New South Wales Court of Criminal Appeal CITATION: Regina v O'Connor [2005] NSWCCA 5 HEARING DATE(S): 31 January 2005 JUDGMENT DATE: 31 January 2005 JUDGMENT OF: Sully J at 1; Kirby J at 31 DECISION: Leave to appeal against sentence granted; Appeal dismissed Regina PARTIES: Anthony Ross O'CONNOR FILE NUMBER(S): CCA 2004/2022 J. Girdham - Crown COUNSEL: P. M. Winch - Appellant S. Kavanagh - Crown SOLICITORS: S. E. O'Connor - Appellant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/51/0019 LOWER COURT JUDICIAL OFFICER: Ducker ADCJ - IN THE COURT OF CRIMINAL APPEAL 2004/2022 SULLY J KIRBY J 31 JANUARY 2005 REGINA v Anthony Ross O'CONNOR Judgment 1 SULLY J: This is an application for leave to appeal against sentence. The applicant, Mr O'Connor, was brought to trial in the Lismore District Court before his Honour Ducker ADCJ and a jury in September 2003. 2 He was presented for trial upon an indictment containing two counts. Count 1 charged him with having wounded, with intent to murder, a particular named victim. Count 2 was led in the alternative, and charged him with having maliciously wounded the same victim, with intent to do grievous bodily harm. The applicant pleaded not guilty to both counts. The jury found him not guilty on count 1, but guilty on count 2. 3 On 25 November 2003 his Honour Ducker ADCJ sentenced the applicant to imprisonment for 11 years to commence on 22 July 2002 and to expire on 21 July 2013. His Honour set a non-parole period of 8 years and 3 months to commence on 22 July 2002 and to expire on 21 October 2010. 4 The material facts can be stated shortly and in the form of a succinct, but with respect clear, summary that appears as follows in the written submissions lodged for the applicant: "The Court heard from the victim, Mr Whittaker. He said that he had been celebrating his birthday with friends, Steven Maher and Guy Murdoch. They had all been drinking and were intoxicated when they went to Mr Maher's flat in the early hours of 18 July 2002. The accused met them outside the flat. He knew Maher and Murdoch but not Mr Whittaker. They all went inside and began to drink more alcohol. Within a very short space of time the evening turned sour. Each of the three men who gave evidence for the prosecution spoke of the accused becoming aggressive. Mr Murdoch asserted that the accused threatened the group before entering the flat. He said the accused stood over Mr Whittaker inside the flat and threatened him. Mr Murdoch stated that he was scared by these events and as a result he left the flat after about five minutes. He said he left before any actual violence erupted. Mr Maher, the occupant of the flat, stated that the accused began to say "violent stuff towards the boys". He threatened to "take one of youse out" and pushed Mr Maher. Mr Maher said that the accused ran at him and he was so concerned for his safety he left the flat via the veranda. He said he was very scared. As he left he heard the sound of punching from inside the flat. Mr Whittaker was left by his companions alone inside the flat with the accused. He stated that he was kicked by the accused to the eye then hit with an ashtray, which smashed on impact. The remaining piece of the ashtray was then used to hit him to the head area on a number of occasions. Mr Whittaker said the accused also tried to strangle him. He was cut on his back and on his arm before he kneed the accused in the testicles and escaped. He managed to rouse a neighbour who drove him to hospital. When he arrived there he was covered in blood." 5 Six grounds of appeal have been notified and it is convenient to deal with them in the order in which they appear in the Notice of Grounds of Appeal. 6 The first ground is that the learned sentencing Judge erred by failing to take into consideration when assessing the applicant's future dangerousness that the instant offence was committed under the influence of a prescription drug Temazepam and alcohol. 7 It is clear on the evidence before the learned sentencing Judge that the applicant had indeed ingested a considerable quantity of alcohol prior to the carrying out of the offence in question. It is equally clear that he had access to the drug Temazepam. 8 The problem that confronted the learned sentencing Judge, and, indeed, the problem that concerns this Court in dealing with this particular ground, is that the evidence placed before the sentencing Court was, to say the least, confused and unclear as to what exactly the situation had been in connection with, in particular, the drug Temazepam. 9 There was, so far as I can see, no evidence placed before the learned sentencing Judge as to who had prescribed the drug for the applicant; or when it had been prescribed; or in what circumstances it had been prescribed; or in what dosages it had been prescribed; or what monitoring, if any, had occurred to ensure, as best it could be done, that the applicant was adhering to whatever dosages had been prescribed for him. 10 There was, so far as I can see, no evidence placed before the sentencing Court as to whether any advice had been given to the applicant by his treating doctor, or indeed by anybody else in a relevant position to give the advice, as to the expected consequences of taking Temazepam in conjunction with alcohol. 11 All of those matters, I say again, seem to me to have been left very much moot upon the basis of the evidence, such as it was, that was placed before the learned sentencing Judge on the topic. 12 It was the applicant's onus to prove, albeit on the balance of probabilities, that the objective culpability of the offence of which the jury had found him guilty, was fairly to be mitigated upon the basis suggested in the first ground of appeal. 13 I read the remarks on sentence as conveying that the learned sentencing Judge was not satisfied that that onus had been discharged; a view of which I am of the respectful opinion that it was entirely open to his Honour. It is my own view, upon the basis of the material upon which this Court must now work in connection with the present application. 14 I would not uphold the first ground of appeal. 15 The second ground of appeal is that the learned sentencing Judge erred by failing to give any or sufficient weight to the applicant's subjective circumstances. 16 It is true that the remarks on sentence do not go into a great deal of detail on the topic of subjective circumstances; but it is, I think, drawing something of a long bow to suggest that the learned sentencing Judge, an immensely experienced Judge in criminal cases, simply overlooked the need to take into account the evidence, such as it was, concerning the applicant's subjective circumstances. 17 I would not uphold the second ground of appeal. 18 The third ground is that the learned sentencing Judge erred in finding that the only mitigating feature was "that the offender did not bring the weapon, which was ultimately used, with him into the flat". 19 It seems to me that on the basis of the evidence that was adduced before the learned sentencing Judge, that view was one entirely open to his Honour. I would not be prepared to interfere with the view taken on the point by his Honour who had the benefit, which we have not had, of seeing and hearing the relevant witnesses, not least of them the applicant himself. 20 The fourth ground of appeal is that his Honour erred in the weight he gave to the use of a weapon in all the circumstances of this case. 21 I do not agree. The learned sentencing Judge took and, in my respectful view, was not only entitled but was bound to take, a very serious view of the nature, the wilful, persistent and sustained nature, of the very serious assaults which had been carried out upon the victim by the applicant, using, in connection with most if not perhaps precisely all the wounds inflicted, what was a jagged glass piece. In my view his Honour did not err in the weight he gave to that aspect of the case. 22 The fifth ground is that his Honour erred by finding that the offence involved gratuitous cruelty. The competing submissions upon that point really involve a semantic exercise in construing fairly what his Honour, who undoubtedly used that term "gratuitous cruelty", meant to convey by the use of the term. 23 I think that a fair reading in context of what his Honour actually said when he used that particular couple of words was that his Honour was intending to describe a continuum of violent assault which was, as I said, wilful, serious and persistent. 24 The sixth and final ground is that the sentence is manifestly excessive. Having regard to the views I have expressed about the preceding five grounds, the sixth ground must fall to be determined upon the basis that, there being no overt error demonstrated in the approach of the learned sentencing Judge, the end result achieved by his Honour is nevertheless to be regarded as covertly flawed in some way. That is to say, it is to be assumed - so the submission must run - that the end result is so far out of kilter with the relevant comparable figures as to demonstrate, without more, that there must have been, somewhere or other in the sentencing process, an error on the part of the learned sentencing Judge. 25 It can be allowed at once that the sentence passed by his Honour upon the applicant was a severe sentence. 26 It does not seem to me that there is a great deal of profit in this case, as indeed I venture to think there is not a great deal of profit in most such cases, in arguing where the particular sentence might be thought to fall on a number of hypothetical tables represented by the JIRS figures. 27 Such figures have been placed before this Court although, as I apprehend the fact, they were not placed, at least in those terms, before the learned primary Judge. The figures are, of course, not without some indicative value; but they suffer from the usual problems with such figures: that is to say, that they are figures based upon an undifferentiated case basis which does not allow one to say, relevantly to the present ground, what proportion of the sentences followed upon pleas of guilty; what proportion followed upon pleas of not guilty; what proportion followed upon antecedents similar to those of the present applicant; and what proportion did not. 28 In those circumstances, as I have said, I think the best that one can do with the JIRS figures is to get a very broad, inchoate, sense of the pattern they might be thought to suggest. 29 Approached in that way I think the sentence passed in the present case is certainly a severe sentence; but in my view the Court should say unapologetically that it was a case that called for a severe sentence. The crime was a crime of significant violence. It resulted, on any view, in very serious injuries to the victim. Everything that the learned sentencing Judge said about the paramount interest of society in suppressing violent crime of that kind and in being protected against it is, in my opinion, entirely correct; and, with respect, I adopt all of it. 30 Having regard to the whole of those circumstances, I would grant leave to appeal against sentence; but the appeal itself I would dismiss. 31 KIRBY J: I agree, for the reasons expressed by the presiding Judge, and with the orders proposed. 32 SULLY J: There will be orders accordingly. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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