O’Connor v R [2017] NSWCCA 311

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Connor v R [2017] NSWCCA 311 Hearing dates: 24 November 2017 Decision date: 13 December 2017 Before: Leeming JA at [1] Fullerton J at [2] Adamson J at [55] Decision: 1. Leave to appeal granted. 2. The appeal is dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – robbery armed with a dangerous weapon – error conceded by Crown – parity Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Green v The Queen; Quinn v The Queen (2011) 244 CLR 463; [2011] HCA 49 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Category: Principal judgment Parties: Mark Anthony O'Connor (Applicant) The Crown (Respondent) Representation: Counsel: A Evers (Applicant) T Smith (Crown)

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2015/38135 Decision under appeal Court or tribunal: District Court Date of Decision: 3 August 2016 Before: Baly DCJ File Number(s): 2015/38135

Judgment 1. LEEMING JA: I agree with Fullerton J. In particular, I agree that the applicant's resentencing is far from straightforward, having regard to the seriousness of the offence but also the background of disadvantage and unchallenged favourable findings. I also agree with her Honour that this is a case where despite the minor but material error by the sentencing judge (apparently resulting from an uncorrected error in the "Crown Sentence Summary" provided by the Crown), no lesser sentence is warranted. 2. FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against a sentence imposed by Baly DCJ on 3 August 2016 for one count of robbery armed with a dangerous weapon, being a shortened double-barrel shotgun, contrary to s 97(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years imprisonment. 3. In sentencing for that offence, her Honour also took into account two additional matters on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely: * Using an offensive weapon with intent to commit an indictable offence, contrary to s 33B(1)(a) of the Crimes Act, an offence which attracts a maximum penalty of 12 years imprisonment; and * Failing to stop in a police pursuit, contrary to s 51B(1) of the Crimes Act, which attracts a maximum penalty of imprisonment for 3 years for a first offence or, in the case of an offence on a second or subsequent occasion, imprisonment for 5 years. 1. In the same proceedings, the applicant was sentenced under a s 166 certificate for driving a conveyance without consent, contrary to s 154A(1) of the Crimes Act. The Local Court's jurisdictional limit of 2 years imprisonment applied to that offence. 2. Although the armed robbery and the related matters on the Form 1 were committed for trial from the Local Court, a guilty plea to the armed robbery was entered on arraignment in the District Court on 8 April 2016. Her Honour allowed a 15 per cent discount for the plea. 3. The applicant was sentenced as follows: * For the offence of robbery armed with a dangerous weapon, a total term of 7 years and 6 months, comprising a non-parole period of 4 years and 6 months with a balance of term of 3 years; * For the offence the subject of the s 166 certificate, the applicant was convicted but no penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act. 1. Two grounds of appeal are relied upon, the first of which is conceded by the Crown: 1. Her Honour erred by finding that the applicant was subject to a s 9 good behaviour bond when he committed the offence of robbery whilst armed with a dangerous weapon; and 2. Her Honour erred in proceeding to sentence on the basis that questions of parity with the sentence imposed on a co-offender had no role to play in the sentencing exercise.