MARIA O'CONNOR v THE KING [2026] SASCA 43

Applicant: MARIA O'CONNOR Counsel: MS R LANE - Solicitor: MCGRATH LAWYERS Respondent: THE KING Counsel: MS Z SMITH - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 22/04/2026 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 [2026] SASCA 43 Judgment of the Honourable President Livesey (ex tempore) 22 April 2026 CRIMINAL LAW - PROCEDURE - BAIL - AFTER CONVICTION The applicant seeks bail pending a sentence appeal pursuant to s 10(2) of the Bail Act 1985 (SA). The respondent opposes bail in any form. The applicant 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 applicant was sentenced to two years and three months’ imprisonment, with a non-parole period of 12 months. The offending was associated with what was described as a “road rage” incident. After the victim moved his car into an oncoming lane to see around a truck in front of him, the applicant drove in front of the victim and braked heavily. Their cars made contact, and the applicant soon started tailgating the victim. She followed him into a carpark. When the victim got out of his car, the applicant circled him in her car with increasing speed and then drove into him. The victim rolled up onto the applicant’s bonnet and crashed into the windscreen before falling to the ground. The applicant then drove away. The victim suffered significant spinal injuries and underwent surgery for a thoracic vertebra fracture and spinal fusion. At a callover on 13 April 2026, this matter was listed for hearing before the Court of Appeal in November 2026. Held, dismissing the application for bail pending appeal: 1. This Court must exercise extreme caution about the granting of bail pending a sentence appeal, especially where the purpose of the appeal is to secure suspension or home detention. The Court of Appeal should not be placed in the invidious position of having to consider dismissing the appeal and sending the applicant back to prison. 2. It is necessary to give effect to the public interest in not making it appear that a conviction is contingent pending appeal, because a convicted person should ordinarily serve the sentence imposed by the sentencing court as soon as practicable. -- 1 of 7 -- 3. The offending for which the applicant has been convicted is serious. Although the appeal raises genuine issues, it is not usually appropriate to attempt to predict the decision that might be made by the Court of Appeal and it cannot be said that this is a clear case in which the appeal looks likely to succeed. 4. A consideration of the relevant factors in this case, for the purpose of exercising the discretion conferred by s 10(2) of the Bail Act, requires that bail be refused. 5. Taking into account the applicant’s non-parole period of 12 months, and that a longer period before the appeal arguably diminishes the potential benefit associated with a successful sentence appeal, the matter is relisted for hearing before the Court of Appeal on 12 May 2026 at 10.15 am. Bail Act 1985 (SA) ss 10(2), 10(4); Criminal Law Consolidation Act 1935 (SA) ss 19A(3), 19AB(2); Sentencing Act 2017 (SA) s 26, referred to. Hird v the King [2025] SASCA 69; Nankivell v The King [2024] SASCA 71; R v Giordano (1982) 31 SASR 241, applied. -- 2 of 7 -- O'CONNOR v THE KING [2026] SASCA 43 Court of Appeal – Criminal – Application LIVESEY P (ex tempore): Introduction 1 The applicant has applied for bail pending an appeal against sentence pursuant to s 10(2) of the Bail Act 1985 (SA). 2 The applicant 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), for which the maximum penalty is imprisonment for 15 years, together with disqualification from holding or obtaining a driver’s licence for 10 years or longer. The applicant also pleaded guilty to 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. 3 On 13 February 2026, the applicant was sentenced to imprisonment for two years and three months, with a lower than normal non-parole period of 12 months.1 Her licence was disqualified for 10 years.2 The applicant was 21 at the time of her offending and 23 years at the time of sentence. 4 The applicant has sought permission to appeal on the ground that the sentence was manifestly excessive because the sentencing judge refused to suspend the sentence or order that it be served on home detention. 5 The Court has received a favourable home detention report. The respondent opposes bail in any form. The circumstances of the offending 6 The circumstances of the offending are out of the ordinary. On 22 May 2024, the victim in this matter, Mr Michael Kennewell, was driving south along Diagonal Road at Pooraka. Mr Kennewell was driving behind a truck and moved into the oncoming lane to see around it. As he did so, he became aware that the applicant was travelling beside him and he pulled back into his own lane. The applicant then 1 Although the sentencing judge indicated notional sentences of imprisonment for three years for the dangerous driving offending (reduced by 25 per cent for the guilty plea) and seven months for the leaving an accident scene offending (reduced by five per cent for the guilty plea), and ordered that both sentences be served concurrently, his Honour imposed one sentence pursuant to s 26 of the Sentencing Act 2017 (SA). See the sentencing remarks dated 13 February 2026, p 6 (the sentencing remarks). 2 The sentencing judge ordered 10 years’ disqualification for each offence, and these were ordered to be served concurrently. See the sentencing remarks, p 6. -- 3 of 7 -- [2026] SASCA 43 Livesey P 2 passed Mr Kennewell, pulled in front of him but behind the truck. She then braked heavily, causing Mr Kennewell to brake, nudging the rear of the applicant’s car. 7 The applicant and Mr Kennewell stopped. Mr Kennewell then intentionally nudged the rear of the applicant’s car. He reversed and then continued along Diagonal Road. 8 The applicant followed, tailgating Mr Kennewell’s car. When he turned right into a carpark, the applicant clipped the rear of his car. Mr Kennewell parked his car in the carpark and got out. 9 The applicant drove into the carpark and started to circle Mr Kennewell and his car, increasing her speed as she did so. Eventually, she drove at Mr Kennewell. As this was occurring, the applicant was recording the events on her mobile phone and speaking. She was recorded saying things such as, “want to get fucking run over, bitch” and she could be heard to be laughing. 10 Although Mr Kennewell tried to jump out of the way, he was hit, rolling up onto the bonnet and crashing into the applicant’s windscreen before falling to the ground. The applicant drove away. She was recorded saying “just hit someone with my car by the way”. The sentencing judge described the “unsettling callousness” in the way the applicant spoke those words.3 11 Emergency services took Mr Kennewell to hospital where he underwent spinal surgery for a thoracic vertebra fracture and damage to his lumbar vertebrae. Metal stabilisers were inserted and some of the vertebrae were fused. 12 Mr Kennewell suffered the loss of his employment as a boilermaker, together with significant financial loss. Mr Kennewell has become withdrawn and depressed. The circumstances of the offender 13 The applicant has no prior convictions. Her upbringing was marked by psychological, physical and sexual abuse. Her father had a methylamphetamine addiction and the applicant witnessed the violence he inflicted on her mother. Her parents separated when the applicant was four years. The applicant’s father spent time in gaol. The applicant’s mother was abusive and violent, on a number of occasions threatening to kill her. 14 The applicant ran away from home at 13 and was sexually abused at 14. Although she moved back in with her mother, she attended 14 schools before she left school in year 11. At 17, the applicant was raped by a drug addict and aborted the consequent pregnancy. 15 The applicant has experienced chronic depression, anxiety and trauma related symptoms, as well as self-harming behaviour. She has been diagnosed with a 3 Sentencing remarks, p 2. -- 4 of 7 -- [2026] SASCA 43 Livesey P 3 developing borderline personality disorder and complex post-traumatic stress disorder. 16 Mr Balfour, psychologist, expressed the opinion that the applicant’s dysfunctional childhood corrupted her psycho-social development and, at the time of the offending, she was distressed and vulnerable because of “relationship issues”. Mr Balfour expressed the opinion that the applicant developed an acute fear of abandonment which “primed” her distress and anger. Mr Kennewell became the “lightning rod” for the applicant’s anger, leading to her “road rage”. 17 The applicant has had difficulties with finding the correct prescription medication for her psychological symptoms. Nonetheless, Mr Balfour considered that, with supervised and structured rehabilitation, the applicant’s prognosis for ceasing offending was fair to good. 18 Notwithstanding these many difficulties, the applicant has displayed a strong work ethic and a good employment history. That is to her considerable benefit. The sentencing judge accepted that the applicant was deeply sorrowful and remorseful for her offending and was highly motivated to rehabilitate. The approach of the sentencing judge 19 The sentencing judge described his assessment of the applicant’s offending as follows:4 … You intentionally drove dangerously. In fact, you intentionally targeted the victim. You are not to be sentenced on the basis that you intended to cause serious harm, however it remains an aggravating feature of your driving that you intentionally drove dangerously. I agree with the prosecution that your offending should be regarded as a more serious example of dangerous driving causing serious harm. 20 In relation to the issues of suspension and home detention, the judge explained that the offending was too serious to contemplate those sentencing options:5 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. 21 The sentencing judge nonetheless declined to order forfeiture of the applicant’s motor vehicle because he was satisfied that to do so would cause severe financial hardship.6 4 Sentencing remarks, p 5. 5 Sentencing remarks, p 6-7. 6 Sentencing remarks, p 7. -- 5 of 7 -- [2026] SASCA 43 Livesey P 4 The determination of the application for bail pending appeal 22 The principles relating to an application for bail pending appeal have been considered in a number of cases.7 This is a good example of a case where the Court must exercise extreme caution about the granting of home detention bail pending appeal, especially where the purpose of the appeal is to secure suspension or home detention. 23 The appeal court should not be placed in the invidious position of having to consider dismissing the appeal and returning the applicant to prison. In addition, it is necessary to give effect to the public interest in not making it appear that a conviction is contingent pending appeal, because a convicted person should ordinarily serve the sentence imposed by the sentencing court as soon as practicable. 24 Nonetheless, it is necessary to exercise the discretion conferred by s 10(2) of the Bail Act 1985 (SA) having regard to all of the usual, relevant factors. These include the fact that the applicant was on bail before being sentenced, and there were no issues about her compliance with bail conditions. In addition, there is in this case little need to be concerned about the interests of the victim given the isolated nature of the offending.8 25 In this case, the relevant factors also include that the offending represents a serious example of the crimes to which the applicant pleaded guilty. Although the appeal raises genuine issues, it is not usually appropriate to attempt to predict the decision that might be made by the Court of Appeal. It cannot be said that this is a clear case where the appeal looks likely to succeed. 26 In my opinion, a consideration of the relevant factors in this case requires that bail be refused. Revisiting the hearing date 27 Nonetheless, and not without some hesitation, I am prepared to vary the present listing of this matter. At the recent callover on 13 April, the appeal was listed for hearing on 10 November. I am prepared to list the case earlier even though no case for expedition was made at the callover. With hindsight, that would have been the preferable course. Counsel attending the callover bear a heavy responsibility to take issues such as these into account and raise them with the Court when an appeal is set down for hearing. 28 Ordinarily, the date set for hearing will not be revisited. In this case I am prepared to take into account that the applicant has a 12-month non-parole period and, even though there can be no guarantee of release on parole after 12 months, a 7 R v Giordano (1982) 31 SASR 241, 242-243 (King CJ, with whom Zelling and Matheson JJ agreed); Nankivell v The King [2024] SASCA 71, [9]-[16] (Livesey P); Hird v the King [2025] SASCA 69, [21]-[25] (Livesey ACJ), and the cases there cited. 8 Cf Bail Act 1985 (SA), s 10(4). -- 6 of 7 -- [2026] SASCA 43 Livesey P 5 longer period before the appeal hearing arguably diminishes the potential benefit associated with a successful sentence appeal. In addition, a hearing date in May has recently become available after another matter was discontinued. 29 Accordingly, I will relist the matter for hearing before the Court of Appeal, commencing at 10.15 am on 12 May 2026. Conclusion 30 I am not satisfied that this is a proper case in which to grant bail pending an appeal against sentence. 31 The application for bail is refused. -- 7 of 7 --