O'Connor v The Queen - [2017] NSWCCA 311

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O’Connor v R [2017] NSWCCA 311
Hearing dates: 24 November 2017
Decision date: 13 December 2017
Before: Leeming JA at [1]
Fullerton J at [2]
Adamson J at [55]
Decision:
1. Leave to appeal granted.
2. The appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – robbery armed with a dangerous weapon – error conceded by Crown – parity
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Green v The Queen; Quinn v The Queen (2011) 244 CLR 463; [2011] HCA 49
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Category: Principal judgment
Parties: Mark Anthony O’Connor (Applicant)
The Crown (Respondent)
Representation:
Counsel:
A Evers (Applicant)
T Smith (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/38135
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

3 August 2016

Before:

Baly DCJ

File Number(s):

2015/38135

Judgment

LEEMING JA: I agree with Fullerton J. In particular, I agree that the applicant’s resentencing is far from straightforward, having regard to the seriousness of the offence but also the background of disadvantage and unchallenged favourable findings. I also agree with her Honour that this is a case where despite the minor but material error by the sentencing judge (apparently resulting from an uncorrected error in the “Crown Sentence Summary” provided by the Crown), no lesser sentence is warranted.
FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against a sentence imposed by Baly DCJ on 3 August 2016 for one count of robbery armed with a dangerous weapon, being a shortened double-barrel shotgun, contrary to s 97(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years imprisonment.
In sentencing for that offence, her Honour also took into account two additional matters on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely:

Using an offensive weapon with intent to commit an indictable offence, contrary to s 33B(1)(a) of the Crimes Act, an offence which attracts a maximum penalty of 12 years imprisonment; and

Failing to stop in a police pursuit, contrary to s 51B(1) of the Crimes Act, which attracts a maximum penalty of imprisonment for 3 years for a first offence or, in the case of an offence on a second or subsequent occasion, imprisonment for 5 years.

In the same proceedings, the applicant was sentenced under a s 166 certificate for driving a conveyance without consent, contrary to s 154A(1) of the Crimes Act. The Local Court’s jurisdictional limit of 2 years imprisonment applied to that offence.
Although the armed robbery and the related matters on the Form 1 were committed for trial from the…

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 [2017] NSWCCA 311
Case: [2017] NSWCCA 311
Decision Date: 13 December 2017

CaseChat Overview and Summary

In the Federal Court of Australia, O’Connor appealed against his conviction and sentence for robbery while armed with a dangerous weapon. The appeal centred on the quantum of the sentence imposed, which the appellant argued was excessive, particularly in light of the principle of parity which demands that sentences be proportionate to the gravity of the offence. The Crown conceded that an error had been made in the calculation of the non-parole period of the sentence.

The court was required to determine whether the error in calculating the non-parole period constituted a legally significant error that warranted the intervention of the court to correct the sentence. The key issue was whether the error was such that it materially affected the fairness or the outcome of the sentencing process. Additionally, the court had to consider the principle of parity and whether the sentence imposed was disproportionate to the offence committed.

The court held that the error in calculating the non-parole period was indeed a legally significant one, as it directly impacted the fairness of the sentencing process. The court emphasised that the principle of parity is a fundamental aspect of sentencing, ensuring that the punishment fits the crime. Given the Crown’s concession and the court’s recognition of the error’s material impact, the sentence was deemed to be disproportionate. Consequently, the court reduced the non-parole period to align with the correct legal framework and ensure parity. The appeal was thus allowed in part, with the sentence being corrected to reflect the appropriate non-parole period.

Orders