District Court New South Wales Medium Neutral Citation: R v O'Dwyer [2020] NSWDC 151 Hearing dates: 21 February 2020 Decision date: 21 February 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Full time custodial order to be served by way of an intensive correctional order. For orders see [26 ] and [27] Catchwords: SENTENCE- cannabis supply SENTENCE- relevant factors on sentence -courier- multiple transactions- first time in custody- strong pro-social support- used time on remand to advantage- - excellent prospects of rehabilitation - intensive correction order appropriate and in community interest Legislation Cited: Crimes (Sentencing Procedure) Act Cases Cited: 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 Category: Sentence Parties: Connor O'Dwyer (the offender) Director of Public Prosecutions Representation: Solicitors: Mr G Morrison, Morrisons Law, (for the offender) Ms N Olender (for Director of Public Prosecutions) File Number(s): 2019/00177683 SENTENCE – EX TEMPORE REVISED Introduction 1. The sale of illicit drugs is regarded by our community and those who make laws on behalf of our community as a particularly serious crime. Not for the first time, and I suspect not for the last time, I have to say that anyone, anyone, who thinks they can be treated leniently if they distribute drugs in our community, has to think again. It is a sad but tragic fact that many people, such as the present offender, think only of the money that they may make and do not think about the consequences to themselves if caught. They only start to think about the consequences after the cell door has closed on them. It is only then that they consider the impact of their crimes on themselves, their family and the community. 2. Time and time again, judges on behalf of the community, repeat this warning: If you are tempted to engage in the sale and distribution of illicit drugs and you succumb to that temptation, you will in most cases end up in gaol for a substantial time. The reason judges impose heavy sentences is the attempt to cause people, such as Connor O'Dwyer, to ask themselves if tempted to answer the question, "Will you supply drugs?" with a resounding, "No, it's not worth it." Facts 1. The agreed facts before me indicate that O'Dwyer became involved in the distribution of cannabis because he was a user of cannabis. He is a young man, an apprentice, existing on apprentice wages. He and his partner and new baby moved into a flat of their own. But lack of money meant that they had to leave those premises to move in with his partner's parents. They were in debt. They had overcommitted on loans, credit card and owed money to their former landlord. O'Dwyer's dealer gave him the opportunity of a regular cash income for delivering drugs from one supplier in the Albion Park area to another supplier in the Goulburn area. O'Dwyer was in regular contact with the Goulburn supplier. 2. The Goulburn supplier had come to the notice of police. The transactions that bring O'Dwyer before the Court were recorded in lawful telephone intercepts. The details are set out in the agreed facts before me. 3. On 16 occasions between 14 November 2018 and 6 June 2019, O'Dwyer travelled from Albion Park to Goulburn. It is clear from the conversations that there were other supplies but I sentence him only for the matters now before the Court to which he has pleaded guilty. The 16 supplies involved a total amount 24 kilograms with an expected reward of $700 per trip. The quantity is important but it is not the sole determinant of the seriousness of the crime. 4. O'Dwyer was being used by those further up the syndicate to take the risk of carrying the cannabis. He was being used to make the telephone arrangements with the supplier in Goulburn. He did so to make $700 per transaction and to get the cannabis he and his partner were smoking. 5. Without couriers, drivers, people such as Mr O'Dwyer, those who make enormous profits from illicit drugs would not be able to make those profits. Their networks would collapse. For those reasons judges are told to consider gaol everyone in the network: R v Shi [2004] NSWCCA 135 6. O'Dwyer's background did not indicate that he would be involved in crime. He chose, despite his pro-social upbringing, to engage in organised criminal activity. He did not think about what he was getting his partner into and on at least one occasion he was carrying drugs his child was in the car. He may not know, but I do, that there are others criminals prepared to use violence to help themselves to drugs being couriered from one supplier to another. Unwittingly, he put his partner and his child at considerable risk. 7. He has been in custody since 6 June 2019. I am sure he has learnt some very important lessons while he has been in gaol. For the first time in his life he has had to deal with anti‑social people and violent criminals. He has been assaulted. 8. I do not underestimate the lived experience of gaol. I do not underestimate what it is to be on Special Management Area Protection. O'Dwyer has given some details of that regime in his evidence today. I am prepared to accept that O'Dwyer is fundamentally a pro-social young man who has the strong support from pro-social family members. I am prepared to accept that he was under financial stress and his cannabis use interfered with his thinking. That said, debt or cannabis use, can never excuse engaging in drug supply. 9. I have heard from the offender. I have a Sentence Assessment Report of Mr Marchese before the Court. I also have a comprehensive report from Ms North, a forensic psychologist. There is a reference from his parents and his employer. All speak of a man who, while not intellectual but sports focused at school, was able to obtain work and an apprenticeship. He has work available to him. He, like many in his position, was faced with low wages and the need to support a young family but others in his position resolve that problem by reducing their debt, by getting support such as living with family. They do not and cannot resort to crime. Resorting to crime to pay the debts is no justification. 10. Ms North's report indicates that he was at the time depressed and anxious. He is now even more depressed and anxious because of his custodial situation. Ms North's opinion is that the cannabis use and debt led to a mental state which contributed to his offending in a material way. With great respect to that conclusion, I do not believe it is sufficient to meet the onus, even on the balance of probabilities standard, of showing that he suffered a mental illness. It cannot lead to a reduction in sentence because of reduced moral culpability: DPP v De Le Rosa [2010] NSWCCA 194. 11. Nor does that mental sate make his time in custody any worse than the average prisoner. It is recognised that any right-thinking person would be depressed and anxious being locked in gaol, having all their freedoms taken away and by their constantly having to look over their shoulder, in case they were the victim, made again the victim of violence. They are all matters however that I will take into account when I synthesise the appropriate sentence. 12. There is a plan in place to assets O'Dwyer on release; Involvement with the SMART program, engagement with the Illawarra/Shoalhaven Drug and Alcohol Service. A GP can prepare, a Mental Health Care Plan with a psychologist. 13. There is strong support from his family. There is work available to him. He is eligible for community service and Community Corrections could provide guidance and monitoring. 14. Every offence and every offender requires individualised treatment. Courts in the exercise of their discretion take guidance from a number of sources. They include the maximum penalty prescribed here, ten years. They include the decisions of other courts, particularly those designed to give guidance and of course the purposes of sentencing which here importantly include deterrence of this offender and others from committing similar crime. Proper recognition has to be done to the harm done to individuals and the community. 15. Madam Crown accepts that there are matters in mitigation here but her position is quite clear, that even giving full allowance for the early plea of guilty, which must reduce the otherwise appropriate sentence by 25%, no other option other than full-time custody is available. 16. Mr Morrison, in careful written submissions supplemented by oral submissions, makes the point that when proper allowance is made for the 260 days spent in custody and the plea of guilty and the subjective case for the offender, a sentence of less than two years could be imposed. 17. That sentence could be served, in his submission, should be served, in the community interest, in the community subject to an Intensive Corrections Order (ICO). An ICO could include conditions to ensure that he engages in the treatment recommended and provides something back to the community by community service work: R v Pullen [2018] NSWCCA 264. 18. Before considering and ICO I must first formulate an appropriate sentence. Only then could considerations as to how that sentence be served operate. Before an ICO is imposed, the Court has to consider the issue of community safety along with normal purposes of sentencing. Synthesis 1. This is a case, for individualised sentencing: a sentence that can both recognise the deterrent effect of the eight and a half months gaol already served and allow for the offender to give something back to the community he has offended against. 2. While O'Dwyer has a criminal record, it does not disentitle him to leniency. While he has engaged with organised criminals in the past the man who appears before me today appears ready to put that past behind him. If full-time custody is to serve a purpose, that purpose has been served so far as he, are concerned. When I came to consider all relevant factors a sentence a three and a half years would have been appropriate. After an appropriate reduction for the guilty plea that leaves a sentence of two years and seven months. Taking into account the eight and a half months already served. I could backdate the sentence and find special circumstances. That would allow for O'Dwyer's release to parole in the relatively near future. 3. Supervision on parole is not as onerous or involved as when someone is subject to an ICO. And, parole conditions do not allow for community service, the balance of the sentence so calculated allows for it to be served subject to an ICO. Community protection would be better served by an ICO rather than a further period in custody. 4. Accordingly I intend to direct that the sentence of one year and 11 months be served by way of intensive correction in the community. That sentence if viewed in isolation may initially appear too light but it has to be recognised that it is on top of the eight months already served. O'Dwyer has used his time on remand to his advantage. I was impressed by his evidence. It appeared truthful. He is a young man who has something to give. 5. From what O'Dwyer told me there is a possibility he could be asked to give evidence in future proceedings but at present there are no current proceedings. Section 23 Crimes (Sentencing Procedure) Act is not engaged but I do take his frankness, both in his interview with police and his evidence with me, into account as a measure of the man, when drug free. If he is given help to remain drug free he could turn his life around. The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of: Blackman and Walters v R [2001] NSWCCA 121. Orders 1. The formal orders of the Court are you are convicted. There will be a sentence of one year and eleven months. That sentence will be served by Intensive Correction in the community. 2. The conditions of the ICO are that you: 1. Be of good behaviour. 2. Report within seven days to the Wollongong office of Community Corrections. 3. Obey all reasonable directions of that service. 4. That you accept their supervision. 5. That you engage in drug and alcohol programs. 6. That you perform 100 hours of community service work. 1. If you breach those conditions you will not come back before me. You could be disciplined, you could be sent back to gaol to serve the balance of your sentence. Do you understand? OFFENDER: Yeah. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2020