O'Connor v The QUEEN - [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

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…

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'Connor v The QUEEN

Details

AGLC: O'Connor v The QUEEN [2020] SASCFC 41
Case: [2020] SASCFC 41
Decision Date: 13 May 2020

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