R v O'Brien

[2008] QCA 163

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Brien [2008] QCA 163

PARTIES:

R
v
O’BRIEN, Alan Terry
(applicant/appellant)

FILE NO/S:

CA No 135 of 2007
DC No 420 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

20 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2008

JUDGES:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence
    dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – where appellant pleaded guilty to one count each of burglary, rape and stealing – where appellant argued on appeal that his lawyers had misled him as to the prosecution evidence and had refused to obtain other relevant evidence – where appellant did not claim to have been under a misapprehension as to nature of a guilty plea – whether guilty pleas of appellant were freely entered

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – SEXUAL OFFENCES – where applicant sentenced to 14 years on a count of rape, to be served concurrently with sentences for burglary and stealing – where offences were committed against an elderly woman – where complainant was repeatedly anally raped and forced to perform oral sex on applicant – where applicant had extensive criminal history – where applicant did not demonstrate remorse – whether sentence was manifestly excessive

Meissner v R (1995) 184 CLR 132; [1995] HCA 41, applied
R v Edwards [2004] QCA 20, considered
R v Jerome [1997] QCA 299, considered
R v Mason [1997] QCA 67, considered

COUNSEL:

The applicant/appellant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA:  The appellant appeals against convictions on counts of burglary, rape and stealing, although he entered pleas of guilty to them.  He maintains that those pleas were not freely entered because his lawyers misled him as to the prosecution evidence and refused to obtain other evidence he thought relevant.  He also seeks leave to appeal against concurrent sentences of imprisonment imposed on the three counts, the longest of which was 14 years, for the rape.

The offences

1. In the early hours of 6 August 1999 an intruder broke into the house of an elderly woman who lived alone at Ipswich, and woke her at knife point.  He took the woman by the throat and restricted her breathing; when she tried to fight him off he punched her in the eye with a closed fist…