O'Brien v The Queen - [2022] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0128

CAMERON O’BRIEN	Applicant
v
THE QUEEN	Respondent

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JUDGE:	McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	11 February 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 11
JUDGMENT APPEALED FROM:	[2021] VCC 1178 (Judge Hogan)

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CRIMINAL LAW – Leave to appeal – Sentence – One charge of sexual assault – One charge of sexual penetration of a child – Seven charges of failing to comply with reporting obligations under Sex Offenders Registration Act 2004 – Two charges of possessing drug of dependence – Related summary offences – Total effective sentence 5 years and 3 months’ imprisonment – Non-parole period 3 years and 11 months – Whether judge erred in assessing applicant’s prospects of rehabilitation as ‘guarded’ – Whether non-parole period manifestly excessive – Leave to appeal refused.

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Written submissions:	Counsel	Solicitors
For the Applicant	Mr T Sullivan	MMO Lawyers
For the Respondent	Ms R Harper	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA:

On 25 March 2021, the applicant pleaded guilty before a judge of the County Court to one charge of sexual assault,[1] one charge of sexual penetration of a child under the age of 16,[2] seven charges of failing to comply with the reporting obligations of a registrable offender under the Sex Offenders Registration Act 2004,[3] two charges of possessing a drug of dependence,[4] and various related summary offences.[5]
[1]Contrary to Crimes Act 1958 s 40(1).
[2]Contrary to Crimes Act 1958 s 49B(1).
[3]Contrary to Sex Offenders Registration Act 2004 s 46(1A).
[4]Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 73(1).
[5]Seven charges of committing an indictable offence on bail, contrary to Bail Act 1977 s 30B and one charge of failing to comply with reporting obligations, contrary to Sex Offenders Registration Act 2004 s 46(1B).

On 16 August 2021, the judge sentenced him as follows:

Charge on indictment K12024640.1	Offence	Maximum	Sentence	Cumulation
1	Sexual assault	10 years’ imprisonment	1 year and 8 months’ imprisonment	1 year
Charge on indictment L12196927A	Offence	Maximum	Sentence	Cumulation
1	Sexual penetration of a child under the age of 16	15 years’ imprisonment	3 years’ imprisonment	Base

Charge on indictment L12196927B	Offence	Maximum	Sentence	Cumulation
1	Failing to comply with reporting obligations	5 years’ imprisonment	Aggregate sentence of 1 year and 2 months’ imprisonment	–
2	Failing to comply with reporting obligations	5 years’ imprisonment
3	Failing to comply with reporting obligations	5 years’ imprisonment
4	Failing to comply with reporting obligations	5 years’ imprisonment
5	Failing to comply with reporting obligations	5 years’ imprisonment
6	Failing to comply with reporting obligations	5 years’ imprisonment
7	Failing to comply with reporting obligations	5 years’ imprisonment
8	Possession of a drug of dependence	5 years’ imprisonment	Aggregate sentence of 6 months’ imprisonment	2 months
9	Possession of a drug of dependence	5 years’ imprisonment	Aggregate sentence of 6 months’ imprisonment	2 months
Related summary offences
Charge 1	Commit indictable offence on bail	3 months’ imprisonment	1 month’s…

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 O'Brien v The Queen

Details

AGLC: O'Brien v The Queen [2022] VSCA 11
Case: [2022] VSCA 11
Decision Date: 11 February 2022

CaseChat Overview and Summary

The applicant appealed against his sentence in the Court of Appeal, seeking leave to appeal against the sentence imposed by the County Court of Victoria. The applicant had been convicted on a number of charges including sexual penetration of a child under the age of 16, failing to comply with reporting obligations under the Sex Offenders Registration Act 2004, and possessing a drug of dependence. The County Court Judge had imposed a total effective sentence of 5 years and 3 months’ imprisonment, with a non-parole period of 3 years and 11 months. The applicant argued that the judge had erred in assessing his prospects of rehabilitation as ‘guarded’ and that the non-parole period was manifestly excessive. The central legal issues before the Court of Appeal were whether the County Court Judge had erred in assessing the applicant’s prospects of rehabilitation as ‘guarded’ and whether the non-parole period was manifestly excessive.

The Court of Appeal held that the County Court Judge had not erred in assessing the applicant’s prospects of rehabilitation as ‘guarded’. The applicant had a history of reoffending and had failed to comply with his obligations under the Sex Offenders Registration Act 2004. The Court noted that the applicant had been convicted of sexual assault involving a teenage victim in February 2020, just months before the current offending took place. The Court held that the judge was entitled to take this into account when assessing the applicant’s prospects of rehabilitation. The Court also held that the non-parole period was not manifestly excessive. The Court noted that the applicant had been sentenced for a serious and brutal sexual assault on a child and that the non-parole period reflected the seriousness of the offending. The Court held that the non-parole period was appropriate in the circumstances.

The Court of Appeal refused the applicant leave to appeal against his sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Later, the applicant was introduced to RO. Left alone with her in her room, her kissed her on the back of the neck. After a while, he left the home with MK to engage in further sexual activity with her. Upon returning, he found RO in her room and offered to give her a massage. MK supplied the massage cream, and initially assisted the applicant in massaging RO. However, when MK left the room to run a bath, the applicant slid RO’s underwear to the side, massaged her genital area, and digitally penetrated her vagina for a period of one or two minutes. This caused MK pain. He twice asked her to ‘promise [to] keep this between us’ (charge 1 — sexual penetration of a child under the age of 16; summary charge 2 — committing an indictable offence on bail). RO reported the incident first to MK, and then, later that night, to the police. The applicant was arrested the next day, and his mobile phone was seized. Upon analysis of the phone, it was revealed that the applicant: The applicant was again arrested. In his interview with police, he admitted attending a motor inn on two occasions to visit a friend and smoking ‘ice’ together (charges 8 and 9 — possessing a drug of dependence). He admitted creating the various accounts and usernames revealed by the phone analysis, but said that he had either reported them to police, or else had forgotten about them. He said that he did not know he was required to report his ownership of a dirt bike. Between the events charged in the first two indictments, the applicant had been convicted on 13 February 2020 of sexual assault, again involving a teenage victim, which had taken place on 12 May 2018. He was placed on a 2 year community correction order with conditions of unpaid community work, supervision, mental health assessment and treatment, and programs as directed. This conviction caused him to be placed on the sex offenders’ register for a period of 8 years. After describing the offending, the judge recorded the applicant’s concession that the offending was serious and warranted the imposition of a custodial term including a non-parole period.[6][6]Counsel candidly acknowledged that the applicant anticipated a sentence of at least 5 years. The judge then described the applicant’s upbringing. He had a stable family background, but was a poor student and was expelled from high school in year 10. After that, he apprenticed as a boilermaker and worked productively for a few years before losing his job in 2019 because of methylamphetamine use. The judge referred to a report prepared by a forensic psychologist, David Ball. Mr Ball considered that the applicant satisfied the diagnostic criteria for post-traumatic stress disorder, as well as severe stimulant abuse. The post-traumatic stress order resulted from having been stabbed in the neck without warning and nearly dying in April 2019. He had used methylamphetamine regularly, and in significant quantities, for some eight years. The judge did not consider that the applicant’s post-traumatic stress disorder contributed to his offending, and was unable to say whether the applicant’s stimulant abuse contributed to his sexual offending.[7] [7]DPP v O’Brien [2021] VCC 1178 [36] (‘Sentencing Remarks’).