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Court of Criminal Appeal 8 December 2017

O’Connor v R

[2017] NSWCCA 300

DrugsFraud & dishonestyFirearms & weaponsPublic order & justice offences
CRIME APPEAL AGAINST SENTENCE RELEVANT FACTORS ON SENTENCING FORM 1 OFFENCES APPEAL AGAINST SENTENCE SUBJECTIVE CONSIDERATIONS ON SENTENCE

Citation: O'Connor v R [2017] NSWCCA 300
Court: Court of Criminal Appeal, NSW
Date: 8 December 2017
Judges: Macfarlan JA (with whom Fullerton J and Fagan J agreed, with a qualification on one point)

Background

The applicant was tried before a judge alone in the District Court on four counts: possession of a prohibited weapon (a ballistic body armour vest), possession of anti-personnel spray, possession of a pistol, and possession of a defaced firearm. All four items were found during a search of a Belfield house he occupied. It was common ground that the applicant was engaged in drug supply with associates.

The Crown alleged the weapons and firearm were connected to a planned "rip-off" operation, in which the applicant and others intended to impersonate police officers to steal drugs and money from another drug supplier. In support of this, the Crown relied on intercepted telephone calls and SMS messages over a six-week period, including a call known as the "rip call."

The trial judge found the applicant guilty of all four counts. The applicant was subsequently sentenced to an aggregate term of seven years and six months, with a non-parole period of five years and three months, taking into account a range of other offences including drug supply, perverting the course of justice, and participating in a criminal group.

  • Whether the guilty verdicts were unreasonable or unsupported by the evidence, including whether the applicant had possession of the relevant items and whether they were intended for use in a significant criminal enterprise.
  • Whether the trial judge erred in his use of expert evidence from a detective regarding the term "rip."
  • Whether the trial judge erred by taking into account Form 1 offences that had not been attributed to any principal offence in the Form 1 document itself.
  • Whether the sentence was manifestly excessive, having particular regard to the applicant's mental health conditions and their alleged effect on moral culpability and the relevance of general deterrence.

Decision

Ground 1: Unreasonable verdict

The Court of Criminal Appeal dismissed the challenge to the convictions. Macfarlan JA found the intercepted communications, read together with physical evidence found during the searches, provided a proper basis for the trial judge's conclusions. The conversations contained references to a "mission," a hired vehicle, police paraphernalia, and obtaining a "snatgay" (a slang term for a gun). The "rip call" itself, in which the applicant explained the concept of a "rip" to an associate through a paper analogy, was found to be consistent with planning the impersonation and theft operation. The trial judge was entitled to draw inferences from the totality of the evidence and to reject the applicant's explanations as implausible. Fullerton J and Fagan J agreed, adding only that it was well open to the trial judge to find the applicant's explanations of the intercepted conversations implausible, and that the rejection of those explanations did not give rise to a reasonable hypothesis consistent with innocence.

Ground 2: Form 1 offences not attributed to a principal offence

The Form 1 document itself did not specify which principal offence each additional drug supply count was to be attributed to. However, the Crown's sentence summary, which the applicant agreed to, did make those attributions. The Court held that the agreed Crown sentence summary operated to satisfy the requirements of s 32(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW). No error was established in the trial judge's approach to the Form 1 matters.

Ground 3: Manifestly excessive sentence

The Court rejected the submission that the sentencing judge failed to give adequate weight to the applicant's mental health conditions. The evidence from two psychologists indicated anxiety and depression, but there was no direct causal link established between those conditions and the offending. The offences involved considerable planning rather than impulsive conduct, and the applicant's drug addiction provided only an indirect connection to the crimes by creating a financial imperative that he chose to address through illegal means. The sentencing judge was not required to treat the mental health evidence as significantly reducing moral culpability or diminishing the relevance of general deterrence.

Orders Made

  • Leave to appeal against conviction and sentence granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that intercepted communications, when taken together with physical evidence, can support inferences about the intended purpose of prohibited weapons and firearms, even where no criminal enterprise was ultimately executed.
  • A defendant's implausible explanation for incriminating evidence does not, of itself, prove guilt, but its rejection by the trial judge may properly leave no reasonable hypothesis consistent with innocence.
  • Where a Form 1 document does not itself attribute each additional offence to a principal offence, an agreed Crown sentence summary making those attributions can satisfy the requirements of s 32(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The existence of psychological conditions such as anxiety and depression will not automatically reduce moral culpability or the weight given to general deterrence in sentencing; the sentencing court must find a direct causal link between those conditions and the offending before affording them that significance.
  • Planned, sustained criminal conduct, as evidenced by extensive telephone intercepts, is treated by the court as considered offending rather than impulsive behaviour, regardless of an offender's underlying personal circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93T(1), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 132A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 66(1)(b)
- Weapons Prohibition Act 1988 (NSW), s 7(1)

Cases
- Bichar v R [2006] NSWCCA 1
- Kuhl v Zurich Financial Services Australia (2011) 243 CLR 361
- MFA v The Queen (2002) 213 CLR 606
- Morris v The Queen (1987) 163 CLR 454
- R v Henry (1999) 46 NSWLR 346
- R v Stephen Barry Williams (2005) 156 A Crim R 225
- R v SY [2003] NSWCCA 291
- R v Todorovic [2008] NSWCCA 49
- SKA v The Queen (2011) 243 CLR 400
- Tobin v Ezekiel (2012) 83 NSWLR 757
- Turner v R [2011] NSWCCA 189