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2
Court of Criminal Appeal 12 February 2001

R v Lennan

[2001] NSWCCA 17

Drugs

Citation: Lennan v R [2001] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 12 February 2001
Judges: James J, Whealy J

Background

The appellant pleaded guilty in the District Court to two charges of supplying cannabis leaf. The first charge arose from over 70 intercepted telephone calls between July and August 1998, through which police calculated he had supplied approximately 5,783 grams of cannabis over less than a month. The second charge arose from a police search in January 1999, which uncovered 671.5 grams of cannabis at his home.

Judge Nield sentenced the appellant to three years imprisonment with a minimum term of 12 months on the first charge, and a concurrent fixed term of nine months on the second charge. The appellant sought leave to appeal, arguing the sentences were excessive.

Two grounds dominated the appeal: first, that the sentencing judge failed to apply sufficient mitigation because the offences could have been dealt with summarily in the Local Court; and second, that a disparity existed between the appellant's sentence and that imposed on his supplier, Darryl Goss, who had received only 500 hours of community service from a magistrate.

  • Whether the sentencing judge gave adequate weight to the fact that the offences were capable of being dealt with summarily, which carried a maximum penalty of two years imprisonment rather than ten.
  • Whether the principle of parity in sentencing required the appellant's sentence to be reduced to reflect the substantially lesser sentence imposed on his co-offender and supplier, Goss.

Decision

On the summary jurisdiction point, the Court of Criminal Appeal found no error. The sentencing judge had expressly acknowledged that the availability of summary prosecution was a relevant mitigating factor, referencing earlier authorities on the point. However, he concluded it produced no mitigation on the particular facts. Given the quantity supplied well exceeded the indictable threshold and represented more than one-fifth of the commercial quantity, the Court found the Crown's election to proceed on indictment was clearly justified and the sentencing judge's approach was open to him.

On the parity argument, the Court identified three independent reasons given by the sentencing judge for declining to apply the parity principle as between the appellant and Goss. The most significant was the third: Goss's sentence of community service was so inadequate as to represent a departure from an established principle. That principle holds that a person who traffics in a prohibited drug to a substantial extent should, save in exceptional circumstances, be sentenced to a term of full-time imprisonment.

The Court accepted that either the magistrate sentencing Goss had identified exceptional circumstances (which would distinguish his case from the appellant's, where the sentencing judge found none), or the magistrate had erred in principle by not imposing full-time custody. Either way, the sentencing judge was justified in declining to treat Goss's sentence as a valid comparator for parity purposes.

The Court granted leave to appeal but dismissed the appeal. The appellant was to serve his sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the availability of a summary prosecution pathway is a relevant sentencing consideration capable of attracting mitigation, but it does not automatically reduce a sentence. The sentencing judge retains a discretion to decline mitigation where the facts justify the more serious election.
  • A co-offender's sentence will not anchor a parity argument where that sentence is so manifestly inadequate as to reflect an error in principle by the sentencing court.
  • The established principle that substantial drug trafficking should, except in exceptional circumstances, attract full-time imprisonment remained intact and was applied as the basis for distinguishing the appellant from his supplier.
  • Where a co-offender was sentenced on incorrect or incomplete facts (here, the magistrate apparently received a lower figure for Goss's supply quantity), that further undermines the utility of that sentence as a parity comparator.
  • In dismissing the appeal, the Court reinforced that parity in sentencing operates as a principle of consistency, not as a mechanism for importing another court's error into a later, independently reasoned sentencing exercise.

Legislation and Cases Referenced

Cases:
- R v Crombie [1999] NSWCCA 297 (15 September 1999)
- R v Elomar [1999] NSWCCA 459 (21 February 2000)

Legislation:
- The decision references maximum penalties and quantity thresholds applicable to the supply of cannabis leaf under NSW drug legislation, including trafficable, indictable, and commercial quantity thresholds, though specific Act references were not identified in the text provided.