Citation: O'Brien v R [2023] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 10 March 2023
Judges: Bell CJ, Garling J, Button J (Button J delivering the principal judgment, Bell CJ and Garling J agreeing)
Background
The applicant was a former restaurant and duty manager at the Kosciuszko Thredbo Hotel whose employment had been terminated in January 2014. Evidence at trial indicated he harboured resentment about that dismissal. In March 2014, he and a co-offender travelled from Canberra to the hotel in the early hours of the morning, carrying masks, a knife, a hammer, duct tape, and other items. They entered the hotel and located the night auditor working alone in the manager's office, exploiting the applicant's inside knowledge of the property.
The victim was threatened with a knife, bound with duct tape, and forced into the back of a van by masked intruders. He sustained life-threatening injuries before leaping from the moving vehicle. The applicant was convicted at a retrial in March 2021 before Judge Colefax in the District Court of NSW, after earlier convictions had been set aside by the Court of Criminal Appeal in 2019 and a new trial ordered.
Following the retrial, Judge Colefax imposed an aggregate sentence of 14 years' imprisonment with a non-parole period of 9 years across three offences: robbery in company, specially aggravated kidnapping, and taking and driving a conveyance without the owner's consent. The applicant sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge erred in treating the substantial physical and psychological harm suffered by the victim as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentencing judge erred in treating the offending as aggravated by being part of a planned criminal activity
- Whether the assessment of the objective seriousness of the specially aggravated kidnapping offence was incorrect
- Whether the aggregate sentence of 14 years was manifestly excessive
Decision
Ground 1: Physical and psychological harm. The Court held that the finding of substantial aggravation was not made in error. The victim's injuries were described as life-threatening, placing them well beyond minor forms of actual bodily harm. The Court also found that significant psychological harm could be readily inferred from the objective facts: the victim had been threatened at knifepoint, bound, masked intruders had forced him into a van, and he had feared for his life before jumping from a moving vehicle. The Court noted that the evidentiary status of victim impact statements remains a debated question, but that inference from the objective circumstances was sufficient here.
Ground 2: Planned criminal activity. The Court rejected the submission that this aggravating factor was not established. The commission of an offence "in company" itself implies some preconcert between the participants. The careful preparation evident in the offending, including the acquisition of stolen number plates, the assembly of equipment, and the overnight drive to the hotel, amply satisfied the requirement.
Ground 3: Objective seriousness of the kidnapping. The Court rejected the proposition that any assessment below the middle range was appropriate. Given the patent gravity of the conduct involved in the kidnapping, the sentencing judge's assessment was not shown to be erroneous.
Ground 4: Manifest excess. The Court accepted the sentence was substantial for a person without an extensive criminal record but found it well within the available discretionary range. The combination of grave objective features and adverse subjective features, including a complete absence of remorse or acceptance of responsibility, a history of violent offending, the absence of mitigating childhood deprivation, and motives of greed and resentment, placed the sentence appropriately toward the upper end of the spectrum. The Court remarked that anything less would have been remarkable and potentially vulnerable to a Crown appeal.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that near-fatal physical injuries sustained by a victim will constitute a "very significant factor" in sentencing and go well beyond minor forms of actual bodily harm for the purposes of the s 21A aggravating factor.
- Significant psychological harm to a victim need not rely solely on a victim impact statement; it may be inferred from the objective circumstances of the offending where those circumstances plainly support such an inference (though the Court noted the evidentiary status of victim impact statements in sentencing proceedings remains arguable).
- The commission of an offence "in company" carries an inherent implication of preconcert, and where other evidence of preparation also exists, the aggravating factor of planned criminal activity is readily established.
- In dismissing the appeal, the Court reinforced that a heavy aggregate sentence is not manifestly excessive where both objective and subjective features are seriously adverse, even where the offender does not have an extensive prior criminal record.
- No error was established in the assessment of objective seriousness for a specially aggravated kidnapping involving life-threatening harm, restraint, and prolonged fear for the victim's life.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 86, 97, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
- Joyce (A Pseudonym) v R (2019) 99 NSWLR 562; [2019] NSWCCA 187
- Pashley v R [2019] NSWCCA 119
- R v Bedford (1986) 5 NSWLR 711
- R v Gilmore (1979) 1 A Crim R 416
- McL v The Queen (2000) 203 CLR 452; [2000] HCA 46
- Calhoun v R [2018] NSWCCA 150
- Hall v R [2017] NSWCCA 260
- Carroll v R [2015] NSWCCA 219
- R v Thomas [2007] NSWCCA 269
- R v Tuala (2015) 248 A Crim R 502