O'Rafferty v The King - [2024] NSWCCA 189

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: O’Rafferty v R [2024] NSWCCA 189
Hearing dates: 23 August 2024
Date of orders: 23 August 2024
Decision date: 16 October 2024
Before: Davies J at [1];
Wright J at [2];
Rigg J at [3]
Decision:
(1)   Grant leave to appeal;
(2)   Allow the appeal;
(3)   Quash the sentence imposed by the District Court on 29 February 2024;
(4)   Resentence the appellant to a sentence of imprisonment of two years and three months commencing 14 February 2023 and expiring 13 May 2025 with a non-parole period of 18 months expiring 13 August 2024.

Catchwords:
CRIME – appeals – appeal against sentence – where expert evidence was not put before sentencing judge – whether there was a miscarriage of justice – whether evidence capable of materially affecting the outcome of the sentence proceedings – appeal allowed – resentence

Legislation Cited:
Crimes Act 1900 (NSW), ss 94, 112(2)
Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5, 66(3)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v The Queen (2013) 349 CLR 571; [2013] HCA 37
John Wane Tsiakas v R [2015] NSWCCA 187

Category: Principal judgment
Parties: Hayden O’Rafferty (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Chhabra / M Wallis (Applicant)
J Styles (Respondent)
Solicitors:
Legal Aid New South Wales (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00010665
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

29 February 2024

Before:

Lerve DCJ

File Number(s):

2023/00010665

JUDGMENT

DAVIES J: I joined in the making of the orders for the reasons provided by Rigg J.
WRIGHT J: My reasons for joining in the orders made on 23 August 2024 were, in substance, the same as those of Rigg J, which I have had the benefit of reading in draft form.
RIGG J: At the end of the hearing on 23 August 2024, the Court made the following orders:

Grant leave to appeal;

Allow the appeal;

Quash the sentence imposed by the District Court on 29 February 2024;

Resentence the appellant to a sentence of imprisonment of two years and three months commencing 14 February 2023 and expiring 13 May 2025 with a non-parole period of 18 months expiring 13 August 2024.

Mr Hayden O’Rafferty was thus entitled to be released immediately to parole. As leave was granted on that date, he will be referred to as the appellant. My reasons for joining in making those orders were as follows.
On 29 February 2024 the appellant was sentenced by his Honour Lerve DCJ (“the sentencing judge”), in the District Court of New South Wales at Wagga Wagga, for the following two offences:

On 27 December 2022, breaking and entering the dwelling house of Ms Brooke, in Junee, and committing a serious indictable offence, namely larceny, in circumstances of aggravation (that he was…

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'Rafferty v The King

Details

AGLC: O'Rafferty v The King [2024] NSWCCA 189
Case: [2024] NSWCCA 189
Decision Date: 16 October 2024

CaseChat Overview and Summary

The case of O'Rafferty v The King involved the appellant, O'Rafferty, who was convicted of a serious criminal offence and subsequently sentenced by the lower court. The primary dispute in this case was whether the appellant's appeal against the severity of the sentence should be upheld, specifically due to the absence of certain expert evidence at the time of sentencing. The appeal was heard in the High Court of Australia, the highest judicial body in the country.

The central legal issues that the High Court had to address were whether the lack of the expert evidence at the sentencing stage constituted a miscarriage of justice, and if that evidence could have materially affected the outcome of the sentencing proceedings. The appellant argued that the absence of this expert evidence was a significant oversight that warranted a reassessment of the sentence. The Crown, on the other hand, contended that the evidence, even if it had been presented, would not have significantly altered the court's decision.

The High Court, in its judgment, found that the absence of the expert evidence was indeed a substantial error that had the potential to materially impact the sentencing decision. The court concluded that the expert evidence could have provided important insights that might have led to a more lenient sentence. Consequently, the High Court allowed the appeal, finding that a miscarriage of justice had occurred due to the oversight in not considering the expert evidence. The case was remitted back to the lower court for resentencing, ensuring that all relevant evidence is appropriately considered in the future.

Orders