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O'Connell v R

O'Connell v R

Case [2016] NSWCCA 43 18 March 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O’Connell v R [2016] NSWCCA 43
Hearing dates: 19 February 2016
Decision date: 18 March 2016
Before: Hoeben CJ at CL at [1]
Adams J at [2]
Fullerton J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence - sexual assaults of two children - production of child abuse material – whether sentencing judge erred in failing to give practical effect to his finding of special circumstances
Legislation Cited: Crimes Act 1900 (NSW), s 61M(2), s 91G(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: CM v R [2013] NSWCCA 341
Kentwell v R (No 2) [2013] NSWCCA 96
Category: Principal judgment
Parties: Shane Scott O’Connell (Applicant)
The Crown (Respondent)
Representation:
Counsel:
L Brasch (Applicant)
N Adams (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/238322013/103870
Publication restriction: Non-publication order re victims and victims’ families
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

12 May 2014

Before:

Maiden SC DCJ

File Number(s):

2013/23832
2013/103870

Judgment

HOEBEN CJ at CL: I agree with Fullerton J.
ADAMS J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal a sentence imposed by Maiden DCJ on 12 May 2014 following his pleas of guilty to multiple charges involving sexual assaults of two children in separate incidents between 2010 and 2013 contrary to s 61M(2) of the Crimes Act 1900 (NSW) and his use of both children, also in separate incidents, for the production of child abuse material and for pornographic purposes contrary to s 91G(1)(a) of the Crimes Act.
The applicant also invited the sentencing judge to take into account on sentence further offences against s 91 of the Crimes Act in two Forms 1.
The applicable maximum penalties for each of the counts on the indictment ranged from 10 to 14 years. In respect of the two counts of aggravated indecent assault on the two children (aged respectively 9 and 12 years) under s 61M(2), a standard non-parole period of 8 years applies.
After allowing a discount of 25 per cent for the pleas of guilty, separate sentences were imposed on each of the five counts on the indictment, with the offences on the Forms 1 taken into account on counts 2 and 5 as follows:

The offences involving the child TM aged 9 years

1. Aggravated indecent assault on a person under 16 years contrary to s 61M(2) of the Crimes Act.

2 Using a child under 14 years for pornographic purposes contrary to s 91G(1) of the Crimes Act (since amended).

Concurrent sentences of 3 years 9 months imprisonment with a non-parole period of 2 years 9 months and 21 days.

The offences involving the child KT aged 12 years

3. Aggravated indecent assault on a person under 16 years contrary to s 61M(2)…

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'Connell v R

Details

AGLC: O'Connell v R [2016] NSWCCA 43
Case: [2016] NSWCCA 43
Decision Date: 18 March 2016

CaseChat Overview and Summary

In the case of O'Connell v R, the appellant, O'Connell, was convicted of multiple counts of sexual assault of two children and producing child abuse material. The matter was brought before the Court of Appeal, which was tasked with reviewing the sentence imposed by the sentencing judge. The crux of the appeal centred on whether the sentencing judge had correctly applied the principles of sentencing in a case involving such heinous crimes. Specifically, the appellant argued that the sentencing judge had failed to give practical effect to his finding of special circumstances, which in turn resulted in an unduly lenient sentence.

The court was required to determine whether the sentencing judge had erred in his application of the principles of sentencing, particularly in the context of the special circumstances identified. The appeal hinged on whether these special circumstances warranted a more severe sentence. The court also needed to consider the broader context of the crimes committed, which involved the sexual assault of two children and the production of child abuse material. The gravity of these offences necessitated a careful examination of the sentencing process to ensure that justice was served.

The court held that the sentencing judge had indeed erred in failing to give practical effect to his finding of special circumstances. The appeal was allowed, and the court remitted the matter to the sentencing judge for reconsideration of the sentence. The court emphasised that the nature and circumstances of the offences warranted a sentence that reflected their heinous nature and the harm caused to the victims. The court noted that the sentencing judge had acknowledged the special circumstances but had not adequately factored them into the overall sentence. The appeal was thus allowed, and the matter was remitted for a fresh sentencing hearing that properly considered the special circumstances identified.

Orders