R v Olsen - [2005] NSWCCA 243

CITATION:
R v Olsen [2005] NSWCCA 243

HEARING DATE(S): 12/07/2005

JUDGMENT DATE:

14 July 2005

JUDGMENT OF:
Studdert J at 1; Kirby J at 2; Howie J at 3

DECISION:
Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS:
Criminal Law - Sentence - s 21A(d) - whether error in taking into account the criminal record - whether sentence for injuries not attributable to the acts of the applicant

LEGISLATION CITED:

Crimes Act 1900 - ss 33, 59
Crimes (Sentencing Procedure) Act 1999 - s 21A

CASES CITED:
R v Blair [2005] NSWCCA 78
Veen v The Queen (No. 2) (1998) 164 CLR 465
R v Shankley [2003] NSWCCA 253

PARTIES:
Regina v Shane Barry Olsen

FILE NUMBER(S):
CCA 2004/2829

COUNSEL:
J. Girdham - Crown
H. Dhanji - Applicant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/21/1289

LOWER COURT JUDICIAL OFFICER:
O'Reilly DCJ

2004/2829

STUDDERT J
KIRBY J
HOWIE J
THURSDAY 14 JULY 2005

Regina v Shane Barry OLSEN

Judgment

1 STUDDERT J: I agree with Howie J.

2 KIRBY J: I agree with Howie J.

3 HOWIE J: The applicant was convicted after trial by jury of one count of maliciously inflict grievous bodily harm with intent contrary to s 33 of the Crimes Act. This is an offence that carries a maximum penalty of imprisonment for 25 years. He also pleaded guilty to a charge of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act. The maximum penalty prescribed for this offence is imprisonment for 5 years.

4 On 18 December 2003 Judge O’Reilly (the Judge) sentenced the applicant to imprisonment for 9 years for the s 33 offence and specified a non-parole period of 5½ years. In respect of the s 59 offence he sentenced the applicant to imprisonment for 18 months. The sentences were to date from 5 July 2002. Although the Judge directed that the applicant be released to parole on 4 January 2008, he had no power to make that order, as the sentence exceeded 3 years imprisonment. However that is the date upon which the applicant will be eligible for release to parole.

5 The applicant seeks leave to appeal against the sentence imposed for the s 33 offence. There are two grounds of appeal relied upon being:

1. The sentencing judge erred by taking the applicant’s criminal record into account as an aggravating feature.

2. The sentencing judge erred in sentencing the applicant on the basis of harm for which the applicant was not responsible.

6 The two offences occurred on 4 July 2002. The victim of the s 33 offence was the son of the applicant’s de facto partner. He was aged 3½ years at the date of the offence. The injuries amounting to grievous bodily harm were inflicted on the child when his mother left him in the applicant’s care in order to visit another child, a baby born…

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 Olsen

Details

AGLC: R v Olsen [2005] NSWCCA 243
Case: [2005] NSWCCA 243
Decision Date: 14 July 2005

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Olsen involved the sentencing of the applicant for an offence of assault causing injury. The primary issues before the court were whether there had been an error in taking into account the applicant's criminal history and whether the sentence should have been imposed for injuries that were not directly attributable to the applicant's actions. The applicant argued that the sentence was excessive and that the trial judge had erred in considering his criminal record and in attributing injuries to him that were caused by a third party.

The court examined whether the trial judge had correctly applied the sentencing principles outlined in section 21A(d) of the relevant legislation. It was necessary to determine whether the judge had erred in taking into account the applicant's criminal history and in sentencing him for injuries that were not directly caused by his actions. The court considered the totality of the circumstances, including the nature and circumstances of the offence, the applicant's criminal history, and the principles of proportionality and deterrence. After careful consideration, the court found that there had been no error in the trial judge's approach to sentencing. The trial judge had appropriately balanced the factors and had not erred in considering the applicant's criminal record or in attributing injuries to him.

Consequently, the court upheld the sentence imposed by the trial judge. The applicant's appeal against sentence was dismissed, and the original sentence was affirmed. The court emphasised the importance of a balanced approach to sentencing that takes into account the totality of the circumstances, including the offender's criminal history, while ensuring that the sentence is proportionate to the offence committed.

Orders