R v O'Brien - [2021] NSWDC 278

District Court

New South Wales

Medium Neutral Citation: R v O'Brien [2021] NSWDC 278
Hearing dates: 11 June 2021
Decision date: 25 June 2021
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 14 years with a non parole period of 9 years.

Catchwords:
CRIME - SENTENCE - Robbery in company - specially aggravated take/detain in company with intent to obtain an advantage and occasion actual bodily harm - Take and drive conveyance without consent of owner - sentence after re-trial - application of the ceiling principle.

Legislation Cited:
Crimes Act 1900 (NSW), ss 97(1), 86(3) and 154A(1)(a)

Cases Cited:
R v Henry (1999) 46 NSWLR 346; R v Gilmore (1979) 1 A Crim R 416; R H McL v The Queen (2000) 203 CLR 452

Category: Sentence
Parties:
Regina (Crown)
Daniel O'Brien (The Offender)
Representation:
Mr Noll (Solicitor Advocate for the Crown)
Mr Flynn (Counsel for the Offender)

File Number(s): 2014/136658
Publication restriction: Nil

Judgment

Daniel O’Brien, on 8 March 2021 you were arraigned before a jury panel in waiting in Queanbeyan on an indictment which contained the following three Counts.
First, that on 12 March 2014, at Thredbo, in the State of New South Wales, whilst in company with Lawrence Richard Pashley, you robbed Dane Sheridan of $30,205.80 in Australian currency, the property of Kosciusko Thredbo Proprietary Limited (the robbery in company Count).
Secondly, that on 12 March 2014, at Thredbo, in the State of New South Wales, you did, whilst in the company with Lawrence Richard Pashley, take Dane Sheridan without his consent and with the intention of obtaining an advantage, namely, delaying the notification of the robbery to the relevant authorities, and immediately after the taking, actual bodily harm was occasioned to the said Dane Sheridan (the specially aggravated kidnapping Count).
Thirdly, that on 12 March 2014, at Thredbo, in the State of New South Wales, you did take and drive a conveyance, namely, a white Hyundai iLoad Panel van registered number BM73ZT which was in the lawful possession of Kosciuszko Thredbo Proprietary Limited (the take and drive conveyance without consent of owner Count).
Upon your arraignment before the jury panel in waiting, you pleaded not guilty to each of the three Counts on the indictment.
At the conclusion of the trial which commenced by that arraignment, the jury, on 24 March 2021, found you guilty of each Count on the indictment.
You, therefore, appear before the Court today for sentence in relation to each of those offences.
The robbery in company offence involves a contravention of s97(1) of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment.
The specially aggravated kidnapping offence involves a contravention of s86(3) of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment.
The take and drive conveyance without consent of owner offence involves a contravention of s154A(1)(a) of the Crimes Act. The maximum penalty for that offence is 5 years imprisonment.
There is no…

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 [2021] NSWDC 278
Case: [2021] NSWDC 278
Decision Date: 25 June 2021

CaseChat Overview and Summary

In the matter of R v O'Brien, the respondent was convicted following a re-trial of the offences of robbery and taking a conveyance without consent. The Court of Appeal was tasked with determining an appropriate sentence for the respondent's crimes. The legal issues centred on the principles of sentencing for robbery, the specific aggravating factors present, and the application of the ceiling principle to ensure that the sentence was just and proportionate. The court had to consider the severity of the crimes, the harm caused, and the respondent's criminal history, while ensuring that the sentence did not exceed the statutory maximum permitted for similar offences.

The Court of Appeal examined the aggravating factors of the crime, such as the presence of others during the robbery, the taking and driving away of a vehicle without consent, and the infliction of actual bodily harm. These factors significantly increased the severity of the offence. The court also deliberated on the ceiling principle, which limits the maximum penalty that can be imposed for a particular offence, to ensure that the sentence was within legal boundaries and fair given the circumstances. The respondent's previous criminal history and the need for general deterrence were also considered in the sentencing process.

After thorough deliberation, the Court of Appeal determined that the appropriate sentence was an aggregate term of imprisonment of 14 years, with a non-parole period of 9 years. The court balanced the need for punishment and deterrence against the principles of proportionality and the ceiling principle. The decision reflected the gravity of the offences, the harm caused, and the respondent's criminal history, while ensuring the sentence adhered to legal constraints and served the interests of justice. The court's reasoning was grounded in the statutory requirements and case law relevant to sentencing for robbery and similar offences.

Orders

Orders of the court

Aggregate term of imprisonment of 14 years with a non parole period of 9 years.

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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Medium Neutral Citation:	R v O'Brien [2021] NSWDC 278
Hearing dates:	11 June 2021
Decision date:	25 June 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 14 years with a non parole period of 9 years.
Catchwords:	CRIME - SENTENCE - Robbery in company - specially aggravated take/detain in company with intent to obtain an advantage and occasion actual bodily harm - Take and drive conveyance without consent of owner - sentence after re-trial - application of the ceiling principle.
Legislation Cited:	Crimes Act 1900 (NSW), ss 97(1), 86(3) and 154A(1)(a)
Cases Cited:	R v Henry (1999) 46 NSWLR 346; R v Gilmore (1979) 1 A Crim R 416; R H McL v The Queen (2000) 203 CLR 452
Category:	Sentence
Parties:	Regina (Crown) Daniel O'Brien (The Offender)
Representation:	Mr Noll (Solicitor Advocate for the Crown) Mr Flynn (Counsel for the Offender)
File Number(s):	2014/136658
Publication restriction:	Nil