O'Brien (a Pseudonym) v The Queen

Case [2014] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0255
RUSSELL O’BRIEN (A PSEUDONYM)[1] Applicant

v
THE QUEEN Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:

NETTLE and PRIEST JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

29 April 2014

DATE OF JUDGMENT:

21 May 2014

MEDIUM NEUTRAL CITATION:

[2014] VSCA 94

1st Revision 26 May 2014, [48]

JUDGMENT APPEALED FROM:

DPP v [O’Brien] (Unreported, County Court of Victoria, Judge Douglas, 4 December 2013)

---

CRIMINAL LAW – Conviction – Sexual penetration (one charge) and indecent acts with child under 16 years (three charges) – Jury unable to agree on remaining two counts of sexual penetration – Verdict – Whether verdict unreasonable and not supported by evidence – Evidence – Credit – Complainant recanting parts of VARE statement and consequent inconsistencies between VARE statements – Prior inconsistent statement – Appeal dismissed – MFA v The Queen (2002) 213 CLR 606; Libke v The Queen (2007) 230 CLR 559; BCM v R (2013) 303 ALR 387; R v Klamo (2008) 18 VR 644, referred to.

CRIMINAL LAW – Sentence – Applicant sentenced to total effective sentence of four years’ imprisonment with non-parole period of two years – Delay – Mitigating factor – Delay of 16 months – Whether judge took delay sufficiently into account – Appeal allowed – Applicant re-sentenced to total effective sentence of three years’ imprisonment with non-parole period of 18 months – Arthars v R;  Plater v R [2013] VSCA 258, referred to.

APPEARANCES: Counsel Solicitors
For the Applicant Mr O P Holdenson QC Matthew White & Associates
For the Crown Ms F L Dalziel Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

  1. Following a trial in the County Court, the applicant was convicted of one charge of sexual penetration of a child under the age of 16 years and three charges of indecent act with a child under the age of 16 years and was sentenced therefor to a total effective sentence of four years’ imprisonment with a non-parole period of two years.  He now seeks leave to appeal against both conviction and sentence.

The facts of the matter

  1. At relevant times, the applicant lived with his de-facto wife, W, his daughter, D, and his son, S, in a three bedroom home in one of the eastern suburbs of Melbourne.  An adult student, A, was also living in the house.

  1. The complainant in respect of each of the charges, C, was 12 years old at the time of the offending.  She and D were of much the same age and best friends.  Consequently C frequently stayed overnight at the applicant’s home where the offences were alleged to be committed.

  1. The Crown case was that the offences comprising charges 1 to 4 occurred on the night of D’s birthday party in…

Continue reading O'Brien (a Pseudonym) v The Queen

Sign in free to access the full text

Details
AGLC
O'Brien (a Pseudonym) v The Queen [2014] VSCA 94
Case
[2014] VSCA 94
Decision Date

CaseChat Overview and Summary

The case of O'Brien (a Pseudonym) v The Queen was heard in the Court of Appeal, where the appellant challenged both his conviction and sentence. O'Brien was convicted of one count of sexual penetration and three counts of indecent acts with a child under 16 years. The jury was unable to reach a verdict on two remaining counts of sexual penetration. O'Brien appealed against both his conviction and sentence. The appeal against conviction focused on whether the verdict was unreasonable and unsupported by the evidence, particularly given inconsistencies in the complainant's statements and her recantation of parts of her statement. The appeal against sentence argued that the trial judge did not sufficiently consider the 16-month delay in bringing the case to trial as a mitigating factor.

The court examined the principles established by the High Court in M v The Queen and subsequent cases, which outline the test for determining whether a verdict is unsafe and unsatisfactory. The court clarified that the metaphors used in earlier cases should not be misconstrued as adding additional requirements to the fundamental test. The court found that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that O'Brien was guilty of the offences of which he was convicted.

In terms of sentence, the court found that the trial judge had not sufficiently considered the delay in bringing the case to trial as a mitigating factor. The court allowed the appeal against sentence and re-sentenced O'Brien to a total effective sentence of three years' imprisonment with a non-parole period of 18 months. The court considered the delay, among other mitigating factors, in re-assessing the appropriate sentence. The appeal against conviction was dismissed, while the appeal against sentence was allowed, and O'Brien was re-sentenced accordingly.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I would re-sentence the applicant as follows: On charge 1: to 18 months’ imprisonment On charge 2: to 30 months’ imprisonmentOn charge 3: to 6 months’ imprisonmentOn charge 4: to 6 months’ imprisonment. I would order that two months of the sentences imposed on charges 1, 3 and 4 be served cumulatively on each other and on the sentence imposed on charge 2, making a total effective sentence of three years’ imprisonment, and I would set a non-parole period of 18 months. Otherwise, I would confirm the orders made belowConclusion For the reasons I have given, I would reject the application for leave to appeal against conviction but I would allow the application for leave to appeal against sentence, allow the appeal and re-sentence the applicant as I have proposed. Essentially for the reasons advanced by Nettle JA, whose judgment I have had the advantage of reading in draft, I agree that leave to appeal against conviction should be refused. I wish, however, to add a few observations of my own. As to the application touching sentence, I agree with the reasons of Nettle JA and the orders he proposes. By written submissions, the respondent argued — citing Klamo[11] — that there was no ‘solid block [i e, obstacle] in the path of a finding of guilt’. That submission seems to reflect a perception held by some — one that in my opinion is flawed — that the two metaphors referred to in Klamo are capable of general application to all cases where verdicts are said to be unsafe and unsatisfactory.[11]R v Klamo (2008) 18 VR 644, [40] (Maxwell P) (‘Klamo’). In Klamo Maxwell P conveniently set out the principles which inform appellate assessment of whether a verdict is unsafe and unsatisfactory:[12] [12]Ibid 653–4 [38]–[40]. It needs to be borne steadily in mind that the metaphors referred to in the last sentence of the extracted passage are no more than that. They were apt for the facts of the cases from which they were drawn, but it should not be thought that they add any gloss or additional requirement to the essential test spelled out by the High Court in M[20] (and the later cases in the High Court which apply it[21]) — whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Such metaphors — convenient for the cases in which they were used — should not be permitted to obscure (let alone displace) the fundamental test prescribed by M. [20]M v The Queen (1994) 181 CLR 487 (‘M’).[21]Jonesv The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 194 CLR 106; MFA v The Queen (2002) 213 CLR 606; R v Hillier (2007) 228 CLR 618; SKA v The Queen (2011) 243 CLR 400. See also Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J). The two metaphors referred to by Maxwell P in Klamo are derived respectively from remarks of Doyle CJ in Shah and Mason P in Morabito. In Shah,[22] the Court of Criminal Appeal of South Australia, by a majority (Doyle CJ and Sulan J, Debelle J dissenting), set aside as unsafe and unsatisfactory convictions for wounding with intent to cause grievous bodily harm and assault. The convictions had arisen out of an attack in a suburban Adelaide street in the early hours by one group of men on another group. Identification was in issue. Evidence from a security video — if the time was correctly recorded on the video — showed that the appellant could not have been in the vicinity of where the attack took place at the time that it occurred. There was no evidence that the time recorded by the video was incorrect. Doyle CJ agreed with the reasons of Sulan J (who applied the test from M),[23] and added:[24]

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.