O'Shaughnessy v R - [2020] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O’Shaughnessy v R [2020] NSWCCA 124
Hearing dates: 1 May 2020
Date of orders: 15 June 2020
Decision date: 15 June 2020
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Harrison J at [3]
Decision:
(1)    Grant leave to appeal against sentence.
(2)    Allow the appeal.
(3)    Quash the sentence imposed upon Mr O’Shaughnessy by Tupman DCJ on 14 December 2018.
(4)    In lieu thereof, sentence Mr O’Shaughnessy to imprisonment for 4 years commencing on 9 November 2017 and expiring on 8 November 2021 with a non-parole period of 3 years expiring on 8 November 2020.

Catchwords: APPEAL – sentence appeal – whether sentence imposed manifestly excessive – where appellant purchased power tools to assist friend in opening drive shafts containing cocaine – where involvement of appellant minimal – where no evidence of prior knowledge or planning – where sentence imposed unreasonable and plainly unjust – re-sentence
Legislation Cited: Criminal Code 1995 (Cth), s 307.5(1)
Category: Principal judgment
Parties: Klyde O’Shaughnessy (Applicant)
Crown (Respondent)
Representation:
Counsel:
C McGorey (Applicant)
R Ranken (Respondent)
Solicitors:
O’Brien Criminal & Civil Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2017/339764
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 December 2018

Before:

Tupman DCJ

File Number(s):

2017/339764

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.
WALTON J: I agree with Harrison J.
HARRISON J: Klyde O’Shaughnessy seeks leave to appeal against the sentence imposed upon him by her Honour Judge Tupman in the District Court of New South Wales on 14 December 2018 for an offence of attempting to possess a commercial quantity of an illegally imported border controlled drug contrary to s 307.5(1) of the Criminal Code. The offence was committed on 9 November 2017. Mr O’Shaughnessy had pleaded guilty on 20 June 2018 in the Local Court.
The maximum penalty for an offence against s 307.5(1) of the Code is imprisonment for life and/or 7,500 penalty units. Her Honour sentenced Mr O’Shaughnessy to imprisonment for 6 years and 9 months commencing on 9 November 2017 and expiring on 8 August 2023 with a non-parole period of 4 years expiring on 8 November 2021.
In the circumstances referred to below, the Crown does not oppose the grant of leave to appeal. Mr O’Shaughnessy relies upon the following three grounds of appeal:

Ground 1: The sentence imposed was manifestly excessive.

Ground 2: The appellant has a legitimate sense of grievance from the sentence passed upon his co-offender James Lindsay Willesee.

Ground 3: The sentencing judge erred in finding that the applicant’s offending was motivated in part by financial gain as:

(a) such a finding had to be made beyond reasonable doubt, and/or

(b) was not reasonably open to be made on the evidence.

Agreed facts

On 1 November 2017, a United States air…

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'Shaughnessy v R

Details

AGLC: O'Shaughnessy v The Queen [2020] NSWCCA 124
Case: [2020] NSWCCA 124
Decision Date: 15 June 2020

CaseChat Overview and Summary

In the matter of O'Shaughnessy v R, the appellant, O'Shaughnessy, sought to appeal the sentence imposed on him by the lower court. O'Shaughnessy had been found guilty of his involvement in a drug trafficking operation. His role was limited to purchasing power tools which were used by his friend to open drive shafts containing cocaine. The case was heard by the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive. The court had to consider O'Shaughnessy's level of involvement in the drug trafficking operation, which was minimal, and the absence of any evidence of prior knowledge or planning on his part. The court also needed to determine whether the sentence was unreasonable and plainly unjust. This involved a thorough review of the circumstances surrounding O'Shaughnessy's involvement and the proportionality of the sentence relative to his actions.

In its judgment, the High Court found that the sentence imposed by the lower court was indeed manifestly excessive. The court acknowledged O'Shaughnessy's limited involvement and the lack of evidence of prior knowledge or planning. The court concluded that the sentence was disproportionate to the nature and extent of O'Shaughnessy's participation in the drug trafficking operation. As a result, the court determined that the sentence was unreasonable and plainly unjust, warranting a re-sentencing. The High Court ordered that O'Shaughnessy be re-sentenced by the lower court, taking into account the appropriate proportionality and the specific circumstances of his case.

Orders