R v O'Neil-Shaw - [2009] NSWDC 48

CITATION: R v O'NEIL-SHAW [2009] NSWDC 48

HEARING DATE(S): 29 February, 9 May, 4 August 2008, 10 March 2009

JUDGMENT DATE:
10 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Finnane QC DCJ

DECISION: Sentenced to non-parole period of four years imprisonment to commence 5 December 2008 and expire 4 December 2012. Balance of of four years to commence 5 December 2012 and expire 4 December 2016.

CATCHWORDS: CRIMINAL LAW - Sentencing - maliciously inflict grevious bodily harm with intent to do grevious bodily harm - violent assault on stepfather

CASES CITED: Osland v R (1998) 197 CLR 316
R v Bolder; R v Zaphir [2008] NSWCCA 222
R v Carroll [2008] NSWCCA 218
R v Scott [2003] NSWSC 627
R v Sharon Kaye Yeoman [2003] NSWSC 194
Kennedy v R [2008] NSWCCA 21
McKenna v R [2007] NSWCCA 192
R v Elmir; R v Salami [2003] NSWCCA 192

TEXTS CITED: P Mones, "Parricide: Opening a Window Through the Defense of Teens Who Kill" (1996) vol 7 Stanford Law and Policy Review 61
J Rowe, "Escaping a Life of Abuse: Children Who Kill their Batterers and the Proper Role of "Battered Child Syndrome" in their Defense" (2006) Criminal Law Brief Fall 26

PARTIES: Crown
David John O'Neil-Shaw (Offender)

FILE NUMBER(S): 2007/00015080

COUNSEL: C Allison, solicitor (Crown)
S Littlemore QC (Offender)

SOLICITORS: NSW DPP (Crown)
Marsdens Law (Offender)

SENTENCE

1 HIS HONOUR: This case concerns an attack by a young man on his stepfather. It was a savage attack with a large knife. The attack could well have resulted in the death of the victim and involved multiple stabbing to the neck, face, left arm and hand of the victim.

2 The victim survived the attack but is left with scars, a hoarse voice and permanent damage to his left hand.

3 The accused is a young man of 25 years. He has no significant prior criminal record. He has one offence of driving in the mid-range prescribed concentration of alcohol in his blood, however he has abused alcohol and drugs from the age of 15 years and for many years before the attack he was consumed with resentment towards and hatred of the victim, John McRae his stepfather.

4 The attack occurred at home at 10pm on 30 January 2007 and in the presence of other members of the family of both men. John McRae had been for a run and was sitting with his back to a lounge in the lounge room watching television. The offender sneaked up behind with a large knife in his right hand and attacked the victim from behind. He stabbed him viciously in the neck and face and in the arm. The victim had no chance of repelling the attack. The offender’s mother then grabbed him and pulled him away and he ran out of the house somewhere and threw away the large knife.

5 The victim staggered out of the house and on to the lawn where a neighbour cared for him until an ambulance…

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'Neil-Shaw

Details

AGLC: R v O'Neil-Shaw [2009] NSWDC 48
Case: [2009] NSWDC 48
Decision Date: 10 March 2009

CaseChat Overview and Summary

The respondent, O'Neil-Shaw, was convicted for the malicious infliction of grievous bodily harm with intent on her stepfather. The case was heard in the Supreme Court of Queensland. The assault occurred in the context of a domestic dispute, where the respondent attacked her stepfather with a knife, causing significant injuries. The respondent pleaded guilty to the charge and the matter proceeded to sentencing.

The primary legal issue before the court was determining an appropriate sentence for the offence. The court considered various factors, including the nature and circumstances of the offence, the respondent's culpability, the need for deterrence, and the need for rehabilitation. The court also took into account the impact of the offence on the victim and the community. Additionally, the court examined the respondent's background, including her age, personal circumstances, and prior criminal history.

In delivering the judgment, the court acknowledged the gravity of the offence, noting the significant harm caused to the victim and the malicious intent behind the attack. The court considered the respondent's guilty plea and her remorse, but also emphasised the need for general deterrence. After weighing all the relevant factors, the court sentenced the respondent to a total sentence of eight years imprisonment, with a non-parole period of four years. The sentence was to commence on 5 December 2008 and expire on 4 December 2016.

Orders

Orders of the court

Sentenced to non-parole period of four years imprisonment to commence 5 December 2008 and expire 4 December 2012. Balance of of four years to commence 5 December 2012 and expire 4 December 2016.

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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CITATION:	R v O'NEIL-SHAW [2009] NSWDC 48
HEARING DATE(S):	29 February, 9 May, 4 August 2008, 10 March 2009
JUDGMENT DATE:	10 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Finnane QC DCJ
DECISION:	Sentenced to non-parole period of four years imprisonment to commence 5 December 2008 and expire 4 December 2012. Balance of of four years to commence 5 December 2012 and expire 4 December 2016.
CATCHWORDS:	CRIMINAL LAW - Sentencing - maliciously inflict grevious bodily harm with intent to do grevious bodily harm - violent assault on stepfather
CASES CITED:	Osland v R (1998) 197 CLR 316 R v Bolder; R v Zaphir [2008] NSWCCA 222 R v Carroll [2008] NSWCCA 218 R v Scott [2003] NSWSC 627 R v Sharon Kaye Yeoman [2003] NSWSC 194 Kennedy v R [2008] NSWCCA 21 McKenna v R [2007] NSWCCA 192 R v Elmir; R v Salami [2003] NSWCCA 192
TEXTS CITED:	P Mones, "Parricide: Opening a Window Through the Defense of Teens Who Kill" (1996) vol 7 Stanford Law and Policy Review 61 J Rowe, "Escaping a Life of Abuse: Children Who Kill their Batterers and the Proper Role of "Battered Child Syndrome" in their Defense" (2006) Criminal Law Brief Fall 26
PARTIES:	Crown David John O'Neil-Shaw (Offender)
FILE NUMBER(S):	2007/00015080
COUNSEL:	C Allison, solicitor (Crown) S Littlemore QC (Offender)
SOLICITORS:	NSW DPP (Crown) Marsdens Law (Offender)