Criminal Court of Appeal Quashes “Manifestly Excessive” and “Unjust” Sentence for cocaine offence

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Two Drive Shafts of Cocaine: O’Shaughnessy v R (2020)

In November 2017, two automotive drive shafts containing 5.39 kilograms of pure cocaine arrived in Australia by plane. Police intercepted the drives, and then substituted the cocaine with an alternate substance. The drive shafts were then delivered to Pymble Golf Club, on Sydney’s Upper North Shore for a Mr. Willesee. Willesee then took them to premises in Freshwater, near Manly on the Northern Beaches.

His was joined by his friend, Kyle O’Shaughnessy. Both men drove to Bunnings hardware store and purchased several power tools, which they used to cut open the drive shafts. They removed the ‘cocaine’ and put it into plastic bags.

Mr. Willesee and Mr. O’Shaughnessy were arrested by police as they left the Freshwater premises.

O’Shaughnessy’s Motivation: a Mate with a Gambling Debt

At trial, both sides acknowledged that there was no evidence of Mr. O’Shaughnessy’s involvement in the importation of the cocaine. Or, even that he knew anything about the cocaine prior to the trip to Bunnings. In pre-sentencing reports, Mr. O’Shaughnessy explained that he had only helped remove the drugs from the drive shaft due to loyalty to his friend, Mr. Willesee, who had imported the cocaine to address significant financial debts produced from a gambling addiction.

Beyond helping his friend, it was ultimately acknowledged that Mr. O’Shaughnessy’s “motivation for becoming involved in this offence [was]… hard to determine”.

Mr. O’Shaughnessy pleaded guilty to possessing commercial quantities of drugs under s307.5(1) of the Commonwealth Criminal Code. In December 2018, Mr. O’Shaughnessy was sentenced in the NSW District Court to imprisonment for 6 years and 8 months, with a non-parole period of 4 years.

Represented by O’Brien Criminal and Civil Solicitors, Mr. O’Shaughnessy appealed his sentence to the NSW Supreme Court of Criminal Appeal (CCA).

What is a “just” sentence?signposts showing different directions

The CCA were faced with the perennial question:

what is a “just” sentence for a crime?

Sentencing for criminal behaviour has been long regarded as a notoriously difficult endeavour.

In Veen (No 2) (1988)1, the task of sentencing was famously described by the High Court as “not a purely logical exercise“, with the nuanced purposes of sentencing as “guideposts…[which sometimes] point in different directions“.

In NSW, the purposes of sentencing are articulated in s3A of the Crimes (Sentencing Procedure) Act 1999, and include:

  • ensuring adequate punishment of the offender
  • deterrence, protection of the community.
  • promoting the offender’s rehabilitation.
  • and recognising the harm done to the victim and the Community.

In Muldrock 2, the High Court noted that s3A purposes are “familiar, overlapping and, at times, conflicting”, and were not to be ranked in order of priority. Generally, the Court considers the task of sentencing as something of a balancing act3; an interplay of “complex” considerations that eludes approaches of “automatic consequences follow[ing]…particular factual circumstances”4.

court room with judgesThe “instinctive synthesis” of Sentencing

Ultimately, the task of sentencing is one for the judge. It involves a highly discretionary process of balancing and weighing various factors of the case before her to determine an appropriate penalty. This process, often termed “instinctive synthesis”, has been academically lambasted as a “stain” that takes sentencing from “vagueness to arbitrariness”5, and criticised, yet not totally disavowed, by the High Court6.

Noticeably, the past 20 years has seen the NSW legislature repeatedly encroach on judicial discretion in sentencing. This has been achieved through articulation of mandatory factors that judges must take into account when sentencing, as well as various mandatory minimum sentences to bring the judiciary to heel on certain offences. This (occasionally not so) subtle usurpation of judicial discretion has itself been criticised as sacrificing a judge’s ability to provide “individualised justice” in lieu of greater sentencing consistency.

Lady justice with balance and swordMr. O’Shaughnessy’s “Manifestly Excessive”, “Plainly Unjust” Sentence

Despite being a largely discretionary exercise, it is a fundamental principle of sentencing that the penalty is proportionate to the “gravity” of the crime7.  This was the prime ground of appeal that was submitted by O’Brien Criminal and Civil Solicitors on Mr. O’Shaughnessy’s behalf. It was submitted to the Court that the sentence of 6 years 9 months was “manifestly excessive”, given Mr. O’Shaughnessy’s minimal culpability in the crime at hand.

Ultimately, this argument was accepted by the Court. In his judgement, Justice Harrison noted that intervention by the CCA would only be warranted where the “sentence imposed is well beyond the reasonable range of sentences for such offences”. When assessing Mr. O’Shaughnessy’s criminal responsibility, it was necessary that Mr. O’Shaughnessy’s “involvement in the steps taken to consummate the crime” needed to be considered.

Accordingly, His Honour considered that it was “difficult to imagine…that Mr. O’Shaughnessy could have done much less as an active participant in the crime than the acts he performed”. The Court noted that O’Shaughnessy had done “no more” than cut open a drift shaft and leave the premises shortly thereafter.

Further, the Court acknowledged that it was not immediately apparent that O’Shaughnessy had done the crime from any financial gain. He just wanted to help his friend. There had been no communication or contact between them prior to the day at Freshwater.

Sentence Successfully Quashed

As such, His Honour found that the sentence “was unreasonable and plainly unjust”, and was “manifestly excessive”. The Court quashed Mr. O’Shaughnessy’s original sentence. He was re-sentenced  to 4 years imprisonment. This was a 40% reduction to his original sentence.

The full sentencing judgement can be found here.

References

  1. Veen (No 2) (1988) 77 ALR 385, 392-93 (Mason CJ, Brennan, Dawson and Toohey JJ).
  2. Muldrock v The Queen (2011) 244 CLR 120, [20]
  3. See generally Muldorck (2011) 244 CLR 120
  4. R v Engert (1995) 84 A Crim R 67 (Gleeson CJ).
  5. See Mirko Bagaric in the UNSW Law Journal; “Sentencing: From Vagueness to Arbitrariness: The Need to Abolish the Stain that is Instinctive Synthesis”.
  6. See generally Markarian v R (2005) 215 ALR 213.
  7. See Veen (No 2) (1988) 77 ALR 385.

If you need to appeal a verdict or sentence severity, contact O’Brien Criminal and Civil Solicitors on (02) 9261 4281 24 hours a day, 7 days a week to get help from one of our appeal lawyers in our Sydney office.

Oliver Creagh

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O’Brien Criminal & Civil Solicitors specialise in multiple areas of criminal and civil law. 

We can assist you by representing you in your criminal matter, fighting for financial compensation if you have been unlawfully arrested, assaulted by police, defamed  or treated unfairly in other ways. We are also able to assist you in preparation for or in attending Royal Commissions, at ICAC and other commissions. 

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