O'Brien v The Queen

[2015] ACTCA 47

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

O’Brien v The Queen

Citation:

[2015] ACTCA 47

Hearing Date:

15 May 2015

DecisionDate:

15 May 2015

Before:

Murrell CJ, Wigney J and Walmsley AJ

Decision:

Appeal dismissed.

Category:

Principal Judgment

Catchwords:

APPEAL – Sentence – Whether sentence was manifestly excessive

Legislation Cited:

Crimes Act 1900 (ACT) ss 24, 34, 114C

Criminal Code 2002 (ACT) ss 603(7), 713

Cases Cited:

Balthazaar v The Queen [2012] ACTCA 26

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
Cahyadi v The Queen (2007) 168 A Crim R 41
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Markarian v The Queen (2005) 228 CLR 357
Melham v The Queen [2011] NSWCCA 121
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Abbott (2007) 170 A Crim R 306
R v Knight (2005) 155 A Crim R 252
R v MAK (2006) 167 A Crim R 159

R v Wheeler [2000] NSWCCA 34

Parties:

David Anthony O’Brien (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr J Lawton (Appellant)

Mr J White SC (Respondent)

Solicitors

Rachel Bird and Co (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 30 of 2014

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Burns J

Date of Decision:         12 June 2014

Case Title:  R v O’Brien

Citation: [2014] ACTSC 156

THE COURT:

1. Mr O’Brien appealed against a sentence handed down in respect of six offences relating to three distinct incidents of criminality.  The aggregate sentence imposed was a sentence of imprisonment of 12 years and 11 months with a non-parole period of 8 years and 4 months.  The sole ground of appeal was that the aggregate sentence was manifestly excessive.

1. On 15 May 2015, the Court dismissed the appeal.  These are the Court’s reasons for so doing.

The Offending Conduct and Charges

Incident 1 - trafficking in cocaine 

1. Between 1 March 2010 and 20 August 2012, the appellant trafficked in cocaine by selling it to friends and acquaintances.  He was also found to be in possession of 931 grams of cocaine.  When police executed a search warrant on the appellant’s premises, they located a total of $44,900.00 in cash, which was the proceeds of the appellant’s trafficking.  The cocaine found in the appellant’s possession had a street value of between $279,300.00 and $325,850.00.

1. The appellant was charged with an offence of trafficking in a controlled drug (other than cannabis) under s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code) (which carries a maximum penalty of 10 years’ imprisonment, or 1000 penalty units or both) and an offence of dealing with money which was the proceeds of crime under s 114C of the Crimes Act 1900 (ACT) (Crimes Act) (which carries a maximum penalty of 2 years’ imprisonment, or 200 penalty units or both).

1. The appellant initially pleaded not guilty…