R v O'Brien [2014] ACTSC 156

A non-parole period of 8 years and 4 months' is imposed.

CRIMINAL LAW AND PROCEDURE - trafficking in a controlled substance other than cannabis - dealing with the proceeds of crime - unlawful confinement - assault occasioning actual bodily harm - perjury - attempt to pervert the course of justice

SCC 204 of 2012; SCC 5A, 5B of 2013; SCC 45 of 2014

1 David Anthony O'Brien, you appear before me today to be sentenced with respect to a number of criminal offences. The first is a charge of trafficking in a controlled drug, namely cocaine, between 1 March 2010 and 20 August 2012. This offence carries a maximum penalty of 10 years' imprisonment. In addition to this offence, I take into account a list of additional offences including a charge of perjury.

2 The second matter upon which you appear for sentence is a charge that on 20 August 2012, you dealt with money which was the proceeds of crime, being reckless about the fact that the money was derived or realised from unlawful activity. This offence carries a maximum penalty of two years' imprisonment.

3 The third charge upon which you appear for sentence is a charge of unlawful confinement on 19 August 2012, which carries a maximum penalty of 10 years' imprisonment.

4 The fourth matter upon which you appear for sentence is a charge of assault occasioning actual bodily harm constituted by you choking Dana Tosolini on 19 August 2012, which carries a maximum penalty of five years' imprisonment.

5 A further offence of assault occasioning actual bodily harm on 19 August 2012 is also before me for sentence. That charge is constituted by a prolonged physical attack on Dana Tosolini, causing significant injuries. That offence also carries a maximum penalty of five years' imprisonment.

6 Finally, you appear for sentence with respect to an offence of attempting to pervert the course of justice between 19 January and 25 January 2013. This offence also carries a maximum penalty of seven years' imprisonment.

7 You were charged with the offences of trafficking in a controlled drug and dealing with money which was the proceeds of crime on 19 September 2012 in the Magistrates Court.

8 You entered pleas of not guilty to those charges on 20 September that year and you were committed for trial to this court on 17 January 2013. For some reason, not apparent to me, you were not arraigned until 29 November 2013 at which time you entered pleas of not guilty. It was not until 25 February this year, that you entered pleas of guilty to those charges.

9 You were charged with the offence of unlawful confinement and the two counts of assault occasioning actual bodily harm in the Magistrates Court on 21 August 2012. You entered pleas of not guilty and you were committed for trial on 20 September that year.

10 On 8 October, 2013 you entered a plea of guilty to one count of assault occasioning actual bodily harm, being the charge relating to the prolonged physical assault on Dana Tosolini, which caused the significant and obvious injuries to her which were depicted in the photographs tendered at your trial. You maintained your pleas of not guilty to the remaining charge of assault occasioning actual bodily harm and the charge of unlawful confinement.

11 Those charges proceeded to trial before me and on 17 February this year I convicted you of those offences and published my reasons.

12 Finally, you were charged with attempting to pervert the course of justice in the Magistrates Court on 28 August 2013. On the 1st September that year you entered a plea of not guilty but on 11 March this year you changed your plea to guilty and you were committed for sentence to this court.

13 I will briefly set out the facts relating to these offences. I will deal firstly with the offences of drug trafficking and dealing with the proceeds of crime. Between 1 March 2010 and 20 August 2012 you trafficked in a controlled drug, namely cocaine, by selling the substance to various friends and acquaintances and also by possessing a compound which weighed 931 grams and which contained cocaine.

14 There was direct evidence that you supplied cocaine to your partner, Dana Tosolini, on numerous occasions throughout that period and she regularly observed you in possession of cocaine.

15 A significant number of messages stored on your phone between yourself and various people also discussed the sale and purchase of drugs during the period March 2010 to August 2012.

16 Based on information provided to the police by Ms Tosolini on 21 August 2012, police discovered a red cloth bag under your neighbour's house in Deakin. Inside the red cloth bag police located two white fabric bags. Your DNA was located on those bags. Inside one of the fabric bags police located $39,900.00 in Australian currency. Inside the second fabric bag police located a number of clear plastic snap lock bags each containing a powdered substance comprising cocaine and cutting agents with a total weight of 931 grams. Subsequent analysis revealed that approximately 37 percent of the powdered substance was pure cocaine. In other words, the pure weight of the cocaine was approximately 342.61 grams.

17 Inside your residence police also located $5,000.00 concealed in a guitar amplifier in the living room.

18 On 22 August 2012, police located your car in O'Malley. They searched the vehicle and located a set of scales in the glove compartment and a brown paper bag concealed in the front passenger foot well, behind the centre console. Inside the brown paper bag police located a clear snap lock plastic bag containing a powdered substance comprising cocaine and cutting agents with a total weight of approximately 25 grams. The Australian currency found in the red cloth bag and in the guitar amplifier was the proceeds of your drug trafficking enterprise.

19 At the sentence hearing the Crown called evidence that this was the single largest discovery of cocaine by police in the Australian Capital Territory. The value of the cocaine located in the red cloth bag was estimated between $279,300.00 and $325,850.00.

20 In determining the objective seriousness of the offence of trafficking in a controlled drug I take into account that you are not charged with this offence arising out of an isolated incident. I am satisfied that you engaged in a business of selling cocaine which continued over a period of nearly two and a half years.

21 I am further satisfied that you sold significant quantities of cocaine over that period, mostly to friends and acquaintances. I accept that you were a user of cocaine but I am also satisfied that you made a profit from its sale. Police investigations show that you have not lodged a tax return since 2005.

22 Each year from 2005 to 2011, you received Centrelink income, being parenting payment single payments. In 2011 you received $4,298.00 in Centrelink income. There is no evidence before me of any other significant source of income.

23 I consider that this offence, whilst not in the category of the most serious of its type, is within the upper range of offences of trafficking in a controlled drug. I note that you entered a plea of guilty to this offence but it was not an early plea. The case against you was very strong, including the location of your DNA on the large quantity of cocaine found under your neighbour's house.

24 I am not satisfied that your plea demonstrates any real remorse but I accept that it had utilitarian value. I will reduce by 10 percent the sentence I would otherwise have imposed in order to mark your plea of guilty.

25 With respect to the charge of dealing with the proceeds of crime, the amount of money involved was considerable. I take into account your plea of guilty but, again, it was not an early plea. I will also reduce by 10 percent the sentence that I would otherwise have imposed with respect to that charge in order to mark your plea.

26 Turning to the charges of unlawful confinement and assault occasioning actual bodily harm I note that I set out my findings and my written reasons published on 17 February this year. I was satisfied beyond a reasonable doubt that on the date in question you punched Dana Tosolini to the face when you were both seated in a car in the driveway of your then residence in Deakin.

27 After she got out of the car and went inside you followed her and you engaged in a sustained violent attack on her over a period of many hours resulting in very significant soft tissue injuries.

28 Despite the victim indicating that she required medical treatment you physically restrained her from leaving the premises for over 24 hours. During that time you forced her to take prescription sedatives. Over that period of 24 hours the victim lapsed in and out of consciousness due to her injuries and the drugs you forced her to take.

29 You eventually took her to the hospital on 20 August 2012 and encouraged her to tell hospital staff she had sustained her injuries in an assault on her at the Hellenic Club. She subsequently told staff at the hospital the truth about her injuries and police were called.

30 In determining the objective seriousness of the offence of unlawful confinement I take into account the fact that the confinement continued for approximately 24 hours. The victim was very badly injured and in need of medical treatment by reason of your assaults on her.

31 Your purpose in confining her was to stop her obtaining medical treatment and thus possibly revealing your assaults upon her. You did, ultimately, take her to the hospital but only after imposing on her to lie about how she received her injuries.

32 I note that your victim was effectively helpless because of the injuries that you had inflicted on her. At the time that you confined her to your home, your young son was also present in the house. I also take into account that in order to confine her so as to conceal your criminal assaults, you forcibly administered prescription drugs to her to sedate her.

33 Whilst this offence does not fall into the most serious category of offences of this type, I am again satisfied that it is in the upper range of such offences. With respect to the charge of assault occasioning actual bodily harm, being the assault on Ms Tosolini, which caused the majority of her injuries, I note that the assault occurred in the context of a domestic relationship and continued over many hours.

34 The injuries inflicted were quite shocking and speak of a vicious assault upon the victim who was helpless. I note that the assault has resulted in ongoing emotional and psychological difficulties for the victim. I also note that your young son was present in the house while this occurred and was aware of what was occurring.

35 With respect to the other charge of assault occasioning actual bodily harm, constituted by the choking of the victim, I accept that this was a momentary act which resulted in relatively minor physical injuries. However, it occurred while your young son was present in the home and whilst the victim was relatively helpless. It also, of course, occurred in the context of a domestic relationship.

36 You entered a plea of guilty to the charge of assault occasioning actual bodily harm which related to the majority of the injuries sustained by the victim. That plea was a late plea and, in my opinion, demonstrated little, if any, remorse. You disputed the facts with respect to the plea which, together with the fact that you maintained pleas of not guilty to the other charges of assault occasioning actual bodily harm and of unlawful confinement, both arising out of the same incident. This effectively meant that all of the evidence relating to all three charges had to be led at trial. As such there was no utilitarian value to your plea. I decline to allow any reduction to the appropriate sentence based upon that plea of guilty.

37 After you were arrested on 20 August 2012, you were held in custody. On 23 October 2012 you swore an affidavit in support of an application for bail and on 24 October that year you appeared before Justice Refshauge in this court on an application for bail, at which time you gave evidence.

38 At that time you gave evidence that you worked for your brother-in-law Peter Griffiths at the Royal Hotel in Queanbeyan, New South Wales, and the Astra and Tattersalls Hotels in Goulburn, New South Wales. You testified that you worked at the Royal Hotel several times a week and that you would frequently be given sums of cash between $5,000.00 and $10,000.00 by Mr Griffiths or by the hotel manager.

39 You also testified that the $5,000.00 cash found in the rear of the speaker at your premises in Deakin which was seized by police was given to you as part of your role at the Royal Hotel and was for the purpose of paying a $5,000.00 deposit to the Frontier Touring Company. Subsequent investigations by police ascertained that all of the above statements were false.

40 It is clear that this was a calculated offence involving a degree of planning. The evidence which you gave was likely to be important in the context of a bail application. I note that you entered a plea of guilty but, again, it was not an early plea and I am satisfied that it demonstrates little remorse. I accept that your plea had a utilitarian value and I will reduce by 10 percent the sentences that I would otherwise have imposed.

41 I now turn to the charge of attempting to pervert the course of justice. Between 19 December 2012 and 20 January 2013, you contacted Dana Tosolini by telephone from the Alexander Maconachie Centre and spoke to her.

42 On 16 January 2013 you rang her and during that conversation you suggested that she not attend your trial for assaulting and unlawfully confining her. You told her that the Director of Public Prosecutions could not pursue the case without her. You told her that she did not have to attend court and she could simply not show up. You also suggested that she go to a psychologist and say that she was in no fit state to be giving statements when interviewed by police after 19 August 2012.

43 On 17 January 2013, you had a further telephone conversation with her in which you encouraged her to decline to answer questions at any trial. You attempted to pervert the course of justice by encouraging Ms Tosolini not to attend court and give evidence and by encouraging her to produce false evidence about her state of mind when she gave a statement to the police after 19 August 2012.

44 I have no doubt that you knew Ms Tosolini was vulnerable at the time you engaged in these conversations. You knew that she was short of money and you were making arrangements for her to be supplied with money while you were in custody. She had also been the victim of your assaults on 19 August 2012. I am satisfied that you were attempting to manipulate Ms Tosolini for your own ends. The offence is made more serious because it involved a degree of planning and was pursued on two separate occasions.

45 Your actions had the potential to seriously endanger the course of serious criminal prosecutions. You entered a plea of guilty to this charge but it was not an early plea and I am satisfied it does not demonstrate any real remorse on your part. Nevertheless, it had a utilitarian value and I will reduce by 10 percent the sentences that I would otherwise have imposed.

46 I note that you have a lengthy criminal history which disentitles you to any significant leniency in these proceedings.

47 I take into account the contents of the Pre-Sentence Report. I note that you are 52 years old and there appears to be nothing in your upbringing suggestive of abuse or neglect. You apparently enjoy good relationships with your four siblings.

48 Before being held in custody for these offences you were the primary care giver for your 14 year old son. You currently receive regular visits in the AMC from family members. You told the author of the Report that you had worked primarily in the music industry throughout your adult life.

49 You told the author of the Report that you rarely consumed alcohol before you were 35 years old but that your alcohol consumption escalated approximately six months into your relationship with Ms Tosolini. You reported commencing the use of cannabis when you were 15 years old, continuing until you were approximately 35 years old.

50 You ceased the use of that substance for a period but recommenced it prior to the commission of these offences. You admitted past cocaine use and reported you began using the substance again prior to these offences. I note that you were apparently under the influence of cocaine at the time that you committed the offences of assault occasioning actual bodily harm and unlawful confinement.

51 You also admitted selling cocaine to fund your use of that substance. As I have said, whilst I accept you were a user of cocaine I am also satisfied that you were making a profit from the sale of that substance. I note that you have not sought any treatment regarding substance abuse since being remanded in custody in August 2012.

52 These offences reveal a pattern of sustained criminal offending extending over a number of years. In my opinion, the sentences which I must impose must include a strong element of both general and specific deterrence. They must also appropriately punish you for your offending. Nothing less than immediate terms of imprisonment will be adequate to achieve those requirements.

53 You have demonstrated a pattern of dishonesty and deceit in your approach to these charges quite inconsistent with any remorse on your part. At the present time, you do not have strong prospects for rehabilitation, but I acknowledge that may change over the period you will be required to spend in custody.

54 I have also taken into account in determining the appropriate sentence with respect to the offences of unlawful confinement and assault occasioning actual bodily harm the fact that the accused provided some assistance to facilitating the course of justice by making admissions in the course of his trial for those offences.

55 On the charge of trafficking in a controlled drug other than cannabis, I record a conviction and you are sentenced to six years' imprisonment, commencing 20 August 2012 and expiring on 19 August 2018. In passing that sentence, I take into account the charge of perjury on the list of additional offences.

56 On the charge of dealing with the proceeds of crime I record a conviction and you are sentenced to 10 months' imprisonment commencing on 20 February 2018 and expiring on 19 December 2018.

57 On the charge of unlawful confinement, you are convicted and sentenced to five years' imprisonment commencing on 20 December 2018 and expiring on 19 December 2023.

58 On the charge of assault occasioning actual bodily harm involving the sustained attack on the victim, I record a conviction and you are sentenced to three years' imprisonment, commencing 20 December 2021 and expiring on 19 December 2024.

59 On the second charge of assault occasioning actual bodily harm, I record a conviction and you are sentenced to nine months' imprisonment commencing on 20 December 2021 and expiring on 19 September 2022.

60 On the charge of attempting to pervert the course of justice, you are convicted and sentenced to 19 months' imprisonment, commencing on 20 December 2023 and expiring on 19 July 2025. The aggregate sentence that I have imposed is, therefore one of 12 years and 11 months' imprisonment, commencing 20 August 2012 and expiring 19 July 2025.

61 I set a non-parole period of eight years and four months, commencing 20 August 2012 and expiring on 19 December 2020.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.