O'Hara v The Queen - [2021] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: O’Hara v R [2021] NSWCCA 157
Hearing dates: 07 May 2021
Date of orders: 14 July 2021
Decision date: 14 July 2021
Before: Payne JA at [1]
Garling J at [2]
Wright J at [46]
Decision:
(1) Grant leave to appeal on Ground 2.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – findings of pre-meditation and planning - whether findings made which were inconsistent - whether erroneously taken to be aggravating factor on sentence – held no inconsistency in judge’s findings – leave granted - appeal dismissed

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
R v Henry [1999] NSWCCA 107; (1999) 46 NSWLR 346

Texts Cited:
Not Applicant

Category: Principal judgment
Parties: Dylan O’Hara (Applicant)
The Crown
Representation:
Counsel:
L Fernandez (Applicant)
C Young (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2019/7591
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 December 2019

Before:

N L Williams DCJ

File Number(s):

2019/7591

Judgment

PAYNE JA: I agree with Garling J.
GARLING J: The applicant, Dylan O'Hara, seeks leave to appeal against an aggregate sentence imposed on him by N L Williams DCJ in the District Court on 18 December 2019.
The applicant entered pleas of guilty to one count of an offence contrary to s 97(1) of the Crimes Act 1900 of robbery in company, and two counts of offences contrary to s 95(1) of the Crimes Act of aggravated robbery. The aggravating feature was that actual bodily harm was inflicted in the course of each robbery. As well the applicant asked for two offences of stealing from a person contrary to s 94(b) of the Crimes Act to be taken into account on a Form 1 attached to the first count of robbery in company.
Each of the offences carries a maximum penalty of 20 years imprisonment. No non-parole period is fixed.
In respect of each offence, her Honour indicated the following sentences:

Count 1: robbery in company – 2 years 7 months 15 days;

Count 2: aggravated robbery (inflict actual bodily harm) 2 years 10 months 15 days; and

Count 3: aggravated robbery (inflict actual bodily harm) 2 years 9 months.

Her Honour sentenced the applicant to an aggregate term of imprisonment of 5 years commencing 8 January 2019 and expiring on 7 January 2024. Her Honour fixed a non-parole period of 2 years 10 months and 14 days, which is due to expire on 21 November 2021.
Her Honour made a finding of special circumstances. The aggregate non‑parole period is approximately 57.5% of the total aggregate sentence.

Grounds of Appeal

The applicant sought leave to appeal on two grounds, namely:

the applicant's Children's Court record was erroneously placed before the Court in breach of s 15 of the Children…

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'Hara v The Queen

Details

AGLC: O'Hara v The Queen [2021] NSWCCA 157
Case: [2021] NSWCCA 157
Decision Date: 14 July 2021

CaseChat Overview and Summary

In the case of O'Hara v The Queen, the appellant, O'Hara, challenged his conviction and sentence for a crime. The High Court of Australia considered the appeal, focusing on the issues of pre-meditation and planning, which were crucial findings in the lower court's sentencing decision. The appellant argued that the trial judge's findings were inconsistent and that these findings were erroneously taken into account as an aggravating factor during sentencing.

The legal issues before the court involved whether the trial judge had made inconsistent findings regarding pre-meditation and planning. If so, this inconsistency could potentially impact the severity of the sentence imposed. Additionally, the court had to determine whether the trial judge had erroneously considered these findings as an aggravating factor in sentencing. The appellant contended that these issues warranted a review and potentially a reduction in his sentence.

The High Court examined the trial judge's findings and determined that there was no inconsistency in the judge’s conclusions. The court found that the trial judge had appropriately considered the evidence and made consistent findings about the pre-meditation and planning involved in the crime. Consequently, the court held that the trial judge had not erroneously treated these findings as an aggravating factor during sentencing. The appeal was dismissed, and the original sentence was upheld.

Orders