R v O'Dwyer - [2020] NSWDC 151

District Court

New South Wales

Amendment notes

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

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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v O'Dwyer

Details

AGLC: R v O'Dwyer [2020] NSWDC 151
Case: [2020] NSWDC 151
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case before the court involved a defendant, O'Dwyer, who was charged with supplying cannabis. The dispute centred around the appropriate sentence to impose on O'Dwyer, given the circumstances surrounding the offence and his personal background. The matter was heard in the Supreme Court.

The central legal issue was to determine the most suitable sentence for O'Dwyer, taking into account various factors. These factors included the nature of the offence as a courier involved in multiple transactions, the fact that this was O'Dwyer's first time in custody, his strong pro-social support network, his use of time on remand to his advantage, his excellent prospects of rehabilitation, and the suitability of an intensive correction order in the community interest. The court had to balance these factors to arrive at an appropriate sentence.

The court considered the mitigating factors presented by O'Dwyer's legal representative, including his role as a courier, his lack of prior criminal history, and his active engagement in rehabilitation efforts during his time on remand. The court also noted the strong support network O'Dwyer had, which was a positive indicator of his potential for rehabilitation. Given these factors, the court concluded that an intensive correction order was appropriate. This form of sentencing was seen as beneficial both for O'Dwyer's rehabilitation and for the interests of the community, as it allowed him to serve his sentence in the community while still being subject to strict supervision and rehabilitation programs.

The court ordered that O'Dwyer was to serve a full-time custodial sentence by way of an intensive correction order. The specific details and conditions of the order were outlined in the court's final orders.

Orders

Orders of the court

Full time custodial order to be served by way of an intensive correctional order. For orders see [26 ] and [27]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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