SUPREME COURT OF VICTORIA
COURT OF APPEAL
SAPCR 0993 of 2009
| PATRICK DESMOND O'LOUGHLAN | Appellant |
| v | |
| THE QUEEN | Respondent |
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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 | |
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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.
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| 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:
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.
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.
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.
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.
The appellant then rushed at Maher, screaming threateningly at him. He struck Maher over the head with the steering lock. Maher…
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- AGLC
- O'Loughlan v The Queen [2010] VSCA 175
- Case
- [2010] VSCA 175
- Decision Date
CaseChat Overview and Summary
The court considered the principle of parity, which requires that sentences for co-offenders be commensurate with the degree of culpability and the gravity of the offence. The court noted that the appellant and the co-offender had acted in concert and that their respective sentences were significantly disproportionate. The court held that the appellant's sentence was manifestly inadequate, given the disparity between the sentences and the principle of parity. The court concluded that the appellant's sentence should be reduced to one that was commensurate with the co-offender's sentence.
The appeal was allowed, and the appellant was re-sentenced to a total effective sentence of 24 months’ imprisonment with a non-parole period of nine months. The court considered the appellant's degree of culpability, the gravity of the offences, and the principle of parity in determining the appropriate sentence. The court also noted that the appellant had shown remorse and had a clean criminal record. The court held that the new sentence was commensurate with the co-offender's sentence and was not manifestly inadequate.
Orders
Orders of the court
We would allow the appeal, and set aside each of the sentences imposed on the appellant below, as well as the non-parole period. We would re-sentence the appellant to 20 months’ imprisonment on count 1, and substitute for the sentence of 30 months’ imprisonment on count 2, a sentence of 24 months’ imprisonment on that count. We would direct that both sentences be served concurrently, making a total effective sentence of 24 months’ imprisonment. We would fix a non-parole period of nine months.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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