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Court of Criminal Appeal 6 May 2002

REGINA v. LENEHAN

[2002] NSWCCA 158

Drugs
CRIMINAL LAW SENTENCE APPEAL SUPPLY DRUGS OFFENDER ERROR ALSO AFFECTS THIS SENTENCE

Citation: Regina v Lenehan [2002] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 6 May 2002
Judge(s): Greg James J; Carruthers AJ

Background

The appellant pleaded guilty in the District Court at Bathurst to one count of supplying heroin on an ongoing basis. She had entered her plea at the earliest opportunity in the Local Court, and that fact was accepted on sentence. The District Court judge imposed a sentence of three years' imprisonment with a non-parole period of 12 months, commencing 4 February 2001.

The appellant had been sentenced at the same time as her de facto partner, who was dealt with on the same facts. That co-offender successfully appealed his sentence to the Court of Criminal Appeal in Boardman [2001] NSWCCA 431, where Grove and Howie JJ identified a specific sentencing error. The same error was argued to affect the sentence imposed on the appellant.

The appellant sought an extension of time to seek leave to appeal, supported by affidavit. The Crown did not oppose the extension of time, though it submitted that the sentence was nonetheless as low as it could go given the proved circumstances of the offending.

  • Whether the sentencing judge erred by treating evidence of the offenders' future intentions to expand their drug supply operations as an aggravating factor that increased the sentence
  • Whether the same error identified by the differently constituted Court of Criminal Appeal in the co-offender's case (Boardman) applied equally to this appellant's sentence
  • Whether, if error was established, the sentence required adjustment

Decision

The Court of Criminal Appeal found that the sentencing judge had committed the same error identified in Boardman. The trial judge had expressly found, beyond reasonable doubt, that the two offenders intended to expand the scope of their joint criminal enterprise. While such a finding was permissible for a limited purpose, it went beyond that purpose.

The permissible use of such evidence was confined to rebutting any suggestion by the offenders that the conduct constituting the charge was isolated, or that they had intended to stop. The error lay in using the evidence of future intentions as a basis for assessing total criminality and imposing a greater sentence than would otherwise have been warranted.

The Crown conceded the error but argued the sentence remained appropriate given the proved facts. The Court rejected that submission. Greg James J reasoned that, having regard to the outcome in Boardman, it would produce a procedural and substantive disparity to treat the error as having had no effect on the quantum of this sentence. An adjustment was therefore required.

Although the appellant had already been released and had served the original non-parole period, the Court still reduced both the head sentence and the non-parole period to reflect the appropriate correction.

Orders Made

  • Appeal allowed
  • Sentences imposed by the District Court quashed
  • Appellant re-sentenced to a head sentence of two years and four and a half months, commencing 4 February 2001 and expiring 17 June 2003
  • Non-parole period of eight and a half months, expiring 17 October 2001

Key Takeaways

  • Evidence of an offender's intention to expand criminal operations may be used to rebut a claim that offending was isolated or that the offender intended to desist, but it cannot be used as an independent basis for increasing the overall sentence.
  • Where a differently constituted Court of Criminal Appeal has already identified a sentencing error affecting a co-offender sentenced on the same occasion, that error will ordinarily affect the co-offender's sentence on the same basis.
  • Procedural and substantive disparity between co-offenders sentenced for the same conduct is a relevant consideration when determining whether an identified error affected sentence quantum.
  • The fact that an appellant has already been released and served the non-parole period does not prevent the Court of Criminal Appeal from correcting both the head sentence and the non-parole period where error is established.
  • In dismissing the Crown's submission that the sentence was "as low as it could go," the Court confirmed that conceding an error in principle is not sufficient to preserve the original sentence if that error demonstrably affected the outcome.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- Regina v Boardman [2001] NSWCCA 431