O'Hara v The Queen - [2021] WASCA 123

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   O'HARA -v- THE QUEEN [2021] WASCA 123
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   3 FEBRUARY 2021
DELIVERED          :   15 JULY 2021
FILE NO/S:   CACR 168 of 2019
BETWEEN:   MATTHEW JOHN O'HARA
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SLEIGHT CJDC
File Number            :   IND 1060 of 2019

Catchwords:

Criminal law - Appeal against sentence - Multiple State offences of possessing child exploitation material - Multiple Commonwealth offences of grooming children under the age of 16 years to engage in sexual activity and transmitting, accessing and soliciting child pornography - Where sentencing judge erred in law by applying an incorrect maximum penalty in respect of three counts on indictment - Whether sentencing judge's error was material - Whether this court should exercise sentencing discretion afresh

Legislation:

Crimes Act 1914 (Cth), s 16A
Criminal Code (Cth), s 474.19(1)(a), s 474.25C, s 474.27(1), s 474.27A(1)
Criminal Code (WA), s 220
Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	S K Shepherd
Respondent	:	P N Bevilacqua

Solicitors:

Appellant	:	Stuart Shepherd
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Bogers v The State of Western Australia [2020] WASCA 174
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Samardali v The Queen [2018] WASCA 220
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
The State of Western Australia v Egeland [2018] WASCA 228; (2018) 276 A Crim R 77
The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was convicted on his pleas of guilty of 17 offences in an indictment. Counts 1 - 3 were offences of possession of child exploitation material, contrary to s 220 of the Criminal Code (WA) (the State offences). Counts 4 - 17 were a combination of offences alleging, in essence, the grooming of a child under the age of 16 years to engage in sexual activity and transmitting, accessing and soliciting child pornography, contrary to the Criminal Code (Cth) (the Commonwealth offences).
On 15 October 2019, the appellant was sentenced by Sleight CJDC to a total effective sentence of 4 years 6 months' immediate imprisonment. The effect of orders made by his Honour was that the appellant became eligible for release on parole after serving 2 years 6 months' imprisonment.
The details of the individual charges and the sentences that were imposed are set out in the table below. The maximum sentences are as stated by the sentencing judge. As will be seen, his Honour erred in his statement of the maximum sentence in…

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] WASCA 123
Case: [2021] WASCA 123
Decision Date

CaseChat Overview and Summary

This case is an appeal against sentence. The appellant was convicted on his pleas of guilty of 17 offences in an indictment. The appellant appealed the total effective sentence imposed on him, arguing that it was manifestly excessive and that it infringed the first limb of the totality principle. The appellant also argued that the sentencing judge erred in law by applying an incorrect maximum penalty in respect of three counts on indictment. The respondent conceded that the sentencing judge had made the error alleged in ground 3 and that the error was material. The respondent submitted that this court should impose no different total effective sentence to that imposed at first instance. The appeal must be allowed. The court would resentence the appellant to a lesser total effective sentence. The court would impose the same individual sentences as were imposed at first instance in respect of the State offences. The court would impose individual sentences of immediate imprisonment as follows: count 6: 9 months' imprisonment; count 12: 9 months' imprisonment; and count 17: 10 months' imprisonment. The total effective sentence for all of the offences committed by the appellant is that the appellant must serve 4 years' imprisonment. He will become eligible for parole after serving 2 years' imprisonment from 13 October 2019.

Orders