Appeal (CCA) said it was “an extraordinary case”, after Russell appealed his sentence to the higher court in Sydney.
“The uncontested evidence in that the applicant’s life expectancy in the order of ‘weeks to months’ and his illness can accelerate quite quickly,” Justice Anthony Payne said in his written judgement.
In October, The Leader reported Russell had supplied more than 112g of the drug in Tamworth as part of a sophisticated drug-dealing operation.
The then 61-year-old used coded and guarded language and several mobile phones to avoid detection but it wasn’t enough.
Russell’s movements were being tracked by Strike Force Guerie – a covert police operation set-up by Oxley detectives to home-in on drug dealers in the Tamworth area in 2016.
Investigators zeroed-in on Russell in January 2016, finding he was a mid-level supplier, sourcing heroin from Sydney and transporting it back to Tamworth to on-sell.
He was not due for parole until the end of 2020 and the $24,755 in cash he was caught with when he was intercepted in a secret police sting was also confiscated.
I consider that the purpose of punishment has already been served by the time in custody served by the applicant to date.Justice Anthony Payne
But Russell has been released from custody after the CCA heard he had been serving his jail stint at Long Bay Hospital after he was admitted into palliative care.
“I consider that the purpose of punishment has already been served by the time in custody served by the applicant to date,” Justice Payne said.
Russell appealed as the district court sentence on grounds the sentence “was manifestly excessive” and the sentencing judge had “erred” in miscalculating the periods in custody.
Justice Adamson said the sentences imposed in Tamworth did not comply with the sentencing act and the computerised system by courts in NSW, Justicelink, did not allow the sentences to entered, with six months taken from Russell’s head sentence, and applied on the four-year non-parole period.
Justice Christine Adamson said the court had no alternative but to set aside the sentences and re-sentence Russell.
“The applicant’s conduct involved the repeated dissemination of heroin into a country town for profit, with all that follows in terms of consequential social harm to the wider community,” Justice Adamson said, before stating these “factors is diminished in the circumstances of the present case”.
The court was told since Russell was sentenced in Tamworth in October, he had been “diagnosed with terminal liver cancer”.
In recent times, he has been diagnosed with, and is suffering from, terminal cancer. He knows that his life expectancy is very short. I consider that the purpose of punishment has already been served by the time served to date.Justice Christine Adamson
Justice Adamson heard Russell as “not a candidate for treatment other than palliative care” and Russell’s radiation oncologist had given him “a life expectancy of 6 months or less”.
“In recent times, he has been diagnosed with, and is suffering from, terminal cancer. He knows that his life expectancy is very short. I consider that the purpose of punishment has already been served by the time served to date,” she said.
Russell was re-sentenced to two years and 11 months in jail with a non-parole period of one year, 11 months and six days in custody.