O'Connell v R

Case [2016] NSWCCA 43


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

  1. HOEBEN CJ at CL: I agree with Fullerton J.

  2. ADAMS J: I agree with Fullerton J.

  3. 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.

  4. 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.

  5. 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.

  6. 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)…

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O'Connell v R [2016] NSWCCA 43
Case
[2016] NSWCCA 43
Decision Date

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

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Background

Background to the litigation

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Evidence

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Ratio Decidendi

Legal Principle Established

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