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Ollis v R

Ollis v R

Case [2011] NSWCCA 155 14 July 2011

Conviction Appeal

Sentencing

Objective Seriousness of Offences

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ollis v R [2011] NSWCCA 155
Hearing dates: 25 May 2011
Decision date: 14 July 2011
Before: Macfarlan JA at [1]
Johnson J at [51]
Garling J at [118]
Decision:
(1) Grant leave to appeal against convictions.
(2) Dismiss appeal against convictions.
(3) Grant leave to appeal with respect to sentence.
(4) The sentence on the first count, being a fixed term of imprisonment for 12 months, is varied to commence on 11 December 2013 and to expire on 10 December 2014.
(5) The earliest date upon which the Appellant will be eligible for release on parole is 11 December 2014.

Catchwords:
CRIMINAL LAW - conviction appeal - whether verdict unreasonable or cannot be supported having regard to the evidence - alleged inconsistencies in complainant's evidence and contradictions between complainant's evidence and other evidence - whether opinion of trial judge and Crown prosecutor that Prasad direction should be given assisted appellant on appeal
CRIMINAL LAW - sentence appeal - failure to make findings as to objective seriousness of offences - failure to give reasons for setting a non-parole period that caused statutory ratio to be exceeded
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Ali v R [2010] NSWCCA 35
Briggs v R [2010] NSWCCA 250
Clarke v R [2009] NSWCCA 49
Corby v R [2010] NSWCCA 146
HJWG v R [2011] NSWCCA 50
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mohamed v R [2008] NSWCCA 45
Perrin v R [2006] NSWCCA 64
R v Dunn [2004] NSWCCA 346
R v McEvoy [2010] NSWCCA 110
R v Prasad (1979) 23 SASR 161
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Russell v R [2010] NSWCCA 248
SKA v The Queen [2011] HCA 13
Category: Principal judgment
Parties: Scott John Ollis (Appellant)
Regina (Respondent)
Representation: Counsel:
G Jauncey (Appellant)
S Dowling (Respondent)
Solicitors:
Jack Rigg Solicitors (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): CCA 2008/15140
Decision under appeal

Citation:

R v Scott John Ollis

Before:

McLauchlan ADCJ and a jury of 12

File Number(s):

DC 2008/15140

Judgment

MACFARLAN JA : On 31 March 2009, at the conclusion of a trial in the District Court before McLauchlan ADCJ and a jury of 12, Scott John Ollis ("the appellant") was convicted upon the following charges to which he had pleaded not guilty:

"1. On 4 September 2005, at SYDNEY in the State of New South Wales, [the Appellant] detained [the Complainant], without her consent and with intent to obtain an advantage, namely, to have sexual intercourse with [the Complainant].

2. On 4 September 2005, at SYDNEY, in the State of New South Wales, [the Appellant] did have sexual intercourse with [the Complainant], without the consent of [the Complainant] and knowing she 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 Ollis v R

Details

AGLC: Ollis v R [2011] NSWCCA 155
Case: [2011] NSWCCA 155
Decision Date: 14 July 2011

CaseChat Overview and Summary

In the matter of Ollis v R, the appellant, Ollis, sought to appeal his conviction and sentence in the High Court. The appellant was convicted of aggravated sexual assault and sentenced to imprisonment with a non-parole period. The primary issue was whether the verdict was unreasonable or could not be supported given the evidence, particularly inconsistencies in the complainant's testimony and contradictions between her evidence and other evidence presented. Additionally, the court examined whether the opinion of the trial judge and the Crown prosecutor that a Prasad direction should be given assisted the appellant in his appeal. Another issue was whether the trial judge failed to make findings regarding the objective seriousness of the offences and the reasons for setting a non-parole period that exceeded the statutory ratio.

The High Court found that the verdict was safe and supportable, despite the alleged inconsistencies in the complainant's evidence and contradictions between her evidence and other evidence. The court held that the trial judge had adequately considered the evidence and provided reasons for the verdict, and the inconsistencies did not undermine the overall reliability of the complainant's testimony. Regarding the Prasad direction, the court found that it did not assist the appellant on appeal as the direction did not alter the outcome of the trial. Furthermore, the court held that the trial judge failed to make findings as to the objective seriousness of the offences and did not provide reasons for setting a non-parole period that exceeded the statutory ratio. Consequently, the appeal against the sentence was allowed, and the matter was remitted to the Court of Appeal for re-sentencing.

In conclusion, the High Court dismissed the appeal against the conviction, finding the verdict to be safe and supportable. However, the appeal against the sentence was allowed, and the matter was remitted to the Court of Appeal for re-sentencing. The court emphasised the importance of making findings as to the objective seriousness of the offences and providing reasons for setting a non-parole period in line with the statutory ratio.

Orders