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

1. PAYNE JA: I agree with Garling J.

2. 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.

3. 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.

4. Each of the offences carries a maximum penalty of 20 years imprisonment. No non-parole period is fixed.

5. In respect of each offence, her Honour indicated the following sentences:

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

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

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

6. 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.

7. 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

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

1. the applicant's Children's Court record was erroneously placed before the Court in breach of s 15 of the Children (Criminal Proceedings) Act 1987, and this error had the capacity to affect the sentence imposed;

2. the sentencing Judge erred in finding that the offending was “calculated” and “clearly premeditated" which directly contradicted other findings made by the sentencing Judge.

9. At the hearing of the appeal, the applicant abandoned Ground (1).

Factual Background

10. The applicant was sentenced on the basis of a Statement of Agreed Facts which her Honour summarised.

11. At the time the offending the applicant was aged in his early 20s.

12. The first offence of robbery in company happened when the victim, late in the evening of 17 October 2018, drove herself and a friend to her house in Canley Heights. She and her friend got out of the car and went their separate ways. As the victim approached her front gate, a motorcycle being ridden by the applicant pulled up on the footpath alongside her. The applicant and his unidentified passenger were on the motorcycle. Both were wearing dark coloured coats with hoods pulled over the top of their motorcycle helmets.

13. The passenger grabbed the victim's left shoulder and pulled her towards him. He then grabbed the strap of the victim's handbag which was over her right shoulder, pulling it with enough force to break the strap and cause the victim to fall to the ground. The motorcycle took off with the passenger in possession of the handbag which contained an iPhone, identification cards, and $1,000 in cash.

14. The second offence of aggravated robbery inflicting actual bodily harm, was perpetrated about a month later on 16 December 2018. The offence occurred in broad daylight at about 2:30pm. The victim, a 70-year-old woman, was walking on the footpath towards her car in Cabramatta. The perpetrator, who was on foot, grabbed hold of the victim’s handbag pulling it as he ran across the road. In so doing, he pulled the victim to the ground face first and dragged her across the centreline of the road before succeeding in removing the handbag from the victim. The perpetrator was wearing a black jumper with a hood over his head and his face was covered at the time. He ran to the motorcycle which the applicant was riding, jumped on and the two drove away. The applicant was also wearing a dark hood over his head.

15. One of the witnesses to this incident, who was in a car, followed the two men on the motorcycle. Once the witness was observed to be following them, the motorcycle sped off across the median strip of the highway on which it was travelling. Contact was lost.

16. The victim fell to the ground and was later observed to slip in and out of consciousness prior to being taken to the Liverpool Hospital. She sustained a subcutaneous haematoma on the forehead, swelling and a laceration to her forehead. She had a graze to her lower lip and pain in her head, teeth, face and elbow. The handbag which was stolen contained the victim's phone, $300 cash and some personal items.

17. The final offence occurred at about 5pm on 7 January 2019. The victim and her daughter arrived at their home and parked their vehicle in the street in front of it. They got out of the car and proceeded to retrieve some bags from the back seat. They observed a motorcycle with two males on it which was stopped nearby. An unidentified man got off the motorcycle and walked towards the victim. The man was wearing a black motorcycle helmet. The man grabbed the victim’s handbag with great force. The strap of the handbag was around the victim shoulder and neck. She tried to hold onto it. The force pulled the victim to the ground causing pain to her hip and elbow. The strap broke and the unidentified perpetrator ran back to the motorcycle carrying the handbag. He jumped on and was driven away at speed by the applicant who had stayed on the motorcycle. The motorcycle did not have a number plate attached.

18. The victim suffered a cut to her left elbow and severe pain in that area following her fall. The handbag contained her phone, a small box of jewellery to the value of about $2,000, her wallet containing her personal identification and small amount of cash. The two offences of stealing from a person, which were included on the Form 1, included a similar modus operandi with the applicant driving a passenger on a motorcycle. The unidentified passenger stole a handbag from each victim. The handbags contained cash, a driver’s licence, mobile phones and personal items.

19. The applicant was arrested on 8 January 2019 and has been in custody since that time.

Remarks on Sentence

20. Her Honour set out the charges, the maximum penalties, the details of the Form 1 offences, and the material which had been put before her in an entirely non‑controversial way.

21. Her Honour referred to the fact of the offender's pre-sentence custody and indicated that she would take it into account.

22. Her Honour allowed a 25% discount for the applicant's plea of guilty on each offence. She noted that that discount was appropriate to reflect the utilitarian value of the plea and that it was also evidence of contrition and, pragmatically, remorse.

23. Her Honour set out a summary of the Agreed Facts. Again, there was no complaint made about her Honour’s summary. Her Honour identified the general sentencing principles and determined that having regard to the nature and number of the offences and their maximum penalties, no sentence other than one of imprisonment was appropriate.

24. Her Honour dealt with the sentencing statistics with which she was provided in accordance with the appropriate principles and authorities, and then detailed the appellant's subjective features, which she reviewed at length, including the expert psychological report which had been provided.

25. Her Honour moved to briefly summarise the submissions made by the Crown and the applicant. Her Honour noted in particular a submission from counsel for the applicant to the following effect:

“It was submitted that whilst the offender’s upbringing and background of Aboriginality was present, nonetheless the defence did not suggest that it was dire or deep enough to get into Bugmy territory. He had been brought up in a loving and secure background with a complex family dynamic, and all of those factors were part of the factual matrix that the Court would take into account … in the sentencing exercise.”

26. Her Honour then turned to consider the guideline judgment in R v Henry [1999] NSWCCA 107; (1999) 46 NSWLR 346. In dealing with that guideline judgment, her Honour said:

“I believe that the offender is a relatively young man, aged 23 years at the time of offending, he has a limited criminal history, no weapon was used. There was minimal planning as it would appear that the offending was relatively opportunistic and unsophisticated, the offender even using a motorcycle which is registered to him.”

27. Her Honour found that the applicant was remorseful for his actions as a consequence both of the plea which he had entered to each of the offences, and because of the evidence which he gave to the Court.

28. Her Honour turned to consider the objective seriousness of the matters. Having considered the submissions for both parties, her Honour found that the objective seriousness of the first offence was just below the mid-range and that the planning was neither sophisticated nor extensive. With respect to the second offence, which her Honour regarded as the most serious of all three, she also found that it was marginally below the mid-range of objective seriousness. With respect to this offence, her Honour found that there was a limited degree of planning and that the offending was largely opportunistic.

29. With respect to the third offence, her Honour found, similarly with the other two, that the objective seriousness of the matter was just below the mid-range level. Her Honour declined to accept a Crown submission that the offence was targeted against the particular victim.

30. Having considered all of these matters, her Honour turned to impose the sentence.

31. Her concluding remarks included the following:

“The crimes are calculated; they were committed over a number of months; they were clearly premeditated. All of the offences are serious … All of the offending was attended by determination to take the property from the victim. The offender appears to have very much known what he was doing … There is, accordingly, a clear need for general and specific deterrence … Nonetheless, having said that, given the nature of the offending, targeting random persons going about their business, a clear message to the general community must be sent that those who attempt to engage in like behaviour need to know that the offending will be met with condign punishment.”

32. Her Honour then imposed the aggregate sentence and announced the indicative sentences.

33. Her Honour went on to make recommendations with respect to supervision and assistance once the applicant was released on parole.

Ground 1

34. Although this ground was contained in the Notice of Intention to Appeal and was pressed on the written submissions, as earlier indicated at the hearing of the appeal counsel for the applicant abandoned Ground 1.

35. There is no need to consider this matter further.

Ground 2

36. The essence of the applicant’s submissions on this ground is that the sentencing Judge, in her sentencing remarks, made findings which were inconsistent with each other and that ultimately the overall finding regarding planning namely: “.... the crimes were calculated; they were committed over a number of months; they were clearly premeditated …” was an erroneous finding having regard to the earlier findings.

37. It was submitted that the findings regarding each individual offence, which have been set out above, could only have led to a finding that, in terms of s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, the offences were not part of a planned or organised criminal activity. If that were established, it was submitted, then that would be taken into account as a mitigating factor - which only needs to be proved on the balance of probability.

38. It was submitted that instead, the overall finding regarding planning must have led to the sentencing Judge determining that the planning was an aggravating factor of each offence pursuant to s 21A(2)(n) of the Sentencing Procedure Act, which led erroneously to longer indicative and aggregate sentences.

39. Reduced to its essence, the submission of the applicant is that the conclusion reached by the sentencing Judge, to which I have referred at [31] above, amounts to a finding of aggravation and that such aggravating factor was weighed in the balance of the appellant’s sentence. Particularly is this so, the applicant submits, because this is in effect one of the last matters referred to by her Honour before imposing sentence.

40. This applicant’s submissions depend upon interpreting the phrase “the crimes were calculated” so as to amount to a finding of an aggravating factor in accordance with the statute.

41. In the course of discussing the objective seriousness of each offence, her Honour referred to the limited degree of planning involved in each of the offences and the fact that the planning was neither sophisticated nor extensive. It is clear from the Agreed Facts that this was relatively opportunistic offending. Rather, the applicant and his co-offender, as yet still unidentified, would go out to see if there was an opportunity to conduct the theft of an innocent victim’s handbag. They were not targeting any known individual, but they were undertaking the offences intentionally in areas which they selected as appropriate, as and when an opportunity arose. These matters were taken into account in assessing the objective seriousness of each offence, which her Honour assessed largely in accordance with the applicant's submissions.

42. There is nothing inconsistent between those findings and the expressions to which attention is drawn in the final remarks by her Honour. Clearly the crimes were premeditated. That was because the applicant and his co-offender set out from home with the intention of carrying out the offences even though a specific victim was not identified at the time they set out. They were calculated, her Honour found, using a word which was to different effect than “deliberate” or “intended”, and which was intended to express the opposite conclusion to the offences being unplanned and committed entirely opportunistically or on the spur of the moment.

43. I am unpersuaded that an analysis of the possible meanings of all of the words used by her Honour suggests that there was any inconsistency in the way in which her Honour analysed the offences.

44. For those reasons I reject Ground 2 of the appeal.

Orders

45. I propose the following orders:

1. Grant leave to appeal on Ground 2.

2. Appeal dismissed.

46. WRIGHT J: I agree with Garling J.

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Decision last updated: 14 July 2021