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Court of Criminal Appeal 13 December 2002

Regina v Brian Laurence O'Dowd

[2002] NSWCCA 502

DrugsFraud & dishonestyFirearms & weapons
APPEAL AGAINST SEVERITY OF SENTENCES

Citation: Regina v Brian Laurence O'Dowd [2002] NSWCCA 502
Court: NSW Court of Criminal Appeal
Date: 13 December 2002
Judge(s): Sperling J; Buddin J

Background

The applicant, a security officer at a club in Coffs Harbour with over seven years of service, was sentenced in the District Court in March 2002 following pleas of guilty to five offences. The offences arose from a police operation in which an informant and an undercover operative recorded meetings and telephone conversations with the applicant over a period from late 1999 to mid-2000.

The offences spanned cannabis supply, conspiracy to commit armed robbery in company (centred on the club where the applicant worked), repeated supply of methylamphetamine, unlawful possession of a pump-action shotgun, and a further methylamphetamine supply at the time of his arrest. The applicant had no prior convictions, was 58 years old, suffered significant health problems including partial lung removal, and had a diagnosed personality disorder with depression and anxiety.

The District Court imposed a total effective sentence of 12 years with a non-parole period of 9 years. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive.

  • Whether the total effective sentences imposed by the District Court were manifestly excessive in all the circumstances.
  • Whether the sentence imposed for the conspiracy to commit armed robbery (count 2) in particular was disproportionate, having regard to the applicant's subjective circumstances, the unconsummated nature of the plan, and the applicable sentencing statistics.
  • Whether the sentencing judge adequately quantified the discount for the applicant's early guilty pleas, as required by the Court of Criminal Appeal's approach in R v Thomson and Houlton.

Decision

The Court of Criminal Appeal found that the overall sentences were manifestly excessive, and that the sentence for count 2 (conspiracy to commit armed robbery in company) was the principal source of the error. Although the applicant played a pivotal role in planning the robbery, the plan was never carried out even after approximately six months of discussions, and the subject had not been raised for around six weeks before his arrest.

The Court also found it difficult to identify how the sentencing judge had ameliorated the sentence to account for the applicant's favourable subjective circumstances, which included his age, serious ill-health, absence of prior convictions, early guilty pleas, and progress towards rehabilitation while in custody. The sentencing judge had not quantified the discount for the early plea, contrary to the approach endorsed in R v Thomson and Houlton.

The Court determined that intervention was warranted in relation to count 2 alone, as it was the length of that sentence which had driven the excessive overall result. The Court quashed the six-year fixed term on count 2 and substituted a four-year fixed term, with consequential adjustments to the commencement dates of counts 3 and 5. The sentences on counts 1 and 4 were confirmed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence on count 2 (conspiracy to commit armed robbery in company) quashed; replaced with a fixed term of four years commencing 4 March 2003 and expiring 3 March 2007.
  • Sentence on count 3 confirmed, adjusted to commence 4 March 2007 and expire 3 March 2011, with a non-parole period expiring 3 March 2008.
  • Sentence on count 5 confirmed, adjusted to commence 4 March 2007 and expire 3 March 2009, with a non-parole period expiring 3 March 2008, at which point the applicant becomes eligible for parole.
  • Sentences on counts 1 and 4 confirmed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing judges must quantify the discount given for an early guilty plea, as required by R v Thomson and Houlton, and that failure to do so is a relevant consideration on appeal.
  • A conspiracy to commit armed robbery remains a serious offence warranting a substantial custodial term, but the unconsummated nature of the plan and the absence of any overt act in execution are relevant mitigating factors in assessing the appropriate sentence.
  • Where a sentence on one count is found to be manifestly excessive and has distorted the overall sentencing structure, the appellate court may intervene on that count alone and adjust commencement dates of other sentences accordingly.
  • Favourable subjective circumstances, including age, significant health difficulties, absence of prior convictions, early pleas, and demonstrated rehabilitation in custody, must be meaningfully reflected in the sentence imposed.
  • Judicial Commission statistics for the equivalent substantive offence are a legitimate reference point when assessing whether a sentence for a related or lesser charge falls within an appropriate range.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A, 29, 32
- Firearms Act 1996 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 97(2) (referenced by analogy for statistical comparison)

Cases:
- R v Simpson (2001) 53 NSWLR 704
- R v Thomson and Houlton (2000) 49 NSWLR 383