Regina v Brian Laurence O'Dowd

IN THE COURT OF CRIMINAL APPEAL 60155/02

SPERLING J BUDDIN J

FRIDAY 13 DECEMBER 2002 REGINA v BRIAN LAURENCE O'DOWD Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court at Coffs Harbour on 4 March 2002. 2 The applicant was sentenced in respect of an indictment containing the following five counts:

Count 1 which alleged that in December 1999 he supplied a prohibited drug namely cannabis. The amount involved was 463.3 grams of cannabis leaf, which is an amount greater than the traffickable quantity but less than the indictable quantity. This is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and as such, attracts a maximum penalty of imprisonment for 10 years and/or a fine of 2000 penalty units.

Count 2 which alleged that between December 1999 and June 2000 he conspired with a named individual and another unnamed individual to commit a robbery whilst armed and in company. As this offence is a common law misdemeanour, the penalty is at large.

Count 3 which alleged that between 28 February 2000 and 22 March 2000 he did on three or more separate occasions during a period of 30 days supply a prohibited drug, namely methylamphetamine. This is an offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985 which provides for a maximum penalty of imprisonment for 20 years and/or a fine of 3500 penalty units.

Count 4 which alleged that in March 2000 he possessed a firearm, namely a pump action shotgun, whilst not being authorised by licence or permit to do so. This is an offence contrary to s 7(1) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 14 years.

Count 5 which alleged that in June 2000 he supplied a prohibited drug namely methylamphetamine, in that he had in his possession an amount in excess of the prescribed traffickable quantity, namely 7 grams. The maximum penalty for this offence, pursuant to s 25(1), s 29 and s 32 of the Drug Misuse and Trafficking Act 1985 , is imprisonment for 15 years and/or a fine of 2000 penalty units.

His Honour was also asked to take into account a further offence on a Form 1 of supply cannabis in the amount of 1.5 grams. This was a sample which the applicant provided prior to the supply alleged in the first count. 3 His Honour imposed the following sentences in respect of the various counts:

Count 1 (and taking into account the Form 1 matter) - A fixed term of 2 years' imprisonment to commence on 4 March 2002 (which was the date upon which the applicant first went into custody) and to expire on 3 March 2004.

Count 2 - A fixed term of six years' imprisonment to commence on 4 March 2004 and to expire on 3 March 2010.

Count 3 - A sentence of four years' imprisonment to commence on 4 March 2010 and to expire on 3 March 2014 with a non-parole period of 1 year to expire on 3 March 2011.

Count 4 - A fixed term of 2 years' imprisonment to commence on 4 March 2004 and to expire on 3 March 2006.

Count 5 - A sentence of 2 years' imprisonment to commence on 4 March 2010 and to expire on 3 March 2012 with an associated non-parole period of 1 year to expire on 3 March 2011.

Accordingly the total effective sentence to be served by the applicant is thus one of 12 years' imprisonment with a non-parole period of 9 years which will expire on 3 March 2011 at which time he will be eligible for release on parole. 4 Because there is no dispute about the facts they can be stated relatively briefly. The applicant was employed as a security officer at the Coffs Harbour Ex-Serviceman's Club for a period in excess of seven years. Towards the end of 1999 he had been identified to police in connection with alleged criminal activities. An informant by the name of 'Paddle' was used by the police for the purpose of recording various meetings with the applicant. Telephone conversations were also recorded. 5 An agreement was reached that the applicant would supply 'Paddle' with a pound of cannabis. On 9 December 1999 the applicant supplied 'Paddle' with a sample of 1.5 grams of cannabis (Form 1 matter). Later that day the applicant gave him a bag containing cannabis leaf which totalled 463.3 grams for which he received $2800 (Count 1). During the course of that meeting as well as on 12 December 1999, there was discussion concerning the future supply of cannabis. 6 On that same day there was also discussion concerning a prospective armed robbery to be committed upon the club at which the applicant worked (Count 2). The applicant provided 'Paddle' with details of the security arrangements at the club together with information about the handling and transfer of the club's money. During the course of a further meeting on 16 December the applicant provided additional details concerning the proposed robbery. Shortly thereafter police, acting on information from 'Paddle', searched the applicant's locker at the club where they located a quantity of methylamphetamine. It appears that the applicant thereafter resigned from his position at the club but it was apparent that he was, as a result, most unhappy about how he had been treated by the club. 7 During February and March 2000 there were further discussions between the applicant and 'Paddle' concerning the proposed armed robbery. The applicant advised him that he had acquired a shotgun for use in the robbery. Discussions thereafter also included an undercover police operative named 'Max'. The applicant again described security arrangements at the club to them as well as other matters including possible escape routes for 'Paddle' and 'Max', whom it would appear were to be the active participants in the offence. The applicant also provided 'Paddle' with details of the vehicle that was being used by the security officer. His Honour was understandably critical of the fact that the applicant appeared to be totally unconcerned as to whether or not the security officer was shot. 8 During the February - March period the applicant also supplied 'Max' on three separate occasions with methylamphetamine totalling in all about 20 grams for which he received $300 on each occasion (Count 3). On 21 March the applicant supplied 'Max' with a shotgun and a box of shotgun cartridges (Count 4). 9 On 29 June the applicant was arrested, at which time a further 7 grams of methylamphetamine was located in his sock. The applicant admitted that he was going to sell it to 'Max' for $300 (Count 5). 10 The applicant is now aged 58. He has no prior convictions. His Honour found that "he suffers from ill-health, having had half a lung removed because of a tumorous growth in 1998. He suffers from a hernia which will require surgical repair." He also accepted the diagnosis of a consulting psychologist, that the applicant "has a personality disorder and suffers from depression and anxiety." There was also evidence before the sentencing judge that the applicant was under considerable personal and financial pressure at the relevant time. The business in which he was involved, namely running a café, was failing and neither he nor his then partner were in good health. 11 His Honour accepted that the pleas had been entered at the first reasonable opportunity but did not, notwithstanding what was said by this Court in R v Thomson and Houlton (2000) 49 NSWLR 383, quantify the discount which he had allowed for that feature of the case. It was a case which would have undoubtedly required the expenditure of considerable time and money. In the circumstances it would appear that this was a case which could properly have attracted a discount at, or towards the top of the range, disclosed in Thomson and Houlton. 12 The practical effect of the sentences which his Honour imposed meant that he had concluded that there was no basis upon which to make a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act. On that subject matter his Honour said "the prisoner's age, the state of his health, the fact that this is his first time in prison, his prior good character - or at least absence of convictions - and his plea of guilty, have all been taken into account in fixing the head sentence. The period of parole is adequate without further explanation." It may be observed at once, that the matters which his Honour identified as being relevant to the fixing of the head sentence are also relevant to the determination of the non-parole period. It is also not clear as to whether his Honour had proper regard, in considering the issue of "special circumstances", to the decision of this Court in R v Simpson (2001) 53 NSWLR 704. 13 In addition to these considerations, the applicant advances a number of submissions in support of the contention that the overall effect of the sentences imposed has been such as to produce a result that is manifestly excessive. The primary focus of the attack was in respect of the sentence imposed on count 2. It is submitted that that sentence, even considered in isolation, is manifestly excessive. Allied to that submission was a contention that the error was compounded by a failure to fix a non-parole period. I pause to observe however that, as a matter of general principle, it is often appropriate to impose a fixed term when there are other sentences still to be imposed. It is also submitted that in imposing a sentence on count 2 which was wholly cumulative upon the sentence imposed in respect of count 1, and bearing in mind that the sentence imposed in respect of count 3 was in turn wholly cumulative upon that imposed in respect of count 2, that his Honour has not given appropriate consideration to the principle of totality. The only indication that the principle of totality had been given effect to, so it was submitted, was the imposition of concurrent sentences in respect of counts 4 and 5. 14 I have reached the conclusion that the applicant's submission has been made good. Notwithstanding the significant criminality displayed by the applicant, the overall sentences imposed are in my view manifestly excessive. In particular I have come to that conclusion in respect of the sentence imposed upon count 2. I am fortified in that view by the statistics from the Judicial Commission which have been made available to us in relation to the substantive offence under s 97(2) of the Crimes Act. Although the applicant played a pivotal role in the planning of the offence it is to be remembered that the plan remained unconsummated even after six months or so of discussions. Indeed the subject seems not to have been even raised for about six weeks prior to his arrest. Furthermore it is difficult to discern in what way the sentence was ameliorated on account of the applicant's favourable subjective circumstances. 15 Because of the conclusion that I have reached in respect of the sentence imposed upon count 2, I would propose that the Court should intervene only in respect of that count. It appears to me that it was the imposition of that sentence which led to the ultimate result about which I have already expressed my views. Accordingly I have reached the conclusion that "some other sentence…is warranted in law and should have been passed." See s 6(3) of the Criminal Appeal Act 1912. 16 I have had regard to the various considerations which are set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. I have also had regard to the additional material that we have received which indicates that the applicant has been making good progress, whilst in custody, towards his rehabilitation. I also find "special circumstances" by reason of the matters to which I earlier referred. 17 I would propose the following orders:

(c) Sentence imposed in relation to count 2 is quashed.

(d) In lieu thereof the applicant is sentenced to a fixed term of four years' imprisonment to commence on 4 March 2003 and to expire on 3 March 2007.

(e) The sentence in respect of count 3 is confirmed but will now commence on 4 March 2007 and expire on 3 March 2011 with a non-parole period of 1 year to expire on 3 March 2008.

(f) The sentence in respect of count 5 is confirmed but it will now commence on 4 March 2007 and expire on 3 March 2009 with a non-parole period to expire on 3 March 2008 at which time the applicant will be eligible for release on parole.

(g) The sentences on counts 1 and 4 are confirmed. 18 SPERLING J: I agree. The orders of the Court will be as proposed by Buddin J.

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