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District Court 30 October 2009

R v LENTON

[2009] NSWDC 332

Drugs
CRIMINAL LAW SENTENCE FORM 1 ONGOING SUPPLY OF DRUGS CONDITIONAL LIBERTY PARTICIPATION IN BINYANI PROGRAM

Citation: R v Lenton [2009] NSWDC 332
Court: District Court of New South Wales
Date: 30 October 2009
Judge(s): Berman SC DCJ

Background

The offender, a forty-year-old woman, pleaded guilty at an early stage to ongoing supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985. The charge arose from seven separate acts of supply of methylamphetamine to an undercover police officer between late April and 22 May 2008, when she was arrested. In total, approximately four grams were supplied across those transactions.

The offender acted as an intermediary, driving the undercover officer to locations where she obtained the drugs from suppliers and facilitated payment. She did not hold stock herself. Her motivation was partly to assist a co-offender facing custody who had a disabled son, and partly to obtain drugs for her own use at no cost.

A significant aggravating factor was that the offending occurred while the offender was on conditional liberty, specifically on both bail and a bond imposed for a prior drug matter. She was reporting daily to police and participating in the MERIT program (a magistrate-supervised rehabilitation scheme) at the same time she was committing the offences.

  • What sentence was appropriate for the offence of ongoing supply of a prohibited drug, having regard to the objective seriousness of the conduct and relevant aggravating and mitigating factors?
  • What weight should be given to the offender's conditional liberty status at the time of offending as an aggravating feature?
  • Whether special circumstances existed to justify a departure from the standard non-parole ratio, given the offender's rehabilitation prospects?
  • How parity with sentences imposed on co-offenders should be approached, given differences in the offenders' circumstances?

Decision

Berman SC DCJ identified the offender's conditional liberty as a seriously aggravating feature. She was on bail and a bond for a drug offence, reporting daily to police, and enrolled in a diversion program intended to facilitate her rehabilitation, all while committing the very type of offending for which she had been placed on that conditional liberty. The court described this as difficult to imagine being worse in terms of that aggravating factor.

In the offender's favour, the court accepted that she was a user-dealer not motivated by greed, that she had attempted to extricate herself from the intermediary role, and that she had pleaded guilty at an early opportunity. A twenty-five percent reduction was applied to reflect the timing of the plea.

The court was satisfied that the offender had good prospects of rehabilitation. Following an unusual step of releasing her mid-proceedings on a section 11 bond, the court received reports from the Binyani rehabilitation program and confirmed she had not used drugs during that period. Her successful treatment for depression, which had previously driven her drug use, was treated as a further positive indicator.

On parity, the court acknowledged that co-offenders had received lesser sentences but distinguished their positions: the offender supplied on more occasions, faced the more serious ongoing supply charge rather than a simple supply charge, and carried the significant aggravating feature of conditional liberty that did not apply to the others. Special circumstances were found, resulting in a longer parole period relative to the non-parole period. The sentence was backdated to the date of arrest, with the period of section 11 remand treated as equivalent to full-time custody as a measure of leniency.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of two years and a head sentence of four years, dated from 22 May 2008.
  • The offender became eligible for release to parole on 21 May 2010.
  • Two matters on a Form 1 (possession of drugs and possession of suspected stolen items) were taken into account on sentence.

Key Takeaways

  • Offending committed while on conditional liberty for a drug matter, while simultaneously participating in a court-ordered diversion program and reporting daily to police, was treated as a seriously aggravating factor warranting substantial weight in sentencing.
  • Special circumstances were established where the offender demonstrated genuine rehabilitation prospects through participation in a structured program, consistent negative urinalysis results, and successful treatment for an underlying mental health condition that had contributed to her drug dependency.
  • Under section 25A of the Drug Misuse and Trafficking Act 1985, the ongoing supply provision targets precisely the pattern of regular, small-scale supply that might otherwise be characterised as minor, and general deterrence remains a significant sentencing consideration for that offence.
  • Parity between co-offenders does not require identical sentences; material differences in the nature of the charges, number of supply acts, and individual aggravating circumstances can justify meaningful disparity without giving rise to a justifiable sense of grievance.
  • The District Court treated a period of section 11 remand (conditional release during sentencing proceedings) as equivalent to full-time custody for the purpose of backdating the sentence, framing this as a measure of leniency reflecting the offender's conduct during that period.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), including section 25A (ongoing supply of prohibited drugs)

Cases:
No cases were cited in the judgment text provided.