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District Court 14 January 2019

R v Lenon

[2019] NSWDC 169

Drugs
SENTENCING SUPPLY INDICTABLE QUANTITY COCAINE SINGLE OFFENCE S 5 THRESHOLD NOT CROSSED

Citation: R v Lenon [2019] NSWDC 169
Court: District Court of New South Wales
Date: 14 January 2019
Judge(s): M L Williams SC DCJ

Background

The offender, a woman born in 1991, pleaded guilty to a single count of supplying an indictable quantity of cocaine under section 25 of the Drug Misuse and Trafficking Act 1985. Police stopped a car driven by her then-boyfriend and found 27 grams of cocaine in her possession, packaged in a number of tightly sealed bags. Text messages on her phone indicated awareness of drug dealing activity, though she had told the dealer to stop.

The offence carried a maximum penalty of 15 years imprisonment with no standard non-parole period. The offender had a prior record that included an assault officer charge and four possession matters, but had never served a term of full-time custody. Since the offending, she had engaged in rehabilitation programs and expressed remorse.

The central question at sentencing was whether the circumstances warranted full-time imprisonment or whether a community-based order was the appropriate response.

  • Whether the threshold for full-time imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed
  • What weight should be given to objective seriousness (quantity, packaging, and excess over trafficable and indictable quantities) against subjective mitigating factors
  • Whether a Community Corrections Order with community service was an available and appropriate disposition

Decision

The Crown argued that the s 5 threshold had been crossed, pointing to the quantity involved (approximately nine times the trafficable amount), the manner of packaging, and the quantity exceeding both the trafficable and indictable thresholds. Defence counsel submitted to the contrary and urged the court to impose community service.

The sentencing judge acknowledged the objective seriousness of the offence, including that the cocaine was secreted and found in multiple sealed bags at a quantity significantly above threshold levels. However, after considering the full picture, including the offender's rehabilitation efforts, her expressions of remorse, the Pre-Sentence Report, and the Sentencing Assessment Report indicating community service was appropriate given residential stability, the court was ultimately persuaded that the s 5 threshold had not been crossed.

The court applied the principles confirmed in R v Parente [2017] NSWCCA 284, which affirmed the correct approach to sentencing in this type of matter. On the facts, a two-year Community Corrections Order with 200 hours of community service was determined to be the appropriate outcome.

Orders Made

  • The offender was convicted of the offence
  • A Community Corrections Order was imposed under section 8(1) of the Crimes (Sentencing Procedure) Act 1999 for a period of two years commencing 14 January 2019
  • The offender was required to complete 200 hours of community service work
  • The offender was placed under the supervision of Community Corrective Services for as long as deemed necessary, not exceeding the term of the order, including compliance with any directions for assessment, treatment, counselling, or urinalysis
  • The offender was directed to report to the Wagga Wagga office of Community Corrective Services by 5pm on 21 January 2019
  • Two back-up charges were withdrawn

Key Takeaways

  • The District Court found that a guilty plea to supply of an indictable quantity of cocaine (27 grams, approximately nine times the trafficable quantity) did not automatically cross the section 5 threshold for full-time imprisonment when significant mitigating factors were present.
  • Under section 5 of the Crimes (Sentencing Procedure) Act 1999, a court must be satisfied that no sentence other than full-time imprisonment is appropriate before imposing one; this case illustrates the threshold is a genuine test, not a formality, even for drug supply offences.
  • Subjective factors, including rehabilitation steps, expressions of remorse, absence of prior custodial history, and family support, carried meaningful weight in the sentencing calculus alongside objective seriousness.
  • A Pre-Sentence Report and Sentencing Assessment Report identifying community service as appropriate, provided residential stability existed, played a material role in the court's conclusion.
  • Applying R v Parente [2017] NSWCCA 284, the sentencing court confirmed that the correct framework requires a holistic assessment rather than treating quantity or packaging alone as determinative of custodial necessity.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8

Cases:
- R v Parente [2017] NSWCCA 284