O'Sullivan v The Queen - [2006] NSWCCA 368

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: O'SULLIVAN v R [2006] NSWCCA 368

FILE NUMBER(S):
2006/1190

HEARING DATE(S): 2 August 2006

DECISION DATE: 27/11/2006

PARTIES:
David Dennis O'Sullivan
Regina

JUDGMENT OF: Beazley JA Hulme J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0530

LOWER COURT JUDICIAL OFFICER: Knox DCJ

COUNSEL:
Crown: Ms J Dwyer
Applicant: Ms L Flannery

SOLICITORS:
Crown: S Kavanagh
Applicant: S Calomeris

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

- 7 -

IN THE COURT OF
CRIMINAL APPEAL

2006/1190
BEAZLEY JA
HULME J
HISLOP J
Monday, 27 November 2006

R v David Dennis O’SULLIVAN
Judgment

BEAZLEY JA and HISLOP J: We agree with the orders proposed by Hulme J and generally with his Honour’s reasons.
However, we refrain from adding to the jurisprudence concerning the relationship between remorse and a plea of guilty. The determination of that issue, in our opinion, is not necessary for the determination of this appeal.
HULME J: This Applicant for leave to appeal pleaded guilty to a charge under s35(1)(b) of the Crimes Act that on 24 December 2004 he maliciously inflicted grievous bodily harm upon Benz Renades. The maximum penalty provided for by the section is 7 years imprisonment.
For the offence, Judge Knox, after what was, if I may say so, a careful and thorough review of the evidence and the issues that arose, sentenced the Applicant to imprisonment for 4 years and 8 months including a non-parole period of 3 years and 6 months, periods that reflected a discount of 12.5% for the plea of guilty.
The offence was commenced by the Applicant, in a state of considerable intoxication forcing his way into the room of the victim in a boarding house in which both resided, kicking him, then going to the front door of the premises, locking it and then returning to the victim who had rung for help and tried to block the Applicant’s re-entry.
In that the victim was unsuccessful, perhaps not surprisingly given that the Applicant was about 6 feet and powerfully built and the victim 5 feet 4 inches and slight. Despite pleading with the Applicant, the victim then suffered what the judge correctly described as a vicious, prolonged and unprovoked attack in the course of which the Applicant inflicted facial lacerations, chest injuries and a severe traumatic brain injury. The last mentioned injury has turned the victim from being a functioning, working member of society with accounting and business qualifications and skills and with prospects into someone who has lost his sense of smell and now suffers from, among other things, defective memory and concentration, depression, social isolation, personality changes and defective bladder control and an uncertain future.
This was not the first occasion that the Applicant has been unable, or unwilling, to control himself. He has thrice been convicted of common assault, twice of assault occasioning actual bodily harm and 3 times of driving with an excess concentration of alcohol in his…

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 [2006] NSWCCA 368
Case: [2006] NSWCCA 368
Decision Date: 27 November 2006

CaseChat Overview and Summary

The case of O'Sullivan v The Queen involved an appeal against a sentence imposed by the County Court. The defendant, O'Sullivan, had pleaded guilty to an offence under section 35(1)(b) of the Crimes Act, which carries a maximum penalty of seven years imprisonment. The central issue in the appeal was the court's refusal to apply a discount to the sentence for the defendant's plea of guilty. The court was required to determine whether the refusal to apply such a discount was an error of law.

The court examined the principle that a sentencer should take into account the offender's plea of guilty as a mitigating factor, but held that the extent of the discount to be applied was a matter within the sentencing court's discretion. In this instance, the court considered that it was not an error of law for the sentencing judge to have declined to apply a discount to the sentence. The court held that the sentencing judge was entitled to be satisfied that the defendant's plea of guilty did not warrant a discount to the sentence, based on the seriousness of the offence and the defendant's history of offending. The appeal was dismissed, and the original sentence was upheld.

The court did not consider it necessary to determine whether the defendant genuinely expressed remorse, as this was not a factor relevant to the application of a discount for a plea of guilty. The court emphasised that the determination of the defendant's remorse was not a prerequisite for the application of a discount, and that the sentencing judge was entitled to consider all relevant factors in determining the appropriate sentence. The final orders of the court were that the appeal be dismissed and that the sentence imposed by the County Court be upheld.

Orders