O'Brien v The King - [2023] NSWCCA 41

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O’Brien v R [2023] NSWCCA 41
Hearing dates: 28 October 2022
Decision date: 10 March 2023
Before: Bell CJ at [1];
Garling J at [2];
Button J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords:
CRIME — appeals — appeal against sentence – robbery in company at Kosciuszko Thredbo Hotel – specially aggravated kidnapping of employee – aggregate sentence imposed upon retrial – whether error in considering the physical and psychological harm suffered by the victim as an aggravating factor – where near-fatal injuries to victim – finding of substantial aggravation inevitable – whether error in conclusion that the offending was aggravated by being part of a planned criminal activity – discussion of spontaneity and offences committed “in company” – whether assessment of objective seriousness of the kidnapping offence was incorrect – whether aggregate sentence was manifestly excessive – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 86, 97, 154A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited:
Pashley v R [2019] NSWCCA 119
R v Bedford (1986) 5 NSWLR 711
R v Gilmore (1979) 1 A Crim R 416
McL v The Queen (2000) 203 CLR 452; [2000] HCA 46
Calhoun v R [2018] NSWCCA 150
Hall v R [2017] NSWCCA 260
Carroll v R [2015] NSWCCA 219

Category: Principal judgment
Parties: Daniel O’Brien (Applicant)
Rex (Respondent)
Representation: Counsel:
N Carroll (Applicant)
E Jones (Respondent)
Solicitors:
Archbold Gittani Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/136658
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 278

Date of Decision:

25 June 2021

Before:

Colefax SC DCJ

File Number(s):

2014/136658

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Daniel O’Brien (the applicant) sought leave to appeal against a sentence imposed on 25 June 2021 by Judge Colefax in the District Court of NSW. An aggregate sentence of 14 years, with a non-parole period of 9 years, was imposed for three offences: robbery in company; kidnapping, specially aggravated due to its commission in company and the infliction of actual bodily harm; and the taking and driving of a conveyance without the consent of the owner. The offences are contrary to ss 97(1), 86(3) and 154(1)(a) of the Crimes Act 1900 (NSW) respectively.

The applicant relied on four proposed grounds of appeal. First, that the sentencing judge’s conclusion that the offending was aggravated by substantial physical and psychological harm done to the victim was made in error. Second, the sentencing judge erred in concluding that the offences were aggravated by way of being part of a planned criminal activity. Third, the assessment of objective seriousness of the kidnapping offence was incorrect. And fourth, the aggregate sentence imposed by the sentencing judge was manifestly excessive.

The Court held, in granting the applicant leave to appeal but dismissing the appeal (per Button J, Bell…

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 The King

Details

AGLC: O'Brien v The King [2023] NSWCCA 41
Case: [2023] NSWCCA 41
Decision Date: 10 March 2023

CaseChat Overview and Summary

In the High Court of Australia, the matter of O’Brien v The King was heard and determined. The appellant, O’Brien, was convicted of robbery in company at the Kosciuszko Thredbo Hotel, involving the specially aggravated kidnapping of an employee. This case arose from a series of serious criminal acts, which included inflicting near-fatal injuries on the victim. O’Brien appealed against the aggregate sentence imposed upon his retrial, contending that the trial judge erred in various respects when assessing the seriousness of the offences and the sentence.

The central legal issues before the court involved whether the trial judge erred in considering the physical and psychological harm suffered by the victim as an aggravating factor, and whether the conclusion that the offending was aggravated by being part of a planned criminal activity was correct. Additionally, the court examined if the assessment of the objective seriousness of the kidnapping offence was flawed, and whether the aggregate sentence was manifestly excessive.

In its judgment, the court determined that the trial judge's consideration of the physical and psychological harm suffered by the victim as an aggravating factor was not in error, given the near-fatal injuries inflicted. The court also found that the conclusion regarding the planned nature of the offending and its role as an aggravating factor was justified. Furthermore, the court held that the trial judge's assessment of the objective seriousness of the kidnapping offence was correct and that the aggregate sentence was not manifestly excessive. The appeal was thus dismissed, affirming the sentence imposed by the trial court.

Orders