O'Grady v The Queen - [2015] NSWCCA 168

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O’Grady v R [2015] NSWCCA 168
Hearing dates: 16 March 2015
Date of orders: 03 July 2015
Decision date: 03 July 2015
Before: Bathurst CJ: [1]
Rothman J: [4]
McCallum J: [51]
Decision:
(1) Extension of time granted;
(2) Leave to appeal granted;
(3) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – Muldrock error – application of principles on extension of time to appeal following High Court in Kentwell v The Queen – extension of time granted as reasons for delay explained and in the interests of justice – appeal dismissed as no lesser sentence warranted in law.
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947
Kentwell v The Queen (No 2) [2015] NSWCCA 96
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
O’Grady v The Queen [2013] NSWCCA 281
O’Grady v The Queen [2014] HCA 38; (2014) 88 ALJR 960
Parker v Director of Public Prosecutions (1992) 65 A Crim R 209
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Principal judgment
Parties: Andrew O’Grady (Accused)
Regina (Crown)
Representation:
Counsel:
G. Bashir SC/with J. Roy (Applicant)
J. Girdham SC (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/9964
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal Division

Date of Decision:

17 September 2010

Before:

Murrell DCJ

File Number(s):

2009/9964

Judgment

BATHURST CJ: I agree with the orders proposed by Rothman J and with his Honour’s reasons. I would, however, add the following remarks.
As Rothman J pointed out, no warning was given in the present case that an increased sentence may be imposed as a possible outcome of the re-exercising of the sentencing discretion under s 6(3) of the Criminal Appeal Act 1912 (NSW). In those circumstances, it would have been erroneous to impose a greater sentence on the appellant than that imposed by the primary judge.
In the present case, Rothman J has indicated the sentence which he regarded as appropriate on re-exercising the sentencing discretion in the manner required by Kentwell v The Queen [2014] HCA 37; 88 ALJR 947. I agree that the sentence suggested by Rothman J was warranted. I also agree with Rothman J that where, as in this case, the Court is of the view, on the re-exercise of the sentencing discretion, that a greater sentence than the one imposed by the sentencing judge is warranted, it is not always necessary to specify the actual sentence which the Court believes is warranted. My present view is that it would generally be sufficient that the judgment demonstrates that the re-sentencing…

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 The Queen

Details

AGLC: O'Grady v The Queen [2015] NSWCCA 168
Case: [2015] NSWCCA 168
Decision Date: 03 July 2015

CaseChat Overview and Summary

In the case of O'Grady v The Queen, the appellant, O'Grady, sought to appeal against the sentence imposed by the trial court. The appeal was heard by the High Court of Australia, which considered whether the appeal should be allowed despite being lodged beyond the statutory time limit. The core issue before the court was whether the delay in lodging the appeal could be excused under the principles established by the High Court in Kentwell v The Queen. Specifically, the court needed to determine if the reasons for the delay were sufficient and if allowing the appeal was in the interests of justice.

The High Court examined the reasons provided for the delay in lodging the appeal, including the appellant's explanation for the missed deadline. It considered whether the appellant had acted with reasonable diligence and if there were exceptional circumstances justifying the extension of time. The court also assessed whether permitting the appeal would serve the interests of justice, taking into account the seriousness of the offence and the potential impact on the administration of justice. After thorough deliberation, the court concluded that the appellant's reasons for the delay were credible and that allowing the appeal was indeed in the interests of justice.

Following its analysis, the High Court granted the extension of time to appeal, acknowledging the explanation provided by the appellant and the broader implications for justice. However, upon reviewing the substantive appeal, the court found that no lesser sentence was warranted in law. Consequently, the appeal was dismissed, maintaining the original sentence imposed by the trial court. The High Court's decision underscores the importance of both procedural fairness and the substantive merits in the context of appeals against sentence.

Orders