O’Connor v R [2017] NSWCCA 300

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Connor v R [2017] NSWCCA 300 Hearing dates: 6 October 2017 Decision date: 08 December 2017 Before: Macfarlan JA at [1]; Fullerton J at [60]; Fagan J at [61] Decision: (1) Grant the applicant leave to appeal against his convictions and sentence. (2) Dismiss the appeal. Catchwords: CRIME – appeal against conviction after judge alone trial – charges relating to possession of prohibited weapons and a firearm – whether verdict unreasonable or cannot be supported by the evidence – whether applicant had possession of the relevant items – whether items were intended to be used in a significant criminal enterprise namely a "rip off" – whether trial judge erred in his use of expert evidence – relevance of applicant giving in evidence an implausible explanation for his possession of the weapons and firearm

SENTENCING – appeal against sentence – relevant factors on sentencing – Form 1 offences – Form 1 did not attribute each additional charge to a principal offence – unsigned Crown sentence summary did attribute each Form 1 offence to a principal offence – Crown sentence summary agreed to by accused – s 32(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied

SENTENCING – appeal against sentence – subjective considerations on sentence – whether judge did not properly take into account applicant's mental condition as reducing moral culpability and significance of general deterrence – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW), s 66(1)(b) Weapons Prohibition Act 1988 (NSW), s 7(1) Cases Cited: Bichar v R [2006] NSWCCA 1 Kuhl v Zurich Financial Services Australia (2011) 243 CLR 361; [2011] HCA 11 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Stephen Barry Williams (2005) 156 A Crim R 225; [2005] NSWCCA 355 R v SY [2003] NSWCCA 291 R v Todorovic [2008] NSWCCA 49 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Turner v R [2011] NSWCCA 189 Category: Principal judgment Parties: David O'Connor (Applicant) Regina (Respondent) Representation: Counsel: L Fernandez (Applicant) F Veltro (Respondent)