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Court of Criminal Appeal 15 June 2020

O’Shaughnessy v R

[2020] NSWCCA 124

Drugs
APPEAL SENTENCE APPEAL WHERE INVOLVEMENT OF APPELLANT MINIMAL SENTENCE

Citation: O'Shaughnessy v R [2020] NSWCCA 124
Court: Court of Criminal Appeal, NSW
Date: 15 June 2020
Judge(s): Hoeben CJ at CL, Walton J, Harrison J (all agreeing)

Background

The appellant pleaded guilty in the Local Court to attempting to possess a commercial quantity of an illegally imported border controlled drug, contrary to s 307.5(1) of the Criminal Code 1995 (Cth). The offence arose from a single day's involvement: the appellant accompanied a friend to premises in Freshwater, purchased power tools from Bunnings, and helped cut open a drive shaft concealing approximately 5.39 kilograms of pure cocaine that had arrived from the United States. Both men were arrested as they left the premises.

The sentencing judge in the District Court imposed a term of 6 years and 9 months imprisonment, with a non-parole period of 4 years, commencing from the date of arrest in November 2017. The Crown conceded at the sentencing hearing that the appellant had no involvement in the importation and no prior knowledge of the drugs until, at the earliest, the day of the offence.

The appellant sought leave to appeal on three grounds: that the sentence was manifestly excessive, that he had a legitimate grievance arising from the sentence imposed on his co-offender, and that the sentencing judge erred in finding financial gain partly motivated his offending.

  • Whether the sentence of 6 years and 9 months imprisonment was manifestly excessive given the appellant's minimal and last-minute role in the offence
  • Whether the appellant had a legitimate grievance arising from the disparity between his sentence and that imposed on his co-offender, who played a greater role
  • Whether the sentencing judge erred in finding that financial gain was a partial motivation, given the evidentiary standard required for such a finding and the absence of supporting evidence

Decision

Harrison J (with whom Hoeben CJ at CL and Walton J agreed) found the sentence manifestly excessive and allowed the appeal on Ground 1, rendering it unnecessary to determine Grounds 2 and 3.

On the manifest excess ground, Harrison J emphasised the extremely limited nature of the appellant's participation. The appellant arrived at the premises with no tools and no apparent prior arrangement. He purchased equipment only during a brief trip that day and assisted in cutting open a single drive shaft. There was no evidence of planning, no evidence of communication with the importation syndicate, and no evidence of prior knowledge beyond the day itself. Harrison J observed that it was difficult to imagine how the appellant could have done materially less as an active participant in the offence.

Harrison J also scrutinised the finding of financial motivation. The sentencing judge had acknowledged that the appellant's motivation was "hard to determine," and the precise form or amount of any benefit was entirely unquantified. This weakened any inference of financial gain as an aggravating consideration. Taken together with the absence of planning and the appellant's genuinely peripheral role, the starting point of 9 years (before the 25% plea discount) was found to be unreasonable and plainly unjust.

On re-sentence, Harrison J accepted the sentencing judge's findings regarding the appellant's good character, genuine remorse, low risk of reoffending, and excellent rehabilitation prospects. Harrison J also noted that the prospect of deportation following the non-parole period added significance to the conviction beyond what might otherwise apply, and that general deterrence, while relevant, had to be weighed against the appellant's minimal role and complete absence of planning.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed by Tupman DCJ on 14 December 2018 quashed
  • Appellant re-sentenced to 4 years imprisonment commencing 9 November 2017 and expiring 8 November 2021, with a non-parole period of 3 years expiring 8 November 2020

Key Takeaways

  • A sentence is manifestly excessive where, even absent a clearly identifiable error of principle, the result falls well beyond the reasonable range for the relevant offending, particularly where the offender's participation was minimal and last-minute.
  • The Court of Criminal Appeal confirmed that the strength of an inference of financial motivation is necessarily limited where no evidence quantifies the form or amount of any anticipated benefit, especially where the sentencing judge herself acknowledged that motivation was difficult to determine.
  • Where a co-offender played a markedly greater role, including advance knowledge, coordination with an importation syndicate, and involvement spanning more than a week, sentencing parity principles carry real weight in assessing whether a lesser participant's sentence is proportionate.
  • Absence of planning, absence of prior knowledge, and a role confined to a single brief episode are significant mitigating factors that bear directly on the objective seriousness of an offence against s 307.5(1) of the Criminal Code 1995 (Cth).
  • The risk of deportation following sentence was treated as a factor that increases the practical burden of a conviction, relevant to the overall assessment of a just sentence on re-sentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 307.5(1) (attempting to possess a commercial quantity of an illegally imported border controlled drug; maximum penalty: life imprisonment and/or 7,500 penalty units)

Cases:
- No specific cases were cited by name in the judgment text. Harrison J referred to "a significant and helpful schedule of comparable cases" provided by both counsel, but those cases were not identified in the judgment as provided.