R v Lennan - [2001] NSWCCA 17

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
OFFICER : Nield DCJ

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lennan

Details

AGLC: R v Lennan [2001] NSWCCA 17
Case: [2001] NSWCCA 17
Decision Date: 12 February 2001

CaseChat Overview and Summary

In the case of Regina v Peter Joseph Lennan, the appellant, Peter Joseph Lennan, applied for leave to appeal against the sentences imposed on him in the District Court by Judge Nield. Lennan had pleaded guilty to two charges of supplying a prohibited drug, specifically cannabis leaf. The Court of Criminal Appeal, presided over by James J and Whealy J, was tasked with deciding on Lennan's application for leave to appeal the sentences handed down by the District Court. The appeal primarily focused on the disparity in sentencing between Lennan and his co-offenders, particularly Darryl Goss, and whether the fact that Lennan could have been tried in the Local Court should have resulted in a mitigated sentence.

The central legal issues revolved around the appropriate weight to be given to the fact that Lennan's offenses could have been dealt with in the Local Court and the principle of parity in sentencing between co-offenders. The appellant's counsel argued that the sentencing judge should have considered these factors more heavily, potentially resulting in a mitigated sentence for Lennan. The court needed to determine whether the sentencing judge's decision not to mitigate the sentence based on these factors was erroneous.

The Court of Criminal Appeal found that the sentencing judge was not obliged to give significant weight to the fact that Lennan's offenses could have been dealt with in the Local Court. The principle merely required the sentencing judge to consider this factor but did not mandate a specific outcome. The court held that the sentencing judge was within his discretion to decide not to mitigate the sentence based on this factor, as he provided reasoned justification for his decision. Furthermore, the court found that the sentencing judge appropriately considered the disparity in sentencing between Lennan and his co-offenders, particularly Goss, and concluded that the disparity was justified due to significant differences in the quantities of cannabis supplied and the magistrate's apparent error in principle regarding the sentencing of Goss. The court upheld the principle that individuals heavily involved in trafficking prohibited drugs should generally be sentenced to full-time imprisonment, except in exceptional circumstances.

Orders