REGINA v. O'NEILL [2005] NSWCCA 353

Drug (Misuse & Trafficking) Act 1985 LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912

Thomson & Houlton (2000) 49 NSWRL 383 CASES CITED: Drew [2000] NSWCCA 384 Mason [2000] NSWCCA 82

REGINA v. PARTIES: Ryan Sydney Bruce O'NEILL

Crown: D. Frearson, SC. COUNSEL: App: A. Francis

Crown: S.E. O'Connor SOLICITORS: App: McKenzie Cox

IN THE COURT OF CRIMINAL APPEAL 2005/772

HULME, J. HIDDEN, J. HALL, J.

THURSDAY 27 OCTOBER 2005 REGINA v. RYAN SYDNEY O'NEILL Judgment

1 HULME J: In this matter I have had the advantage of reading the reasons of Hall J. I agree with his Honour that, despite the errors in the Applicant's sentencing, no sentence "less severe is warranted in law and should have been passed" and accordingly the appeal should be dismissed.

2 I would add this. The Applicant chose to deal in not merely one illegal drug but two. In doing so he increased his criminality and, given that his dealings seem clearly to have been by way of a commercial venture, his increased criminality should have led to accumulation of the sentences imposed on the first and second counts. Were I otherwise disposed to reduce the sentence imposed on the count of supplying cannabis I would have also altered the commencing date so as to effect such accumulation. The net result would not have been of benefit to the Applicant.

3 Accordingly I agree with the orders proposed by Hall J. 4 HIDDEN, J: I agree with Hall J, as I do with the additional observations of Hulme J. 5 HALL, J: The applicant, Ryan Sydney Bruce O'Neill, seeks leave for an extension of time to apply for leave to appeal in respect of sentences imposed by his Honour Judge Ducker in the District Court sitting at Lismore on 7 August 2003, following pleas of guilty entered at Tweed Heads Local Court on 10 June 2003 in respect of the following offences:-

(1) deemed supply cocaine at Pottsville on 22 March 2003 - s.25(1) of the Drug Misuse and Trafficking Act 1985 (15 years maximum);

(2) deemed supply cannabis at Pottsville on 22 March 2003 - s.25(1) of the Drug Misuse and Trafficking Act 1985 ;

(3) dishonestly obtain a valuable thing (motor vehicle) by deception at Mascot on 22 March 2003 - 2178BA of the Crimes Act 1900 (five year maximum). 6 In relation to count two, a Form 1 was taken into account containing the following offences: exceed speed 135 kph in a 110 kph zone, possess thing like Australian licence to deceive, state false name, self-administer prohibited drug (cocaine), goods in custody $65,810 cash). 7 With respect to count 2, supply cannabis - a non-parole period of three years and five months was imposed with an additional term of one year and two months (the five associated matters were taken into account on a Form 1) to commence on 7 August 2003. 8 A fixed term of 12 months was imposed for the remaining offences to be served concurrently with the sentence imposed in relation to the cannabis charge. 9 The reason behind the application for leave for an extension of time to apply for leave to appeal is linked to the fact that the commitment warrant dated 7 August 2003 erroneously specified that the non-parole period expired on 6 October 2004. It was not until consideration was given to the applicant's release to parole that the error in the commitment warrant was detected and thereafter the application for leave was lodged. The applicant's misunderstanding had been due to the inaccurate warrant.

Facts 10 On Saturday 22 March 2003, the applicant was detected by police driving at 135 kph in a 110 kph area northbound on the Pacific Highway at Pottsville. The vehicle being driven was a hire car. He could not produce a drivers licence. 11 Police located $53,210 in cash in the glove box and a further $12,600 cash was located in a magazine holder on the front seat of the car. 12 Police located a plastic bag containing cannabis under the front passenger seat and a further four bags in a backpack behind the driver's seat. 13 Two small bags of cocaine were located in a wallet and a backpack. They weighed .83 g and 4.38 g respectively (5.21 kg). The cannabis totalled 2,240 g (2.24 kg). 14 Messages on the applicant's mobile phone appeared to be associated with drug dealing. The sentencing judge was satisfied that the cash in the applicant's possession was also associated with trading in drugs. 15 The sentencing judge was satisfied that the applicant's involvement was consistent with an entrepreneur in a drug business and the offences were planned. It was clear to him that the applicant was an active supplier of relatively large amounts of prohibited drugs and, in particular, cannabis. 16 The sentencing judge's observations included the following:-

• Some allowance must be made for the plea of guilty which was made at an early time.

• The applicant would have been proved guilty beyond reasonable doubt at least with respect to the most serious charge relating to cannabis and the charge relating to the motor vehicle (s.178BA, Crimes Act 1900 ).

• The applicant's record was not such as to disqualify him from all possible leniency. 17 The sentencing judge allowed a discount for the plea of guilty at no more than 15% stating:- "… although it may be academic as I propose to make the sentence concurrent. I would say perhaps 20% so far as the cocaine is concerned and perhaps also so far as obtaining of the vehicle by deception is concerned." 18 In sentencing the applicant, an allowance of 15% was made for the plea of guilty "and the prior record of the offender".

Ground one: the sentencing judge erred in the determination of the utilitarian value of the plea 19 The two principal points made in the applicant's submission in relation to ground one are:-

(a) It was unclear why the plea of guilty in relation to the discount for the supply cannabis ought be "towards the bottom of the range enunciated in Regina v. Thomson & Houlton (2000) 49 NSWLR 383" .

(b) It is unclear why only 15% was determined in circumstances where the other offences attracted a 20% discount. The pleas of guilty were entered at the same time and the complexity of any trial for the cannabis offence would be less that for the other offences.

(c) It can be derived from the relevant passage in the reasons on sentence that the differentiation in discounts was based on the strength of the crown case with respect to the cannabis offence.

(d) The strength of the Crown case, whilst not irrelevant to an evaluation of remorse, is not to be taken into account in determining the utilitarian value of the plea. 20 The applicant's submissions cite in support the decision of this Court in Regina v. Drew [2000] NSWCCA 384 per Bryson, JA. (Barr and Hoeben, JJ. concurring at [15]). 21 It is contended that the discount should have been 25%. This would result in a reduction of the head sentence of five months and two weeks, namely, a head sentence of four years, one month and two weeks. 22 The Crown has submitted that the strength of the Crown case was not taken into account in assessing the utilitarian value of the applicant's pleas for the reasons expressed in paragraphs [12]-[14] of its written submissions. 23 The Crown also says that his Honour had in mind the structure of the sentences and totality and that the question of concurrence is of more significance than the precise discounts afforded for the various pleas. 24 I consider that there is a basis for the conclusion that the sentencing judge took into account the strength of the Crown case in determining the discount for what his Honour found to be an early plea. Whilst referring to the utilitarian benefit of the plea, "it was no doubt helpful for the administration of justice" (remarks on sentence, p.11), a little later, he states:- "… On the other hand, that he would have been proved beyond reasonable doubt, at the very least on the most serious charge relating to cannabis, and also the charge in relation to the obtaining of a motor vehicle, could hardly be doubted." (remarks on sentence, pp.11-12) 25 The submission that his Honour differentiated between discounts on the basis of the strength of the Crown case in respect of the cannabis offence I consider to be well-founded. 26 However, the determination of the appropriate discount within the accepted range of 15 to 25% is, of course, a matter of evaluation involving a discretionary element and it was not mandatory in this case for a discount of 25% to be determined. I do not consider that a less severe sentence is warranted in law: s.6(3), Criminal Appeal Act 1912. 27 I accordingly do not consider that it has been shown that the error asserted would have or should have resulted in a different sentence that that imposed by the sentencing judge.

Additional ground 28 On the hearing on 15 August 2005, counsel for the applicant sought to rely upon an additional ground with respect to an erroneous reference to the maximum penalty for the offence of deemed supply of cannabis under s.25(1) of the Drug Misuse and Trafficking Act 1985. In the remarks on sentence, the sentencing judge referred to the maximum penalty for each of the offences under s.25(1) as 15 years imprisonment. It was observed by counsel for the applicant that the maximum sentence was in fact 10 years. Reliance was placed upon a similar point said to have arisen in Regina v. Mason [2000] NSWCCA 82. 29 Whilst in the context of that case, the Court acknowledged the error as to the wrong maximum penalty and considered it should allow the appeal and consider for itself the appropriate sentence, I am unpersuaded in the circumstances in this matter, having regard in particular to the sentences imposed by the sentencing judge, that any erroneous reference as to the maximum penalty requires this Court to intervene in order to impose some lesser sentence. In other words, I do not consider that this additional ground leads to the conclusion that a lesser severe sentence is warranted in law. 30 I am accordingly of the view that the following orders should be made:-

(a) Leave be granted for an extension of time to apply for leave to appeal in respect of the sentence imposed by the District Court on 7 August 2003.

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