O'Connor v The QUEEN

Case [2020] SASCFC 41


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

O’CONNOR v THE QUEEN

[2020] SASCFC 41

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Bleby)

13 May 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

Application for permission to appeal against the sentence imposed on the applicant upon his convictions of three counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and one count of aggravated serious criminal trespass contrary to s 170(2) of the CLCA.

In September 2003, the applicant was introduced briefly to the victim of his offending in a hotel bar. When the victim arrived home, she went straight to bed. She awoke to find the applicant holding a knife next to her bed. In fear, she grabbed at the knife causing a deep wound to her right hand. Despite the bleeding, the applicant proceeded to tear off her underwear and bind her. The three rape offences included penile/vaginal intercourse and fellatio.

The applicant was not arrested until 14 May 2018 after DNA taken from the crime scene was matched with his DNA in the National DNA Database. He testified in his defence that he had visited the victim’s premises to buy cannabis and that consensual oral sex had ensued. It was necessarily implicit in his case that another male must have raped the victim after he had left.

The applicant does not have a significant criminal history of this kind. However, in 2015, and twice in 2017, he was convicted of offences involving the possession of a weapon.

The applicant was sentenced to 16 years imprisonment with a non-parole period of 11 years. The applicant appeals against the sentence on the ground that it is manifestly excessive.

Held per Kourakis CJ (Nicholson and Bleby JJ agreeing), refusing permission to appeal:

1.  The sentence imposed is within the range of sentences imposed for offences of this kind.

2.  It is not arguable that the head sentence is manifestly excessive.

3.  The applicant’s mixed personal circumstances do not support an argument that the non-parole period is manifestly excessive. The lack of any consideration of the plight of the applicant’s victim and the absence of any remorse or insight outweigh the absence of any similar offending before his arrest.

Criminal Law Consolidation Act 1935 (SA) ss 48, 170, referred to.
R v Knight [2016] SASCFC 40, considered.

O’CONNOR v THE QUEEN
[2020] SASCFC 41

Full Court:      Kourakis CJ, Nicholson and Bleby JJ

  1. KOURAKIS CJ (ex tempore):     This is an application for permission to appeal against a sentence of 16 years imprisonment with a non-parole period of 11 years imposed by a Judge of the District Court upon the applicant’s convictions of three…

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O'Connor v The QUEEN [2020] SASCFC 41
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[2020] SASCFC 41
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CaseChat Overview and Summary

The case of *O'Connor v The Queen* concerned an appeal against a conviction for sexual assault. The appellant, O'Connor, was convicted in the District Court of South Australia of one count of aggravated sexual assault. The complainant alleged that the appellant had sexually assaulted her in her home.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the trial judge had erred in directing the jury regarding the issue of consent. Specifically, the appeal questioned whether the jury had been adequately instructed on the appellant's belief as to the complainant's consent, and whether that belief was reasonable in the circumstances.

The Full Court considered the relevant provisions of the *Criminal Law Consolidation Act 1935* (SA) concerning sexual offences and the definition of consent. The Court analysed the evidence presented at trial and the judge's summing up, determining that the direction given to the jury on the issue of reasonable belief in consent was sufficient and did not misstate the law. The principles applied focused on the objective reasonableness of the accused's belief, assessed in light of all the circumstances, including the accused's subjective belief.

The appeal was dismissed, and the conviction was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ

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Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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