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O'Grady v R

O'Grady v R

Case [2013] NSWCCA 281 18 November 2013

Appeal

Aggravated & Exemplary Damages

Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O'Grady v Regina [2013] NSWCCA 281
Hearing dates: 21 October 2013
Decision date: 18 November 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Bellew J [3]
Decision:
(i) The application for an extension of time is dismissed

Catchwords:
CRIMINAL LAW - appeal - application for extension of time on the basis of asserted Muldrock error - error established
CRIMINAL LAW - appeal - offence of aggravated breaking and entering in the nature of a home invasion - where applicant found to have been the orchestrator of offence - where offence committed in company - where violence perpetrated on victim resulting in significant injuries requiring hospitalisation - no lesser sentence warranted in law - application for extension of time dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Abdul v R [2013] NSWCCA 247
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
O'Grady v R [2012] NSWCCA 62
Palijan v R [2010] NSWCCA 142
Category: Principal judgment
Parties: Andrew William James O'Grady - Applicant
Regina - Respondent
Representation: Counsel:
Mr C Smith - Applicant
Ms N Noman SC - Respondent
Solicitors:
Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

File Number(s): 2009 / 9964006
Publication restriction: Nil
Decision under appeal

Date of Decision:

2010-09-17 00:00:00

Before:

Murrell DCJ

Judgment

HOEBEN CJ at CL: I agree with Bellew J.

JOHNSON J: I agree with Bellew J.

BELLEW J: Following a trial, the applicant was convicted of an offence of specially aggravated break and enter contrary to s. 112(3) of the Crimes Act 1900 (NSW). The offence was carried out in the company of two other persons, Bradley Carter ("Carter") and Robert Puha ("Puha").

The offence carries a maximum penalty of 25 years imprisonment, with a standard non-parole period of 8 years imprisonment.

The applicant was sentenced by her Honour Judge Murrell to a non-parole period of 5 years and 6 months imprisonment, with an additional term of 3 years and 6 months. He is eligible for release on parole on 22 November 2015.

The applicant seeks an extension of time in which to seek leave to appeal against the sentence imposed. The background to that application is set out in an affidavit of the applicant of 20 September 2013 along with an affidavit of Ruth Chalmers, solicitor, of 20 September 2013. In summary, shortly after he was sentenced the applicant instructed his then legal representatives to lodge a notice of intention to appeal against conviction and sentence. As events transpired, the appeal proceeded as one against conviction only. The applicant is not able to recall why it was that no application for leave to appeal against sentence was pursued. The appeal against conviction was dismissed by this Court on 30 September 2012…

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'Grady v R

Details

AGLC: O'Grady v R [2013] NSWCCA 281
Case: [2013] NSWCCA 281
Decision Date: 18 November 2013

CaseChat Overview and Summary

The case of O'Grady v R involved the applicant appealing against his conviction for aggravated breaking and entering in the nature of a home invasion. The offence was committed in company and involved violence against the victim, resulting in significant injuries that required hospitalisation. The applicant was found to have been the orchestrator of the crime. The appeal was primarily focused on the application for an extension of time to lodge the appeal, citing a procedural error as the basis for the application. This procedural error was later confirmed to be a Muldrock error, referring to a type of legal mistake that could potentially justify an extension of time.

The court was required to decide whether the procedural error identified by the applicant warranted an extension of time for lodging the appeal. Additionally, the court needed to determine whether the sentence imposed was appropriate given the nature and circumstances of the offence. The court had to balance the severity of the crime against any mitigating factors while ensuring that the sentence reflected the seriousness of the acts committed.

In its reasoning, the court acknowledged the existence of the procedural error, confirming that it was indeed a Muldrock error. However, despite this error, the court dismissed the application for an extension of time. The court found that the circumstances did not warrant an extension, as the applicant had not demonstrated any significant prejudice caused by the error. Furthermore, the court concluded that the sentence imposed was appropriate and in line with the gravity of the offence, considering the violence and the significant injuries inflicted on the victim. The court upheld the conviction and sentence, dismissing the application for an extension of time.

The final orders of the court dismissed the application for an extension of time and affirmed the conviction and sentence of the applicant. The court's decision underscored the importance of procedural correctness while also emphasising the need for sentences to reflect the seriousness of the crimes committed.

Orders