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District Court 21 February 2020

R v O’Dwyer

[2020] NSWDC 151

Drugs
SENTENCE CANNABIS SUPPLY SENTENCE RELEVANT FACTORS ON SENTENCE COURIER MULTIPLE TRANSACTIONS FIRST TIME IN CUSTODY

Citation: R v O'Dwyer [2020] NSWDC 151
Court: District Court of New South Wales
Date: 21 February 2020
Judge: Haesler SC DCJ

Background

The offender was a young apprentice who, facing financial stress and personal debt after moving out with his partner and newborn child, agreed to act as a cannabis courier for a drug syndicate. His role was to transport cannabis from a supplier in the Albion Park area to a supplier in the Goulburn area, earning $700 per trip. He was also a cannabis user himself.

Over approximately seven months, the offender made 16 trips transporting a total of 24 kilograms of cannabis. The transactions were captured through lawful telephone intercepts after the Goulburn supplier attracted police attention. The offender was arrested on 6 June 2019 and had been in custody for approximately eight and a half months by the time of sentencing.

The offender pleaded guilty. The sentencing hearing proceeded on agreed facts, supplemented by a sentence assessment report, a forensic psychology report, and character references from his parents and employer.

  • What was the appropriate head sentence for 16 counts of cannabis supply involving 24 kilograms, having regard to the offender's role as a courier and his subjective circumstances?
  • Whether the offender's depression and anxiety, linked to cannabis use and debt, reduced his moral culpability so as to warrant a reduction in sentence.
  • Whether, after accounting for time already served on remand, the sentence could appropriately be served by way of an Intensive Correction Order (ICO) rather than full-time custody.
  • Whether community safety and the purposes of sentencing, including general and specific deterrence, were better served by an ICO with conditions than by a further period of imprisonment.

Decision

Haesler SC DCJ opened with a firm general deterrence message, noting that courts consistently impose heavy sentences for drug supply and that couriers are an essential link in drug distribution networks. Citing R v Shi [2004] NSWCCA 135, his Honour affirmed that custodial sentences must be considered for all participants in drug supply networks, regardless of their position in the hierarchy.

On the question of the offender's mental state, the Court accepted that depression and anxiety contributed to the circumstances of offending. However, his Honour found that the evidence did not meet the standard required to establish a diagnosable mental illness, and therefore could not reduce the sentence on the basis of diminished moral culpability, consistent with the approach in DPP v De Le Rosa [2010] NSWCCA 194. The Court also declined to treat the mental state as making custody more burdensome than for the average prisoner.

His Honour assessed an otherwise appropriate head sentence of three and a half years. After applying a 25% reduction for the early guilty plea, the sentence became two years and seven months. The Court then found special circumstances, reducing the sentence further to one year and eleven months to account for the eight and a half months already served on remand.

The Court concluded that an ICO, rather than further full-time custody, better served the community interest. His Honour found that the purpose of full-time custody had already been achieved for this offender. The offender had used his time on remand productively, presented as truthful in evidence, and had strong pro-social supports, employment prospects, and a structured rehabilitation plan in place. Relying on R v Pullen [2018] NSWCCA 264 and the principle affirmed in Blackman and Walters v R [2001] NSWCCA 121 that successful rehabilitation contributes to community protection, his Honour directed that the sentence be served by intensive correction in the community.

Orders Made

  • The offender was convicted.
  • Sentenced to one year and eleven months, to be served by way of Intensive Correction Order (ICO) in the community.

ICO conditions:
- Be of good behaviour
- Report within seven days to the Wollongong office of Community Corrections
- Obey all reasonable directions of Community Corrections
- Accept supervision
- Engage in drug and alcohol programs
- Perform 100 hours of community service work

Key Takeaways

  • Couriers and lower-level participants in drug supply networks are not exempt from custodial sentences. The District Court affirmed the principle from R v Shi that custodial sentences must be considered for all persons in a drug supply network, including those who play a logistical rather than organisational role.

  • Financial stress and cannabis use, even where they contribute to an offender's mental state at the time of offending, do not automatically reduce moral culpability. The Court required evidence meeting the standard of a diagnosable mental illness before such a reduction would be available under DPP v De Le Rosa.

  • An early guilty plea attracted a 25% sentence reduction in accordance with established sentencing principles under the Crimes (Sentencing Procedure) Act.

  • Where an offender has already served substantial time on remand, has demonstrated genuine rehabilitation, and has strong pro-social supports, an ICO can constitute an appropriate and sufficient sentencing response. The Court treated the eight and a half months of pre-sentence custody as having already served the specific deterrence function of full-time imprisonment for this particular offender.

  • Rehabilitation as a sentencing objective retains practical weight. The Court applied the principle from Blackman and Walters v R that community protection is advanced by successful offender rehabilitation, and this formed part of the reasoning for preferring an ICO over further imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW)

Cases
- Blackman and Walters v R [2001] NSWCCA 121
- DPP v De Le Rosa [2010] NSWCCA 194
- R v Pullen [2018] NSWCCA 264
- R v Shi [2004] NSWCCA 135