R v O'Brien - [2014] ACTSC 156

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DAVID ANTHONY O’BRIEN
Citation:	[2014] ACTSC 156
Hearing Date(s):	9 May 2014
DecisionDate:	12 June 2014
Before:	Burns J
Decision:	An aggregate sentence of 12 years and 11 months’ imprisonment is imposed. A non-parole period of 8 years and 4 months’ is imposed.
Category:	Sentence
Catchwords:	CRIMINAL LAW AND PROCEDURE – trafficking in a controlled substance other than cannabis – dealing with the proceeds of crime – unlawful confinement – assault occasioning actual bodily harm – perjury – attempt to pervert the course of justice
Parties:	R (Crown) David Anthony O’Brien (Offender)
Representation:	Counsel: Mr A Williamson (Crown) Mr R Livingston (Offender)
Solicitors: ACT Department of Public Prosecutions (Offender) Craig Lynch and Associates (Offender)
File Number(s):	SCC 204 of 2012; SCC 5A, 5B of 2013; SCC 45 of 2014

David Anthony O’Brien, you appear before me today to be sentenced with respect to a number of criminal offences. The first is a charge of trafficking in a controlled drug, namely cocaine, between 1 March 2010 and 20 August 2012. This offence carries a maximum penalty of 10 years’ imprisonment. In addition to this offence, I take into account a list of additional offences including a charge of perjury.

The second matter upon which you appear for sentence is a charge that on 20 August 2012, you dealt with money which was the proceeds of crime, being reckless about the fact that the money was derived or realised from unlawful activity. This offence carries a maximum penalty of two years’ imprisonment.

The third charge upon which you appear for sentence is a charge of unlawful confinement on 19 August 2012, which carries a maximum penalty of 10 years’ imprisonment.

The fourth matter upon which you appear for sentence is a charge of assault occasioning actual bodily harm constituted by you choking Dana Tosolini on 19 August 2012, which carries a maximum penalty of five years’ imprisonment.

A further offence of assault occasioning actual bodily harm on 19 August 2012 is also before me for sentence. That charge is constituted by a prolonged physical attack on Dana Tosolini, causing significant injuries. That offence also carries a maximum penalty of five years’ imprisonment.

Finally, you appear for sentence with respect to an offence of attempting to pervert the course of justice between 19 January and 25 January 2013. This offence also carries a maximum penalty of seven years’ imprisonment.

You were charged with the offences of trafficking in a controlled drug and dealing with money which was the proceeds of crime on 19 September 2012 in the Magistrates Court.

You entered pleas of not guilty to those charges on 20 September that year and you were committed for trial to this court on 17 January 2013. For some reason, not apparent to me, you were not arraigned until 29 November 2013 at which time you entered pleas of not guilty. It was not until 25 February this year, that you entered…

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 [2014] ACTSC 156
Case: [2014] ACTSC 156
Decision Date: 12 June 2014

CaseChat Overview and Summary

The case before the court involved the prosecution of a defendant, O'Brien, on multiple charges stemming from a complex criminal enterprise. O'Brien was accused of trafficking in a controlled substance, dealing with the proceeds of crime, unlawful confinement, assault occasioning actual bodily harm, perjury, and an attempt to pervert the course of justice. The proceedings took place in the higher court, where the defendant's guilt had already been determined, and the court was tasked with determining an appropriate sentence.

The legal issues before the court included the assessment of the severity and culpability of the defendant's crimes, the need for deterrence, and the appropriate weight to give to the various offences in determining a cumulative sentence. The court also had to consider the defendant's criminal history and the impact of his crimes on the victims. Further, the court needed to determine the appropriate non-parole period to ensure the protection of society.

The court examined the nature and circumstances of each offence, noting the seriousness of the defendant's criminal conduct. It considered the need for general and specific deterrence, as well as the need to uphold the rule of law and maintain public confidence in the criminal justice system. The court also took into account the defendant's lack of remorse and his attempt to pervert the course of justice. After weighing these factors, the court imposed an aggregate sentence of 12 years and 11 months' imprisonment, with a non-parole period of 8 years and 4 months.

The final orders of the court were that the defendant, O'Brien, is to serve an aggregate sentence of 12 years and 11 months’ imprisonment, with a non-parole period of 8 years and 4 months.

Orders

Orders of the court

An aggregate sentence of 12 years and 11 months’ imprisonment is imposed. A non-parole period of 8 years and 4 months’ is imposed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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