Regina v Brian Laurence O'Dowd [2002] NSWCCA 502

Regina v Brian Laurence O'Dowd [2002] NSWCCA 502

Notwithstanding the significant criminality, the overall sentences were manifestly excessive, particularly the six-year fixed term imposed on count 2. The planning offence remained unconsummated after months of discussions, the subject had not been raised for about six weeks before arrest, and it was difficult to see how the applicant's favourable subjective circumstances had ameliorated the sentence. A lesser sentence on count 2 was warranted, with consequential adjustment of commencement dates for counts 3 and 5 and a finding of special circumstances.

Jurisdiction
Australia
Judgment Date
13 December 2002
Procedural Posture
Criminal Appeal Against Severity of Sentences / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted. Appeal allowed. Sentence imposed in relation to count 2 quashed and a lesser fixed term substituted; sentences on counts 1 and 4 confirmed; sentences on counts 3 and 5 confirmed with adjusted commencement and expiry dates.
Legal Topics
['drug Supply' 'conspiracy to Commit Armed Robbery Whilst Armed and in Company' 'unauthorised Possession of Firearm' 'manifest Excessiveness' 'totality Principle' 'special Circumstances' 'guilty Plea Discount' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['drug Supply' 'conspiracy to Commit Armed Robbery Whilst Armed and in Company' 'unauthorised Possession of Firearm' 'manifest Excessiveness' 'totality Principle' 'special Circumstances' 'guilty Plea Discount' 'non Parole Period']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Severity of Sentences / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether leave to appeal against sentence should be granted.' 'Whether the overall sentences imposed were manifestly excessive.' 'Whether the sentence imposed on count 2 for conspiracy to commit robbery whilst armed and in company was manifestly excessive.' 'Whether the sentencing judge gave appropriate consideration to the principle of totality.' 'Whether special circumstances were established for the purposes of fixing the non-parole period.']

Ratio Decidendi

Notwithstanding the significant criminality, the overall sentences were manifestly excessive, particularly the six-year fixed term imposed on count 2. The planning offence remained unconsummated after months of discussions, the subject had not been raised for about six weeks before arrest, and it was difficult to see how the applicant's favourable subjective circumstances had ameliorated the sentence. A lesser sentence on count 2 was warranted, with consequential adjustment of commencement dates for counts 3 and 5 and a finding of special circumstances.

Court Disposition

Leave to appeal granted. Appeal allowed. Sentence imposed in relation to count 2 quashed and a lesser fixed term substituted; sentences on counts 1 and 4 confirmed; sentences on counts 3 and 5 confirmed with adjusted commencement and expiry dates.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentence imposed in relation to count 2 is quashed.' "In lieu thereof the applicant is sentenced to a fixed term of four years' imprisonment to commence on 4 March 2003 and to expire on 3 March 2007." 'The sentence in respect of count 3 is confirmed but will now...