R v O'Connell [2005] NSWCCA 265

New South Wales Court of Criminal Appeal

CITATION: R v O'Connell [2005] NSWCCA 265

HEARING DATE(S): 20/07/05

JUDGMENT DATE: 3 August 2005

JUDGMENT OF: Brownie AJA at 1; Buddin J at 36; Latham J at 37

DECISION: Appeal dismissed.

CATCHWORDS: Sentence. No question of principle.

Crimes Act 1900 ss 117,148, 188, 527C Firearms Act 1996 s 36 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1996 s 3A, 9, 12, 21A(2) Evidence Act 1995 s 191

R v Zamagias [2002] NSWCCA 17 Dinsdale v The Queen (2002) 202 CLR 321 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Hammoud [2004] NSWCCA 540, 118 A Crim R 66 R v Bahsa [2003] NSWCCA 36 R v Scott [2005] NSWCCA 152 R v Stanbouli [2003] NSWCCA 315, 141 A Crim R 531

Regina PARTIES: Kevin John O'Connell

FILE NUMBER(S): CCA 2005/732

Crown: JA Girdham COUNSEL: Respondent: P Boulton SC

S Kavanagh (Solicitor for Public Prescutions) SOLICITORS: Wilson Fardell & Moore

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/61/0196

LOWER COURT JUDICIAL OFFICER: Finnane QC DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/732

BROWNIE AJA BUDDIN J LATHAM J

Wednesday 3 August 2005 REGINA v Kevin John O'CONNELL Judgment 1 BROWNIE AJA: On 20 July 2005 the Court dismissed the Crown's appeal against sentence, saying that it would publish its reasons later. These are those reasons. 2 The respondent pleaded guilty in the Local Court to a number of charges, and adhered to those pleas in the District Court. There were nine charges of stealing from a dwelling (maximum penalty seven years imprisonment: Crimes Act 1900 s 148), eight charges of larceny (maximum penalty five years imprisonment: Crimes Act s 117), two charges of receiving stolen goods (maximum penalty ten years imprisonment: Crimes Act s 188), and one charge of possessing an unregistered firearm (maximum penalty two years imprisonment and/or a fine of $5,500: Firearms Act 1996 s 36). In addition there were taken into account six cases of being unlawfully in possession of property (maximum penalty six months imprisonment and/or a fine of $550: Crimes Act s 527C), and ten further cases of receiving stolen property, recorded on Forms 1. 3 His Honour Judge Finnane QC imposed these sentences: on one of the charges of stealing from a dwelling, a sentence of twenty three and a half months imprisonment, with a non-parole period of eighteen months, suspended pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999 s 12, on terms requiring the respondent to enter into a bond generally to be of good behaviour for the period of twenty three and a half months, and to require him to pay $16,000 to the Director of Public Prosecutions, by way of compensation; and on one of the charges of receiving stolen property, an identical sentence, to be served concurrently with the first sentence mentioned; in relation to the firearms offence, a bond to be of good behaviour for a period of twelve months, imposed under s 9 of the Crimes (Sentencing Procedure) Act; and in respect of the remaining charges a bond to be of good behaviour for the period of five years, imposed under s 9 of Crimes (Sentencing Procedure) Act. 4 The Director of Public Prosecutions did not appeal from the sentence regarding the firearms offence (which need not be mentioned again), but appealed from each of the other sentences, generally contending that the sentences imposed were manifestly inadequate, and taking these particular grounds of appeal: