O’Connor v R

1. [1]

   MACFARLAN JA: Between 30 May 2016 and 8 June 2016 the applicant was tried on an Indictment alleging the following offences:

2. [2]

   The applicant pleaded not guilty to each of the charges, which related to items found in a house that he occupied in Belfield. It was common ground at the trial that the applicant was involved in the supply of drugs. The Crown alleged that the items the subject of the charges were to be used by the applicant either in the drug supply business generally, or specifically in respect of a planned “rip off” in which the applicant and others would impersonate police officers and steal drugs and/or money from another drug supplier.

3. [3]

   The applicant was tried at a judge alone trial before Lakatos DCJ pursuant to s 132A of the Criminal Procedure Act 1986 (NSW). On 8 June 2016 his Honour delivered a judgment finding the applicant guilty of each of the offences charged.

4. [4]

   By a judgment of 7 October 2016 his Honour sentenced the applicant in respect of these offences, as well as other offences to which the applicant had pleaded guilty. These further offences comprised one count of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW), 11 counts of supply various drugs contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and 1 count of participating in a criminal group contrary to s 93T(1) of the Crimes Act. The applicant also requested that his Honour take into account a further 11 counts of supply drugs on a Form 1.

5. [5]

   In respect of all of these offences, his Honour imposed an aggregate sentence of 7 years and 6 months, with a non-parole period of 5 years and 3 months. His Honour took into account the Form 1 offences.

6. [6]

   The applicant seeks leave to appeal to this Court on the following grounds. The first relates to his conviction of the offences to which he pleaded not guilty, and the second and third grounds relate to the sentence that was imposed upon him:

The evidence at the trial

1. [7]

   The Crown led evidence of the execution of a search warrant at the applicant’s residence in Belfield. Items found in the bedroom occupied by the applicant and his girlfriend included the body armour vest and anti-personnel spray the subjects of Counts 1 and 2, a police issue torch, a LED light bar, a police name badge and a senior constable’s police shirt. In the bedroom occupied by the applicant’s father, police found the Glock pistol the subject of Counts 3 and 4 and a magazine containing 6 bullets. In a third, apparently unoccupied, bedroom, police located 2 locked safes and a pair of blue cargo pants that resembled police issue trousers. The applicant opened both safes, one of which contained two pistol trigger locks, together with keys.

2. [8]

   It was common ground that the applicant engaged in a drug supply business with his cousins, Benjamin and Joshua Goddard, and Joshua Goddard’s girlfriend, Simone Bauber. The drug supplies that were effected included supplies to inmates in Correctional Centres at which Joshua Goddard was incarcerated. Prior to the trial, the applicant had pleaded guilty to a number of offences of supplying drugs to Goddard in June 2014 (see above at [4]).

3. [9]

   The Crown also led evidence of the execution of a search warrant on 9 and 10 July 2014 at premises in Miranda rented by Goddard, who was in custody at the time of the search. Items found during the search included various drugs and drug related equipment, knuckledusters, and gun related equipment which included rifle rounds and shot gun shells.

4. [10]

   The Crown also led evidence of numerous intercepts of telephone conversations and SMS messages between the applicant and others from 28 May 2014 to 9 July 2014. The intercepted conversations were lengthy. For present purposes it is sufficient to refer to the principal statements made in the course of conversations to which the applicant was a party, and which led the trial judge to conclude that 1) the applicant and others were planning a significant criminal enterprise over and above the normal activities of the drug supply business in which they were engaged, and 2) in the course of this enterprise the applicant and others were planning to use the items the subject of the charges to which the applicant pleaded not guilty. These statements were as follows:

5. [11]

   The trial judge set out as follows the relevant part of the “rip call” of 1 July 2014:

6. [12]

   Detective Sergeant Matt Crematy gave evidence of his experience of the use of the term “rip” by persons associated with prohibited drugs. His principal evidence-in-chief was in the following terms:

7. [13]

   Detective Crematy indicated that, although he had obtained a general familiarity with the telephone intercepts in evidence in the present case, he had not “listened specifically to any calls … in relation to rip”.

8. [14]

   In cross-examination, the applicant’s counsel however asked Detective Crematy to read a transcript of the “rip call”. The following exchange then occurred:

9. [15]

   His re-examination included the following exchange:

10. [16]

    The applicant gave evidence acknowledging his involvement in the supply of illicit drugs, but denying any knowledge of the body armour vest, anti-personnel spray, Glock pistol and the police paraphernalia. He denied any intention to impersonate police.

11. [17]

    He said that the purpose of obtaining the rental car was to supply drugs and that the word “mission” (as used in the intercepted conversations) did not refer to a drug rip off. He attempted to explain the “rip call” as follows:

12. [18]

    When asked about the “mission” referred to in the intercepts, the applicant’s response was as follows:

The judgment after the trial

1. [19]

   The trial judge undertook a detailed consideration and analysis of the phone intercept evidence and expressed the following conclusions in relation to the “rip call” (Judgment [50]-[51], [54]):

2. [20]

   Similarly, his Honour undertook a detailed consideration and analysis of the applicant’s evidence. In relation to that evidence he concluded (Judgment [128]):

3. [21]

   His Honour drew the following inferences from the telephone intercepts (Judgment [123]):

4. [22]

   His Honour reached the following conclusions concerning the applicant’s possession of the items the subject of the charges and the purpose of that possession (Judgment [125], [127], [130]):

Ground 1: the verdict is unreasonable or cannot be supported having regard to the evidence

1. [23]

   This ground of appeal invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). Determination of it requires this Court to undertake “an independent assessment of the evidence, both as to its sufficiency and its quality” (SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14], citing Morris v The Queen (1987) 163 CLR 454 at 473; [1987] HCA 50). In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [56]-[58] the High Court approved the following test for determining whether a verdict is “unreasonable” or “cannot be supported, having regard to the evidence”:

2. [24]

   The applicant’s submissions in support of this ground of appeal were confined to the propositions that 1) Detective Crematy’s evidence was critical to, but did not provide a safe basis for, the trial judge’s conclusions concerning the applicant’s motive for possession of the prohibited items, and 2) that those conclusions were an integral element in his Honour’s reasons for finding the applicant guilty of the offences charged. In particular, the applicant submitted that the trial judge ignored a significant qualification to Detective Crematy’s evidence “about what ‘rip’ meant”. The applicant contended that Detective Crematy considered the meaning of the term “rip” “in the context of the one telephone call only”, and was unable to say in what sense that term was used in that particular conversation. The applicant complained that the trial judge did not take into account this limitation on Detective Crematy’s evidence.

3. [25]

   These submissions are based on an erroneous assumption as to the way in which the trial judge relied on Detective Crematy’s evidence. His Honour considered Detective Crematy’s evidence regarding the way in which the word “rip” was commonly used by drug suppliers. His Honour did not suggest however that Detective Crematy gave evidence as to the particular way in which the term had been used in the intercepted conversation.

4. [26]

   As indicated in [12]-[13] above, Detective Crematy’s evidence-in-chief was of his experience as to the way in which the term “rip” was generally used by persons in the supply of illicit drugs. It was only in cross-examination that he was asked what meaning the term bore in the particular conversation in question (“the rip call”). Understandably he resisted the invitation to express an opinion on that question. That question was one for the trial judge to answer, taking into account all of the evidence at the trial, (including, but not limited to, Detective Crematy’s evidence). Detective Crematy did not profess to have the expertise to answer that question, and indeed did not do so.

5. [27]

   In his judgment, Lakatos DCJ referred to Detective Crematy’s evidence as to his experience of the common usage of the term “rip” and the different ways he had observed it to have been used (Judgment [49]). His Honour did not suggest that Detective Crematy said that the term was used in the particular conversation in a particular way. Instead, having referred to Detective Crematy’s evidence of his experience, the judge proceeded to determine for himself what meaning should be attributed to the term in the particular context. Contrary to the applicant’s submissions, his Honour did not fail to take account of a relevant qualification stated in Detective Crematy’s evidence. The applicant’s challenge to the judge’s findings on conviction therefore fails.

6. [28]

   No other challenge is made to the judge’s directions to himself or to his findings. The applicant did not, for example, submit that the judge was not entitled to take into account Detective Crematy’s evidence regarding his experience of the way in which drug suppliers use the term “rip”. Nor did the applicant allege that the Crown case was defective or deficient in any other respect.

7. [29]

   The result is that this ground of appeal must be rejected. In light of the narrow basis upon which the ground was put, it is not necessary for this Court to deal with it in a more general fashion. Nevertheless I indicate that, having conducted an independent assessment of the evidence, I do not have any doubt that the applicant had possession of the subject items, and did so for the purpose identified by the judge. In particular, the inferences the judge drew as to the matters discussed in the intercepted conversations were available from the evidence presented in the Crown case, especially from the items found on execution of the search warrants and the terms of the intercepts themselves. These inferences were available even if Detective Crematy’s evidence were to be disregarded.

8. [30]

   Furthermore, the applicant gave purported explanations of intercepted conversations, including the “rip call”, which the trial judge found were implausible (ROS [80] and [83]). In such circumstances, the judge was entitled to draw inferences, which were already open on the Crown case, with greater comfort (see Kuhl v Zurich Financial Services Australia (2011) 243 CLR 361; [2011] HCA 11 at [64]). As in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, that the evidence of the accused (here the applicant) “was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with [his] innocence” (at [57]).

9. [31]

   In these circumstances there is no reasonable doubt that the applicant committed the offences of which he was convicted. His appeal against his convictions must accordingly be rejected.

Ground 2: the judge erred in taking into account offences on the Form 1 when they had not been attributed to any principal offence

1. [32]

   Section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is in the following terms:

2. [33]

   It follows from the terms of s 32(1) that the document filed by the prosecutor (a “Form 1”) must identify the “principal offence” in relation to which the offender wishes other offences to be taken into account (R v Stephen Barry Williams (2005) 156 A Crim R 225; [2005] NSWCCA 355 at [29]). The Form 1 filed in the present case failed to do this. The Form listed 11 “additional charges” on its reverse side, and the front of the Form related those additional charges to “the offence of Supply Prohibited Drug” (emphasis added). By the Indictment concerned with drug supply however, the applicant was charged with 11 drug supply offences. Therefore the Form 1 did not relate the “additional charges” listed on its reverse side to any particular offences charged in that Indictment. Instead it related the charges to the Indictment offences globally.

3. [34]

   The position was however rectified by a Crown Sentence Summary, which was provided to the Court at sentence and contained a schedule relating each of the “additional charges” to a particular count in the Indictment. When the document was tendered at the sentencing hearing, the applicant’s counsel said that the document and its attachments were “agreed”. Although the further schedule was not signed by “the offender” as required by s 32(4), s 32(6) states that a failure to comply with the requirements of s 32 does not invalidate any sentence imposed by the court for the principal offence. That subsection is applicable, at least, in a circumstance such as the present where a document otherwise complying with s 32 is tendered on a sentencing hearing with the consent of the offender.

4. [35]

   Further, in the sentencing judgment, when considering the charges in the Indictment, his Honour also considered the particular “additional charge” that the schedule related to that count. The schedule was thus treated as the applicable Form 1, and was so described by his Honour.

5. [36]

   In these circumstances, Ground 2 must be rejected.

The sentence is manifestly excessive

1. [37]

   The applicant advanced this ground of appeal on the limited basis that the judge did not take proper account of the applicant’s subjective case.

2. [38]

   The judge delivered a detailed sentencing judgment of 33 pages, referring at some length to the applicant’s subjective case. The only part of that subjective case that the applicant submitted his Honour did not properly take into account was evidence of the applicant’s mental health. The applicant submitted that his Honour erred in not treating the applicant’s moral culpability as reduced by his mental conditions, and in not concluding that general deterrence was of reduced significance due to those conditions.

3. [39]

   For the reasons below, I do not consider that the judge erred in these respects. As a result, the only basis upon which this ground of appeal is advanced is without substance. In these circumstances, this ground must be rejected.

The evidence and submissions at the sentencing hearing concerning the applicant’s mental health

1. [40]

   The applicant tendered a report of Dr Mark Milic, a clinical and forensic psychologist. Dr Milic interviewed the applicant for one and a half hours via video link. Dr Milic relevantly concluded:

2. [41]

   The applicant also tendered a report of Mr Chafic Awit, a registered psychologist. Mr Awit met with the applicant on eight occasions.

3. [42]

   Mr Awit similarly recorded that the applicant reported that he began using illicit substances not long after his uncle’s murder. The applicant said that “he wanted to numb himself as a means of escaping his reality”. Mr Awit was of the view that the applicant came to suffer from a “Substance Use Disorder – Severe” shortly after his uncle’s murder.

4. [43]

   Mr Awit recorded that the applicant said his illicit substance use “got out of hand”, and that he resorted to supply in order to support his own habit.

5. [44]

   Mr Awit concluded that the applicant suffered from a “Generalised Anxiety Disorder; Major Depressive Disorder; and Substance Use Disorder – Severe (in Sustained Remission)”. According to Mr Awit, the applicant’s symptoms indicating the presence of the depressive disorder were: depressed mood, insomnia, loss of energy, feelings of worthlessness and diminished ability to think and concentrate.

6. [45]

   Mr Awit further concluded that the three disorders “played a significant role in relation to the offences before the Court”. This was on the basis that the applicant’s depression and anxiety conditions “played a significant role in leading Mr O’Connor [to] being more susceptible to developing an illicit substance use disorder”.

7. [46]

   In his written submissions at the sentencing hearing, the applicant submitted that his conditions of depression and anxiety, as diagnosed by Mr Awit, were relevant to determining his moral culpability and any need for specific deterrence. The applicant also submitted that there was “some nexus” between his mental health condition and his offending, with the result that general deterrence should be treated as of reduced significance in his sentencing.

The sentencing judgment

1. [47]

   In a detailed description of the applicant’s subjective circumstances, the judge referred to the severe impact that the death of the applicant’s uncle had on the applicant and noted that, as a result, the applicant “struggled to cope emotionally and became introduced to illicit substances”. His Honour also noted that in 2008 the applicant was diagnosed with depression, but sought no treatment until he attended his general practitioner in 2014 and was prescribed medication.

2. [48]

   His Honour referred to Dr Milic’s report, noting Dr Milic’s reference to “the trauma and depression which overcame the offender in 2008 after the murder of his uncle”.

3. [49]

   His Honour also referred to Mr Awit’s diagnoses of “generalised anxiety disorder, major depressive order and substance use disorder, severe in sustained remission”.

Relevant authorities

1. [50]

   In R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, this Court rejected the proposition that drug addiction is, of itself, a mitigating factor to be taken into account in the sentencing process. Nevertheless there are some circumstances in which drug addiction might still be relevant to sentencing, as described in Henry by Wood CJ at CL at [273]. For example, the addiction might be relevant as a subjective circumstance where it “was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness or surgery” (ibid). Turner v R [2011] NSWCCA 189 is an example of such a case (see at [58]).

2. [51]

   In R v SY [2003] NSWCCA 291, Whealy J (with the concurrence of Ipp JA and Howie J) stated:

3. [52]

   His Honour added at [64] that “there is nothing in the passage in Henry that suggests that the use of heroin as a form of self-medication to exorcise real or imagined demons is any warrant for elevating considerations of leniency above those relating to the imposition of a proper sentence reflecting appropriate measures of punishment, retribution and deterrence”.

4. [53]

   In Bichar v R [2006] NSWCCA 1, Howie J (with the concurrence of Basten JA and Hall J) said:

5. [54]

   In R v Todorovic [2008] NSWCCA 49, the offender had a gambling addiction which resulted from a significant psychological disorder. The sentencing judge found that the offender’s offences of dishonestly obtaining money by deception were causally related to the addiction. Having referred to material indicating that “gambling addiction is not uncommonly the result of psychological conditions”, R S Hulme J stated:

Determination of the ground of appeal

1. [55]

   In light of these authorities, I consider that this ground of appeal should be rejected.

2. [56]

   Mr Awit’s report did not indicate that there was a direct link between the applicant’s anxiety or depressive disorders and his offending. Rather, it suggested that these conditions were causally linked to the applicant’s drug addiction. As noted above at [45], Mr Awit said these conditions “played a significant role in leading Mr O’Connor [to] being more susceptible to developing an illicit substance use disorder”. As the authorities to which I have referred indicate, the fact that the applicant may have, and probably did, turn to drugs to reduce the impact of traumatic life events does not lessen his moral culpability or render him less suitable than otherwise as a vehicle for general deterrence.

3. [57]

   Moreover, the applicant’s drug addiction was only causally related to his offending in the sense that it imposed an imperative to obtain funds, which the applicant chose to generate, at least in part, through illegal means. His drug supply and other offences were not impulsive acts that might have resulted from drug addiction. On the contrary, the telephone intercepts indicated that there was a considerable degree of planning involved in the activities of the applicant and his associates, and there was no reason to treat the offences as anything other than considered acts.

4. [58]

   In the absence of any evidence of a direct link between the applicant’s anxiety and depression and his offending, there was no reason for his Honour to do more than refer in his sentencing judgment to the evidence of the two psychologists. Their evidence did not require his Honour to attach any greater significance to the applicant’s mental health conditions than to note them as part of the applicant’s subjective case, which his Honour did.

Orders

1. [59]

   For the reasons above, I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal against his convictions and sentence.

   2. (2)

      Dismiss the appeal.

2. [60]

   FULLERTON J: I agree with Macfarlan JA that the appeal should be dismissed and for the reasons his Honour has detailed with one qualification. With respect to the matters to which his Honour refers at [30] I would limit myself to saying that it was well open to the learned trial judge to find the applicant’s purported explanations of intercepted conversations, including the "rip call", implausible. Further, in the passage from the trial judge’s reasons which Macfarlan JA has quoted at [20] his Honour correctly directed himself regarding the consequence of the applicant’s account of the conversations being rejected. Namely, that that account did not give rise to a reasonable hypothesis consistent with innocence.

3. [61]

   FAGAN J: I also agree with Macfarlan J, with the same qualification regarding the subject matter of [30] as expressed by Fullerton J.