R v Lennan [2001] NSWCCA 17

New South Wales Court of Criminal Appeal

CITATION : R v Lennan [2001] NSWCCA 17 FILE NUMBER(S) : CCA 60180/00 HEARING DATE(S) : 12/02/01 JUDGMENT DATE : 12 February 2001

PARTIES : Regina v Peter Lennan JUDGMENT OF : James J at 1; Whealy J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : PR Boulten - Appellant M Grogan - Crown SOLICITORS : Peter Ash & Associates - Appellant SE O'Connor - Crown

DECISION : Leave to appeal granted - Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 060180/00

JAMES J WHEALY J Monday 12 February 2001 REGINA v PETER JOSEPH LENNAN JUDGMENT

1 JAMES J: Peter Joseph Lennan has applied for leave to appeal against sentences imposed on him in the District Court on 15 March 2000 by Judge Nield after he had pleaded guilty to two charges of supplying a prohibited drug, cannabis leaf. On the first charge Judge Nield imposed a sentence of imprisonment for three years with a minimum term of 12 months commencing on 15 March 2000 and expiring on 14 March 2001. On the second charge Judge Nield imposed a sentence of a fixed term of imprisonment of nine months commencing on 15 March 2000 and hence to be served concurrently with part of the minimum term of the sentence on the first charge. On 11 May 2000 the applicant was granted bail, and admitted to bail, pending the hearing of his application to this Court for leave to appeal. The maximum penalty for the offence of supplying a prohibited drug being cannabis leaf is imprisonment for ten years and/or a fine. 2 The offence the subject of the first count was committed between 13 July 1998 and 10 August 1998. Between these dates telephone conversations using the telephone service at the applicant's home at San Remo on the Central Coast were lawfully intercepted. Of all of the telephone conversations during that period using that telephone service more than 70 related to the buying or selling of cannabis leaf by the applicant on the Central Coast or in the Gunnedah district. On the basis of the telephone conversations police calculated, and the calculation was not disputed by the applicant in the proceedings on sentence, that the applicant had during this period of a little less than a month supplied 5,783 grams of cannabis leaf. The amounts of the individual supplies of cannabis leaf by the applicant varied between one ounce and one pound. 3 On 14 January 1999 police executed a search warrant at the applicant's home at San Remo. During the search police found in a bag in a shed on the premises 671.5 grams of cannabis leaf, which exceeded the trafficable amount for cannabis. The finding by police of this amount of cannabis leaf gave rise to the second charge. 4 On 14 January 1999 the applicant was interviewed by police in an electronically recorded interview. In the interview the applicant admitted that he had had the cannabis leaf which had been found in the shed for the purposes of supplying it. During the interview some tape recordings of intercepted telephone conversations were played. The applicant identified one of the voices on the tapes as being that of a man named Darryl Goss and another of the voices on the tapes as that of a man named Paul Wicks. The applicant said that he had been supplied with cannabis by Darryl Goss and that he had himself supplied cannabis to Paul Wicks. 5 On 30 June 1999 the applicant was committed for trial on the charges of supplying a prohibited drug. On 19 August 1999 he first appeared in the District court. On 16 September 1999 he was arraigned in the District Court and pleaded guilty. 6 In oral evidence in the proceedings on sentence the applicant said that all the cannabis leaf he had supplied had been supplied to him by Darryl Goss. Goss, like the applicant, was arrested on 14 January 1999. On 9 June 1999 Goss appeared in a Local Court charged with supplying a prohibited drug being cannabis leaf. The evidence against him consisted of the telephone calls which had been made using the applicant's telephone service. Goss pleaded guilty in the Local Court to the charge of supplying a prohibited drug. 7 In the proceedings for the sentencing of Goss it was estimated that the quantity of cannabis leaf which had been supplied by Goss was approximately 66 ounces (1,874 grams), that is less than one third of the quantity which police estimated the applicant had supplied in the applicant's proceedings on sentence. The magistrate sentenced Goss by ordering that he perform 500 hours of community service. When Goss was arrested he had been in possession of two very small quantities of cannabis, which were less than the trafficable quantity for cannabis. On a charge of possessing a prohibited drug he was given a conditional recognisance. 8 Wicks was also arrested on 14 January 1999. He was initially dealt with summarily in the Local Court. Subsequently, an appeal by Wicks was heard in the District Court. The District Court judge who heard the appeal quashed the sentences imposed by the magistrate and on each of a number of charges of supplying a prohibited drug imposed sentences of six months to be served by way of periodic detention. 9 In the remarks he made on sentencing the applicant the sentencing judge noted some of the features of the case, including that the applicant was 28 years old at the time of committing the offences and was an adult engaged in the business of supplying cannabis to users for monetary gain to himself, that it was the applicant's own use of cannabis which had originally led him to supply cannabis to others, that he had no previous criminal record, that the applicant had pleaded guilty at the earliest appropriate opportunity, that the applicant's pleas of guilty evidenced some contrition and the applicant was unlikely to re-offend. 10 In his remarks on sentence the judge then passed to two matters which have assumed critical importance in the determination of this application for leave to appeal. At pages 5 to 7 of his remarks on sentence his Honour said:- "WHETHER THE OFFENCES SHOULD HAVE BEEN DEALT WITH BY A MAGISTRATE IN THE LOCAL COURT. The offences committed by the prisoner could have been dealt with summarily by a magistrate in the Local Court if the Crown had not elected to have them dealt with on indictment by a judge in this Court. If the offences had been dealt with summarily by a magistrate in the Local Court, the prescribed punishment would have been imprisonment for a maximum of two years or a fine of a maximum of eleven thousand dollars, or both. The prisoner's counsel did not submit that there was something improper in the Crown electing to have the offences dealt with on indictment, rather than summarily. The fact that the quantity of cannabis leaf supplied by the prisoner over the period between 14 July and 10 August 1998 was more than five times the indictable quantity of one thousand grams, and more than one fifth of the commercial quantity of twenty-five kilograms, and that the quantity of cannabis leaf found in the prisoner's possession on 14 January 1999 was more than twice the trafficable quantity of three hundred grams and more than half the indictable quantity of one thousand grams, warrant and justify the Crown's election to have the offences dealt with on indictment. I appreciate that the fact that the offences could have been dealt with by a magistrate in the Local Court, if the Crown had not elected otherwise, is a relevant feature to be taken into account in the determination of an appropriate sentence, because, in an appropriate case, it may call for some mitigation in the sentence to be imposed, see R v Crombie (1999) NSWCCA 297 decided 15 September 1999, and R v Elomar (1999) NSWCCA 459 decided 21 February 2000. However, having said that, I cannot see that this feature produces a mitigation in sentence in the case of this prisoner." 11 At pages 7 to 8 of his remarks on sentence his Honour said:- "PARITY WITH A CO-OFFENDER. The prisoner obtained his cannabis leaf from Darryl Goss. There is nothing to suggest that the prisoner obtained his cannabis leaf from a supplier other than Goss. Goss was charged with supplying cannabis leaf to the prisoner. However, Goss was charged with supplying much less cannabis leaf to the prisoner than the prisoner was charged with supplying cannabis leaf to his purchasers. For some reason or other, and I have not been told the reason, the Crown elected to have Goss dealt with summarily by a magistrate in a Local Court. The magistrate sentenced Goss to perform five hundred hours unpaid community service work. The prisoner's counsel submitted that, as the prisoner had obtained all his cannabis leaf from Goss, Goss was as guilty as the prisoner in relation to the cannabis leaf supplied by the prisoner to his purchasers and, because Goss was dealt with summarily and the prisoner is being dealt with on indictment, the prisoner will suffer a justifiable sense of grievance, as the sentence to be imposed on him, which the prisoner's counsel conceded must be one of imprisonment, will be more severe in a practical sense than that imposed on Goss. Although I appreciate the prisoner's counsel's submission, there are three answers to it. One, the offence with which Goss was charged was less serious than those with which the prisoner has been charged because the quantity of cannabis leaf was considerably less. Two, Goss was dealt with summarily with a much reduced maximum penalty than that to which the prisoner is exposed when being dealt with on indictment. Three, the sentence imposed on Goss is manifestly inadequate, as the magistrate seems to have overlooked the principle that, except in exceptional cases, a person involved in trafficking in a prohibited drug to a substantial degree should be sentenced to imprisonment for a term to be served on a full time basis." 12 His Honour proceeded to hold that the applicant's case was not an exceptional one, such as would warrant ordering that the sentence which his Honour had decided should be imposed should be served by way of periodic detention. His Honour did find that there were special circumstances such as to warrant setting an additional term which exceeded one third of the minimum term. These special circumstances consisted of the applicant's prior good character, that the applicant had never previously served a prison sentence and what his Honour found to be the applicant's good prospect of rehabilitation. 13 On the hearing of this application it was not submitted that the sentences imposed by his Honour, independently of the fact that the applicant had been sentenced in the District Court and not in the Local Court and independently of the sentences passed on Goss and Wicks, could be successfully challenged. The submissions which were made on behalf of the applicant were based on the fact that the applicant had been sentenced in the District Court and not the Local Court and on what was said to be the disparity between the sentences passed on the applicant and the sentences passed on the other offenders, and particularly Goss. 14 In submissions on the hearing of this application counsel for the applicant referred to what the Chief Judge at Common Law said in R v Crombie (1999) NSW CCA 297:- "Depending upon the objective and subjective criminality of the offender, it (that is, the fact that the offender could have been sentenced in the Local Court) may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment." 15 It was submitted that where the two other offenders Goss and Wicks had been dealt with, at least initially, in the Local Court, the circumstance that the applicant also could have been dealt with summarily in the Local Court should have resulted in some mitigation of the penalty to be imposed on the applicant. 16 I do not consider that his Honour should be held to have erred in deciding that, in the present case, the circumstance that the applicant could have been dealt with in the Local Court should not result in any mitigation of penalty. The principle stated by the Chief Judge in Crombie and by judges of this Court in other cases goes no further than to require a sentencing judge in the exercise of his sentencing discretion to take into account that the prisoner could have been dealt with in the Local Court, if the prosecuting authority had not elected otherwise. If a sentencing judge takes this factor into account, the sentencing judge is not necessarily required to give it much or any weight. In the present case the sentencing judge gave his reasons for not giving the factor any weight and I would not hold that he was in error in his reasoning process or in his conclusion. 17 The principal submission made on the hearing of the appeal was that there was disparity between the sentences passed on the applicant and the sentences passed on the other offenders, particularly Mr Goss, such as to give rise to a legitimate or justifiable sense of grievance. It was submitted that each of the three answers to the parity (or disparity) argument given by the sentencing judge in his remarks on sentence was wrong. I have already referred to the second answer given by his Honour. 18 It was submitted that the first answer to the argument given by the sentencing judge was wrong, because Goss had been sentenced on the basis that the cannabis he had supplied was the cannabis he had supplied to the applicant and, therefore, the quantity of cannabis which Goss had supplied and the quantity of cannabis which the applicant had supplied by way of re-supplying were identical. 19 However, the applicant was sentenced on the basis, which he conceded to be correct, that he had supplied 5,783 grams of cannabis leaf, whereas Goss was sentenced on the basis that he had supplied 1,874 grams of cannabis, that is less than one third of the amount which the applicant had conceded he had supplied. In my opinion, this substantial difference in the facts on the basis of which the two offenders were sentenced permitted Judge Nield to impose on the applicant a sentence which he considered appropriate, notwithstanding that it was a much heavier sentence than the sentence which the magistrate had imposed on Goss. 20 Even if the first answer given by the sentencing judge should not be regarded as a sufficient answer, for the reason that it might have been the fault of the prosecution that the magistrate who sentenced Goss was apparently supplied with an incorrect figure for the amount of cannabis leaf which Goss had supplied, the third answer given by the sentencing judge was, in my opinion, a sufficient answer to dispose of the submission based on disparity between the sentences passed on the applicant and the sentences passed on Goss. 21 The third answer given by the sentencing judge was that a point is reached where a sentence passed on a co-offender is so inadequate that the principle of parity in sentencing is not to be applied and that the principle should not be applied where the sentencing decision by the other judicial officer indicates an error in principle. The error identified by the sentencing judge was that the magistrate could not have had regard to the principle that "except in exceptional cases, a person involved in trafficking in a prohibited drug to a substantial degree should be sentenced to imprisonment for a term to be served on a full time basis". 22 It was said on behalf of the applicant that in fact a large number of offenders who are convicted of trafficking in cannabis do not receive full-time prison sentences. This assertion may or may not be true. However, the principle that a person who trafficks in a prohibited drug to any substantial extent should, save in exceptional circumstances, be sentenced to a term of full time imprisonment is well established. 23 In the present case the remarks on sentence of the magistrate who sentenced Goss are not available. However, either the magistrate discerned that there were exceptional circumstances, in which case Goss's case would be distinguished from the applicant's in which the sentencing judge found no exceptional circumstances, or the magistrate erred in principle in not sentencing Goss to a sentence of full-time imprisonment. 24 In my opinion, the sentencing judge was justified, for the reasons he gave as his third reason, in not applying the principle of parity in sentencing as between the applicant and the co-offender Goss. In my opinion, leave to appeal against sentence should be granted but I would dismiss the appeal on sentence. 25 WHEALY J: I agree. 26 JAMES J: The orders are as proposed by me. It does mean that he will serve his sentence.

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