OAA v The Queen

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.