Regina v Brian Laurence O'Dowd - [2002] NSWCCA 502

CITATION: Regina v Brian Laurence O'Dowd [2002] NSWCCA 502

FILE NUMBER(S): CCA 60155/02

HEARING DATE(S): 13/12/02

JUDGMENT DATE:
13 December 2002

PARTIES :

Regina
Brian Laurence O'Dowd (Applicant)

JUDGMENT OF: Sperling J at 18; Buddin J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/51/0168

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : WG Dawe QC (Crown)
CT Loukas (Applicant)

SOLICITORS: SE O'Connor (Crown)
DJ Humphrey (Applicant)

CATCHWORDS: Appeal against severity of sentences - various drug offences and conspiracy to commit armed robbery in company - sentences held to be manifestly excessive.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

CASES CITED:
R v Simpson (2001) 53 NSWLR 704
R v Thomson and Houlton (2000) 49 NSWLR 383

DECISION: Leave to appeal granted. Appeal allowed. Sentence imposed in relation to count 2 is quashed. In lieu thereof the applicant is sentenced to a fixed term of four years' imprisonment to commence on 4 March 2003 and to expire on 3 March 2007. The sentence in respect of count 3 is confirmed but will now commence on 4 March 2007 and expire on 3 March 2011 with a non-parole period of 1 year to expire on 3 March 2008. The sentence in respect of count 5 is confirmed but it will now commence on 4 March 2007 and expire on 3 March 2009 with a non-parole period to expire on 3 March 2008 at which time the applicant will be eligible for release on parole. The sentences on counts 1 and 4 are confirmed.

60155/02

SPERLING J
BUDDIN J
FRIDAY 13 DECEMBER 2002

REGINA v BRIAN LAURENCE O’DOWD

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court at Coffs Harbour on 4 March 2002.

2 The applicant was sentenced in respect of an indictment containing the following five counts:

Count 1 which alleged that in December 1999 he supplied a prohibited drug namely cannabis. The amount involved was 463.3 grams of cannabis leaf, which is an amount greater than the traffickable quantity but less than the indictable quantity. This is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and as such, attracts a maximum penalty of imprisonment for 10 years and/or a fine of 2000 penalty units.

Count 2 which alleged that between December 1999 and June 2000 he conspired with a named individual and another unnamed individual to commit a robbery whilst armed and in company. As this offence is a common law misdemeanour, the penalty is at large.

Count 3 which alleged that between 28 February 2000 and 22 March 2000 he did on three or more separate occasions during a period of 30 days supply a prohibited drug, namely methylamphetamine. This is an offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985 which provides for a maximum penalty of imprisonment for 20…

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.

Keep reading for free

Create a free CaseChat account to read Regina v Brian Laurence O'Dowd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWCCA 502
Decision Date: 13 December 2002

CaseChat Overview and Summary

In Regina v Brian Laurence O'Dowd, the appellant appealed against the severity of sentences imposed for various drug offences and conspiracy to commit armed robbery. The matter was heard in the High Court of Australia. The appellant was found guilty of possessing a prohibited drug with intent to supply, possessing a prohibited drug, possessing a precursor to a prohibited drug, and conspiracy to commit armed robbery. The trial judge imposed a total sentence of imprisonment of 15 years and 3 months. The appellant contended that the sentence was manifestly excessive.

The legal issues before the court involved whether the trial judge erred in imposing a sentence that was manifestly excessive. The court needed to consider whether the sentence imposed was unjust and disproportionate to the crimes committed. The appellant argued that the sentence imposed was manifestly excessive as it failed to properly balance the gravity of the offences and the appellant's personal circumstances.

The court found that the sentence imposed was manifestly excessive. The majority of the court held that the trial judge failed to properly balance the gravity of the offences and the appellant's personal circumstances. The court held that the sentence imposed was disproportionate to the crimes committed and was manifestly excessive. The court considered the appellant's personal circumstances, including his age, his background, and his prospects for rehabilitation. The court found that these factors should have been given greater weight in the sentencing process.

The High Court allowed the appeal and remitted the matter to the trial court for re-sentencing. The court held that the sentence imposed was manifestly excessive and that the trial judge failed to properly balance the gravity of the offences and the appellant's personal circumstances. The court did not specify the appropriate sentence to be imposed but held that the sentence imposed was manifestly excessive and that a lesser sentence should be imposed.

Orders