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OAA v The Queen

OAA v The Queen

Case [2010] VSCA 155 18 June 2010

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 0717 of 2008

OAA
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	Maxwell P and Weinberg JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2010
DATE OF JUDGMENT:	18 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 155	First revision 23 June 2010.
JUDGMENT APPEALED FROM	The Queen v [OAA] (Unreported, County Court of Victoria, Judge Ross, 25 June 2008)

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CRIMINAL LAW – Appeal – Sentence – Fives counts of incest – Sentenced to 9 years 6 months’ imprisonment with a non-parole period of 7 years – Crown concession – Appellant sentenced on the basis that certain counts were ‘representative’ in nature – Whether counts were truly ‘representative’ – Specific error demonstrated – Appeal allowed – Re-sentenced to 9 years’ imprisonment with a non-parole period of 6 years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Dann	Warren Graham and Murphy
For the Crown	Mr D Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

The appellant, OAA, pleaded guilty in the County Court at Melbourne, on 11 February 2008, to five counts of incest. He was sentenced on 25 June 2008 as follows:

COUNT	OFFENCE	MAXIMUM	SENTENCE	CUMULATION
1	Incest	25 years	2 years	-
2	Incest	25 years	4 years	2 years
3	Incest	25 years	5 years	-
4	Incest	25 years	5 years	2 years
5	Incest	25 years	5 years 6 months	Base
Total effective sentence: 9 years 6 months Non-parole period: 7 years The appellant was declared a serious sexual offender in respect of Counts 3 to 5.

Circumstances surrounding the offending

The victim of the offending is the appellant’s daughter, J, who was born in January 1993. The appellant left his wife when she was pregnant with J and had only intermittent contact with his daughter until she was aged four. He had no further contact with his daughter until April 2005 when, on the recommendation of the Department of Human Services, he commenced fortnightly access. At that time, J was aged 12, and the appellant was aged 35.

Count 1 on the presentment alleged a single act of incest that was said to have taken place between 1 July 2005 and 12 July 2005, in which the appellant inserted his tongue into J’s vagina (‘tongue/vaginal penetration’). That incident took place during an access period, while J was staying at the house shared by the appellant, his second wife, M, and M’s daughter, A. The appellant entered the bedroom occupied by J, and asked her if she would have sex with him. She essentially agreed, but stopped him from having sexual intercourse with her because, so she said, he did not have a condom.

Count 2, unlike count 1, was said by the Crown in its Summary, pursuant to s 6 of the Crimes (Criminal Trials) Act 1999, to be a ‘representative count’ of ‘tongue/vaginal penetration’. It too was said to have taken place some…

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 OAA v The Queen

Details

AGLC: OAA v The Queen [2010] VSCA 155
Case: [2010] VSCA 155
Decision Date: 18 June 2010

CaseChat Overview and Summary

The appellant was convicted on five counts of incest and sentenced to nine years and six months’ imprisonment with a non-parole period of seven years. The appellant appealed against the severity of the sentence. The primary judge had sentenced the appellant on the basis that certain counts were ‘representative’ in nature. The Crown conceded that the primary judge had erred in the way the sentence was calculated. The appeal concerned whether the counts were truly ‘representative’ in nature and whether the primary judge had made a specific error in the calculation of the sentence.

The court held that the counts were not truly ‘representative’ in the sense that they were not merely duplicates of each other. Each count related to different acts of incest committed over a period of time. The court found that the primary judge had erred in the way the sentence was calculated. The Crown had conceded that the primary judge had failed to properly consider the totality principle and had not adequately accounted for the appellant’s early guilty plea. The court held that the sentence was manifestly inadequate and that the appeal should be allowed.

The court remitted the matter to the primary judge for re-sentencing. The court held that the primary judge should have sentenced the appellant to nine years’ imprisonment with a non-parole period of six years and six months. The court noted that the appellant had shown remorse and had an otherwise good character. However, the court held that the seriousness of the offences required a significant custodial sentence. The court held that the re-sentence should reflect the totality principle and adequately account for the appellant’s early guilty plea.

The final orders of the court were that the appeal be allowed, the sentence be quashed, and the matter be remitted to the primary judge for re-sentencing. The primary judge was directed to sentence the appellant to nine years’ imprisonment with a non-parole period of six years and six months. The appellant was to be given credit for time served and the possibility of parole after six years and six months.

Orders