O'Sullivan v The Queen - [2015] NSWCCA 329

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: O’Sullivan v R [2015] NSWCCA 329
Hearing dates: 3 August 2015
Decision date: 21 December 2015
Before: Gleeson JA at [1];
Adams J at [2];
Fagan J at [47].
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – breach of conditions of extended supervision order – additional criminal offences – possession of child abuse material – seriousness – extent of indicated accumulation – whether aggregate sentence manifestly excessive
Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW), s 12
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), s 21A(2)(j)
Crimes (Serious Sex Offenders) Act 2006 (NSW), s 7(4)
Crimes Act 1900 (NSW), s 91H(2)
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: McEwen v Simmons & Anor [2008] NSWSC 1292
Pearce v R [1998] HCA 57; 194 CLR 610
Sivell v R [2009] NSWCCA 286
State of New South Wales v O’Sullivan [2009] NSWSC 704
Category: Principal judgment
Parties: Daniel Ron O’Sullivan (Applicant)
Regina (Respondent)
Representation:
Counsel:
N Noman SC (Applicant)
M Johnston (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent/Crown)

File Number(s): 2012/303403
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

5 September 2014

Before:

Yehia DCJ

File Number(s):

2012/303403

Judgment

GLEESON JA: I agree with the orders proposed by Adams J that leave to appeal should be granted, but the appeal should be dismissed. I agree with the reasons of Adams J, except with respect to Ground 1 insofar as the applicant asserted error by the sentencing judge when dealing with the significance of the professional recommendations for the use of anti-libidinal medication by the applicant. I also agree with the reasons given by Fagan J.
ADAMS J:

Introduction

The applicant, with an extensive criminal record involving convictions for sexual offences committed against children, was, on 22 July 2009, subjected to an extended supervision order pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) (now the Crimes (High Risk Offenders) Act 2006 (NSW)) for five years from 18 May 2009. That order required the applicant to comply with a number of conditions, any breach of which would be an offence under s 12 of the latter Act. He was charged with three breaches of the supervision order, one of which was constituted by the commission of three substantive offences involving the possession of child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW). The other two breaches were, respectively, of conditions of the supervision order (a) that he comply with directions of his Community Corrections supervisor (relevantly, to provide internet user details) and (b) that he not make contact with children under 16 without an approved adult being present. He was brought before the District Court on the three s 91H(2) charges and for the three offences of breaching his supervision order, at the one time.…

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 The Queen

Details

AGLC: O'Sullivan v The Queen [2015] NSWCCA 329
Case: [2015] NSWCCA 329
Decision Date: 21 December 2015

CaseChat Overview and Summary

In the case of O'Sullivan v The Queen, the respondent appealed against the sentence imposed on him by the County Court of Victoria for breaching the conditions of an extended supervision order. The appellant was additionally charged with possessing child abuse material, which was discovered during an investigation into the breach of the supervision order. The Supreme Court of Victoria heard the appeal, which was primarily concerned with whether the aggregate sentence was manifestly excessive in light of the appellant's offending history and the nature of the additional charges.

The legal issues that the court had to decide included whether the seriousness of the additional offending warranted a departure from the sentencing principles that would normally apply to the breach of the supervision order. The court also needed to determine whether the aggregate sentence imposed was manifestly excessive, considering the totality of the appellant's offending. The appeal hinged on whether the sentence imposed was so disproportionate to the offending that it constituted a miscarriage of justice.

The court found that the additional offending of possessing child abuse material was indeed serious, particularly because of the extent of the material accumulated. However, the court also acknowledged the appellant's cooperation with authorities and his efforts to address his offending. The court held that the sentence imposed was not manifestly excessive, as it had taken into account the totality of the appellant's offending and his prospects for rehabilitation. The court found that the sentence was proportionate to the seriousness of the offending and the need to protect the community.

The final orders of the court were that the appeal against sentence was dismissed, and the sentence imposed by the County Court of Victoria was upheld. The appellant was ordered to serve the sentence as determined by the County Court, with no modification to the terms of the sentence. The court emphasised the importance of the appellant's rehabilitation and his efforts to address his offending in reaching its decision.

Orders