Director of Public Prosecutions v Osborne, David

[2013] VCC 481

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
(Not) Restricted
Suitable for Publication

Case No. CR-12-01126

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID OSBORNE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATES OF HEARING:	Trial  15 -19, 22-24 April 2013
DATE OF SENTENCE:	24 April 2013
CASE MAY BE CITED AS:	DPP v Osborne, David
MEDIUM NEUTRAL CITATION:	[2013] VCC 481

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Thomas	Office of Public Prosecutions
For the Accused	Mr L. Barker

HER HONOUR:

1       David Osborne, the jury has found you guilty of the charge of common law assault and I will not traverse all the circumstances that have led to that finding by the jury save to say, as Mr Barker has pointed out, the factual matter for me to determine is whether the assault, resulting in the blood nose, was caused by a punch or a slap. Because of the state of evidence, I cannot be satisfied beyond reasonable doubt that it was a punch, therefore I shall sentence on the basis that it was a slap perpetrated by you in the context of confronting the complainant over some wrongdoing, the nature of which you cannot remember.

2       The prosecution case, that the assault occurred because the boy resisted sexual advances that he said you made towards him, cannot be sustained because of the jury verdict of not guilty in respect of Charge 3, that is very plain.

3       It is also clear from your evidence, Mr Osborne, that you took no further interest in the complainant once you were satisfied that he had been safely returned to South Australia and this was perhaps consistent with you wanting to put behind you whatever had happened at your home on that occasion.

4       When you did assault him, you were a mature man, the father of four young children. You agreed when propositions were put to you, that the complainant was a quiet boy who was usually well behaved, did not give anyone any trouble, and who was treated as one of your family and the fact he was so well liked by your wife, that she would have been happy to have adopted either him or a boy like him, she said.

5       So it seems to me that your treatment of the boy on this occasion was inexplicable. You were in loco parentis of a boy for whom you had a high level of responsibility.

6       I have been urged to dismiss the charge on the basis that it has been found proven. I have the power to do that. I take into account that these events occurred some 44 years ago a very long time ago, and that you are now a person of advanced age.

7       Because of those matters I will accept the submission that Mr Barker has put on your behalf, and which is not resisted by the prosecution, to dismiss the charge and therefore no further action need be taken.

8       I think that satisfies all the sentencing requirements.

9       ACCUSED:  Could I just say thank you, Your Honour.

10      HER HONOUR:  Certainly. Thank you, Mr Osborne. You may be seated now. Any other matters, Mr Barker?

11      MR BARKER:  No, Your Honour.

12      HER HONOUR:  All right. Ms Thomas?

13      MS THOMAS:  No, Your Honour.

14      HER HONOUR:  Thank you to both counsel and your instructors for your assistance during the trial.

15      MR BARKER:  Thank you, Your Honour.

16      HER HONOUR:  And the matter in relation to Charge 1 is adjourned for mention on 3 May.

17      MR BARKER:  Thank you, Your Honour.

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