O'Connor v Regina [2011] NSWCCA 161

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Connor v Regina [2011] NSWCCA 161 Hearing dates: 8 July 2011 Decision date: 20 July 2011 Before: Beazley JA at 1; Hall J at 38; Harrison J at 39 Decision: 1. Leave to appeal granted; 2. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence - leave to appeal against sentence for recklessly causing grievous bodily harm - applicant served non-parole period - applicant released on parole - whether sentence imposed by sentencing judge was manifestly excessive - whether appropriate to reduce the balance of the term imposed by the sentencing judge - sentence imposed by sentencing judge was within an appropriate sentencing discretion - leave granted - appeal dismissed Legislation Cited: Crimes Act 1900 Criminal (Sentencing Procedure) Act, 1999 Cases Cited: R v Thomson (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Category: Principal judgment Parties: Michael Joseph O'Connor (Applicant) Regina (Respondent) Representation: In person (Applicant) J Pickering (Respondent) In person (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/6634 Decision under appeal Citation: R v Michael Joseph O'Connor Date of Decision: 2009-12-18 00:00:00 Before: Keleman DCJ File Number(s): 2009/6634

Judgment 1BEAZLEY JA : On 8 September 2009, the applicant pleaded guilty before Keleman DCJ to the offence of recklessly causing grievous bodily harm to Henrietta Kahui on 4 August 2098 contrary to the provisions of the Crimes Act 1900, s 35(2). An offence under that section carries a maximum penalty of imprisonment for 10 years and a standard non-parole period of 4 years. As the applicant pleaded guilty, the standard non-parole period does not apply to the sentencing process. However, it remains as a reference point for the sentencing judge in determining what sentence to impose: R v Way [2004] NSWCCA 131. 2His Honour sentenced the applicant to a non-parole period of 2 years 6 months expiring on 12 June 2011, being the first day upon which the applicant was eligible to be released. His Honour imposed a total term of imprisonment of 4 years commencing on 13 December 2008. In imposing this sentence, the sentencing judge allowed a discount of 10 per cent on the sentence that otherwise would have been appropriate, having regard to the utilitarian value of the plea of guilty, which was entered on the day the offender was due to stand trial: see R v Thomson (2000) 49 NSWLR 383. See also the Criminal (Sentencing Procedure) Act , 1999, s 22. 3The applicant seeks leave to appeal against sentence on the ground that the sentence imposed is manifestly excessive. The applicant has already served his non-parole period and has been released on parole. On the hearing of the application for leave to appeal, the applicant, who appeared in person, informed the Court that he seeks a reduction in the balance of the term that was imposed by the sentencing judge. In effect, the applicant seeks a reduction of the period of 18 months on which he is on parole. As he put the matter to the Court, " 18 months is a long time ".