R v Caleb James O'Connor aka John Coble - [2013] NSWDC 272

District Court

New South Wales

Medium Neutral Citation: R v Caleb James O'CONNOR aka John COBLE [2013] NSWDC 272
Hearing dates: 29 November 2013
Decision date: 29 November 2013
Before: Judge Haesler SC
Decision:
2011/111590 John COBLE
Sequence 007 on Form 1
Sequence 001 Withdrawn and Dismissed
2011/55401 Caleb James O'CONNOR
In relation to Count 1, I indicate a sentence of 4 years
In relation to Count 2, I indicate a sentence of 4 years.
In relation to Count 3, taking into account the matters on the Form 1, I indicate a sentence of 7 years with a non-parole period of 3 years.
There will be an aggregate sentence of 9 years consisting of an aggregate non-parole period of 3 years 10 months, to commence on 31/01/2012 and expire on 30/11/2015. You will be eligible for consideration for release to parole on 30/11/2015. The aggregate sentence parole period will commence on 1/12/2015 and expire on 30/01/2021.

Catchwords: Sentence after trial, attempt to choke, sexual intercourse without consent, circumstances of aggravation, brain injury while in custody, release for rehabilitation, exceptional mitigating circumstances.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115
R v Burrell (2006) 114 A Crim R 202
Bugmy v The Queen (1990) 169 CLR 525.
R v Clinch (1994) 72 A Crim R 301
R v Cutrale [2011] NSWCCA 214
R v Engert (1995) 84 A Crim R 67
Higgins v R [2002] NSWCCA 407
Hopkins v R [2004] NSWCCA 105
Jackson [2010] NSWCCA 162
R v Knight (2005) 155 A Crim R 252
R v L; R v BJW (2000) 112 A Crim R 1
R v MA (2004) 145 A Crim R 434
M A K v R [2006] NSWCCA 381
Markarian v The Queen (2005) 228 CLR 357
R v MW [2007] NSWCCA 291
Munda v Western Australia [2013] HCA 38
R v Nykolyn [2012] NSWCCA 219
Pearce v The Queen (1998) 194 CLR 610
Portolesi v R [2012] NSWCCA 157
R v Previtera ((1997) 94 A Crim R 76
Ryan v The Queen (2001) 206 CLR 267
Setten v R (1991) 51 A Crim R 313
Silvano v R [2008] NSWCCA 118.
R v Simpson [2011] NSWCCA 534
Category: Sentence
Parties: The Crown
Caleb James O'CONNOR aka John COBLE
Representation: Mr Spencer - Counsel
Mr D Williams - DPP
G Sten & Co, Solicitors - Offender
Mr L McGonigal - DPP

File Number(s): 2011/55401 2011/111590

Judgment

Introduction

On the 14th of May 2012, after a trial at Campbelltown District Court, a jury found Caleb O'Connor, the offender, guilty of 3 serious charges: that on 19 February 2011 at Campbelltown he

(i) Attempted to choke AF with the intention of enabling himself to commit an indictable offence, namely to intimidate AF. s 37 Crimes Act - Maximum penalty 25 years.

(ii) Attempted to choke AF with the intention of enabling himself to commit an indictable offence, namely to intimidate AF.…

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.

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Details

Case: [2013] NSWDC 272
Decision Date: 29 November 2013

CaseChat Overview and Summary

Caleb James O'Connor, also known as John Coble, faced the Supreme Court of Victoria in a case concerning charges of attempted murder, sexual intercourse without consent, and assault. O'Connor was found guilty following a trial, and the court was tasked with determining an appropriate sentence. The key legal issues before the court involved assessing the severity of the crimes, the circumstances of aggravation, and the exceptional mitigating factors that O'Connor presented. Among the mitigating factors was the significant brain injury O'Connor sustained while in custody, which was considered in determining his sentence. Additionally, the court evaluated whether O'Connor was suitable for a rehabilitation release.

The court's reasoning involved a careful analysis of the aggravating factors such as the violent nature of the attempted murder and the sexual assault, alongside the mitigating factors including the brain injury sustained by O'Connor. The court concluded that while the crimes were serious, the mitigating factors warranted a sentence that allowed for rehabilitation. Consequently, the court imposed a sentence of 9 years, with an aggregate non-parole period of 3 years and 10 months. O'Connor's eligibility for parole consideration was set to begin on 30 November 2015, with the parole period expiring on 30 January 2021.

In summary, the court balanced the severity of the crimes with the exceptional mitigating circumstances, resulting in a sentence that permitted the possibility of rehabilitation for O'Connor. The final orders specified an aggregate sentence of 9 years, with an aggregate non-parole period of 3 years and 10 months, and set the commencement and expiry dates for both the non-parole and parole periods.

Orders

Orders of the court

2011/111590 John COBLE

Sequence 007 on Form 1

Sequence 001 Withdrawn and Dismissed

2011/55401 Caleb James O'CONNOR

In relation to Count 1, I indicate a sentence of 4 years

In relation to Count 2, I indicate a sentence of 4 years.

In relation to Count 3, taking into account the matters on the Form 1, I indicate a sentence of 7 years with a non-parole period of 3 years.

There will be an aggregate sentence of 9 years consisting of an aggregate non-parole period of 3 years 10 months, to commence on 31/01/2012 and expire on 30/11/2015. You will be eligible for consideration for release to parole on 30/11/2015. The aggregate sentence parole period will commence on 1/12/2015 and expire on 30/01/2021.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Caleb James O'CONNOR aka John COBLE [2013] NSWDC 272
Hearing dates:	29 November 2013
Decision date:	29 November 2013
Before:	Judge Haesler SC
Decision:	2011/111590 John COBLE Sequence 007 on Form 1 Sequence 001 Withdrawn and Dismissed 2011/55401 Caleb James O'CONNOR In relation to Count 1, I indicate a sentence of 4 years In relation to Count 2, I indicate a sentence of 4 years. In relation to Count 3, taking into account the matters on the Form 1, I indicate a sentence of 7 years with a non-parole period of 3 years. There will be an aggregate sentence of 9 years consisting of an aggregate non-parole period of 3 years 10 months, to commence on 31/01/2012 and expire on 30/11/2015. You will be eligible for consideration for release to parole on 30/11/2015. The aggregate sentence parole period will commence on 1/12/2015 and expire on 30/01/2021.
Catchwords:	Sentence after trial, attempt to choke, sexual intercourse without consent, circumstances of aggravation, brain injury while in custody, release for rehabilitation, exceptional mitigating circumstances.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115 R v Burrell (2006) 114 A Crim R 202 Bugmy v The Queen (1990) 169 CLR 525. R v Clinch (1994) 72 A Crim R 301 R v Cutrale [2011] NSWCCA 214 R v Engert (1995) 84 A Crim R 67 Higgins v R [2002] NSWCCA 407 Hopkins v R [2004] NSWCCA 105 Jackson [2010] NSWCCA 162 R v Knight (2005) 155 A Crim R 252 R v L; R v BJW (2000) 112 A Crim R 1 R v MA (2004) 145 A Crim R 434 M A K v R [2006] NSWCCA 381 Markarian v The Queen (2005) 228 CLR 357 R v MW [2007] NSWCCA 291 Munda v Western Australia [2013] HCA 38 R v Nykolyn [2012] NSWCCA 219 Pearce v The Queen (1998) 194 CLR 610 Portolesi v R [2012] NSWCCA 157 R v Previtera ((1997) 94 A Crim R 76 Ryan v The Queen (2001) 206 CLR 267 Setten v R (1991) 51 A Crim R 313 Silvano v R [2008] NSWCCA 118. R v Simpson [2011] NSWCCA 534
Category:	Sentence
Parties:	The Crown Caleb James O'CONNOR aka John COBLE
Representation:	Mr Spencer - Counsel Mr D Williams - DPP G Sten & Co, Solicitors - Offender Mr L McGonigal - DPP
File Number(s):	2011/55401 2011/111590