O'Connor v The Queen - [2018] VSCA 72

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0176

MATTHEW EDWARD O’CONNOR

THE QUEEN

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JUDGES:	WEINBERG and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 January 2018
DATE OF JUDGMENT:	26 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 72
JUDGMENT APPEALED FROM:	DPP v O’Connor (Unreported, County Court of Victoria, Judge McInerney, 21 July 2017)

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CRIMINAL LAW – Appeal – Sentence – Possessing child pornography – Four years’ imprisonment with non-parole period of two years and six months – Judge misinformed by prosecutor as to correct maximum sentence – Crown concession that error material – Appeal allowed – Re-sentence – Relevance of applicant’s mental health – Combined sentence of imprisonment and community correction order appropriate – Applicant re-sentenced to 18 months’ imprisonment which, having regard to 11 months’ pre-sentence detention, leaves less than 12 months to serve – Accordingly, possible to combine with three year community correction order – Sentencing Act 1991 s 44(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC with Mr M Allen	Galbally & O’Bryan
For the Respondent	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
COGHLAN JA:

On 16 December 2016, the applicant pleaded guilty to one charge of possessing child pornography. On 21 July 2017, he was sentenced as follows:

Charge Offence Maximum Sentence

1.

Possessing child pornography

[Crimes Act 1958 s 70(1)]
5 years’ imprisonment 4 years’ imprisonment

Total Effective Sentence:

4 years’ imprisonment

Non-Parole Period:

2 years and 6 months

Pre-Sentence Detention Declared

85 days

Other relevant orders:

·        Sex offender registration for 8 years

·        Forensic sample order

·        Disposal Order

By notice dated 16 August 2017, the applicant seeks leave to appeal against that sentence on the following grounds:

1.The sentencing judge erred by steering by the wrong maximum penalty for the offending charged in Indictment G11072152.
2.The sentencing judge erred by confining the application to his sentencing discretion of The Queen v Verdins (2007) 16 VR 269 to its ‘paragraph (d) … that given [the Applicant’s] condition, he will suffer more than the normal member of the community would suffer in gaol.’

Ground 1 — Error in application of incorrect maximum sentence

The applicant was found in possession of child pornography on 7 May 2015. At the time, the maximum penalty for the offence of possessing child pornography contrary to s 70(1) of the Crimes Act 1958 was five years’ imprisonment. On 1 December 2015, the maximum penalty was increased to 10 years’ imprisonment, but only for offences committed on or after that date, as s 114 of the Sentencing Act 1991 makes clear:

If an Act … increases the penalty or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision effecting the increase.

At the plea hearing on 27 April 2017, however, the prosecutor referred the judge to the incorrect maximum penalty of 10 years’ imprisonment. The error was reflected…

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'Connor v The Queen

Details

AGLC: O'Connor v The Queen [2018] VSCA 72
Case: [2018] VSCA 72
Decision Date: 26 March 2018

CaseChat Overview and Summary

The appellant, O'Connor, appealed against his sentence for possessing child pornography, arguing that the original sentence was unduly harsh due to the trial judge being misinformed about the maximum penalty. The case was heard in the Court of Appeal. O'Connor had been sentenced to four years' imprisonment with a non-parole period of two years and six months. During the trial, the prosecutor erroneously informed the judge that the maximum penalty for the offence was ten years, whereas it was actually five years. The Crown conceded that this error was material.

The court needed to decide whether the error in the maximum penalty information constituted a significant judicial error warranting an appeal and, if so, what sentence should replace the original one. The court examined the nature of the offence and the appellant's personal circumstances, including his mental health, to determine an appropriate sentence. The court considered that the original sentence was excessive given the maximum penalty of five years and the appellant's mental health issues.

The Court of Appeal held that the error in the maximum penalty information was indeed a significant judicial error, and the appeal was allowed. The court re-sentenced O'Connor, taking into account the correct maximum penalty and his mental health. The new sentence comprised 18 months' imprisonment, of which 11 months had already been served, leaving less than 12 months to serve. This was combined with a three-year community correction order, as allowed by the Sentencing Act 1991, section 44(1).

Orders