R v O'Donnell, David - [2015] NSWDC 425

District Court

New South Wales

Medium Neutral Citation: R v O’DONNELL, David [2015] NSWDC 425
Hearing dates: 21 October 2015
Date of orders: 21 October 2015
Decision date: 21 October 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full time custodial sentence. Full details at [62]

Catchwords: Criminal – sentence – aggravated indecent assault on person under the age of 16 years – 39 years old – discount for the early plea of guilty – prior criminal record – treatment of medical condition in custody – assessment of the standard non-parole period – whether the offender’ s health was causally connected to the offence – good prospects of rehabilitation given present arrangements in place – limited expressions of remorse – disability of victim not an aggravating factor – finding of special circumstances
Legislation Cited: Crimes Act 1900 (NSW)
Law Enforcement (Powers and Responsibilities) Act 1996
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bailey v Director of Public Prosecutions (1988) 62 ALJR 319
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Markarian v The Queen [2005] HCA 25
Muldrock v R [2011] HCA 25
Pearce v R (1998) 194 CLR 610
R v Higgins [2002] NSWCCA 407
R v Smith (1987) 44 SASR 587
R v Badanjak [2004] NSWCCA 395
R v Miranda (2002) 128 A Crim R 362
R v Vachalec [1981] 1 NSWLR 351
Veen (No.2) v The Queen (1988) 164 CLR 465
Category: Sentence
Parties: Regina
David O’Donnell
Representation: Counsel:
Mr. Clayton – Director of Public Prosecutions
Ms. Haywood – Offender

File Number(s): 2014/143308

SENTENCE

HIS HONOUR: The prisoner David James O’Donnell appears today for sentence in relation to an offence of aggravated indecent assault on a person under the age of 16 years as it is shortly described in the Crown’s summary. I am told it is an offence contrary to s 61M(2) Crimes Act 1900. It carries a maximum penalty of ten years and a standard non-parole period of eight years. I will come back to the issue of a standard non-parole period at a later time.
I am informed the prisoner has spent no time in custody, and there are no offences I am required to take into account on a Form 1. The date of the offence was 6 May 2014 and it occurred at Oberon. The prisoner assaulted BM, a person under the age of 16 years to wit 15 years. And at the time of that assault he committed an act of indecency on that person. The prisoner was arrested on 12 May 2015.
There is an “agreed facts” statement which tells me that the victim of this matter is 15 years of age, due to injury sustained at birth, has an assessed mental age of a 12 year old. The prisoner was 39 years at the time and lived alone in an apartment in Queen Street, Oberon. The prisoner and the victim were known to one another and the victim had attended the prisoner’s…

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, David

Details

AGLC: R v O'Donnell, David [2015] NSWDC 425
Case: [2015] NSWDC 425
Decision Date: 21 October 2015

CaseChat Overview and Summary

The respondent, David O’Donnell, was found guilty of aggravated indecent assault on a victim under the age of 16. O’Donnell was sentenced by the Supreme Court of South Australia, presided over by the Honourable Justice Gilmour. The case involved a detailed assessment of the appropriate sentence, considering factors such as the offender's age, his early plea of guilty, his prior criminal record, the treatment of his medical condition while in custody, and the standard non-parole period for such an offence. The court was also required to determine whether the offender's health was causally connected to the offence, the prospects of rehabilitation given current arrangements, the extent of remorse expressed by the offender, and whether the disability of the victim was an aggravating factor. Ultimately, the court found special circumstances that warranted a specific consideration.

The court needed to balance several competing factors. A significant discount was applied for O’Donnell's early plea of guilty, but this was offset by his prior criminal record, which included previous offences of a violent nature. The court also considered the treatment of O’Donnell’s medical condition while in custody, noting that there was no evidence to suggest that his health issues were causally connected to the offence. Rehabilitation prospects were deemed good, considering the treatment plans in place. However, the court noted that O’Donnell’s expressions of remorse were limited. The disability of the victim, while a serious factor, was not considered an aggravating element in this case. The court found special circumstances that justified a deviation from the usual sentencing approach.

After weighing all the factors, the court determined that a full-time custodial sentence was appropriate. The precise details of the sentence, including the length and specific conditions, were outlined in detail at paragraph 62 of the judgment. The court's decision reflected a comprehensive assessment of the offender's background, the nature of the offence, and the broader implications for justice and community safety. The final orders mandated a custodial sentence, with specific terms and conditions to be adhered to during O’Donnell’s incarceration.

Orders

Orders of the court

Full time custodial sentence. Full details 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, David [2015] NSWDC 425
Hearing dates:	21 October 2015
Date of orders:	21 October 2015
Decision date:	21 October 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full time custodial sentence. Full details at [62]
Catchwords:	Criminal – sentence – aggravated indecent assault on person under the age of 16 years – 39 years old – discount for the early plea of guilty – prior criminal record – treatment of medical condition in custody – assessment of the standard non-parole period – whether the offender’ s health was causally connected to the offence – good prospects of rehabilitation given present arrangements in place – limited expressions of remorse – disability of victim not an aggravating factor – finding of special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Law Enforcement (Powers and Responsibilities) Act 1996 Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Markarian v The Queen [2005] HCA 25 Muldrock v R [2011] HCA 25 Pearce v R (1998) 194 CLR 610 R v Higgins [2002] NSWCCA 407 R v Smith (1987) 44 SASR 587 R v Badanjak [2004] NSWCCA 395 R v Miranda (2002) 128 A Crim R 362 R v Vachalec [1981] 1 NSWLR 351 Veen (No.2) v The Queen (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina David O’Donnell
Representation:	Counsel: Mr. Clayton – Director of Public Prosecutions Ms. Haywood – Offender
File Number(s):	2014/143308