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O'Sullivan v R

O'Sullivan v R

Case [2019] NSWCCA 261 1 November 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O’Sullivan v R [2019] NSWCCA 261
Hearing dates: 23 October 2019
Decision date: 01 November 2019
Before: Hoeben CJ at CL at [1];
Walton J at [54];
Price J at [55]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – 14 counts of indecently assaulting a male person contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) – offending took place over a period of 11 years while applicant was a teacher – at time of sentence applicant serving a sentence of imprisonment for similar offences committed against different complainants – aggregate sentence of 8 years and 6 months with a non-parole period of 6 years – there was a single ground of appeal alleging manifest excess – sentencing principles comprehensively covered by sentencing judge – disputed issues involved matters of discretion – manifest excess not established – leave to appeal granted but appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 61M(2), 81
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 19, 21, 21A, 25
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 – s 25AA
Parole of Prisoners Act 1966 (NSW) (repealed)
Cases Cited: AB v The Queen [1999] HCA 46; 198 CLR 111
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Burgess v R [2019] NSWCCA 13
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
EG v R [2015] NSWCCA 21
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; 166 CLR 59
Nguyen v The Queen [2016] HCA 17; 256 CLR 656
R v MJB [2014] NSWCCA 195
R v Todd [1982] 2 NSWLR 517
R v Tuala [2015] NSWCCA 8
R v Van Ryn [2016] NSWCCA 1
Category: Principal judgment
Parties: Darcy John O’Sullivan – Applicant
Regina – Respondent Crown
Representation:
Counsel:
M Johnston SC – Applicant
B Baker – Respondent Crown
Solicitors:
Greg Walsh & Co – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2016/084335
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) there is to be no publication of information that identifies or is likely to identify the complainants.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

1 November 2018

Before:

Traill DCJ

File Number(s):

2016/084335

JUDGMENT

HOEBEN CJ at CL:

Offences and background

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him on 1 November 2018 in the District Court at Sydney by her Honour Judge Traill.

The applicant pleaded guilty and was sentenced in relation to 14 counts of indecently assaulting…

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'Sullivan v R

Details

AGLC: O'Sullivan v The Queen [2019] NSWCCA 261
Case: [2019] NSWCCA 261
Decision Date: 01 November 2019

CaseChat Overview and Summary

The appellant, O'Sullivan, appealed against his sentence in the High Court, contending that it was manifestly excessive. O'Sullivan was a teacher who had been found guilty of fourteen counts of indecent assault against a male person, contrary to section 81 of the Crimes Act 1900 (NSW). The offending had occurred over a period of 11 years. At the time of his sentencing, O'Sullivan was already serving a sentence of imprisonment for similar offences against different complainants. The total sentence imposed was 8 years and 6 months, with a non-parole period of 6 years. The appeal hinged on whether the sentence was manifestly excessive.

The central issue before the court was whether the sentence imposed was manifestly excessive, thereby warranting intervention by the High Court. The appellant argued that the sentence was manifestly excessive, whereas the respondent maintained that the sentence was within the bounds of judicial discretion and appropriate given the gravity of the offences. The court needed to determine whether the sentence imposed was so disproportionate as to shock the conscience of the court, thus constituting a manifest excess.

The High Court considered the sentencing principles comprehensively addressed by the sentencing judge and observed that the disputed issues involved matters of judicial discretion. The court noted that the sentencing judge had given due consideration to the cumulative nature of the offences, the appellant's ongoing offending, and the need for general deterrence. The court concluded that the sentencing judge had exercised his discretion appropriately and that the sentence was not manifestly excessive. Consequently, the appeal was dismissed despite the grant of leave to appeal.

The High Court dismissed the appeal and affirmed the sentence imposed by the lower court. The court held that the sentence was not manifestly excessive and that the sentencing judge had properly exercised his discretion in arriving at the sentence.

Orders