O’CONNOR v THE KING (No 2) [2026] SASCA 51

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE BARKLAY) DCCRM-24-045496 Appellant: MARIA O’CONNOR Counsel: MS R LANE - Solicitor: MCGRATH LAWYERS Respondent: THE KING Counsel: MS K INGLETON WITH MS R BRADLEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 12/05/2026 File No/s: SCCRM-26-009536 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. O'CONNOR v THE KING (No 2) [2026] SASCA 51 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Stanley) 12 May 2026 CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - CULPABLE OR DANGEROUS DRIVING CAUSING BODILY HARM CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY This is an appeal against sentence. In connection with what was described as a “road rage” incident, the appellant tailgated the victim and followed him into a carpark. After the victim got out of his car, the appellant started circling him with increasing speed. Eventually, the appellant drove into him. He was forced up onto the bonnet of the appellant’s car, crashed into the windscreen and then fell to the ground. The appellant did not stop and render assistance. She drove away. Emergency services were called and took the victim to hospital. He suffered significant spinal injuries and underwent surgery for a thoracic vertebra fracture and spinal fusion. He was unable to work and suffered the loss of his employment as a boilermaker. He suffered significant financial loss and became withdrawn and depressed. The appellant pleaded guilty to one count of causing harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and one count of leaving an accident scene after causing harm by careless driving, contrary to s 19AB(2) of the CLCA. The appellant was -- 1 of 8 -- sentenced to two years and three months’ imprisonment, with a non-parole period of 12 months. Her licence was disqualified for 10 years. The appellant seeks permission to appeal against sentence on two grounds. The first is that the sentence was manifestly excessive and the second is that the sentencing judge failed to take into account the appellant’s mental condition when evaluating the gravity of the appellant’s offending. Held, granting permission to appeal but dismissing the appeal: 1. There is no merit in the second appeal ground. A defendant’s childhood deprivation and mental impairment may be relevant to the determination of sentence, especially where there is some connection between these and the offending, and in this case both were explicitly considered by the sentencing judge. 2. The sentence imposed was not unreasonable or plainly unjust. We agree with the sentencing judge that when all of the relevant circumstances are evaluated, the offending was in this case too serious to warrant suspension or home detention. Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 12; Criminal Law Consolidation Act 1935 (SA) ss 19A, 19A(3), 19AB, 19AB(2); Road Traffic Act 1961 (SA) s 46; Sentencing Act 2017 (SA) s 26, referred to. DPP v Coleman (2001) 120 A Crim R 415; DS v R (2022) 109 NSWLR 82; Hackett v The Queen [2021] SASCA 32; Mackenzie v The King [2026] SASCA 12; O’Connor v The King [2026] SASCA 43; Police v Holer [2016] SASC 187; R v Akol (2020) 284 A Crim R 246; R v Calliss [2026] SASCA 25; R v Donovan [2025] SASCA 7; R v Hronopoulos (2017) 269 A Crim R 551; R v Monks (2019) 133 SASR 182; R v Perry [2022] SASCA 127, considered. -- 2 of 8 -- O'CONNOR v THE KING (No 2) [2026] SASCA 51 Court of Appeal – Criminal: Livesey P, David and Stanley JJA THE COURT (ex tempore): Introduction 1 The appellant seeks permission to appeal against sentence on two grounds. The first is that the sentence was manifestly excessive and the second is that the sentencing judge failed to take into account the appellant’s mental condition when evaluating the gravity of the appellant’s offending. 2 The first ground is really bound up with the refusal of the sentencing judge to order that the appellant’s sentence be suspended or served on home detention. The second ground was added only recently and there is no opposition to a grant of leave to amend. 3 For the following reasons, permission to appeal should be granted but the appeal dismissed. The sentence 4 The appellant pleaded guilty to the following charges: 1 1. One count of causing harm by dangerous driving, contrary to s 19A(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty in the case of serious harm is imprisonment for 15 years, together with disqualification from holding or obtaining a driver’s licence for 10 years or longer. 2. One count of leaving an accident scene after causing harm by careless driving, contrary to s 19AB(2) of the CLCA, for which the maximum penalty is also imprisonment for 15 years, together with disqualification for 10 years or longer. 5 After applying s 26 of the Sentencing Act 2017 (SA), the appellant was sentenced to imprisonment for two years and three months, with a non-parole period of 12 months. The appellant’s licence was disqualified for 10 years. The circumstances of the offending 6 On 22 May 2024, Mr Michael Kennewell was driving south on Diagonal Road at Pooraka. He was behind a truck and moved into the oncoming lane in order to see around the truck. As he did so, he became aware that the appellant was travelling beside him. He pulled back into his own lane. 1 The appellant was denied bail pending appeal on 22 April 2026, but the hearing was brought forward from November to May, O’Connor v The King [2026] SASCA 43. -- 3 of 8 -- [2026] SASCA 51 The Court 2 7 The appellant accelerated past Mr Kennewell, and then pulled to her left, in front of Mr Kennewell but behind the truck. The appellant then braked heavily. This required that Mr Kennewell brake heavily as well. He was unable to avoid nudging the rear of the appellant’s car. 8 The appellant and Mr Kennewell stopped their cars. Mr Kennewell then intentionally nudged the rear of the appellant’s car. He reversed and drove off along Diagonal Road. The appellant followed. She “tailgated” Mr Kennewell’s car. As he turned right into a carpark, the appellant clipped the rear of Mr Kennewell’s car. Mr Kennewell parked his car in the carpark and got out. The appellant drove into the carpark. She started circling Mr Kennewell and his car. She did so with increasing speed. Eventually, the appellant drove at Mr Kennewell. Although he tried to jump out of the way, Mr Kennewell was hit. He was forced up onto the bonnet of the appellant’s car, crashed into the windscreen and then fell to the ground. 9 As these events were occurring, the appellant was recording on her mobile phone and speaking. She was heard to say things such as, “want to get fucking run over, bitch” and she was laughing. 10 The appellant did not stop and render assistance. She drove away. As she did so, she was recorded saying, “just hit someone with my car by the way”. The sentencing judge described the “unsettling callousness” in the way the appellant spoke those words. 11 Emergency services arrived and took Mr Kennewell to hospital. He underwent spinal surgery for a thoracic vertebra fracture as well as for damage to his lumbar vertebrae. Metal stabilisers were inserted and some of his vertebrae were fused. Mr Kennewell was unable to work and suffered the loss of his employment as a boilermaker. This caused him significant financial loss. His victim impact statement attests to him becoming withdrawn and depressed, affecting his relationship with his son. The circumstances of the offender 12 The appellant was 21 at the time of her offending and 23 years at the time of sentence. She has no prior convictions. Her upbringing was marred by psychological, physical and sexual abuse. She witnessed violence inflicted by her father on her mother. Her parents separated when she was 4 years. The appellant’s father had a methylamphetamine addiction and spent time in gaol. The appellant’s mother was both abusive and violent. On occasions she threatened to kill the appellant. 13 For the purposes of this appeal it is not necessary to address all of the appellant’s childhood trauma and, whilst it left her with ongoing difficulties, she is to be commended for her resilience. -- 4 of 8 -- [2026] SASCA 51 The Court 3 14 The appellant experienced chronic depression, anxiety and trauma symptoms. She engaged in self-harming behaviour. The appellant was diagnosed with a developing borderline personality disorder and complex post-traumatic stress disorder. Mr Balfour, a psychologist, expressed the opinion that the appellant’s dysfunctional childhood corrupted her psycho-social development. 15 At the time of the offending, the appellant was distressed and vulnerable because of “relationship issues”. Mr Balfour expressed the opinion that the appellant had developed an acute fear of abandonment. This “primed” her to distress and anger. Mr Kennewell became the “lightning rod” for the appellant’s anger. This, said Mr Balfour, led to the appellant’s “road rage”. 16 The appellant experienced difficulties finding the correct prescription medication for her psychological difficulties. Mr Balfour expressed the opinion that, with supervised and structured rehabilitation, the appellant’s prognosis for ceasing offending was “fair to good”. 17 To the appellant’s considerable credit, and despite her many difficulties, she displayed a strong work ethic and a good employment history. The sentencing judge accepted the appellant’s deep sorrow and remorse over her offending. His Honour accepted that the appellant was highly motivated to rehabilitate. The approach of the sentencing judge 18 It is necessary to review the approach of the sentencing judge bearing in mind that the appellant had been charged with one count of aggravated endangering life but, following negotiations, the appellant was charged with the two offences to which she pleaded guilty. The elements of the two offences to which the appellant pleaded guilty should be borne in mind, particularly the elements of the offence of causing harm by dangerous driving.2 The appellant did not fall to be sentenced for her subjective state of mind. 19 The sentencing judge made it clear that he did not sentence the appellant for intending to cause serious harm.3 The sentencing judge agreed with the prosecution that the appellant’s offending should be regarded as a more serious example of dangerous driving causing harm.4 20 As for the appellant’s personal circumstances, the sentencing judge explained how he had taken these into account “at all stages of the sentencing process”:5 … you were only 21 years of age when you committed the offence and you have no prior convictions. I have taken into account your personal circumstances at all stages of the sentencing process, in particular the trauma-filled childhood that you endured. That trauma directly contributed to you developing significant mental health problems, some of which, 2 Discussed in cases such as R v Donovan [2025] SASCA 7, [61]-[70], [89]-[97] (Livesey P, Bleby and David JJA), and the cases there cited. 3 Sentencing remarks, p 5. 4 Sentencing remarks, p 5. 5 Sentencing remarks, p 5-6. -- 5 of 8 -- [2026] SASCA 51 The Court 4 according to Mr Balfour, significantly impaired your ability to be able to regulate your emotions and contributed to your offending. It may be accepted that the effects of childhood trauma do not diminish over time. Your childhood has impaired your development and ability to control your emotions and impulses. Your childhood trauma operates to reduce your moral culpability for your offending and, in turn, reduces the weight to be placed on general deterrence, however it does not extinguish it. 21 The sentencing judge explained that the relevant sentencing principles pointed in different directions, and he endeavoured to balance the need to give effect to general deterrence, denunciation and retribution, against the appellant’s good prospects of rehabilitation and reduced moral culpability. 22 The sentencing judge commenced with imprisonment for three years on the dangerous driving offending causing serious harm. That was reduced by 25 per cent for the appellant’s plea of guilty. The sentencing judge commenced with imprisonment for seven months for the offending involving leaving the scene of an accident having driven carelessly. That was reduced by five per cent for the appellant’s plea of guilty. The sentencing judge would have ordered that these sentences be wholly concurrent because they occurred at the same time and could properly be regarded as a course of conduct. 23 When imposing sentence, the sentencing judge took into account the appellant’s guilty pleas and personal circumstances, particularly her traumatic childhood coupled with the steps taken toward rehabilitation, her young age and good work history. These warranted a lower-than-normal non-parole period. Whilst a mandatory licence disqualification was required on each count, the sentencing judge ordered that these also run concurrently. 24 As for the question of suspension and home detention, the sentencing judge explained that the offending was “too serious” to warrant those sentencing options:6 In my view, despite your young age, guilty pleas, good prospects of rehabilitation and personal circumstances which invite great sympathy, the offending is simply too serious to suspend or order that you serve the sentence on home detention. To do anything other than sentence you to an immediate term of imprisonment would, in my view, fail to give due weight to the principles of general deterrence, punishment and denunciation. Your sentence will not be suspended, nor will you be permitted to serve your sentence on home detention. 25 The sentencing judge declined to order forfeiture of the appellant’s motor vehicle pursuant to s 12 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) because his Honour was satisfied that severe financial hardship would be caused by making that kind of order. 6 Sentencing remarks, p 6-7. -- 6 of 8 -- [2026] SASCA 51 The Court 5 The determination of the appeal 26 The appellant submitted that her personal circumstances were, in combination, so significant that it was unreasonable and plainly unjust to impose a sentence of actual imprisonment.7 The appellant submitted that when weighed against the proper assessment of the overall gravity of her offending, her sentence should have been suspended or ordered to be served on home detention. 27 The respondent contended that the legislative evolution of the maximum penalties prescribed for dangerous driving offending under s 19A of the CLCA reflected a significant hardening in community attitudes toward offending involving dangerous driving.8 In addition, the respondent relied on the second reading speech concerning the introduction of s 19AB of the CLCA, and the fact that it was introduced at the same time as the maximum penalties for s 19A offences were increased:9 The Bill deals with a matter of great concern to the Government and the public. The recent outcry about penalties imposed in prominent road accident cases, and one in particular, has highlighted the need for changes to the laws dealing with causing death by dangerous driving and leaving the scene of an accident. The Government finds it abhorrent that a person could kill or seriously injure another in an accident and then drive off without stopping to provide assistance and pay so little by way of a penalty. The law must reflect the serious nature of such action and ensure penalties are sufficient. We must deter people who think about shirking their responsibilities. 28 In arguing against suspension or home detention, the respondent cited the decision in DPP v Coleman.10 In that case, the Victorian Court of Appeal described the offending as involving “road rage” where the defendant had driven into another person. The Court went so far as to describe it as “an atrocious case” of recklessly causing serious injury by the abuse of a motor car.11 29 The respondent also cited Police v Holer, another “road rage” case involving dangerous driving, albeit contrary to s 46 of the Road Traffic Act 1961 (SA).12 There, Peek J ruled out suspension or home detention given the seriousness of the offending. 30 It is necessary to be cautious when considering cases such as these, especially where the offending involves different offences and different factual circumstances. 7 Relying on Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA). 8 R v Akol (2020) 284 A Crim R 246, [53]-[61] (Livesey J, with whom Nicholson and Bleby JJ agreed). 9 South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3213 (Paul Holloway). 10 DPP v Coleman (2001) 120 A Crim R 415. 11 DPP v Coleman (2001) 120 A Crim R 415, [14] (Tadgell JA, with whom Winneke P and Buchanan JA agreed). 12 Police v Holer [2016] SASC 187, [33]-[38] (Peek J). -- 7 of 8 -- [2026] SASCA 51 The Court 6 31 It is convenient to address appeal ground 2 before appeal ground 1. Respectfully, there is no merit in the complaint that the sentencing judge failed to take into account the appellant’s mental condition when assessing the circumstances of her offending. A defendant’s childhood deprivation and mental impairment may be relevant to the determination of sentence, especially where there is some connection between these and the offending,13 and in this case both were explicitly taken into account by the sentencing judge.14 32 As for the complaint of manifest excess, we do not regard the sentence which was imposed as unreasonable or plainly unjust. Though there were some factors pointing in favour of suspension or home detention, we agree with the sentencing judge that when all of the relevant circumstances are evaluated, as he did, the offending was in this case too serious to warrant suspension or home detention. Conclusion 33 The appellant will be granted leave to amend to include appeal ground 2. Permission to appeal on appeal ground 2 should be refused. 34 Permission to appeal on appeal ground 1 should be granted, but the appeal dismissed. 13 See, for example, R v Hronopoulos (2017) 269 A Crim R 551, [23]-[33] (Stanley J), [69]-[72] (Hinton J); R v Monks (2019) 133 SASR 182, [32]-[38] (Doyle J, with whom Peek and Parker JJ agreed); R v Perry [2022] SASCA 127, [133]-[142] (Livesey P and David JA); Mackenzie v The King [2026] SASCA 12, [9]-[11] (S Doyle JA); R v Calliss [2026] SASCA 25, [52]-[53] (Livesey P, Bleby and B Doyle JJA), and the cases there cited. 14 They were regarded as lessening the appellant’s moral culpability. This is not a case where the objective seriousness of the offending was reduced, cf DS v R (2022) 109 NSWLR 82, [96] (Beech-Jones CJ at CL, N Adams and Cavanagh JJ). -- 8 of 8 --