R v O'Toole

[2022] NSWDC 232

District Court

New South Wales

Medium Neutral Citation:

R v O’Toole [2022] NSWDC 232

Hearing dates:

22 June 2022

Date of orders:

24 June 2022

Decision date:

24 June 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Sentenced to a term of imprisonment of 2 years and 6 months, commencing on 6 September 2021 and expiring on 5 March 2024 with a non-parole period of 1 year and 8 months.

Catchwords:

SENTENCING – commercial quantity of methylamphetamine – offender a courier – extensive criminal history – strong subjective case – Bugmy principles enlivened – moral culpability is reduced – some prospects of rehabilitation – discretion for the exercise of mercy – offender on parole – some degree of accumulation – general deterrence especially relevant – special circumstances – risk of institutionalisation

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Bugmy v The Queen 249 CLR 571

Callaghan v R [2006] NSWCCA 58

DPP v Hersi [2020] VCC 347

DPP v Tennison [2020] VCC 343

Ith v R [2013] NSWCCA 280

Jackson v R [2010] NSWCCA 162

Knight v R [2015] NSWCCA 222

McKinnon v R [2020] NSWCCA 106

Parente v R [2017] NSWCCA 284

R v Calcutt [2012] NSWCCA 40

R v Fabian (1992) 64 A Crim R 365

R v Kelso [2020] NSWDC 157

R v MacDonnell (2002) 128 A Crim R 44

R v Olbrich (1999) 199 CLR 270

R v Osenkowski (1982) 30 SASR 212

R v Tangi (No 12) [2020] NSWSC 547

RC v R; R v RC [2020] NSWCCA 76

Scott v R [2020] NSWCCA 81

Thach v R [2018] NSWCCA 252

Valentine v R [2020] NSWCCA 116

Category:

Sentence

Parties:

Regina
Daniel Michael O’Toole

Representation:

Counsel:
Mr A Metcalfe (offender)

Solicitors:
Mr P Blomfield (offender)
Mr S Baumgarten (Crown)

File Number(s):

2021/00162479

Publication restriction:

Nil

Judgment

Introduction

1. Daniel Michael O’Toole is to be sentenced for an offence of supplying a prohibited drug (commercial quantity), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is 20 years’ imprisonment, with a standard non-parole period of 10 years’ imprisonment.

2. The maximum penalty and standard non-parole period are important guideposts in the assessment of sentence. A sentencing judge should steer by, but not aim for them.

Plea of guilty

3. A plea of guilty was accepted by the Local Court Magistrate in committal proceedings for the offences. Mr O’Toole is entitled to a discount for an early plea of 25% in accordance with section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The Facts

4. There is an extensive agreed facts document tendered as part of exhibit 1. I shall endeavour to summarise those facts to provide brevity in this judgment. For the full facts one should refer to the exhibit:

5. On 6 June 2021, investigators were monitoring Mr O’Toole’s telephone intercept data. They suspected that he was travelling from Greater Goulburn area with a significant quantity of methylamphetamine. His telephone was tracked as he travelled to Griffith.

6. At approximately 4:15am on 6 June 2021 in Beelbangera, Police stopped a vehicle belonging to the co-accused, Ms Gee. She was in the driver’s seat and the offender in the front passenger seat. They told police that they had earlier travelled from Griffith to Barellan and were now returning to Griffith. Police were aware this was false.

7. Police searched the vehicle. In a handbag belonging to Ms Gee, 1.4 grams of methylamphetamine was located. She had four mobile phones. In the boot of the vehicle, concealed between the boot and the rear seat was a small black leather case which contained a clear resealable bag containing a significant quantity of white crystalline substance which contained 279 grams of methylamphetamine with 76% purity. Ms Gee and the offender were cautioned separately and questioned about the prohibited drug. Both denied any knowledge.

8. Mr O’Toole was searched, and police located $600 cash, two mobile phones and a clear resealable bag with methylamphetamine residue which the offender said was his and the drug had been used previously. Police located $550 cash in the glovebox which Ms Gee said belonged to her, explaining that she withdrew the cash to buy a mobile phone.

9. The pair were arrested and conveyed the Griffith Police Station. Both participated in electronically recorded interviews. They claimed they spent the evening in Cootamundra.

10. Police made enquiries at the Centrepoint Motel in Griffith. Mr O’Toole had booked a room from June 4 – 10. He had left bags at the premises which were provided to police. One black backpack contained scales, small plastic bags and other drug paraphernalia. The DNA of both Mr O’Toole and Ms Gee were found on the backpack and its contents.

11. Police discovered photos of the pair holding substantial amounts of cash and packed quantities of crystalline substances on their phones. Documents from their financial institutions indicated significant amounts of money into and out of their bank accounts.

Criminal history

12. The offender has a very unimpressive criminal record, with convictions for drug offences, violence, including domestic violence, theft and dishonesty as well as driving offences. On 21 May 2010, Mr O’Toole was sentenced at Parramatta District Court for two offences of supplying a prohibited drug, one of which was greater than the indictable quantity. On that occasion, he received a suspended sentence. In 2017 he was sentenced to a term of imprisonment for supplying less than the indictable quantity of a prohibited drug.

13. In 2020, he was again sentenced to an aggregate term of imprisonment of 2 years with a non-parole period of 12 months for a number of offences, including drug supply offences. The head sentence expired on 15 December 2021. It is an aggravating feature that he was on parole when he committed the present offences: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999.

14. More than 12 years after being given the benefit of a suspended sentence, Mr O’Toole has continued to commit serious drug supply offences. Mr O’Toole’s criminal history disentitles him to leniency.

Objective seriousness

15. The weight of the drug is not the sole or even the determinative factor in assessing the objective seriousness of an offence, however it is a major consideration: R v Calcutt [2012] NSWCCA 40 at [59]. The weight of the drug in this instance was 278.9 grams of methylamphetamine – approximately 10% above the bottom of the range for a commercial quantity, being 250 grams. I consider this to be marginally above the threshold which I take into account in my assessment of the objective seriousness.

16. The role that the offender played and what the offender actually did with respect to the supply of the drugs are the more important considerations to the assessment of objective seriousness: R v Olbrich (1999) 199 CLR 270; R v MacDonnell (2002) 128 A Crim R 44. The Crown submits and Mr Metcalfe, counsel for Mr O’Toole, accepts that Mr O’Toole’s role could be correctly categorised as a courier. Those with lesser roles in the supply of prohibited drugs can still expect to face condign punishment as without them, drug supply networks would simply collapse: R v Fabian (1992) 64 A Crim R 365. General deterrence is a relevant sentencing consideration, even for those with lesser roles, for reasons summarised by Garling J in Knight v R [2015] NSWCCA 222 at [84]:

The distribution, even at street level, of illicit drugs in a community such as Bourke is an offence which has a significant impact on the community, which means that general deterrence is an important consideration.

17. While his involvement in the supply of prohibited drugs is greater than a street level dealer, I accept the submission of Mr Metcalfe that a courier of just over 250 grams of methylamphetamine falls towards the lower end of the range of objective seriousness.

Subjective circumstances

18. I am assisted in determining the relevant subjective circumstances of the offender by the report of Mr Peter Watt, psychologist, dated 18 June 2022, and also by the sentencing assessment report dated 14 June 2022.

19. The offender was the youngest of his siblings and grew up on a farm in Binya. He keeps in contact with one of his sisters who resides in Wollongong, NSW. He has a son from a previous 7-year relationship and also a 4-year-old daughter with Ms Gee.

20. The offender reported to Mr Watt that when he was 19, his father attempted suicide with a firearm, and police subsequently seized his father’s firearms. This occurred during a difficult period due to drought and other financial issues, and the farm had to be sold.

21. At a young age, the offender’s mother was also diagnosed with breast cancer. His parents currently live in a retirement village, and he reports that he feels disconnected from them.

22. Mr O’Toole attended school to year 10. He reported some behavioural problems and truancy to Mr Watt, but considered that he got along well with his teachers overall. After leaving school, he commenced a panel beating apprenticeship which he completed when he was 21 years old. However, he has been unable to maintain steady employment due to periods of imprisonment he has served.

23. He reported to Mr Watt that he was sexually assaulted by a male teacher when he was 12 or 13 years old. It was only recently that Mr O’Toole disclosed this. He drew a link between his drug abuse and the sexual abuse that he experienced, explaining that he used drugs to “wipe the memories” of that abuse. Mr Watt confirmed this with the following:

The recent disclosure of sexual abuse in his early adolescence, whilst at school, partially accounts for his addictive path leading to a severe drug addiction during his twenties. He has been dealing with a post-traumatic condition on his own since high school.

24. The offender has a history of polysubstance abuse. Drawing a link from the sexual abuse that he experienced, Mr O’Toole explained that he hit the party drugs “pretty hard” from the age of 16. He discloses he was taking 10-20 MDMA tablets per week. He experimented with numerous other drugs when he moved to Wagga Wagga at the age of 18. Approximately two years ago, he was admitted to Griffith hospital for two days and diagnosed with a drug-induced psychosis.

25. He disclosed to Mr Watt that when he lived with his first partner who was not a drug user, he found his home to be a relaxing place. However, he was introduced to methamphetamines which progressed to a severe addiction between December 2020 and June 2021. He reports that he was injecting half an eight ball (3.5 g) per day. As a result of his intravenous drug use, he has been diagnosed with hepatitis C. Mr Watt opines that Mr O’Toole has a dependency on drugs, returning to his addiction in times of stress and despair.

26. Mr O’Toole reported that he was severely affected by drugs when he committed these offences. Self-induced intoxication cannot be taken into account as a mitigating factor on sentence: s 21A(5AA) Crimes (Sentencing Procedure) Act 1999. However, given the sexual abuse that Mr O’Toole experienced and the opinion of Mr Watt relating to the link between that abuse and the offender’s drug use, I consider that the principles enunciated in Bugmy v The Queen 249 CLR 571 have been enlivened, and this offender’s moral culpability is reduced.

27. In relation to the offender’s mental health, Mr O’Toole reports a history of depression in his family. He has previously been prescribed anti-depressant medication. Responses to the General Health Questionnaire (GHQ-28) administered by Mr Watt revealed that he was experiencing various anxiety symptoms at interview, but no significant depressive symptoms were evident.

28. Mr Watt opines that, according to the Diagnostic Manual of Mental Disorders, Fifth Edition, Mr O’Toole meets the criteria for Post-Traumatic Stress Disorder as an underlying condition, as well as severe stimulant use disorder at the time of the offence. His personality factors reveal difficulty with impulse control and interpersonal functioning.

29. The Crown submits that the subjective circumstances are not particularly compelling. I have great difficulty in accepting this submission, particularly with respect to the sexual abuse that the offender reported to Mr Watt, considering that I need only be satisfied on the balance of probabilities.

Prospects of rehabilitation

30. With respect to Mr O’Toole’s prospects of rehabilitation, there is no doubt that he has had multiple community-based orders and opportunities on parole to address his substance use issues. He has previously completed a drug addiction program which raised his awareness about the negative impact of drugs on the community. However, he has never had the opportunity to complete a residential rehabilitation program. Mr Watt opines that this would be beneficial to him once he is released on parole. Indeed, Mr O’Toole told the Court in his evidence that that he wants to serve part of his parole period in a residential rehabilitation facility. He wants to participate and believes that he would be successful.

31. I consider King CJ’s comments in R v Osenkowski (1982) 30 SASR 212:

There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.

32. He has given evidence that he has been sober while in custody and that it is the longest period that he has been sober in the last 10 years. He recognises that he will require substantial support once he is released from custody and expressed a strong desire and willingness to change his ways and rehabilitate himself. He describes his drug use as an expensive and disgusting habit. He wants to better himself and set a positive example for his children.

33. He has the support of his sister, and he is confident that she and her husband will have him in their home. He is adamant that moving away from Griffith and his negative peer associations there will assist him in his efforts as rehabilitation, telling Mr Watt, the author of the sentencing assessment report, and in his evidence in Court.

34. While he has been limited in his ability to gain employment as a result of the various terms of imprisonment he has served, he is trade qualified and employable, and has expressed a desire to find employment in the trade that he is qualified in. I consider that, with support, Mr O’Toole has some prospects of rehabilitation.

Contrition/remorse

35. Mr O’Toole has demonstrated some insight into his offending. He has previously completed a program for drug addiction. He says this program bettered his understanding about drugs and the negative effects on the community, especially vulnerable people. He does not wish to return to Griffith and wants to lead a pro-social life.

36. While the author of the sentencing assessment report opined that he lacked insight into his offending, in his evidence, he told the Court that he understood the negative impact that drug use has on people’s lives, drawing from his own experience in being sentenced to numerous terms of imprisonment. He realises the capacity of illicit drugs to destroy the lives of people who use them.

37. He expressed remorse for his offending, describing his drug use as a disgusting habit. In evidence, he said that he was sorry. I accept that this offender is remorseful and contrite.

Pre-sentence custody

38. The offender was arrested and bail refused for this offence on 6 June 2021. As I mentioned previously, he was on parole at the time which was revoked. The balance of his parole was 6 months and 10 days.

39. The commencement date and degree of concurrency or accumulation of a sentence of imprisonment remain the discretion of the sentencing Judge: Callaghan v R [2006] NSWCCA 58 at [21]; Ith v R [2013] NSWCCA 280 at [52]. There should be some level of accumulation between these offences and the balance of parole. The sentence is to commence on 6 September 2021, three months after the offender was taken into custody for these offences.

COVID-19

40. The impact and restrictions of COVID-19 in the prison environment are multi-faceted. Both appellate and courts of first instance in NSW have recognised a variety of species of hardship that inmates presently suffer in the custodial environment, including:

1. The suspension of social and family visits: McKinnon v R [2020] NSWCCA 106 at [32];

2. Restrictions to movement and subsequent isolation of inmates: R v Tangi (No 12) [2020] NSWSC 547 at [57]-[58]; R v Kelso [2020] NSWDC 157 at [46];

3. Negative impacts on well-being including stress and anxiety: Valentine v R [2020] NSWCCA 116

4. The greater risk of infection and serious harm to inmates: RC v R; R v RC [2020] NSWCCA 76 at [2], [7], [253]-[255]; Scott v R [2020] NSWCCA 81 at [166].

41. Furthermore, courts across the different jurisdictions of the Commonwealth have further recognised additional hardships, including that work opportunities during the pandemic, when available at all, are limited: DPP v Tennison [2020] VCC 343 at [36]-[39].

Special circumstances

42. It is not necessary for me to make a positive finding in relation to the offender’s prospects of rehabilitation in order for there to be special circumstances. Although the offender has previously had the benefit of supervision by Community Corrections which has not been successful to date, he will require substantial support in relation to his drug addiction. I am of the view that a longer period of parole would assist with the rehabilitation of the offender: Thach v R [2018] NSWCCA 252.

43. I consider the very real risk of institutionalisation. The offender reported to Mr Watt that he had spent six of the last eight years of his life in custody. Even in the face of entrenched recidivism, the risk of institutionalisation may be taken into account by a sentencing Judge as a special circumstance: Jackson v R [2010] NSWCCA 162 at [25].

44. Additionally, this offender reports to Mr Watt that he has been subject to assaults and threatened with violence in custody. He has been diagnosed with hepatitis C. I consider that any period in custody weighs more heavily on this offender. I make a finding of special circumstances in accordance with s 44(2) Crimes (Sentencing Procedure) Act 1999 on the basis of the offender’s health, rehabilitation, and the potential risk of institutionalisation.

Sentence

45. Significant resources are expended by law enforcement authorities to detect and prosecute these types of offences. The deleterious effect that drug use has on society must also be recognised, and protection of the community is an especially relevant sentencing consideration. As such, a consistent message of general deterrence is required from sentencing judges: Parente v R [2017] NSWCCA 284 at [109]-[110].

46. I have considered the purposes of sentencing in section 3A of the Crimes (Sentencing Procedure) Act 1999 which include prevention of crime by deterring the offender and other persons from committing similar offences. However, I have also considered the offender’s subjective circumstances and his need for rehabilitation in imposing an appropriate sentence.

47. Daniel O’Toole, you are convicted and sentenced to a term of imprisonment of 2 years and 6 months, commencing on 6 September 2021 and expiring on 5 March 2024. But for the 25% discount, the term would have been for 3 years and 4 months. I set a non-parole period of 1 year and 8 months. Mr O’Toole will be eligible for parole on 5 May 2023.

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Decision last updated: 27 June 2022