Strickland v R O'Connor v R - [2011] NSWCCA 166

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Strickland v R O'Connor v R [2011] NSWCCA 166
Hearing dates: 20 July 2011
Decision date: 28 July 2011
Before: Allsop P at [1]
Simpson J at [2]
Buddin J at [3]
Decision:
Applicant Strickland
1 Grant leave to appeal.
2 Allow the appeal.
3 Quash the sentences imposed in the District Court and in substitution therefore impose the following sentences:
(i) In respect of Count 2a, sentence the applicant to a term of 18 months to commence on 18 February 2010;
(ii) In respect of Count 3a, sentence the applicant to a term of 18 months to commence on 18 July 2010;
(iii) In respect of Count 4a, sentence the applicant to a term of 18 months to commence on 18 December 2010;
(iv) In respect of Count 1, sentence the applicant to a non-parole period of 2 years and 3 months to commence on 18 May 2011 and to expire on 17 August 2013 with a total term of 4 years and 3 months to expire on 17 August 2015.
The applicant will be eligible for parole on 17 August 2013.
Applicant O'Connor
1 Grant leave to appeal.
2 Allow the appeal.
3 Quash the sentences imposed in the District Court and in substitution therefore impose the following sentences:
(i) In respect of Count 2a, sentence the applicant to a term of 12 months to commence on 8 March 2010;
(ii) In respect of Count 3a, sentence the applicant to a term of 15 months to commence on 8 June 2010;
(iii) In respect of Count 4a, sentence the applicant to a term of 15 months to commence on 8 September 2010;
(iv) In respect of Count 1, sentence the applicant to a non-parole period of 2 years and 3 months to commence on 8 December 2010 and to expire on 7 March 2013 with a total term of 4 years and 3 months to expire on 7 March 2015.
The applicant will be eligible for parole on 7 March 2013.

Catchwords: Criminal law - appeal against sentence - offences of aggravated break, enter and steal and break, enter and steal - whether sentences manifestly excessive - whether error in failing to take into account that various of the offences could have been dealt with in the Local Court
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: Bonwick v R [2010] NSWCCA 177
Pearce v The Queen (1998) 194 CLR 610
Category: Principal judgment
Parties: Paul James Strickland
Regina
Corey Francis O'Connor
Regina
Representation: Counsel:
H Cox (Applicant Strickland)
P Winch (Applicant O'Connor)
Solicitors:
Aboriginal Legal Service (Applicant Strickland)
Legal Aid Commission (Applicant O'Connor)
S Kavanagh (Solicitor for Public Prosecutions)

File Number(s): 2009/62208 2009/45738
Decision under appeal

Date of Decision:

2010-08-26 00:00:00

Before:

English DCJ

File Number(s):

2009/62208; 2009/45738

Judgment

ALLSOP P : I agree with Buddin J.

SIMPSON J : I agree with Buddin J.

BUDDIN J : These applications for leave to appeal against…

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 Strickland v R O'Connor v R

Details

AGLC: Strickland v R O'Connor v R [2011] NSWCCA 166
Case: [2011] NSWCCA 166
Decision Date: 28 July 2011

CaseChat Overview and Summary

The applicants appealed against their sentences, arguing that they were manifestly excessive. The applicants were convicted of various offences, including aggravated break, enter and steal and break, enter and steal. The court was required to determine whether the sentences were manifestly excessive and whether there was an error in failing to take into account that various of the offences could have been dealt with in the Local Court. The court held that the sentences were manifestly excessive and quashed them. The court found that there was an error in failing to take into account that some of the offences could have been dealt with in the Local Court. The court also found that the failure to take into account this fact was a significant error that had the potential to affect the overall sentence. The court ordered a re-sentencing hearing to be held to consider the appropriate sentences for the applicants, taking into account that some of the offences could have been dealt with in the Local Court. The court also ordered that the applicants be released on bail pending the re-sentencing hearing.

Orders