O'Loughlan v The Queen

[2010] VSCA 175

SUPREME COURT OF VICTORIA

COURT OF APPEAL

SAPCR 0993 of 2009

PATRICK DESMOND O'LOUGHLAN	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	WEINBERG and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 July 2010
DATE OF JUDGMENT:	5 July 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 175
JUDGMENT APPEALED FROM:	R v O’Loughlan (Unreported, County Court Of Victoria, Judge Cohen, 11 December 2009

---

CRIMINAL LAW – Sentence appeal – One count of aggravated burglary – One count of recklessly causing serious injury – Parity with co-offender – Appellant sentenced to total effective sentence of 30 months’ imprisonment with non-parole period of 15 months – Co-offender sentenced to total effective sentence of 20 months’ imprisonment with non-parole period of six months – Offenders acted in concert – Whether parity principle requires sentence be reduced to one that is manifestly inadequate – Appeal allowed – Appellant re-sentenced to total effective sentence of 24 months’ imprisonment with non-parole period of nine months.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr L. Carter	Victoria Legal Aid
For the Crown	Mr T. Gyorffy	Mr C. Hyland, Solicitor for Public Prosecutions

WEINBERG JA
BONGIORNO JA:

1. The appellant, and a co-offender, Adam Rybalka, each pleaded guilty in the County Court at Ballarat to one count of aggravated burglary (count 1), and one count of recklessly causing serious injury (count 2).  The offences were committed on 10 September 2008, while both men were living at Reid’s Guesthouse, in Ballarat.  During the course of the afternoon they had been drinking heavily.  In addition, the appellant had consumed a quantity of prescription medication, significantly more than was prescribed. 

1. Some months earlier, the victim, Stephen Maher, who at that stage was also living at Reid’s Guesthouse, had stolen some items of property from the appellant.  The property in question was of no great value, but included a photograph to which the appellant was particularly attached.  Some of the property, but not the photograph, had since been recovered.  The appellant was determined to take revenge. 

1. Both offenders agreed that they would confront Maher in his flat at the block of units to which he had since moved.  As the block had a secure entrance, a plan was needed in order to gain entry.  Rybalka suggested that they ring the doorbell of an acquaintance of the appellant, who also lived in the units, and thereby gain admission to the building. 

1. The two men took with them as potential weapons a steering lock, and a set of wooden ‘nunchucks’, both owned by the appellant.  They went to the block of units and followed the plan suggested by Rybalka.  For a short while, they visited the appellant’s friend.  They then proceeded upstairs to Maher’s flat.  On reaching the door, they both began banging on it.  Shortly thereafter, they kicked the door in.  That formed the basis for count 1, the count of aggravated burglary. 

1. The appellant then rushed at Maher, screaming threateningly at him.  He struck Maher over the head with the steering lock.  Maher…