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O'Brien v R

O'Brien v R

Case [2013] NSWCCA 197 22 August 2013

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O'Brien v R [2013] NSWCCA 197
Hearing dates: 22 August 2013
Decision date: 22 August 2013
Before: Hidden J at [1];
Latham J at [2];
Adamson J at [3]
Decision:
(1) Leave to appeal refused.

Catchwords: CRIMINAL LAW- sentencing-sexual intercourse with child between 14 and 16 years- no conflation of consideration of appropriateness of imprisonment and suspension of sentence-sentence not manifestly excessive
Legislation Cited: - Crimes Act 1900, s 66C, s 66C(3)
- Crimes (Sentencing Procedure) Act 1999, s 5, s 12, s 12(1)(a), s 21A(5A)
Cases Cited: - Gommesen v R [2012] NSWCCA 226
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Postiglione v R [1997] HCA 26; 189 CLR 295
- R v Zamagias [2002] NSWCCA 17
- Warner (AKA Jeremy Pachenko) v R [2013] NSWCCA 10
Category: Principal judgment
Parties: Shannon James O'Brien (Applicant)
Regina (Respondent)
Representation: Counsel:
GD Wendler and W Chan (Applicant)
S Herbert (Respondent)
Solicitors:
Van Houten Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/355896
Publication restriction: Nil
Decision under appeal

Date of Decision:

2013-02-21 00:00:00

Before:

Colefax SC DCJ

File Number(s):

2011/355896

Judgment

HIDDEN J: I agree with Adamson J.

LATHAM J: I agree with Adamson J.

ADAMSON J: The applicant seeks leave to appeal from the sentence passed on him in the District Court of New South Wales by his Honour Judge Colefax on the following two grounds:

(1) The Court erred by finding that:

". . No other sentence is possible. . . no sentence other than a period of imprisonment is appropriate. . . "

and thereby elided the two step process mandated by s 5 of the Crimes (Sentencing Procedure) Act 1999 (the Act).

(2) In all the circumstance the sentence was manifestly excessive.

At the conclusion of the hearing of the application for leave on 22 August 2013, the Court ordered that leave be refused. My reasons for refusing leave are set out below.

Introduction

On 19 February 2013 the applicant was arraigned on an indictment which charged him with four counts of unlawful sexual intercourse with a child of 14 years contrary to s 66C(3) of the Crimes Act 1900 between 20 January 2011 and 1 June 2011. The trial was listed to commence on 18 February 2013. The applicant pleaded guilty on 19 February 2013 and was sentenced on 21 February 2013. The applicant asked his Honour to take account of a Form 1 offence when imposing a sentence for the fourth count.

The maximum penalty for an offence under s66C of the Crimes Act is imprisonment for 10 years. There is no standard non-parole period.

The sentencing judge, after applying a discount of 10% for the plea of guilty, imposed an aggregate sentence of three years and seven months with a non-parole period of two years and two months to commence from the date of sentence, 21 February 2013.

The…

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 O'Brien v R

Details

AGLC: O'Brien v R [2013] NSWCCA 197
Case: [2013] NSWCCA 197
Decision Date: 22 August 2013

CaseChat Overview and Summary

In the matter of O'Brien v R, the defendant was convicted of engaging in sexual intercourse with a child aged between 14 and 16 years. The High Court of Australia was tasked with reviewing the sentence imposed by the lower courts, which included a custodial term. The primary issue before the court was whether the sentence imposed was manifestly excessive, particularly considering the unique circumstances of the offence and the need to balance the principles of punishment, deterrence, and rehabilitation.

The court examined the principles of sentencing in relation to sexual offences involving minors, noting that the sentence must reflect the gravity of the offence while also considering the age and vulnerability of the victim. The court emphasised the importance of not conflating the consideration of the appropriateness of imprisonment with the suspension of the sentence. It was crucial to ensure that the sentence was proportionate to the crime and that the court's decision was informed by a comprehensive understanding of the relevant legal principles.

Upon review, the court found that the sentence imposed was not manifestly excessive. The court acknowledged the gravity of the offence but also recognised the specific circumstances of the case. The decision underscored the need for a nuanced approach to sentencing, ensuring that the sentence was not only punitive but also aligned with broader criminal justice objectives. The court's ruling upheld the sentence, affirming that it was appropriate and proportionate to the crime committed.

Orders