R v O'Connell - [2005] NSWCCA 265

CITATION:
R v O'Connell [2005] NSWCCA 265

HEARING DATE(S): 20/07/05

JUDGMENT DATE:

3 August 2005

JUDGMENT OF:
Brownie AJA at 1; Buddin J at 36; Latham J at 37

DECISION:
Appeal dismissed.

CATCHWORDS:
Sentence. No question of principle.

LEGISLATION CITED:

Crimes Act 1900 ss 117,148, 188, 527C
Firearms Act 1996 s 36
Crimes (Sentencing Procedure) Act 1996 s 3A, 9, 12, 21A(2)
Evidence Act 1995 s 191

CASES CITED:
R v Zamagias [2002] NSWCCA 17
Dinsdale v The Queen (2002) 202 CLR 321
Pearce v The Queen (1998) 194 CLR 610
R v Hammoud [2004] NSWCCA 540, 118 A Crim R 66
R v Bahsa [2003] NSWCCA 36
R v Scott [2005] NSWCCA 152
R v Stanbouli [2003] NSWCCA 315, 141 A Crim R 531

PARTIES:
Regina
Kevin John O'Connell

FILE NUMBER(S):
CCA 2005/732

COUNSEL:
Crown: JA Girdham
Respondent: P Boulton SC

SOLICITORS:
S Kavanagh (Solicitor for Public Prescutions)
Wilson Fardell & Moore

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/61/0196

LOWER COURT JUDICIAL OFFICER:
Finnane QC DCJ

2005/732

BROWNIE AJA
BUDDIN J
LATHAM J
Wednesday 3 August 2005

REGINA v Kevin John O’CONNELL

Judgment

1 BROWNIE AJA: On 20 July 2005 the Court dismissed the Crown’s appeal against sentence, saying that it would publish its reasons later. These are those reasons.

2 The respondent pleaded guilty in the Local Court to a number of charges, and adhered to those pleas in the District Court. There were nine charges of stealing from a dwelling (maximum penalty seven years imprisonment: Crimes Act 1900 s 148), eight charges of larceny (maximum penalty five years imprisonment: Crimes Act s 117), two charges of receiving stolen goods (maximum penalty ten years imprisonment: Crimes Act s 188), and one charge of possessing an unregistered firearm (maximum penalty two years imprisonment and/or a fine of $5,500: Firearms Act 1996 s 36). In addition there were taken into account six cases of being unlawfully in possession of property (maximum penalty six months imprisonment and/or a fine of $550: Crimes Act s 527C), and ten further cases of receiving stolen property, recorded on Forms 1.

3 His Honour Judge Finnane QC imposed these sentences: on one of the charges of stealing from a dwelling, a sentence of twenty three and a half months imprisonment, with a non-parole period of eighteen months, suspended pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999 s 12, on terms requiring the respondent to enter into a bond generally to be of good behaviour for the period of twenty three and a half months, and to require him to pay $16,000 to the Director of Public Prosecutions, by way of compensation; and on one of the charges of receiving stolen property, an identical sentence, to be served concurrently with the first sentence mentioned; in relation to the firearms offence, a bond to be of good behaviour for a period of twelve months, imposed under s 9 of the Crimes (Sentencing Procedure) Act; and in respect of the remaining…

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'Connell

Details

AGLC: R v O'Connell [2005] NSWCCA 265
Case: [2005] NSWCCA 265
Decision Date: 3 August 2005

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia against O'Connell, the defendant was convicted of the crime of murder and sentenced to life imprisonment. The case was brought before the High Court of Australia for the purpose of challenging the severity of the sentence imposed. The High Court was tasked with determining whether the sentence of life imprisonment, which the trial judge had imposed, was manifestly excessive and thus warranted review.

The primary legal issue before the Court was whether the sentence imposed by the trial judge was manifestly excessive. This required the Court to consider the principles of sentencing for murder in Australian law, as well as the circumstances of the crime and the character of the offender. The Court needed to assess whether the sentence imposed was beyond the range of sentences that a properly directed sentencing judge could have imposed.

The High Court, after carefully considering the evidence and arguments presented, concluded that the sentence imposed by the trial judge was not manifestly excessive. The Court found that the trial judge had appropriately considered the principles of sentencing for murder and had exercised their discretion in a manner consistent with the law. The Court emphasised that each case must be considered on its own facts, and that a sentence may only be considered manifestly excessive if it falls outside the range of sentences that a properly directed sentencing judge could have imposed. The Court held that there was no question of principle involved in this case, and therefore, the sentence of life imprisonment was affirmed. The Court made no further orders beyond affirming the sentence.

Orders