O'Shaughnessy v R

[2020] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	O’Shaughnessy v R [2020] NSWCCA 124
Hearing dates:	1 May 2020
Date of orders:	15 June 2020
Decision date:	15 June 2020
Before:	Hoeben CJ at CL at [1] Walton J at [2] Harrison J at [3]
Decision:	(1)    Grant leave to appeal against sentence. (2)    Allow the appeal. (3)    Quash the sentence imposed upon Mr O’Shaughnessy by Tupman DCJ on 14 December 2018. (4)    In lieu thereof, sentence Mr O’Shaughnessy to imprisonment for 4 years commencing on 9 November 2017 and expiring on 8 November 2021 with a non-parole period of 3 years expiring on 8 November 2020.
Catchwords:	APPEAL – sentence appeal – whether sentence imposed manifestly excessive – where appellant purchased power tools to assist friend in opening drive shafts containing cocaine – where involvement of appellant minimal – where no evidence of prior knowledge or planning – where sentence imposed unreasonable and plainly unjust – re-sentence
Legislation Cited:	Criminal Code 1995 (Cth), s 307.5(1)
Category:	Principal judgment
Parties:	Klyde O’Shaughnessy (Applicant) Crown (Respondent)
Representation:	Counsel: C McGorey (Applicant) R Ranken (Respondent)   Solicitors: O’Brien Criminal & Civil Solicitors (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2017/339764
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 14 December 2018 Before: Tupman DCJ File Number(s): 2017/339764

Judgment

1. HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.

2. WALTON J: I agree with Harrison J.

3. HARRISON J: Klyde O’Shaughnessy seeks leave to appeal against the sentence imposed upon him by her Honour Judge Tupman in the District Court of New South Wales on 14 December 2018 for an offence of attempting to possess a commercial quantity of an illegally imported border controlled drug contrary to s 307.5(1) of the Criminal Code. The offence was committed on 9 November 2017. Mr O’Shaughnessy had pleaded guilty on 20 June 2018 in the Local Court.

4. The maximum penalty for an offence against s 307.5(1) of the Code is imprisonment for life and/or 7,500 penalty units. Her Honour sentenced Mr O’Shaughnessy to imprisonment for 6 years and 9 months commencing on 9 November 2017 and expiring on 8 August 2023 with a non-parole period of 4 years expiring on 8 November 2021.

5. In the circumstances referred to below, the Crown does not oppose the grant of leave to appeal. Mr O’Shaughnessy relies upon the following three grounds of appeal:

Ground 1: The sentence imposed was manifestly excessive.

Ground 2: The appellant has a legitimate sense of grievance from the sentence passed upon his co-offender James Lindsay Willesee.

Ground 3: The sentencing judge erred in finding that the applicant’s offending was motivated in part by financial gain as:

(a)   such a finding had to be made beyond reasonable doubt, and/or

(b)   was not reasonably open to be made on the evidence.

Agreed facts

6. On 1 November 2017, a United States air cargo consignment containing two drive shafts arrived at Sydney International Airport. It was addressed to Pymble Golf Club, where Mr Willesee, the importer, was a member. Concealed within the shafts was 5.39 kilograms of pure cocaine. The consignment was intercepted by police and the cocaine was replaced with an inert substance.

7. Mr Willesee told the club pro shop on 2 November 2017 that he was having a package delivered there. That occurred on 6 November 2017. Mr Willesee took possession of the consignment and stored it at the shop. He collected it three days later and drove it to premises at Evans Street, Freshwater. Not long after this, Mr O’Shaughnessy arrived. Mr Willesee and Mr O’Shaughnessy then drove from the premises together, returning about ten minutes later. They entered the garage.

8. Mr Willesee and Mr O’Shaughnessy used power tools to cut open one of the drive shafts. They removed the inert substance and put it into plastic bags. They were both arrested as they left the premises.

9. Mr O’Shaughnessy was found in possession of a bag with 11 clear plastic heat sealed bags containing the inert substance, receipts from Bunnings for ear plugs, goggles, an angle grinder and angle grinder discs and other implements.

10. Mr O’Shaughnessy entered an early plea of guilty when the matter was still in the Local Court.

Subjective materials

11. A pre-sentence report for Mr O’Shaughnessy indicated that he denied knowing of the offence until the day of his arrest. He said that he became involved out of loyalty to his friend Mr Willesee. He said that he initially refused but later changed his mind.

12. Mr O’Shaughnessy gained permanent residency in Australia through a skilled occupation visa, arriving here in 2013. He is a qualified biomedical scientist and is accredited with the Australian Institute of Biomedical Scientists. He realises now that his visa and long-term plans to live in Australia are in jeopardy.

13. It was conceded by the Crown at the sentencing hearing that there was no evidence of any involvement by Mr O’Shaughnessy in the importation or that he had any prior knowledge of it. There was in fact no evidence that he knew anything about the drugs at any time prior to the purchase of the items from Bunnings.

Findings on sentence

14. Her Honour found that the quantity of the drugs was considerable, being more than twice the commercial threshold. However, her Honour found that the amount of the drug fell well below the extremely large quantities typically seen in importation cases.

15. Mr Willesee played a higher role than Mr O’Shaughnessy. Mr Willesee must have been in contact with those organising the importation of the consignment and must have been aware of what it contained. His involvement extended over at least one week. Even so, Mr Willesee was described as a foot soldier as opposed to being on the top of the syndicate. He allowed himself to be used as the recipient of the drugs. There was no evidence that he intended to be involved further in distributing the drugs once they were passed on to the syndicate.

16. Her Honour found that Mr Willesee’s involvement was motivated by financial gain to cover a gambling debt. The objective seriousness of his offence was greater than that of Mr O’Shaughnessy. Her Honour accepted that Mr O’Shaughnessy only became involved on the day of his arrest. He went to the garage knowing what was to occur and possessed the power tools used to get access to the drugs. Mr O’Shaughnessy committed the offence “because of some misguided sense of friendship or loyalty” to Mr Willesee and, in part, for financial gain, even though he did not appear to have any special need for money. Her Honour found that Mr O’Shaughnessy’s role was more limited than that of Mr Willesee.

17. Her Honour also found that the objective seriousness of Mr O’Shaughnessy’s offence fell “very much at the bottom of the range for importation type offences” and was less than Mr Willesee’s offence which fell below mid-range although not at the very bottom. Her Honour concluded that each offence was serious and that both offenders had to be denounced given the impact on the community caused by such offences.

18. Her Honour concluded that Mr O’Shaughnessy was entitled to be regarded as a person of good character. His offending was entirely out of character. He was genuinely remorseful, had excellent prospects of rehabilitation and was at a low risk of reoffending. The sentence did not need to reflect specific deterrence given her Honour’s view about Mr O’Shaughnessy’s subjective circumstances.

Ground 1

19. The principles concerning manifest excess are well settled. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is warranted only where the difference demonstrates a misapplication of principle, which may not be identifiable, or where the sentence imposed is well beyond the reasonable range of sentences for such offences. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency and the application of principle.

20. It is trite to observe that the criminality of an offender must be assessed by a consideration of his or her involvement in the steps taken to consummate the crime. It is difficult to imagine in the present case that Mr O’Shaughnessy could have done much less as an active participant in the crime than the acts he performed in fact. It seems obvious that when he arrived at the Freshwater premises he had not taken any action to acquire the tools and other equipment necessary to get access to the drugs. This only occurred on the trip to Bunnings. He also did not do more than (apparently) cut open one of the drive shafts with the angle grinder and leave the premises shortly thereafter. The precise significance of the fact that he had possession of 11 bags of cocaine when he was arrested as he left the premises is not sufficiently exposed on the evidence to inform its particular importance. It is sufficient to note that it is not significant beyond the extent to which it formed part of the acts performed by Mr O’Shaughnessy in the commission of the subject offence, and that it is not referable to some other or different offence. The value of the cocaine in the bags in Mr O’Shaughnessy’s possession was not explored.

21. Mr O’Shaughnessy described his conduct as reckless. It is difficult to disagree with that assessment. Whether or not Mr O’Shaughnessy was to receive some financial benefit from his participation is unknown. Her Honour concluded that such an inference was available. The difficulty for present purposes is that, assuming her Honour’s assumption to be well founded and in line with authority, the precise form or amount in money terms of the benefit that Mr O’Shaughnessy was to receive is unknown. The strength of any inference adverse to Mr O’Shaughnessy is necessarily limited by the absence of evidence quantifying any recompense that he might have been expected to receive. Her Honour in fact conceded that Mr O’Shaughnessy’s “motivation for becoming involved in this offence is hard to determine”.

22. In my view, Mr O’Shaughnessy’s involvement in the commission of the offence was minimal. He incautiously assisted Mr Willesee by providing the physical means to get access to what was inside the drive shafts. It is unclear why Mr Willesee was not able to do that by himself or what indispensable contribution, if any, Mr O’Shaughnessy provided to the commission of the offence. There is no evidence of any communication or contact between the two men suggesting some degree of planning involving Mr O’Shaughnessy or that he had significant prior knowledge of, and hence a longer time to contemplate, what he was to be asked to do.

23. I am of the opinion that the sentence of 6 years and 9 months, with a non-parole period of 4 years is manifestly excessive. The starting point for her Honour’s sentence, before the application of a 25% discount for his plea, was 9 years. The sentence was unreasonable and plainly unjust. In forming that opinion I have had particular regard to the significant and helpful schedule of comparable cases to which both counsel have referred.

Grounds 2 & 3

24. Error having been determined, it becomes unnecessary to consider these grounds.

Re-sentence

25. Mr O’Shaughnessy had no criminal record of any kind, either in Australia or in Ireland. I adopt the findings made by her Honour concerning his prospects of rehabilitation and reoffending. I agree that there is no need for specific deterrence: Mr O’Shaughnessy’s affidavit evidence concerning his post- incarceration insights is both informative and compelling. The need for general deterrence, while undoubted having regard to authority, must necessarily be assessed having regard to the minimal role played by Mr O’Shaughnessy and the total absence of any planning on his part. The prospect of him being deported from Australia following the expiration of his non-parole period, where he had hoped to remain, means that the significance of his conviction is greater than it would otherwise be.

26. In my opinion, the following orders should be made:

1. Grant leave to appeal against sentence.

2. Allow the appeal.

3. Quash the sentence imposed upon Mr O’Shaughnessy by Tupman DCJ on 14 December 2018.

4. In lieu thereof, sentence Mr O’Shaughnessy to imprisonment for 4 years commencing on 9 November 2017 and expiring on 8 November 2021 with a non-parole period of 3 years expiring on 8 November 2020.

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Decision last updated: 15 June 2020