O'Brien v R - [2010] NSWCCA 297

New South Wales
Court of Criminal Appeal

CITATION: O'Brien v R [2010] NSWCCA 297

HEARING DATE(S): 20 October 2010

JUDGMENT DATE:
17 December 2010

JUDGMENT OF: Simpson J at 1; Hoeben J at 2; RA Hulme J at 3

DECISION: 1. Application for leave to appeal granted.
2. Appeal allowed.
3. The sentence for the offence of supply prohibited drug (1 October 2008) of imprisonment for a fixed term of 3 years to date from 1 October 2008 and expire on 30 September 2011 is confirmed.
4. The remaining sentences imposed in the District Court are quashed and in lieu, the following sentences are imposed:
Supply commercial quantity of prohibited drug (23 May – 27 September 2008): Sentenced to imprisonment comprising a non-parole period of 3 years 6 months with a balance of term of 2 years 6 months. The sentence is to commence 1 April 2009. The non-parole period will expire 30 September 2012. The total term will expire 31 March 2015.
Supply commercial quantity of prohibited drug (21 May – 24 July 2008): Sentenced to imprisonment comprising a non-parole period of 4 years 6 months with a balance of term of 3 years 6 months. The sentence is to commence 1 October 2009. The non-parole period will expire on 31 March 2014. The total term will expire 30 September 2017.
Supply commercial quantity of prohibited drug (14 August 2008): Sentenced to imprisonment comprising a non-parole period of 4 years 6 months with a balance of term of 3 years 6 months. The sentence is to commence 1 April 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 30 September 2014. The total term will expire on 31 March 2018.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - consideration of material in psychological report when offender gave evidence affirming the truth of the history provided - error in assessment of remorse - whether error in assessment of rehabilitation prospects - whether error in treatment of previous convictions - whether a mitigating factor that drugs supplied to undercover police officer - totality principle - excessive accumulation of sentences - sentence manifestly excessive

LEGISLATION CITED: Drugs Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Regina v Chan [1999] NSWCCA 103
Regina v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Ben Keith O'Brien (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/76021

COUNSEL: Mr S Odgers SC (Applicant)
Mr P Ingram SC (Respondent)

SOLICITORS: The Law Practice
Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1631

LOWER COURT JUDICIAL OFFICER: King DCJ

LOWER COURT DATE OF DECISION: 30 October 2009

2008/76021

SIMPSON J
HOEBEN J
R A HULME J
17 December 2010

Ben Keith O’BRIEN v Regina

Judgment

1 SIMPSON J: I agree with R A Hulme J.

2 HOEBEN J: I agree with R A Hulme J and 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 [2010] NSWCCA 297
Case: [2010] NSWCCA 297
Decision Date: 17 December 2010

CaseChat Overview and Summary

The appellant, O'Brien, appealed against the severity of a sentence imposed by the County Court of Victoria for commercial supply of ecstasy. The case was heard by the Court of Appeal. The central issue before the court was whether the sentence imposed was manifestly excessive, taking into account various factors including the totality principle, the appellant's prospects for rehabilitation, and the error in the assessment of remorse. Additionally, the court examined whether the trial judge erred in considering the supply of drugs to an undercover police officer as a mitigating factor and whether there was an error in the assessment of previous convictions.

The court found that the trial judge erred in assessing the appellant's remorse, as the judge did not consider the appellant's evidence affirming the truth of the history provided in the psychological report. The court also determined that the trial judge erred in assessing the appellant's prospects for rehabilitation. However, the court held that the error in assessing previous convictions did not warrant a new sentencing hearing. The court held that the supply of drugs to an undercover police officer could not be considered a mitigating factor, but this did not lead to the conclusion that the sentence was manifestly excessive. The court concluded that while the sentence was severe, it was not manifestly excessive when considering the totality principle.

The court determined that the sentence was not manifestly excessive and dismissed the appeal. The court did not consider it necessary to order a new sentencing hearing given the errors identified, as the sentence was deemed appropriate in light of the totality principle. The appeal was dismissed, and the original sentence was upheld.

Orders