R v O'Donnell - [2021] NSWDC 749

District Court

New South Wales

Medium Neutral Citation: R v O’Donnell [2021] NSWDC 749
Hearing dates: 18 October 2021
Date of orders: 18 October 2021
Decision date: 18 October 2021
Jurisdiction: Criminal
Before: M L Williams SC
Decision:
An aggregate term of imprisonment of three years and four months with a non-parole period of 22 months: at [62].

Catchwords:
SENTENCING — Mitigating factors — Injury, harm, loss or damage not substantial — Good character — No record of previous convictions — Plea of guilty — Unlikely to re-offend
SENTENCING — Non-parole period — Standard non-parole period
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Factual basis for sentence — Form 1 offences — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Purposes of sentencing — Sentencing statistics
SENTENCING — Subjective considerations on sentence — Age of offender — Mental illness — Protective custody — Special circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
R v Thomas [2007] NSWCCA 269
R v McClymont (unreported, NSWCCA, 17 December 1992)
Franklin v The Queen [2013] NSWCCA 122
R v RD [2014] NSWCCA 103

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)
Jayden O’Donnell (Offender)
Representation:
Mr Burton (Solicitor, Office of the Director of Public Prosecutions)
Mr S Ryan (Counsel for the offender)

File Number(s): 2020/227115
Publication restriction: STATUTORY NON-PUBLICATION APPLIES
Section 578A Crimes Act 1900 (any matter that may identify the complainant(s)) and s 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es))

Judgment

Jayden O’Donnell was only 19 when he committed a series of sexual offences against a 12 year old female on 18 April 2020. He has pleaded guilty to a number of offences, in circumstances justifying a 25 % discount on a term of imprisonment which his counsel, Mr Ryan, concedes is appropriate in the circumstances.
He has been in custody since his arrest on 4 August 2020 and the term of imprisonment will commence on that date.
There are four principal offences and a number of matters to be taken into account on a Form 1, in the way suggested by the Chief Justice in the guideline judgment on those matters (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).
The maximum penalties and the standard non-parole periods where applicable for the offences are important yardsticks to be taken into account in the sentencing process, which must also take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
The offender is to be sentenced for the following offences:

There are three counts of sexual intercourse with a child between aged 10 and 14 (Sequences 3, 4 & 5) contrary to s 66C(1) of the Crimes…

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'Donnell

Details

AGLC: R v O'Donnell [2021] NSWDC 749
Case: [2021] NSWDC 749
Decision Date: 18 October 2021

CaseChat Overview and Summary

The case of R v O'Donnell involved the defendant being sentenced for multiple offences, the nature of which necessitated an examination of various legal principles pertinent to sentencing in Australia. The High Court was tasked with determining an appropriate sentence that reflected both the objective seriousness of the crimes and the subjective circumstances of the offender. The court was particularly attentive to the mitigating factors presented by the defendant, including his previously unblemished record and good character, his early guilty plea, and the absence of substantial injury or harm caused by his actions. Additionally, the court considered the defendant's age, mental health status, and likelihood of reoffending in its deliberations.

The legal issues at the core of this case centred around the appropriate application of sentencing principles, including the calculation of an aggregate sentence and the determination of a non-parole period. The court had to balance the principles of deterrence and the specific circumstances of the offence against the mitigating factors presented. The court also needed to consider the standard non-parole period for such offences and the broader purposes of sentencing, such as the protection of society and the rehabilitation of the offender. The factual basis for the sentence, particularly concerning the form 1 offences and the moral culpability of the defendant, were pivotal in shaping the court's approach.

The High Court deliberated on the presented mitigating and aggravating factors before arriving at its decision. It concluded that the defendant's good character, early guilty plea, and lack of prior convictions were significant mitigating factors. However, the court also considered the objective seriousness of the crimes, the need for deterrence, and the purposes of sentencing. The court determined an aggregate term of imprisonment of three years and four months, with a non-parole period of 22 months, recognising both the need to punish the offender and the potential for rehabilitation. The court's decision was thus a careful balance of the various sentencing principles and the specific circumstances of the case.

The court ordered an aggregate term of imprisonment of three years and four months, with a non-parole period of 22 months. This sentence reflects the court's consideration of both the mitigating factors and the objective seriousness of the offences. The determination was made in line with the sentencing principles and statistics applicable in Australia, ensuring that the sentence was proportionate and served the purposes of the criminal justice system.

Orders

Orders of the court

An aggregate term of imprisonment of three years and four months with a non-parole period of 22 months: at [62].

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’Donnell [2021] NSWDC 749
Hearing dates:	18 October 2021
Date of orders:	18 October 2021
Decision date:	18 October 2021
Jurisdiction:	Criminal
Before:	M L Williams SC
Decision:	An aggregate term of imprisonment of three years and four months with a non-parole period of 22 months: at [62].
Catchwords:	SENTENCING — Mitigating factors — Injury, harm, loss or damage not substantial — Good character — No record of previous convictions — Plea of guilty — Unlikely to re-offend SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Factual basis for sentence — Form 1 offences — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Purposes of sentencing — Sentencing statistics SENTENCING — Subjective considerations on sentence — Age of offender — Mental illness — Protective custody — Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 R v Thomas [2007] NSWCCA 269 R v McClymont (unreported, NSWCCA, 17 December 1992) Franklin v The Queen [2013] NSWCCA 122 R v RD [2014] NSWCCA 103
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) Jayden O’Donnell (Offender)
Representation:	Mr Burton (Solicitor, Office of the Director of Public Prosecutions) Mr S Ryan (Counsel for the offender)
File Number(s):	2020/227115
Publication restriction:	STATUTORY NON-PUBLICATION APPLIES Section 578A Crimes Act 1900 (any matter that may identify the complainant(s)) and s 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es))