REGINA v. LENEHAN [2002] NSWCCA 158

New South Wales Court of Criminal Appeal

CITATION : REGINA v. LENEHAN [2002] NSWCCA 158 FILE NUMBER(S) : CCA No. 60775 of 2001 HEARING DATE(S) : Monday 6 May 2002 JUDGMENT DATE : 6 May 2002

PARTIES : REGINA v. LENEHAN, Donna JUDGMENT OF : Greg James J at 1; Carruthers AJ at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/61/0147 LOWER COURT JUDICIAL Gibson, DCJ. OFFICER :

COUNSEL : Crown: W. G. Dawe, QC. App: H. Dhanji SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys CATCHWORDS : Criminal law - sentence - appeal - supply drugs - CCA differently constituted found error in sentence for co-offender - error also affects this sentence - culpability wrongly considered to be aggravated by evidence of future intentions - appeal allowed. LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 CASES CITED: Boardman [2001] NSWCCA 431 DECISION : Appeal allowed. The sentences passed by the learned trial judge should be quashed and in lieu the applicant sentenced to a head sentence of two years, four and a half months, to date from 4 February 2001 and to expire on 17 June 2003, with a non-parole period of eight and a half months, to expire on 17 October 2001.

IN THE COURT OF CRIMINAL APPEAL No. 60775 of 2001

GREG JAMES, J. CARRUTHERS, AJ.

MONDAY 6 MAY 2002 REGINA v. DONNA LENEHAN Judgment 1 GREG JAMES, J: In this matter, the applicant was sentenced following entry of a plea of guilty in the District Court of New South Wales at Bathurst to one count of supplying heroin on an ongoing basis contrary to s.25 of the Drug Misuse and Trafficking Act 1985. She had pleaded guilty to that charge in the Local Court and that plea was accepted on sentence as having been made at the earliest opportunity. 2 On 9 February 2001, his Honour the trial judge imposed a sentence of imprisonment of three years with a non-parole period of 12 months, to commence on 4 February 2001. 3 Application is made for an extension of time in which to seek leave to appeal against the sentence and for that leave. That application for extension of time is supported by an affidavit, which has been filed in court and which has been read. The Crown does not oppose the grant of that extension of time. 4 Shortly summarising the background to the application, the applicant was dealt with at the same time as her de facto husband, Scott Christopher Boardman, who also pleaded guilty. He was sentenced to three years, nine months' imprisonment with a non-parole period of two years, 10 months. His sentence was backdated to the date of his arrest, 12 July 1999. 5 He sought leave to appeal against sentence in the Court of Criminal Appeal and this court, differently constituted by Grove and Howie, JJ. granted that leave, allowed the appeal and re-sentenced the applicant (Regina v. Boardman [2001] NSWCCA 431). It noted the argument put to it that there was a degree of disparity between the sentence originally passed upon that applicant and that passed upon this applicant. In so doing, it also noted the particulars of the two sentences and the circumstances to which the trial judge had made reference when the sentences were imposed. It however allowed the appeal upon a ground, which is common to the sentences that were imposed upon both applicants and which ground is put forward by Mr. Dhanji of counsel on behalf of the applicant before us. That is, his Honour erred in sentence by assessing the criminality of the applicants on the basis that there was an intention in the two of them to expand the scope of their criminal operations, their joint enterprise, in the small scale selling of the prohibited drug. 6 His Honour the trial judge had concluded and held expressly that that intent was made out beyond reasonable doubt and, although it was open, so it was held by the Court of Criminal Appeal, for the sentencer to rely upon that matter to rebut any suggestion by the offender or by this applicant, his wife, that the particular incidents which constituted the charge were isolated, or any suggestion that they intended to close down or desist from criminal activity, it was not open to be relied on as it apparently was relied on by the trial judge to assess the total criminality and in particular to afford a basis of imposing a greater sentence than would otherwise have been imposed. 7 The Court of Criminal Appeal in Boardman (supra) did conclude that the error had had the result of increasing the sentences that would otherwise have been appropriate. (See paragraph 15 in the judgment of Grove, J.) 8 So much was said at paragraphs 13 to 19 in the judgment of Grove, J., with whom Howie, J. on that aspect agreed. 9 The submission before us is that the trial judge similarly erred when sentencing the present applicant. 10 The Crown has conceded that error but has submitted that when one has regard to the proved circumstances of the offence nonetheless and having regard particularly to the finding of special circumstances, the sentence notwithstanding that error is "as low as it could go". 11 Having regard to the decision of the Court of Criminal Appeal, there would appear a considerable degree of at least procedural and some degree of substantive disparity were this court to conclude that that error had not affected the quantum of this sentence. For my part, I would conclude that the trial judge fell into the error submitted so that an adjustment of sentence is necessary and that accordingly the extension should be granted, leave to appeal allowed, the appeal upheld and the applicant re-sentenced. 12 In that regard, it should be noted that the applicant is presently at liberty and it has been conceded by the applicant's counsel, the applicant having already served the non-parole period as originally passed, that an interference with the non-parole period of the sentence is to some extent academic. Nonetheless, the course that I consider the court should adopt is to reduce both the head sentence and the non-parole period of the sentence to reflect the view of the effect of the error taken by the Court of Criminal Appeal in the decision in Boardman (supra). The sentences passed by the learned trial judge should be quashed and in lieu the applicant sentenced to a head sentence of two years four and a half months, to date from 4 February 2001 and to expire on 17 June 2003, with a non-parole period of some eight and a half months, to expire 17 October 2001. 13 I would propose those orders. 14 CARRUTHERS, AJ: I agree. 15 GREG JAMES, J: The orders will be therefore as I have proposed. ******