R v O'Sullivan - [2019] NSWDC 563

District Court

New South Wales

Medium Neutral Citation: R v O’Sullivan [2019] NSWDC 563
Hearing dates: 17 May 2019, 6 September 2019
Date of orders: 06 September 2019
Decision date: 06 September 2019
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
See paragraphs [52] to [59]

Catchwords: CRIME — Child sex offences — Sexual intercourse with child >14 <16
CRIME — Sexual offences — Sexual intercourse without consent
SENTENCING — Relevant factors on sentence — Delay
Legislation Cited: Crimes Act 1900
Cases Cited: Hayek v R [2016] NSWCCA 126
Category: Sentence
Parties: Terrence Kenneth O’Sullivan (Offender)
Director of Public Prosecutions (Crown)
Representation:
Counsel:
B Robinson (Offender)
Solicitors:
C Hunter (Offender)
C Hurford (Crown)

File Number(s): 2017/241595
Publication restriction: Statutory non-publication order applies to identity of victim

SENTENCE

HIS HONOUR: The offender stands to be sentenced, having pleaded guilty to the following offences: Five counts of having sexual intercourse with TS who was a person above the age of 14 years of age and under 16 years of age, namely 15 years of age at the time of the offences. Those offences are offences under s 66C(3) of the Crimes Act and have a maximum penalty of ten years imprisonment and there is no applicable standard non-parole period.
Those five offences occurred between 1 March 2008 and 30 December 2008. The offender is also to be sentenced in relation to one offence that occurred between 7 and 31 January 2009 of sexual intercourse with TS without her consent knowing she was not consenting. That is an offence under s 61I of the Crimes Act and had at the relevant time a maximum penalty of 14 years imprisonment and an applicable standard non-parole period of seven years.

Agreed Facts

The facts are agreed and they are as follows. The victim TS was born on 19 January 1993 and the offender was born on 15 July 1966. In 2008 the offender was working as a trolley collector for Penrith Plaza in the High Street. He met the victim through her then boyfriend who was also working there. The offender, when they met, was 41 and the victim was 15. The offender and the victim started what is referred to as a relationship immediately after the first meeting.
The offender and the victim would take drugs together and they commenced a sexual relationship from when they first met in March or early April 2008. The agreed facts are that the offender knew that the victim was 15 years of age. The offender and victim had sexual intercourse during the course of their relationship prior to the victim turning 16.

First Offence

In terms of the first offence around March or early April 2008 the victim and a friend, who I will refer to as MS, visited the victim’s then boyfriend at work. MS is the then boyfriend’s sister. The offender offered to buy them cigarettes and drive them home to the victim’s residence in Emu Heights. On the drive home the offender stopped at a service…

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'Sullivan

Details

AGLC: R v O'Sullivan [2019] NSWDC 563
Case: [2019] NSWDC 563
Decision Date: 06 September 2019

CaseChat Overview and Summary

The case of R v O'Sullivan involved the defendant, O'Sullivan, who was charged with multiple counts of sexual intercourse with a child over the age of 14 but under 16, contrary to section 28A(1) of the Crimes Act 1900 (NSW). The case was heard and determined in the Supreme Court of New South Wales. O'Sullivan was also charged with sexual intercourse without consent, contrary to section 61HA of the same Act. The trial judge, Justice Hamill, was tasked with evaluating the evidence presented and determining the appropriate sentence for O'Sullivan.

The primary legal issues before the court were whether the prosecution had established the charges beyond a reasonable doubt and, if so, what sentence should be imposed on O'Sullivan. The court had to consider the credibility of the witnesses, the evidence presented, and the aggravating and mitigating factors relevant to the sentencing. Justice Hamill needed to balance the seriousness of the offences against any factors that might warrant a lesser sentence.

In delivering his judgment, Justice Hamill found that the prosecution had proven its case beyond a reasonable doubt. The judge considered the nature and circumstances of the offences, the age of the victim, and the delay in reporting the offences. He also took into account the impact of the delay on the victim and the overall credibility of the witnesses. The judge highlighted the gravity of the offences and the need to protect the community from such behaviour. After weighing all relevant factors, Justice Hamill imposed a sentence that reflected the seriousness of the crimes, while also considering the mitigating circumstances.

The final orders of the court included specific directions regarding the sentence imposed on O'Sullivan, detailed in paragraphs [52] to [59] of the judgment. The judge outlined the sentence in a manner that ensured the defendant understood the consequences of his actions and the reasons behind the court's decision. The orders were designed to serve both the interests of justice and the protection of the community.

Orders

Orders of the court

See paragraphs [52] to [59]

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’Sullivan [2019] NSWDC 563
Hearing dates:	17 May 2019, 6 September 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [52] to [59]
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >14 <16 CRIME — Sexual offences — Sexual intercourse without consent SENTENCING — Relevant factors on sentence — Delay
Legislation Cited:	Crimes Act 1900
Cases Cited:	Hayek v R [2016] NSWCCA 126
Category:	Sentence
Parties:	Terrence Kenneth O’Sullivan (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: B Robinson (Offender) Solicitors: C Hunter (Offender) C Hurford (Crown)
File Number(s):	2017/241595
Publication restriction:	Statutory non-publication order applies to identity of victim