R v O'Malley

Case [2019] QCA 130

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Malley [2019] QCA 130

PARTIES:

R
v
O’MALLEY, Nathan Rodney
(applicant)

FILE NO/S:

CA No 242 of 2018
SC No 627 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 30 August 2018 (Boddice J)

DELIVERED ON:

28 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2019

JUDGES:

Gotterson and McMurdo JJA and Bradley J

ORDERS:

1.   The applicant is granted leave to amend his application to add an additional ground of appeal.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – OTHER MATTERS – where the applicant pleaded guilty to one count of manslaughter as a domestic violence offence – where the applicant was sentenced to 11 years imprisonment and the conviction was declared to be a domestic violence offence and a serious violent offence – where the applicant contends that the learned sentencing judge erred in finding that the applicant’s post-offence conduct demonstrated a complete disregard for the deceased and did not demonstrate remorse or concern for the deceased – whether the learned sentencing judge’s finding to this effect was open on the material put before the Court – whether the sentencing discretion ought to be exercised afresh – whether the sentence imposed was manifestly excessive

Criminal Code (Qld), s 303(1)

Channon v The Queen (1978) 33 FLR 433; [1978] FCA 16, cited
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
R v Baggott[2000] QCA 153, considered
R vDeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, considered
R v Harold[2011] QCA 99, considered
R v Heazlewood[2018] QSC 112, considered
R v Hutchinson [2018] 3 Qd R 505; [2018] QCA 29, considered
R v Major; Ex parte Attorney-General (Qld) [2012] 1 Qd R 465; [2011] QCA 210, cited
R v Murray[2012] QCA 68, considered
R v Pringle; Ex parte Attorney-General (Qld)[2012] QCA 223, considered
R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A  Crim R 24; [2007] QCA 426, considered
R v Strbak[2019] QCA 42, cited
R v West[2011] QCA 76, considered

COUNSEL:

S Robb for the applicant (pro bono)
M B Lehane for the respondent

SOLICITORS:

Roberts & Kane Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. GOTTERSON JA:  I agree with the orders proposed by Bradley J and with the reasons given by his Honour.

  2. McMURDO JA:  I agree with Bradley J.

  3. BRADLEY J: On 4 May 2018 in the Supreme Court at Brisbane, the applicant, Nathan Rodney O’Malley, pleaded guilty to an offence against s 303(1) of the Criminal Code (Qld). He had been charged with manslaughter by unlawfully killing Olivia Tung at Eight Mile Plains on or about…

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Details
AGLC
R v O'Malley [2019] QCA 130
Case
[2019] QCA 130
Decision Date

CaseChat Overview and Summary

In the case of R v O'Malley, the applicant appealed against his sentence of 11 years imprisonment, which was imposed following a guilty plea to one count of manslaughter. The offence was characterised as a domestic violence offence and a serious violent offence. The applicant argued that the sentencing judge erred in finding that his post-offence conduct demonstrated a disregard for the deceased and lacked remorse. The primary legal issues before the court were whether the sentencing judge's findings were supported by the evidence and whether the sentence was manifestly excessive. The court also needed to determine if the sentencing discretion should be exercised afresh.

The court reviewed the severity of the applicant's offending, noting the brutality of the attack on a vulnerable woman and the applicant's diminished intellectual level. The court compared the applicant's case with other cases where similar sentences were upheld, considering factors such as the presence of a domestic violence element and the offender's intellectual capacity. The court also highlighted the importance of deterrence and denunciation in sentencing domestic violence offences. After weighing these considerations, the court concluded that the sentence imposed was not manifestly excessive. The court also found that the sentencing judge's findings regarding the applicant's post-offence conduct were open on the material presented.

The final orders of the court were to grant the applicant leave to amend his application to add an additional ground of appeal, but to refuse the application for leave to appeal against the sentence. This outcome reflects the court's determination that, while the applicant had grounds to contest certain aspects of the sentencing, the overall sentence was appropriate and not manifestly excessive.

Orders

Orders of the court

1. The applicant is granted leave to amend his application to add an additional ground of appeal.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In R v Harold [2011] QCA 99, the offender was convicted of manslaughter, the jury accepting he lacked the requisite intent for murder due to intoxication. The offence involved a prolonged knife attack on the offender’s partner. Taking into account two other assaults occasioning bodily harm on the same partner, the sentence was 14 years imprisonment. The court noted that, absent those other assaults, a sentence of 12 years imprisonment would have been imposed.Conclusions on sentence In each of DeSalvo, Murray, West and Heazlewood, the court was not considering a domestic violence offence. In DeSalvo, Murray and Heazlewood, the offending was provoked. These distinguishing features limit the assistance that might be gained from those decisions in applying the relevant factors for the applicant’s sentence. In Baggott, Harold and Hutchinson, on the defendants’ appeals, the respective sentences of 11, 12 (considering manslaughter alone) and 14 years were not found to be manifestly excessive. In Sebo and Pringle, on appeals by the Attorney-General, the respective sentences of 10 years and nine years were not found to be manifestly inadequate. The applicant had a relevant prior criminal history, including convictions for prior episodes of domestic violence. This distinguishes him from the offender in each of Sebo, Baggott, Pringle and Hutchinson. This aside, the seriousness of the applicant’s offending – in its brutality and in respect of the vulnerability of the victim – is similar to that in Sebo.Although the applicant was about 10 years older than Mr Sebo, he was of much diminished intellectual level. The applicant’s offending is more serious than that in Pringle, because there is no basis for concluding that the applicant’s mental health issues or intellectual disability caused him to believe he was acting in self-defence. It is less serious than the offending in Baggott and Hutchinson, because the applicant did not attempt to dispose of his victim’s body so as to conceal his offending. His attempts at concealment were limited to lying to the ambulance, hospital staff and police about what had occurred. In 2001, in Baggott, the court observed that a sentence of between eight and 11 years imprisonment was open. In 2007, in Sebo, the court concluded the sentence might have fallen between nine and 12 years without error. The former President’s statement in Major in 2012, noted at [70] above, indicates the growing awareness of the need to deter, denounce and protect the community from domestic violence offences. The obligation to treat the fact that an offence is a domestic violence offence as an aggravating factor was made clear by the insertion of s 9(10A) of the Penalties and Sentences Act. That provision commenced on 5 May 2016 and applies to sentences imposed after that date. Save for Hutchinson, all of the above decisions concerning domestic violence offences involved sentences imposed before this legislative change. It follows that some care needs to be taken in considering the sentences imposed in those earlier decisions for offences involving domestic violence in the context of reconciling or balancing the various relevant aggravating and mitigating factors.

Ratio Decidendi

Legal Principle Established

In order to determine the outcome of the application for leave to appeal, it is necessary to consider the sentence that would be imposed on the applicant for this offending if the discretion were to be exercised afresh.Sentencing considerations The purposes for which a sentence may be imposed and the matters that must be considered in the exercise of sentencing discretion are well-defined,[6] and well-understood.[6]PSA, s 9. The relevant circumstances of the applicant’s offending are set out at [7] to [23] above. The agreed basis for sentence is noted at [24] above. In short, the applicant assaulted the deceased intending to cause her serious harm and, in doing so, inflicted the injuries which caused her death. The maximum sentence for manslaughter is imprisonment for life.[7] This invites a comparison between the applicant’s offending and the worst possible case of manslaughter, for which life imprisonment might be imposed.[7]Criminal Code, s 310(1). The applicant’s offence is serious. The violence used in the assault is described at [38] above. As the learned sentencing judge observed, it was a brutal and unprovoked attack on a slight, vulnerable woman. It caused the ultimately fatal injuries described at [16] above. It also caused or led to a number of lesser fractures, bruises and haemorrhages identified post-mortem. The applicant’s use of morphine and other pain-killers indicates the severity of the pain caused by the assault. The deceased endured the fatal injuries for about 24 hours before the applicant called for any trained medical attention. During this time, she had only the internet-aided ministrations of the applicant. By the time the ambulance arrived, she was unconscious. She was taken to hospital in that condition, where she died. The applicant is entirely to blame for the offending. He did not act in response to any recognisable provocation or threat. He was under no delusion or mistake. In sentencing the applicant, the court is obliged to treat the fact that this is a domestic violence offence as an aggravating factor.[8] No party contended it was not reasonable to do so. The deceased’s dependence on the applicant may be gauged by the fact that the couple had no friends, family or associates in Queensland; that they kept to themselves; and that neither was employed.[8]PSA, s 9(10A). Domestic violence offences, including those resulting in the death of a partner, are regrettably prevalent. McMurdo P observed in R v Major; Ex parte Attorney-General (Qld):“Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases. So too is denunciation. The community through the courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems.”[9][9][2012] 1 Qd R 465 at 481 [53].