R v Olsen [2005] NSWCCA 243

New South Wales Court of Criminal Appeal

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

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

R v Blair [2005] NSWCCA 78 CASES CITED: 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

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

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

LOWER COURT JURISDICTION: District Court

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

LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ

IN THE COURT OF CRIMINAL APPEAL 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.