O'Neill v The Queen - [2012] NSWCCA 22

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O'NEILL v R [2012] NSWCCA 22
Hearing dates: 1 February 2012
Decision date: 29 February 2012
Jurisdiction: Common Law - Criminal
Before: Whealy JA at [1]
RS Hulme J at [2]
Hidden J at [3]
Decision:
Leave to appeal granted, appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - break, enter and steal - sentence accumulated upon sentences for other offences - effective non-parole period more than 75% of aggregate sentence - not an oversight by sentencing judge - no error
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Kalache v R [2011] NSWCCA 210
Mill v The Queen [1998] HCA 70; 166 CLR 59
Stevens v R [2008] NSWCCA 294
France v R [2010] NSWCCA 24
Texts Cited: Thomas, Principles of Sentencing, 2nd ed
Category: Principal judgment
Parties: Leslie William O'Neill (applicant)
Regina (respondent)
Representation: Counsel
P Townsend (Senior Solicitor Advocate - Legal Aid NSW) (applicant)
N Gouda (respondent)
Solicitors
B Sandland (Legal Aid NSW) (applicant)
S Kavanagh (Solicitor for Public Prosecutions) (respondent)

File Number(s): 2009/260509
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-11-18 00:00:00

Before:

English DCJ

File Number(s):

2009/260509

Judgment

WHEALY JA: I agree with Hidden J and the orders he proposes.

RS HULME J: I agree with Hidden J.

HIDDEN J: The applicant, Leslie William O'Neill, pleaded guilty in the District Court to a charge of break, enter and steal, an offence under s 112(1)(a) of the Crimes Act 1900 which carries a maximum sentence of 14 years imprisonment. He was also dealt with on a s 166 certificate for a related offence of destroying or damaging property, an offence under s 195(1)(a) of the Crimes Act which carries a maximum sentence of 5 years imprisonment.

For the offence of break, enter and steal he was sentenced to imprisonment for 3 years and 9 months, comprising a non-parole period of 2 years and 9 months and a balance of term of 1 year. The sentence was directed to commence on 6 June 2011, upon the expiry of a series of other sentences imposed by the sentencing judge on appeal from the Local Court. For the offence on the s 166 certificate he was sentenced to a short fixed term of imprisonment, to be served concurrently with the sentence on the break, enter and steal. He seeks leave to appeal against the sentence for the break, enter and steal.

Given the limited scope of the application, it is unnecessary to examine in any detail the facts of the offences or the applicant's subjective circumstances. In the early hours of 6 November 2009 the applicant broke into the Griffith North Public School and stole property of significant value from classrooms there. He did not get very far with it, because police had been alerted to the offence. They arrived at the school, chased the applicant and apprehended him. Nevertheless, items taken from the classrooms, including a…

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'Neill v The Queen

Details

AGLC: O'Neill v The Queen [2012] NSWCCA 22
Case: [2012] NSWCCA 22
Decision Date: 29 February 2012

CaseChat Overview and Summary

The applicant, O'Neill, sought leave to appeal against the sentence imposed by the Supreme Court of New South Wales. O'Neill had been convicted of multiple offences, including breaking and entering and stealing. The sentence imposed was to be accumulated upon sentences for other offences. The applicant argued that the effective non-parole period was more than 75% of the aggregate sentence, which was considered disproportionate. The application for leave to appeal was made to the High Court of Australia.

The central legal issues before the Court were whether the applicant's sentence was manifestly excessive and whether there was an error on the part of the sentencing judge. The Court needed to consider whether the sentence imposed was disproportionate and if any error by the sentencing judge warranted leave to appeal. Additionally, the Court needed to determine if the cumulative effect of the sentences amounted to an oversight.

The Court found that the applicant's sentence was not manifestly excessive and that there was no error on the part of the sentencing judge. It was held that the effective non-parole period was not more than 75% of the aggregate sentence, and any perceived disproportionality was not a result of an oversight. The Court concluded that the applicant's sentence was proportionate and that the application for leave to appeal should be dismissed. The Court held that the sentence imposed was appropriate and did not warrant an appeal.

No orders were made by the Court as the application for leave to appeal was dismissed. The sentence imposed by the Supreme Court of New South Wales was upheld, and the applicant's argument regarding the disproportionality of the sentence was not accepted. The Court found no basis for an appeal, and the applicant's application was dismissed.

Orders