Citation: R v O'Reilly [2023] NSWDC 443
Court: District Court of NSW
Date: 20 October 2023
Judge: Noman SC DCJ
Background
The offender, a 45-year-old man, stood for sentence after a jury found him guilty on all three counts following a trial in July 2023. All three offences occurred on 13 November 2021 and involved a single victim at her home. A co-offender was not part of the trial proceedings.
The incident was partly captured on a contemporaneous recording, which formed compelling evidence of that portion of the interaction. The recording showed the offender throwing a pole-like object at the victim's fence and entering toward her home while she screamed and backed away armed with a baseball bat. The victim's phone was subsequently located at the co-offender's home.
The offender accepted at the time of his police interview that he had entered the house, but denied intimidating the victim or stealing her phone. The court was required to determine the facts for sentence, resolving disputed matters in a manner consistent with the jury's verdicts.
Legal Issues
- What facts could be found for sentencing purposes, consistently with the jury's guilty verdicts on all three counts?
- What was the appropriate level of seriousness for each offence?
- What weight should be given to aggravating factors, including the offender's criminal history and his being on bail at the time of offending?
- Whether full-time imprisonment was the only appropriate sentencing outcome.
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
- What aggregate sentence appropriately reflected the totality of the offending.
Decision
The court found that the offending, while not premeditated in the sense of detailed planning, involved deliberate intimidation through the use of weapons and physical violence. The offender attended at the request of the co-offender, who had a prior altercation with the victim, but the court held that this did not excuse his conduct once he arrived. The initial claimed intention to merely intervene was overtaken almost immediately by direct physical and verbal threats.
Each offence was assessed as a moderately serious example within its respective provision. The intimidation involved the offender striking the victim with fists and the baseball bat on more than one occasion, though the court declined to determine a precise number of blows. The robbery element was established through the taking of the victim's phone during the assault, with the court finding it did not greatly matter which of the two offenders physically removed it, given both were actively assaulting the victim at the time.
The offender's commission of these offences while on bail for a stalking and intimidation offence that had occurred only 11 days earlier was treated as a significant aggravating factor, reflecting an abuse of the conditional liberty he had been granted. His criminal history, which included prior offences of a similar nature and prior periods of imprisonment, did not permit leniency. The absence of remorse or insight, combined with the continued denial of offending, left his prospects of rehabilitation assessed as poor.
The court found special circumstances based on the need for a lengthier period of supervised parole, given the offender's ongoing issues with aggression, mental health, and drug use. Full-time imprisonment was the only appropriate sentencing outcome, and the court imposed an aggregate sentence with an adjusted non-parole period reflecting approximately 59 percent of the total term.
Orders Made
- The offender was convicted on all three counts.
- An aggregate sentence of 5 years and 9 months imprisonment was imposed, commencing 13 November 2021.
- A non-parole period of 3 years and 5 months was set, with the offender eligible for release to parole on 12 April 2025.
- The sentence expires on 12 August 2027.
- A finding of special circumstances was made, reducing the non-parole period to approximately 59 percent of the total term.
Indicative sentences were nominated as follows:
- Count 1 (aggravated enter dwelling with intent to intimidate): 4 years imprisonment
- Count 2 (intimidation with intent to cause fear of physical or mental harm): 2 years and 6 months imprisonment
- Count 3 (robbery in company): 5 years imprisonment
Key Takeaways
- The District Court confirmed that where a sentencing judge cannot determine precisely which co-offender performed a particular physical act, such as removing a robbery victim's property, the element of acting "in company" remains satisfied where both offenders were actively involved in the surrounding assault.
- Committing serious offences while on bail for a similar matter only 11 days earlier was treated as a meaningful aggravating factor, reflecting a deliberate abuse of conditional liberty rather than a mere technical breach.
- A finding that the offender initially attended the scene with a less harmful intention did not reduce moral culpability where his conduct quickly escalated to direct physical and verbal threats upon arrival.
- Special circumstances can be found where a longer period of supervised parole is needed to address entrenched issues, including aggression, mental health, and drug use, even where an offender's rehabilitation prospects are assessed as poor.
- Maximum penalties operate as legislative guideposts in NSW sentencing, signalling the legislature's view of offence seriousness, rather than functioning as targets or starting points for calculation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1) (robbery in company) and 111(2) (aggravated enter dwelling with intent to intimidate)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation with intent to cause fear of physical or mental harm)
Cases cited: None identified in the judgment text.