O'Brien v The Queen
[2022] VSCA 11
•11 February 2022
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 | 2 months |
| 9 | Possession of a drug of dependence | 5 years’ imprisonment | ||
| Related summary offences | ||||
| Charge 1 | Commit indictable offence on bail | 3 months’ imprisonment | 1 month’s imprisonment | 1 month |
| Charge 15 | Commit indictable offence on bail | 3 months’ imprisonment | Aggregate sentence of | 3 months |
| Charge 17 | Commit indictable offence on bail | 3 months’ imprisonment | ||
| Charge 19 | Commit indictable offence on bail | 3 months’ imprisonment | ||
| Charge 23 | Commit indictable offence on bail | 3 months’ imprisonment | ||
| Charge 25 | Commit indictable offence on bail | 3 months’ imprisonment | ||
| Charge 27 | Commit indictable offence on bail | 3 months’ imprisonment | ||
| Charge 28 | Failing to comply with reporting obligations | 2 years’ imprisonment | 1 month’s imprisonment | 1 month |
| Total effective sentence | 5 years and 3 months’ imprisonment |
| Non-parole period | 3 years and 11 months |
| Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991 | 312 days |
| 6AAA statement | 7 years’ imprisonment with a non-parole period of |
| Other relevant orders | Life reporting orders; disposal orders; forfeiture order |
The applicant applies for leave to appeal on two proposed grounds: first, that the judge erred in evaluating the applicant’s prospects of rehabilitation as ‘guarded’; and secondly, that the non-parole period of 3 years and 11 months is manifestly excessive.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of offending
At the time of the offending, the applicant was in his late twenties and living with his parents.
The offence charged in the first indictment occurred on 20 July 2019, at a massage clinic in Mildura. In the massage room, the applicant exposed himself to the masseuse, DB, and attempted to initiate sexualised conversation with her, before groping her breast and then putting his hand inside her pants and touching her vagina (charge 1 — sexual assault).
The offence in the second indictment was committed in 2020, while the applicant was on bail for the first offence. By this time, as a result of an intervening conviction referred to further below, he was a registrable sex offender under the Sex Offenders Registration Act 2004 and subject to reporting obligations under that Act. Relevantly, he was required to report to Victoria Police his telephone number, email address, internet service provider, and any usernames used or intended to be used by him online or in other electronic communications. He had purported to provide these details to Victoria Police on 2 March 2020.
On the evening of 14 September 2020, the applicant contacted MK, whom he had not previously met, using Facebook. He asked if he could come to her home, offering to provide ‘help’ in the form of cigarettes to her fifteen year-old niece, RO, who was suffering from poor mental health. He arrived soon afterwards, and engaged in sexual activity with MK.
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:
(a) had created an email address which he had not reported to police as required (charge 1 — failing to comply with reporting obligations; summary charge 15 — committing an indictable offence on bail);
(b) had created a pair of Facebook account names which he had not reported to police as required (charge 2 — failing to comply with reporting obligations; summary charge 19 — committing an indictable offence on bail);
(c) had created an Instagram username which he had not reported to police as required (charge 3 — failing to comply with reporting obligations; summary charge 23 — committing an indictable offence on bail);
(d) had created two further Facebook account names which he had not reported to police as required (charges 4 and 5 — failing to comply with reporting obligations; summary charges 17 and 25 — committing an indictable offence on bail);
(e) had created a username for a Pornhub account which he had not reported to police as required (charge 6 — failing to comply with reporting obligations; summary charge 21 — committing an indictable offence on bail);
(f) had changed his internet service provider without reporting the change to police as required (charge 7 — failing to comply with reporting obligations; summary charge 27 — committing an indictable offence on bail);
(g) owned a dirt bike which he did not report to police as required (summary charge 28 — failing to comply with reporting obligations).
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.
Sentencing remarks
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’).
Mr Ball considered that the applicant did not meet the diagnostic criteria for paedophilic disorder and was a moderate risk of re-offending, given that he had not yet completed an adult sex offender treatment program and might still relapse into substance abuse. He considered that the applicant would greatly benefit from a sex offender program, treatment for his post-traumatic stress disorder and a drug and alcohol relapse prevention program.[8]
[8]Ibid [24].
The judge referred to the applicant’s previous conviction for sexual assault, as well as a previous contravention of a family violence intervention order.[9] She found that this history indicated that the applicant had an issue ‘relating to the inappropriate treatment of women’.[10]
[9]After the applicant satisfied an undertaking, no conviction was recorded in respect of this contravention.
[10]Sentencing Remarks [26].
In light of this history, and the applicant’s longstanding methylamphetamine use, the judge viewed with circumspection some character references tendered on the applicant’s behalf. In particular, the judge doubted assertions that the offending was in some way ‘out of character’, or attributable to a systemic failure to assist the applicant in addressing his mental health difficulties and substance abuse.[11]
[11]Ibid [27]–[29].
The judge described the impact of the offending on the applicant’s victims as ‘devastating’. She described the offending as ‘brazen’ and ‘self-indulgent’.[12] The offence against DB involved the violation of her place of work, and persisted in the face of her protests. The offence against RO involved the breach of the trust of a particularly vulnerable victim. It also occurred in breach of a community correction order imposed for prior sexual offending and while the applicant was on bail in respect of the offending the subject of the first indictment.[13] The extent of the applicant’s contravention of his reporting obligations as a registered sex offender showed a ‘serious disregard’ for those important obligations.[14]
[12]Ibid [30], [32], [36].
[13]The judge was careful not to treat the fact that this offence was committed while the applicant was on bail as an aggravating factor, in circumstances where there was a separate offence charged to that effect: ibid [8].
[14]Ibid [32]–[34].
The judge said that she was ‘guarded’ as to the applicant’s prospects of rehabilitation. There was no evidence of him having previously sought treatment for the stimulant abuse which he claimed had contributed to his offending, and he had not yet gained insight into his offending by undertaking relevant programs for sexual offenders.[15] The judge referred to Mr Ball’s opinion that the applicant needed to obtain insight into the impact of his sexual offending, and said that it was plain that he must undertake a sex offender course. She added:
Until such time as you have undergone a significant drug rehabilitation and education program, along with a sex offender course, I consider it difficult to assess your prospects of rehabilitation.[16]
[15]Ibid [36].
[16]Ibid [37].
Finally, the judge noted that, although the applicant has family, social and community supports, those support networks preceded and did not prevent the present offending.[17]
[17]Ibid [38].
In mitigation, the judge weighed in the applicant’s favour:[18]
[18]Ibid [41]–[43].
(h) his pleas of guilty, which were mostly relatively early, and the enhanced utilitarian benefit of those pleas during the present pandemic;
(i) a degree of remorse and shame in respect of his offending, although falling short of genuine insight;
(j) the increased burden of imprisonment given the applicant’s mental health difficulties, including his post-traumatic stress disorder, for which he relies on prescription medication; and
(k) the increased burden of imprisonment during the present pandemic, as a result of, for example, the reduction in visits and the reduced availability of rehabilitative programs.
The judge emphasised the sentencing principles of denunciation and general deterrence. She considered it imperative to convey the message that the ‘uncivilised, gratuitous, selfish fulfilment of sexual urges at the expense of the wellbeing of young females’ will be appropriately punished.[19] The judge also considered that the principles of specific deterrence, just punishment and community protection assumed importance given the applicant’s repeat offending and repeated breach of his bail and statutory reporting obligations.[20]
[19]Ibid [39].
[20]Ibid [40].
Proposed grounds of appeal
The two proposed grounds of appeal are as follows:
1. The judge erred in evaluating the accused’s prospects of rehabilitation as ‘guarded’.
2. The non-parole of 3 years and 11 months is manifestly excessive.
Proposed ground 1 — specific error
The applicant submitted that the judge erred by characterising the applicant’s prospects of rehabilitation as ‘guarded’. This characterisation was said to overlook:
(l) the applicant’s family and community support, and work history;
(m) Mr Ball’s assessment of the applicant’s risk of re-offending as only ‘moderate’;
(n) the applicant’s single prior conviction, for which he had received only a community correction order, the rehabilitative potential of which was ‘significantly constrained’ by restrictions imposed during the present pandemic; and
(o) the fact that the significant term of imprisonment to be imposed for the present offending — the applicant’s first term of imprisonment — would serve as a significant specific deterrent against further offending.
The respondent contended that, even accepting the matters to which the applicant pointed, the judge’s characterisation was entirely open. The applicant had engaged in a pattern of sexual offending against three female victims, which included a recent and relevant prior conviction, and he lacked either genuine insight into his offending or adequate regard for his reporting obligations.
In my opinion, this ground is not reasonably arguable. The judge considered that the applicant’s prospects of rehabilitation depended on him developing genuine insight into his offending and its impact on his victims. Whether he would do that could not yet be known. It would depend on whether and how successfully he would engage with relevant sexual offender treatment and drug rehabilitation programs. This view was supported by the opinion of Mr Ball to much the same effect. Mr Ball assessed the applicant as presenting a moderate risk of recidivism unless appropriate programs were undertaken to develop his insight. The applicant had not started that process. Moreover, he was a long-term methylamphetamine user and appeared not to have previously sought out or participated in drug treatment.
As the applicant submits, there was other material before the sentencing judge which was favourable to his prospects. That included his strong family and other support and his work history. It is also true that the ongoing pandemic has limited the scope for treatment programs while the applicant has been in custody. But the fact remains that no programs had been undertaken, in or out of custody, and successful engagement in such programs was seen by Mr Ball as a critical factor in alleviating the moderate risk that the applicant would re-offend.
In these circumstances, it was plainly open for the judge to decide that it was ‘difficult to assess’ the applicant’s future prospects and to state that she was ‘guarded’ about the matter. It is not reasonably arguable that in reaching those conclusions the judge fell into error.
Proposed ground 2 — manifest excess
On the plea, the applicant accepted that a substantial custodial sentence was warranted, but submitted that a ‘shorter non-parole period than might otherwise be appropriate’ ought to be imposed to reflect and enhance his prospects of rehabilitation. The applicant now contends that the non-parole period of 47 months imposed — nearly three-quarters of the head sentence — is not only longer than appropriate, but manifestly excessive.
In this regard, reference was made to a recent decision of this Court, Russo v The Queen.[21] In that case, the Court upheld a manifest excess ground in respect of a non-parole period of 3 years, which was three-quarters of the 4-year head sentence. The appellant in that case pleaded guilty to one charge of carjacking, one charge of conduct endangering life, and one charge of failing to stop his vehicle on police request. He was 30 years old, of below average intelligence, and suffered an adjustment disorder and severe methylamphetamine use disorder. He had a background of disadvantage and had engaged in substance abuse from a very early age. However, he had abstained from drug use for some six months and engaged in drug counselling while in custody. He had relevant prior convictions but had not previously been sentenced to a term of imprisonment. He had strong family support and a continuous history of employment.
[21][2021] VSCA 244.
The Court concluded that:
In this case, there was no reason to impose what is unquestionably a long non-parole period. To the contrary, there was good reason to give the appellant the opportunity of a significant period for rehabilitation under strict supervision in the community. While the appellant is not a young offender and has a relevant criminal record, this is the first time he has been incarcerated. He has available to him guaranteed work, which he has proven himself to be well capable of performing, and strong family support, and he has evinced a strong desire to remain drug free in the future.[22]
The Court decided that the period of 3 years in that case was ‘outside the range’ and resentenced the appellant to a non-parole period of 2 years and 6 months. The present applicant invokes the same reasoning in his own case.
[22]Ibid [67] (Emerton JA, Priest JA agreeing at [1]).
The respondent submitted that the non-parole period imposed was within the range available to the judge. The judge accounted for the relevant factors, including those that were mitigatory. But the offending was serious serial offending, particularly harmful to the victims, and involved the breach of a community correction order, bail, and statutory obligations. These features naturally elevated sentencing principles weighing in favour of a robust non-parole period, such as specific deterrence, just punishment, and community protection.
The respondent contended that Russo is distinguishable because there was evidence that the appellant in Russo had taken significant steps toward rehabilitation, by developing insight into the methylamphetamine abuse that contributed to his offending. There was evidence of negative drug tests over a period of 6 months, and participation in drug counselling. Similar evidence was not before the judge in the present case. As discussed above, the applicant had not yet participated in the kinds of sexual offender or drug treatment programs that might cultivate insight into his offending and enhance his prospects of rehabilitation.
This Court has repeatedly stated there is no ‘usual’ non-parole period.[23] The non-parole period must be responsive to the particular, and sometimes unusual, circumstances of the case, and the offender. The fact that the non-parole period will often fall between 60 and 75 per cent of the head sentence does not mean that a sentence at the upper or lower end of that range, or outside it, is in error.[24] Instead, the question to be determined is whether it was reasonably open to the sentencing judge to fix the non-parole period in question.[25]
[23]See, eg, Grantley v The Queen [2018] VSCA 112 [37] (Maxwell P and Kyrou JA) (‘Grantley’).
[24]See R v Merritt (2008) 191 A Crim R 272, 277–8 [24] (Vincent, Nettle and Kellam JJA); [2008] VSCA 238.
[25]Grantley [2018] VSCA 112 [37]–[38] (Maxwell P and Kyrou JA).
In my view, this proposed ground is also not reasonably arguable. The circumstances in Russo are distinguishable, as the respondent pointed out, by the engagement of the appellant in that case with steps to address his methylamphetamine abuse. In contrast, the present applicant can point to no such engagement, and his case has the additional feature that he has committed sexual assaults against three separate victims, without revealing or developing any insight into this offending. The appellant in Russo was assessed as suitable for a community correction order, whereas it was accepted by counsel for the present applicant at the plea that he would serve a significant term of imprisonment. The need for specific deterrence and protection of the community, among other considerations, made that inevitable. In short, the material pointing to the prospective benefits of a shorter non-parole period in Russo is not found in this case.
It would no doubt have been open to the judge to impose a non-parole period shorter than 3 years and 11 months, but it cannot be said, in my opinion, that this period was ‘outside the range’ or not reasonably open.
Conclusion
For these reasons, leave to appeal is refused.
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