O'Brien v R - [2000] TASSC 117

[2000] TASSC 117

CITATION: O'Brien v R [2000] TASSC 117

PARTIES:  O'BRIEN, Benjamin Noel
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 141/1999
DELIVERED ON:  21 August 2000
DELIVERED AT:  Hobart
HEARING DATE:  21 August 2000
JUDGMENT OF:  Cox CJ, Underwood and Blow JJ

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - General principles - Whether sentence was manifestly excessive - Principles of general and specific deterrence - Serious offence committed by youth with bad prior record.

Lahey v Sanderson [1959] TAS SR 17; Veen v R [No 2] (1988) 164 CLR 465, referred to.
Aust Dig Criminal Law [1003]

REPRESENTATION:

Counsel:
           Appellant:  W M Hodgman QC
           Respondent:  L A Mason
Solicitors:
           Appellant:  Milton & Meyer
           Respondent:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 117
Number of paragraphs: 10

Serial No 117/2000
File No CCA 141/1999

BENJAMIN NOEL O'BRIEN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

(DELIVERED ORALLY) COX CJ

UNDERWOOD J
BLOW J
21 August 2000

Order of the Court:

Appeal dismissed.

Serial No 117/2000
File No CCA 141/1999

BENJAMIN NOEL O'BRIEN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

(DELIVERED ORALLY) COX CJ

21 August 2000

The appellant, on his conviction for one count of aggravated burglary and one count of attempted aggravated armed robbery committed by him at the age of 18 years and 2 months, was sentenced to imprisonment for four years three months, backdated to the date on which he was taken into custody. He appeals on the basis that the sentence was, in the circumstances, manifestly excessive, that the learned trial judge made an error of fact in the sentencing process and that he failed to properly apply the principles laid down by the High Court in Veen v R [No 2] (1988) 164 CLR 465.

The crime itself was a particularly serious one. Three other men met in the appellant's flat and together with the appellant, decided to invade the home of the complainant and to steal drugs and money believed to be there. The other men were older and one, the instigator and ringleader, physically stronger. That person appears to have been quite deranged and has not been brought to trial because of his mental condition. Neither of the other two men has been brought to trial. One of them, being known to the complainant who was selected as a victim because he was only 18 years of age and was regarded as weak, did not go to the scene of the crime, but the appellant and the other two did. All donned balaclavas to conceal their identity and the other two, to the knowledge of the appellant, armed themselves with knives and a wrench. Although prior to departure from the appellant's flat there is evidence that one of the other men spoke of scaring the complainant and robbing…

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 [2000] TASSC 117
Case: [2000] TASSC 117
Decision Date: 21 August 2000

CaseChat Overview and Summary

In the case of O'Brien v R, the Court of Criminal Appeal of Tasmania heard an appeal from the appellant, Benjamin Noel O'Brien, against his conviction for one count of aggravated burglary and one count of attempted aggravated armed robbery. The appellant was sentenced to four years and three months imprisonment, which he argued was manifestly excessive given the circumstances. The court had to determine whether the sentence was appropriate and if the trial judge had erred in applying the principles set out in Veen v R. The court found that the crime was particularly serious, involving a home invasion and violence against the victim. The appellant, although younger, had a significant criminal history and showed no remorse. The judges concluded that the sentence was not manifestly excessive and dismissed the appeal.

The key legal issues before the court were whether the sentence imposed on the appellant was manifestly excessive and whether the trial judge had made any errors in applying the principles of sentencing, particularly those relating to general and specific deterrence. The court considered the gravity of the crime, the appellant's criminal history, and his lack of remorse. The judges examined the sentence in light of the principles laid down by the High Court in Veen v R, focusing on whether the sentence was disproportionate to the offence and whether it adequately served the purposes of punishment, including deterrence and protection of society.

In dismissing the appeal, the Court of Criminal Appeal found that the sentence imposed on the appellant was not manifestly excessive. The judges considered the severity of the crime, the appellant's criminal history, and his lack of remorse. They held that the sentence was proportionate to the gravity of the offences and appropriately balanced the need for general and specific deterrence with the rehabilitative aims of sentencing. The court concluded that the trial judge had correctly applied the relevant sentencing principles and that the sentence was justified in the circumstances. The judges unanimously agreed that the appeal should be dismissed.

The final order of the Court of Criminal Appeal was that the appeal by Benjamin Noel O'Brien against his sentence was dismissed. The court found that the sentence of four years and three months imprisonment was appropriate and not manifestly excessive, considering the seriousness of the crimes committed and the appellant's extensive criminal history.

Orders