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R v O'Toole

R v O'Toole

Case [2022] NSWDC 232 24 June 2022

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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

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.
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

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

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:
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…

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'Toole

Details

AGLC: R v O'Toole [2022] NSWDC 232
Case: [2022] NSWDC 232
Decision Date: 24 June 2022

CaseChat Overview and Summary

The matter before the court involved a conviction for trafficking in a commercial quantity of methylamphetamine, with the offender, O'Toole, acting as a courier. The case reached the sentencing phase in the Supreme Court of New South Wales. The key issues the court had to decide included the appropriate sentence given O'Toole's extensive criminal history, his role as a courier which affects his moral culpability, the potential for rehabilitation, and the necessity for general deterrence. Additionally, the court considered the principles set out in Bugmy v R, which require consideration of the offender's background and personal circumstances.

In considering these issues, the court found that while there was a strong case for substantial punishment due to the nature of the offence, O'Toole's role as a courier reduced his moral culpability. The court also noted that O'Toole had some prospects of rehabilitation, and his extensive criminal history, while significant, did not wholly preclude the possibility of mercy. The court weighed the need for general deterrence against the offender's personal circumstances, ultimately determining that a degree of accumulation in sentencing was appropriate. O'Toole's status as a parolee at the time of the offence also influenced the court's decision, as did the risk of institutionalisation if a lengthy sentence were imposed.

The court concluded that a sentence of imprisonment was necessary but balanced this with the need to consider O'Toole's prospects for rehabilitation and the relevance of special circumstances. The final sentence imposed was a term of imprisonment of 2 years and 6 months, with a non-parole period of 1 year and 8 months, reflecting the court's assessment of the various factors at play. This sentence was deemed appropriate to address the seriousness of the offence while also considering the offender's potential for rehabilitation and the broader sentencing principles applicable to the case.

Orders

Orders of the court

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.

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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Citations

AGLC Citation

R v O'Toole [2022] NSWDC 232

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 18 of 18 shown

Valentine v R
[2020] NSWCCA 116 Para 3

…Negative impacts on well-being including stress and anxiety: Valentine v R [2020] NSWCCA 116…
McKinnon v R
[2020] NSWCCA 106 Para 1

…The suspension of social and family visits: McKinnon v R [2020] NSWCCA 106 at [32];…
R v Tangi (No 12)
[2020] NSWSC 547 Para 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];…
Scott v R
[2020] NSWCCA 81 Para 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].…
RC v R; R v RC
[2020] NSWCCA 76 Para 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].…
R v Kelso
[2020] NSWDC 157 Para 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];…
Director of Public Prosecutions v Hersi
[2020] VCC 347

…rug 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…
DPP v Tennison
[2020] VCC 343 Para 41

…ve 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].…
Thach v R
[2018] NSWCCA 252 Para 42

…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.…
Parente v R
[2017] NSWCCA 284 Para 45

…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].…
Knight v R
[2015] NSWCCA 222 Para 16

…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]:…
Ith v R
[2013] NSWCCA 280 Para 39

…currency 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…
Bugmy v The Queen
[2013] HCA 37 Para 26

…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.…
R v Calcutt
[2012] NSWCCA 40 Para 15

…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 commerc…
Jackson v R
[2010] NSWCCA 162 Para 43

…ace 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].…
Callaghan v R
[2006] NSWCCA 58 Para 39

…ommencement 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…
R v Osenkowski
[2005] SASC 142 Para 31

…I consider King CJ’s comments in R v Osenkowski (1982) 30 SASR 212:…
R v Olbrich
[1999] HCA 54 Para 16

…er 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…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)

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