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DPP v Ooms

DPP v Ooms

Case [2023] VSCA 207 5 September 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0062

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
MONIQUE OOMS	Respondent

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JUDGES:	NIALL, KENNEDY and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2023
DATE OF JUDGMENT:	5 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 207
JUDGMENT APPEALED FROM:	[2023] VCC 492 (Judge Smallwood)

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CRIMINAL LAW – Director’s appeal – Sentence – Respondent guilty of four counts of sexual penetration of child aged 16 or 17 years and under care, supervision or authority – Sentenced to 4-year community correction order – Whether trial judge misapplied section 5AA of the Sentencing Act 1991 by taking into account offender’s good character in mitigation – Minimal submissions made at trial on application of section 5AA – No evidence led at trial whether good character assisted the offending – No error on behalf of trial judge – Whether sentence manifestly inadequate – Sentence wholly within range open to trial judge – Appeal dismissed.

Sentencing Act 1991, s 5AA considered.

Bhatia v R [2023] NSWCCA 12; Fichtner v The Queen [2019] VSCA 297; Ryan v The Queen (2001) 201 CLR 297; Wakim v The Queen [2016] VSCA 297; AH v R [2015] NSWCCA 51; R v Stoupe [2015] NSWCCA 175, considered.

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Counsel
Applicant:		Ms EH Ruddle KC with Ms J Wang
Respondent:		Mr J Gullaci SC with Ms K Rolfe
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Sullivan Braham Barristers & Solicitors

NIALL JA
KENNEDY JA
MACAULAY JA:

Section 49C of the Crimes Act makes it an offence, carrying a 10 year maximum imprisonment term, if a person intentionally sexually penetrates another person, or causes or allows that other person to sexually penetrate them, when that other person is a child aged 16 or 17 years and is under the first person’s care, supervision or authority. Section 37 of the Crimes Act provides that a child is under the care, supervision or authority of a person if that person is the child’s teacher.
The respondent, Monique Ooms, pleaded guilty to four charges of sexually penetrating a child aged 16 or 17 under her care, supervision or authority, contrary to s 49C(1) of the Crimes Act 1958 (which is a ‘child sexual offence’ under the Sentencing Act). At the time of her offending, the respondent was a 30 year old teacher and the relevant child was a 16 year old male student at the school where she taught. On 24 March 2023, the respondent was convicted and sentenced in the County Court to a 4 year community correction order with 300 hours of unpaid community work, along with other requirements.[1]
[1]The additional requirements were that the respondent be supervised by a Community Corrections Officer, undergo mental health assessment and treatment, and undertake programs and/or courses that address factors relating to the offending.
Pursuant to s 287 of the Criminal Procedure Act 2009, the Director appealed that sentence.
Ordinarily, when sentencing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Ooms

Details

AGLC: Director of Public Prosecutions v Ooms [2023] VSCA 207
Case: [2023] VSCA 207
Decision Date: 5 September 2023

CaseChat Overview and Summary

The respondent, Ooms, was convicted of four counts of sexual penetration of a child aged 16 or 17 years who was under their care, supervision, or authority. The Director of Public Prosecutions (DPP) appealed against the sentence imposed by the trial judge, which was a 4-year community correction order. The appeal centred on whether the trial judge erred in applying section 5AA of the Sentencing Act 1991 by considering the offender's good character as a mitigating factor, and whether the sentence was manifestly inadequate. The Supreme Court of Victoria was the forum for this appeal.

The court had to decide if the trial judge misapplied section 5AA by taking into account the respondent's good character in mitigation. It was noted that minimal submissions were made at trial regarding the application of section 5AA, and no evidence was presented to show whether the offender's good character had assisted in the offending. The court also had to determine whether the sentence was manifestly inadequate and if it fell outside the range that was open to the trial judge.

The court found no error in the trial judge's consideration of the respondent's good character as a mitigating factor, as the submissions made at trial were minimal and no evidence was presented to support the relevance of good character in this context. The court also held that the sentence was not manifestly inadequate and was within the range of sentences available to the trial judge. Consequently, the appeal was dismissed.

No further orders were made by the court, and the sentence of a 4-year community correction order was upheld.

Orders