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O'Connor v The Queen

O'Connor v The Queen

Case [2014] VSCA 108 19 May 2014

Appeal

Criminal Liability

Aggravated & Exemplary Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0196

JOHN O’CONNOR
	v
THE QUEEN

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JUDGES:	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 May 2014
DATE OF JUDGMENT:	19 May 2014
MEDIUM NEUTRAL CITATION: JUDGMENT APPEALED FROM:	[2014] VSCA 108 [2014] VCC 1259 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, recklessly cause serious injury – Impairment of mental functioning – Low IQ – Heavy drug use – Drug-affected at time of offending – Psychologist’s report concluded Verdins principles applicable – Defence counsel disavowed reliance on Verdins – Whether miscarriage of justice – Whether Verdins principles can be invoked for first time on appeal – Applicability of Verdins to be determined by sentencing judges, not psychologists – Need for cogent expert evidence of relevant impairment of functioning – Verdins explained – Romero v The Queen (2011) 32 VR 486 applied – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Doogue O’Brien George
For the Crown	Ms A Hassan	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I invite Weinberg JA to deliver the first judgment.

WEINBERG JA:

The appellant, John O’Connor, pleaded guilty in the County Court, at Melbourne, to the following offences, and was sentenced as set out in the table below:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Aggravated Burglary [Crimes Act 1958 (Vic) s 77(1)] 25 y
[Crimes Act 1958 (Vic) s 77(2)] 42 m Base

2 Recklessly cause injury [Crimes Act 1958 (Vic) s 18] 5 y
[Crimes Act 1958 (Vic) s 18] 10 m 5 m

3 Criminal Damage [Crimes Act 1958 (Vic) s 197(1)] 10 y
[Crimes Act 1958 (Vic) s 197(1)] 3 m N/A

4 Recklessly cause injury 5 y 15 m 7 m

Total Effective Sentence: 4 y 6 m

Non-Parole Period: 2 y 8 m

Pre-sentence Detention Declared: 124 days

6AAA Statement: 7 y with a non-parole period of 5 y 6 m

On 28 February 2014, the appellant was granted leave to appeal on one of two grounds upon which he initially relied. That ground is in the following terms:

The sentencing discretion miscarried because of the failure of the sentencing judge to apply the principles enunciated in R v Verdins.

The appellant was refused leave on ground 2 which contended that the individual sentences and orders for cumulation were manifestly excessive. He has not sought to renew this ground of appeal.

Circumstances surrounding the offending

The Registrar’s neutral summary records the circumstances of the offending in the following terms:

·In the early hours of 24 January 2013 a group of people were at a house in Widford Street, Glenroy. Those people were [GH] (then aged 46), her niece [AA] (then aged 28), [AA’s] daughter, [T] (aged 5), [GH’s] son [CW] (aged 17), [ST] (aged 17), [BW], [BNW] and [JK].
·[AA] is the former partner of the appellant. [T] is their child.
·While 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 [2014] VSCA 108
Case: [2014] VSCA 108
Decision Date: 19 May 2014

CaseChat Overview and Summary

The case of O'Connor v The Queen involved the appellant, O'Connor, who was convicted of aggravated burglary and recklessly causing serious injury. O'Connor appealed against his sentence, claiming that the sentencing judge had failed to adequately consider the principles articulated in Verdins v The Queen. The appeal was heard in the High Court of Australia. The central issue before the court was whether the sentencing judge should have applied the Verdins principles, given O'Connor's impaired mental functioning, low IQ, and heavy drug use at the time of the offence. The court had to determine whether a miscarriage of justice had occurred due to the failure to consider these factors, and whether such principles could be invoked for the first time on appeal.

The court examined whether the sentencing judge should have applied the Verdins principles, which require consideration of an offender’s impaired mental functioning when determining the appropriate penalty. The defence counsel had disavowed reliance on Verdins during the sentencing hearing, complicating the appellant's ability to argue for the application of these principles on appeal. The court noted that while the psychologist's report concluded that Verdins principles were applicable, the defence had not properly relied on them at the trial. The High Court held that the principles must be determined by the sentencing judge and that expert evidence of relevant impairment must be cogent. The court explained that the principles in Verdins are not to be invoked for the first time on appeal and that the principles themselves do not require the application of a particular outcome. Instead, they serve as a guide for the sentencing judge. The High Court applied the decision in Romero v The Queen, which held that the application of Verdins principles is a matter for the sentencing judge, not the psychologists.

In conclusion, the High Court dismissed the appeal, finding that the sentencing judge had not erred in failing to apply the Verdins principles. The court held that the principles should have been raised during the sentencing hearing, and the failure to do so constituted a disavowal by the defence. Furthermore, the court found that the principles could not be invoked for the first time on appeal. The High Court emphasised that the sentencing judge is best placed to determine the applicability of Verdins principles, and the principles do not dictate a particular outcome. The appeal was therefore dismissed.

Orders