R v O'Brien - [2002] NSWCCA 102

CITATION: R v O'Brien [2002] NSWCCA 102

FILE NUMBER(S): CCA 60477/01

HEARING DATE(S): 26 March 2002

JUDGMENT DATE:
26 March 2002

PARTIES :

Regina v Michael Anthony O'Brien

JUDGMENT OF: Studdert J at 1; Smart AJ at 26

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/31/0359

LOWER COURT JUDICIAL
OFFICER : Coolahan DCJ

COUNSEL : L.M.B. Lamprati (Crown)
P.G. Berman SC (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys

LEGISLATION CITED: Crimes Act

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606
Siganto v The Queen (1998) 194 CLR 656
R v Huttenberger (unreported, NSWCCA, 3 March 1993)
R v Hartikaanen (unreported, NSWCCA, 8 June 1993)
R v May [1999] NSWCCA 40
R v RSS (unreported, NSWCCA, 27 February 1996)
R v Da Silva (unreported, NSWCCA, 30 November 1995)
R v Carr [1999] NSWCCA 200
R v Martin [2000] NSWCCA 332
R v Hill (unreported, NSWCCA, 28 October 1994)

DECISION: Leave to appeal granted; appeal dismissed.

60477/01

STUDDERT J
SMART A-J
Tuesday 26 March 2002

REGINA v MICHAEL ANTHONY O’BRIEN

Judgment

1 STUDDERT J: On 20 March 2001 the applicant, Michael Anthony O’Brien, was sentenced to a term of imprisonment of four years after a jury had found him guilty of sexual intercourse without consent on 8 February 2001. Having imposed a term of imprisonment of four years, the sentencing judge set a non parole period of eighteen months, to expire on 19 September 2002. That sentence was so structured after the judge found special circumstances.

2 The applicant now seeks leave to appeal against the sentence imposed.

3 The offence charged is an offence for which s 61I of the Crimes Act imposed a maximum penalty of imprisonment for fourteen years.

4 The sentencing judge considered the circumstances of the offence in his remarks on sentence and the objective circumstances can be shortly stated. The victim of the offence was twenty-six years of age at the time of its commission and the applicant was three years her senior. The complainant, the applicant and his wife were staying overnight at the home of the complainant’s cousin where there was a birthday celebration. The complainant went to bed, tired, somewhat intoxicated and fully clothed. She was awakened to find the applicant was having sexual intercourse with her. He had one of his hands over her mouth. According to the complainant, when she spoke to him and said “Michael, what are you doing?”, he desisted and left the room. She said that it was only a matter of seconds from the time she woke up to the time he left.

5 The complainant immediately raised the alarm concerning what had happened, and the applicant, when first confronted, denied what had occurred. Later he admitted to the sexual intercourse but claimed that it was with the complainant’s consent, denying that the complainant was asleep whilst he was having intercourse with her.

6 At his trial the only issue for the jury was whether or not the complainant had consented.…

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 R v O'Brien

Details

AGLC: R v O'Brien [2002] NSWCCA 102
Case: [2002] NSWCCA 102
Decision Date: 26 March 2002

CaseChat Overview and Summary

In the case of Regina v Michael Anthony O'Brien, the applicant was found guilty of sexual intercourse without consent by a jury and subsequently sentenced to a term of imprisonment of four years by the District Court. The applicant sought leave to appeal against the sentence imposed, arguing that it was manifestly excessive. The Court of Criminal Appeal was required to determine whether the sentence imposed by the District Court was outside the permissible range and whether the sentencing judge had erred in his assessment of the case.

The Court considered the objective and subjective circumstances of the offence and noted that the sentencing judge had accurately appreciated the favourable subjective features of the case. The Court also considered the principle of consistency in punishment and compared the case to other cases involving similar offences. However, the Court found that the sentence imposed was within the permissible range and did not constitute an error of law. The Court granted leave to appeal but dismissed the appeal.

The final orders of the Court were that leave to appeal was granted, but the appeal was dismissed. The sentence imposed by the District Court was upheld.

Orders