Legal Research
Cases
R v O'Connor

R v O'Connor

Case [2002] NSWCCA 156 7 May 2002

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
(2002) 129 A Crim R 505

New South Wales

Court of Criminal Appeal

CITATION: Regina v Patrick Joseph O'Connor [2002] NSWCCA 156

FILE NUMBER(S): CCA 60699/01

HEARING DATE(S): 8 February 2002

JUDGMENT DATE:
7 May 2002

PARTIES :

Regina
Patrick Joseph O'Connor

JUDGMENT OF: Handley JA at 1; Sully J at 14; Smart AJ at 39

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0500

LOWER COURT JUDICIAL
OFFICER : Downs DCJ

COUNSEL : D. Bugg QC/R. Bromwich - Crown
E. Fullerton SC - Respondent

SOLICITORS: Comm. D.P.P - Crown
-

LEGISLATION CITED: Crimes Act 1914 (C'th)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Financial Transaction Reports Act 1988
Sentencing Act 1989 (NSW)

CASES CITED:
Director of Public Prosecutions (Commonwealth) v El Karhani (1990) 21 NSWLR 370, 385
Regina v Simpson [2001] NSWCCA 534
Pearce v The Queen (1998) 194 CLR 610
R v Jermyn [1985] 2 NSWLR 194
Cameron v The Queen [2002] JCA 6
R v Cappadona & anor [2001] 47 ATR 317
Director of Public Prosecutions v Hamman (unreported) CCA NSW, 1 December 1998
Regina v Tack Lee Pang [1999] 105 A Crim R 474
R v Cheng [1999] 107 A Crim R 460
Regina v Budiman (1998) 102 A Crim R 411 at 415
House v The King (1936) 55 CLR 499

DECISION: Appeal against sentence dismissed

60699/01

HANDLEY JA
SULLY J
SMART AJ

Tuesday 7 May 2002

REGINA v PATRICK JOSEPH O’CONNOR

Judgment

1 HANDLEY JA: In this appeal I have had the benefit of reading the judgments of Sully J and Smart AJ in draft form. I agree generally with their reasons and with the order they propose but would add some brief reasons of my own.

2 This Crown appeal faced two difficulties. The first was the concession by counsel for the Director before the sentencing Judge that the sentences for these Federal offences should be concurrent. My brethren have dealt fully with this aspect and there is nothing I wish to add.

3 The second difficulty related to the provisions of the Crimes Act (Cth) which govern the sentencing process for Federal offences. Section 16A(1) requires the Court to “impose a sentence … that is of a severity appropriate to all the circumstances of the offence” and sub s (2) contains a non-exhaustive list of matters which the sentencing Judge must take into account.

4 Section 16G requires the sentence, fixed in accordance with s 16A, to be adjusted. It provides:

“If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the Court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly”.

5 Sentences in this State have not been subject to remission or reduction since 1989 when the Sentencing Act came into force. In Director of Public Prosecutions (Commonwealth) v El Karhani

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'Connor

Details

AGLC: R v O'Connor [2002] NSWCCA 156
Case: [2002] NSWCCA 156
Decision Date: 7 May 2002

CaseChat Overview and Summary

In Regina v Patrick Joseph O'Connor, the Court of Criminal Appeal dismissed an appeal by the Commonwealth Director of Public Prosecutions against the sentences imposed on Mr O'Connor. Mr O'Connor was convicted of defrauding the Commonwealth and possessing false instruments. The Director argued that the sentences were inadequate and did not reflect the criminality involved. The Court considered the principles of sentencing and the factors relevant to the case. It found that the sentences, while at the lower end of the appropriate range, were not manifestly outside the range of a proper sentencing discretion. The Court also noted that the sentences were made concurrent, which was supported by the Crown. The Court concluded that there was no basis to intervene and dismissed the appeal.

Orders