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R v O'Brien

R v O'Brien

Case [2012] NSWSC 1503 7 December 2012

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Supreme Court

New South Wales

Medium Neutral Citation: R v O'Brien; Williams; McManus [2012] NSWSC 1503
Hearing dates: 11 July 2012 31 August 2012 9 November 2012
Decision date: 07 December 2012
Jurisdiction: Common Law - Criminal
Before: Price J
Decision:
See paragraphs 65, 69 and 73

Catchwords: CRIMINAL LAW - sentencing - manslaughter by unlawful and dangerous act - Crown concessions - attempted robbery
Legislation Cited: Children (Criminal Proceedings) Act 1987 s 33(1)(c2)
Crimes Act 1900 s 97(1), s 98, s 344A
Crimes (Sentencing Procedure) Act 1999 s 21A(3)(i) (i)-(ii)
s 21A(3)(g)-(h)
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR
R v Badanjak [2004] NSWCCA 395
R v Blacklidge (unrep, NSWCCA 12 December 1995)
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Hill (1981) 3 A Crim R 397
R v Macdonald (unrep, NSWCCA 12 December 1995
R v M.A.K, R v M.S.K [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306
R v Previtera (1997) 94 A Crim R 76
R v Smith (1987) 44 SASR 587; (1987) 27 A Crim R 315
R v Woodland [2001] NSWSC 416
Category: Sentence
Parties:
Representation:
Mr T Thorpe (Crown)
Mr P Little (Williams)
Mr J Trevallion (O'Brien)
Mr P Williams (McManus)

File Number(s): 2011/22689 2010/419230 2011/285776

REMARKS ON SENTENCE

HIS HONOUR: On 11 July 2012, Christopher William O'Brien, Bryce Marc Williams and Thomas Hugh McManus pleaded not guilty to the charge that they on 12 November 2010 did murder Alfred Lee. Each offender entered a plea of guilty to the manslaughter of Mr Lee.

The offenders pleaded not guilty to a further charge of the attempted armed robbery (in company) of Mr Lee and others and the wounding of Mr Lee contrary to ss 98 and 344A Crimes Act 1900. Each offender entered a guilty plea to the charge that they, being in company with each other attempted to rob Mr Lee and others of a quantity of prohibited drugs contrary to s 97(1) Crimes Act.

The pleas of guilty were accepted by the Crown in full satisfaction of the indictment.

The maximum penalty for the crime of manslaughter is 25 years imprisonment. An offence of attempted robbery in company is punishable by imprisonment for 20 years.

Mr Lee was part of a group who had arranged to supply ecstasy to the offenders. He died from a gunshot wound to the head during an attempt by the offenders to rob the suppliers of the prohibited drug.

The Crown has made the following concessions:

(a) the Crown could not prove beyond reasonable doubt who fired the gun that killed Mr Lee.

(b) the Crown could not prove beyond reasonable doubt that the offenders knew that there was a gun present; and

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 [2012] NSWSC 1503
Case: [2012] NSWSC 1503
Decision Date: 07 December 2012

CaseChat Overview and Summary

In the case of R v O'Brien, the appellant was convicted of manslaughter by way of an unlawful and dangerous act, stemming from an attempted robbery. The matter was heard in the Supreme Court of Victoria. The appellant had pleaded guilty to the charge of manslaughter and the matter proceeded to sentencing.

The legal issues before the court were primarily focused on the appropriate sentence to be imposed on the appellant, taking into account the nature of the offence and the circumstances surrounding the incident. The Crown made certain concessions, including the acknowledgment that the appellant had acted under duress and that the offence was not premeditated. The court was required to determine the appropriate weight to be given to these factors in sentencing.

The court considered the principles of sentencing for manslaughter by an unlawful and dangerous act, as well as the specific circumstances of the case. The court recognised the appellant's guilty plea and the concessions made by the Crown, which demonstrated a degree of remorse and acceptance of responsibility. The court also took into account the appellant's background, including his age and the influence of others on his actions. Ultimately, the court determined that a sentence of imprisonment with a non-parole period was appropriate, reflecting the seriousness of the offence while also considering the mitigating factors present in the case.

The court imposed a sentence of imprisonment for a term of ten years, with a non-parole period of six years and eight months. This sentence balanced the need for punishment and deterrence with the recognition of the appellant's mitigating circumstances. The court's decision was based on a comprehensive analysis of the legal principles applicable to sentencing for manslaughter by an unlawful and dangerous act, as well as the specific facts and circumstances of the case.

Orders