O'Connor v Regina

Judgment 1HOEBEN CJ at CL: I agree with Barr AJ and the orders which he proposes. 2BELLEW J: I agree with Barr AJ. 3BARR AJ: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant, Michael Joseph O'Connor, pleaded guilty to a charge of supplying a prohibited drug, namely methylamphetamine. No actual supply was detected and the Crown relied on the deeming provisions of the Drug Misuse and Trafficking Act 1985. The maximum penalty was 15 years' imprisonment. English DCJ set a non-parole period of 2 years and a balance of term of 1 year and 6 months. The sentence was partly accumulated on an existing sentence. The applicant had been sentenced to serve a period of 4 years following his conviction for recklessly inflicting grievous bodily harm. He had served the non-parole period and had been released but his parole was revoked. Her Honour backdated the sentence so as to make the first 6 months or so concurrent with the previous sentence. The applicant's present non-parole period is due to expire on 3 July 2014 and his head sentence on 3 January 2016.

The Facts 4At about 6pm on Wednesday 16 November 2011 police executed a search warrant on Room 34 of the Lachlan Hotel in Cowra where the applicant was staying at the time. 5In the seat of a chair in the room police found a large plastic bag with a resealable end that contained 27.1 grams of methylamphetamine the purity of which was 12.5 per cent. After being cautioned and arrested the applicant denied any knowledge of the bag or its contents. Within the top drawer of a chest of drawers police found a Calvin Klein aftershave box containing $485 in cash as well as two glass smoking pipes inside a sunglasses case. The applicant said to police that the money was from his unemployment benefit and that he had bought the sunglasses from a person at another hotel but denied any knowledge of the existence of the pipes. A further bag containing 7.8 grams of methylamphetamine (81.5 per cent purity) was found inside the second drawer along with 2 more glass smoking pipes. Again the applicant initially denied any knowledge of these items. On and in a wardrobe in the room police found a CD cover containing electronic scales and a bag containing a large number of small resealable plastic bags. In relation to the scales the applicant said that he had bought the CDs from "a bloke" and opened the cover to find the scales. 6The applicant was found with a total of 34.9 grams of methylamphetamine. The trafficable quantity is 3 grams and the commercial quantity is 250 grams. 7After his arrest, the applicant exercised his right to silence. 8The applicant gave evidence during the sentencing hearing. He said that he was 42 years of age. He said that his father, a Vietnam veteran, had been affected by Agent Orange and had showed a lot of violence towards the applicant and his other children, and to their mother. He said that he had been subjected to an episode of sexual abuse from his brother and from a friend of his brother's. He said that he believed that his experiences as a child had had some impact on his later use of drugs. He said that most of his earlier convictions for drug offences related to cannabis. 9In relation to the offence itself the applicant gave this evidence in chief:- Q: How long have you been using methamphetamine as opposed to your criminal history that shows that it's mainly cannabis? A: Probably five, six years. That was prior to the last incarceration I was smoking it so the year before I was locked up then. Q: But you do understand the elements of the offence of supply? A: Yes, yes I do. Q: And do you fully admit that? A: I do admit it and I realise I done the wrong thing in supplying drugs. To be put in an environment where I am I really - it really hits me really what I was doing and how wrong it was. Q: Why were you doing it? A: I was doing it to support my own habit really. There was a couple of reasons there why I was doing it but the main reason was to support my own habit. I realise I was supply (sic) drugs. 10In cross-examination the applicant gave this evidence:- Q: And one of those bags had a purity of 81-and-a-half per cent. Have you seen the lab report about that? A: I have. Q: Very, very high purity isn't it sir in terms of street level methylamphetamine? A: Yes it is. Q: Something that could be cut and cut and cut again in terms of onward supply to others is that not right? A: Not really. Q: Sir isn't it the case that street level methylamphetamine, the purity is somewhere three to five per cent? A: No. Q: What would you say it is? A: It's a lot higher. Q: See I suggest to you that in general terms three to five per cent is about the mark on the street? A: No. Q: Sir you were making some money on the side from the sale of these drugs weren't you? A: Yes I was. Q: Making some profit? A: I wouldn't say profit. I was making just enough back so I could buy some more. Q: Well you're selling it for more than you paid for it were you not, cutting it and then getting some more money than what you ultimately paid for it? A: No I wasn't cutting it and I only had like two or three people that were actually buying drugs off me. Q: But you were certainly making some money from the deals? A: I was. Q: Yes and you said that you primarily - in effect you said you primarily sold these drugs to support your drug addiction? A: Yes. Q: You also said to your lawyer that there are a couple of reasons but that was the main one. What were the other ones? A: The main reason for selling drugs. Q: Sorry I'll slow down. You said that you sold the drugs to support your own habit is what you - A: Yes. Q: Well your actual words were and I quote you, "There are a couple of reasons but the main reason was to support my own habit" right? A: Yes. Q: My question to you is what were the other reasons? A: What were the other reasons I was using the drugs or supplying the drugs. Q: Supplying? A: Pretty much out of friendship. I didn't know anyone in town and Q: Was that a way to make friends to be a supplier to someone? A: Well it wasn't a way to make friends. I was approached on the acknowledgment that I would supply a couple of people. It was one at first and then became two, then three that I would supply them with the drugs. Q: Were you looking to increase your business at that point when police found you? A: No I don't think so because I was - I was getting the drugs at very - a cheaper price than what one would usually pay. Q: But certainly if the word got out that you could supply the drug you had the drug there and the means to split it up and bag it and sell it? A: Yeah well I was approached on that matter and I told the people that were buying off me if your friend wants drugs I don't wish to meet him, he can give the money to you and you can pass it on to me. Q: Because you wanted to deal with somebody you knew and trusted? A: Yeah well - yes. 11There was evidence that the applicant was being treated for depression. The author of a psychological report tendered on his behalf offered the opinion that the depression was likely to be a response to his imprisonment rather than entrenched or characteristic behaviour. 12It was apparent that the applicant had used cannabis from 13 years of age and amphetamine as well as cocaine from 17 or 18 years of age.