R v O'Toole

Case [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

  1. 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

  1. 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:

  2. 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…

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Details
AGLC
R v O'Toole [2022] NSWDC 232
Case
[2022] NSWDC 232
Decision Date

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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