Regina v Anthony O'Donoghue [2005] NSWCCA 62

Reported Decision : 151 A Crim R 597

New South Wales Court of Criminal Appeal

CITATION: Regina v Anthony O'Donoghue [2005] NSWCCA 62

HEARING DATE(S): 25 February 2005

JUDGMENT DATE: 25 February 2005

JUDGMENT OF: Spigelman CJ at 27,29; Wood CJ at CL at 28; Barr J at 1

DECISION: Appeal dismissed.

CATCHWORDS: Criminal law - aggravated breaking and entering and committing a serious indictable offence - whether use of corporal violence capable of aggravating when the serious indictable offence is assault occasioning actual bodily harm.

LEGISLATION CITED: Crimes Act 1900 s112

Pearce v The Queen (1998) 194 CLR 610 The Queen v De Simoni (1980-1981) 147 CLR 383 CASES CITED: R v Sorlie (1925) 25 SR (NSW) 532 Fitzgerald v Kennard (1995) 38 NSWLR 184

PARTIES: Regina, Anthony O'Donoghue

FILE NUMBER(S): CCA 3010/2004

A Francis COUNSEL: P Barrett

Legal Aid Commission SOLICITORS: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0204

LOWER COURT JUDICIAL OFFICER: Payne DCJ

- 8 - IN THE COURT OF CRIMINAL APPEAL 2004/3010

SPIGELMAN CJ WOOD CJ AT CL BARR J

25 FEBRUARY 2005 REGINA v ANTHONY O'DONOGHUE Judgment

1 BARR J: The appellant, Anthony O'Donoghue, appeals against a conviction entered in the District Court. He stood trial before a jury on two charges, namely - 1. On 22 March 2003 at Telopea in the State of New South Wales, he did break and enter a dwelling house at 3/6 Sturt Street and commit a serious indictable offence therein, namely, did assault Robbie Tenkate, occasioning to him actual bodily harm in circumstances of aggravation, namely, that corporal violence was used on Robbie Tenkate. (2) On 22 March 2003 at Telopea in the State of New South Wales, did assault Denise Grey occasioning to her actual bodily harm. 2 The jury found him guilty of both offences and sentence was passed. THE FACTS