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OH v Driessen

OH v Driessen

Case [2015] ACTSC 148 16 June 2015

Appeal

Breach of Trust

Manifestly Excessive

Individualised Justice

Age as Mitigating Factor

Criminal Law

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HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	O H v DRIESSEN
Citation:	[2015] ACTSC 148
Hearing Date(s):	4 February 2015
DecisionDate:	16 June 2015
Before:	Refshauge J
Decision:	1. The appeal is upheld. 2. The sentence and orders imposed by the Childrens Court on 27 August 2014 be set aside. 3. OH be re-sentenced.
Category:	Principal Judgment
Catchwords:	APPEAL – Appeal against sentence – Appeal from the Childrens Court – Sexual offences on a child under the age of 10 years –Manifestly excessive – Differentiation in the approach to punishment of offences by adults and juveniles – Recording of conviction – Child Sex Offenders Register – Reporting conditions – Individualised justice – Age as a mitigating factor – Consideration of offences for which the person to be sentence has not been charged – Breach of trust – Irrelevant consideration
Legislation Cited:	Court Procedures Act 2004 (ACT), s 69 Crimes Act 1900 (ACT), s 62 Crimes (Child Sex Offenders) Act 2005 (ACT), ss 8, 9, 10, 23, 54, 59, 60(c), 89, 117, Schs 1 and 2, Pt 3.3, Crimes (Sentencing) Act 2005 (ACT), ss 17, 133, Sch 2 Human Rights Act 2004 (ACT) Magistrates Court Act 1930 (ACT), ss 216, 287, 288, Pt 3.10, Div 3.10.2 Criminal Code 2002 (ACT), ss 25, 26
Cases Cited:	Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 R v BM (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC No 360 of 2011, 409 of 2011 and 21 of 2012, 14 February 2012). JCW (2000) 112 A Crim R 466 Johnson v Texas 509 U.S. (1993) J v National Director of Public Prosecutions [2014] ZACC 13 Proud v Sladic [2014] ACTCA 26 Roper v Simmons 543 U.S. 551 (2005) R v Campbell [2010] ACTCA 20 R v Carney [2013] ACTSC 266 R v CV (2013) 233 A Crim R 67 R v D [1996] 1 Qd R 363 R v De Simoni (1981) 147 CLR 383 R v JJ [2014] ACTCA 23 R v Olbrich (1999) 199 CLR 270 R v PM [2009] ACTSC 24 R v Traiconi (1990) 49 A Crim R 417 R v TW (2011) 6 ACTLR 18 Sleiman v Murray (2009) 231 FLR 224 Suleman v The Queen [2009] NSWCCA 70 Weininger v The Queen (2003) 212 CLR 629
Texts Cited:	Kate Warner, Sentencing in Tasmania (Federation Press: Sydney, 2002) 2^nd ed
Parties:	O H (Appellant) Senior Constable D Driessen (Respondent)
Representation:	Counsel Mr P Edmonds (Appellant) Mr J Hiscox (Respondent)
Solicitors Paul Edmonds Solicitor (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	SCA 76 of 2014
Decision under appeal:	Court/Tribunal: ACT Childrens Court Before: Magistrate Fryer Date of Decision: 4 August 2014 and 29 August 2014 Case Title: OH v Driessen Court File Number(s): CC 24 of 2014 CC 25 of 2014 CC 27 of 2014

Refshauge J:

On 8 November 2013, a few days before the 14^th birthday of the appellant, OH, he committed three sexual offences on a…

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 OH v Driessen

Details

AGLC: OH v Driessen [2015] ACTSC 148
Case: [2015] ACTSC 148
Decision Date: 16 June 2015

CaseChat Overview and Summary

The appellant, OH, appealed against the sentence imposed by the Children's Court of Victoria on 27 August 2014, which included a custodial sentence, the recording of a conviction, and registration on the Child Sex Offenders Register. The respondent, Driessen, was the lawyer representing the state. The appellant was found guilty of engaging in sexual activity with a child under the age of 10 years, an offence under the Crimes Act 1958 (Vic). The central issue before the court was whether the sentence imposed by the Children's Court was manifestly excessive.

The court considered the principles of individualised justice and the differentiation in the approach to punishment between adults and juveniles. It also examined the relevance of age as a mitigating factor, the breach of trust inherent in the offence, and whether offences for which the appellant had not been charged should be taken into account. The court concluded that the sentence was manifestly excessive and did not appropriately reflect the principles of individualised justice or the specific mitigating factors relevant to juvenile offenders.

Consequently, the appeal was upheld. The sentence and orders imposed by the Children's Court were set aside, and the appellant was to be re-sentenced. This decision underscored the importance of tailoring sentences to the unique circumstances of juvenile offenders, taking into account factors such as age and the nature of the offence.

Orders

Orders of the court

1. The appeal is upheld.

2. The sentence and orders imposed by the Childrens Court on 27 August 2014 be set aside.

3. OH be re-sentenced.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

OH v Driessen [2015] ACTSC 148

Most Recent Citation

R v WR (No 5) [2015] ACTSC 258

Cases Citing This Decision

R v BI (No 4) [2017] ACTSC 71
Citation 1 (Para 1)

…ation to protect him, not to prey on him. These were positions of trust, the breach of which constituted a circumstance of aggravation: OH v Driessen [2015] ACTSC 148.…
R v CC [2016] ACTSC 324
Citation 2 (Para 1)

…is also necessary to have regard to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). I have had particular regard to these cases: OH v Driessen [2015] ACTSC 148, OH v Driessen (No 2) [2015] ACTSC 354, The Queen v CV [2013] ACTCA 22; 233 A Crim R 67 and R v BO (No 2) [2014] ACTSC 371.…
PM v Beck [2016] ACTSC 314
Citation 3 (Para 1)

…eal to the Supreme Court from the Childrens Court is of the same nature as an appeal from the Magistrates Court. As Refshauge J said in OH v Driessen [2015] ACTSC 148:…
R v Goboly [2016] ACTSC 322
Citation 4 (Para 1)

…There was no question of Mr Goboly being in a position of trust: see OH v Driessen [2015] ACTSC 148 at [138]-[144]. There was, apart from the significant age difference, which is relevant, no evidence that Mr Goboly took improper advantage of QQ. None was suggested by the Crown and there is no suggestion the sexual…
R v Charles [2016] ACTSC 177
Citation 5 (Para 1)

…ters. See, for example, but under the ACT legislation in relevantly similar terms, Byrne v Mingay (2014) 242 A Crim R 9 at 11; [4], and OH v Driessen [2015] ACTSC 148 at [82]-[90].…
R v NF (No 1) [2016] ACTSC 216
Citation 6 (Para 1)

…In OH v Driessen [2015] ACTSC 148 at [74]-[75], I referred, by reference to decisions of the Supreme Court of the United States of America, to the important obligation that statute and common law requires of sentencers when sentencing young offenders, namely to recognise the immaturity which leads them to commit wh…
Tran v The Queen [2016] ACTCA 5
Citation 7 (Para 1)

…e would decline to exercise our discretion: see the observations of Refshauge J in Cooper v Corvisy (No 2) [2010] ACTSC 166 at [11] and OH v Dreissen [2015] ACTSC 148 at [8].…
R v Scerba (No 2) [2015] ACTSC 359
Citation 8 (Para 1)

…these proceedings was the question of breach of trust. The obligation to one’s employers has fiduciary qualities. As I pointed out in OH v Driessen [2015] ACTSC 148 at [138]-[144], not every circumstance or reliance or dependence involves a breach of trust.…
R v NE [2015] ACTSC 352
Citation 9 (Para 1)

…ways with an eye on the opportunity to recognise the particular status of young offenders, and their immaturity, as I have explained in OH v Driessen [2015] ACTSC 148 at [72]-[76] and the need to create an appropriately crafted sentence to achieve ultimate reform.…
OH v Driessen (No 2) [2015] ACTSC 354
Citation 10 (Para 1)

…OH appealed against the sentences and, on 16 June 2015, I upheld the appeal and set aside the sentence, see OH v Driessen [2015] ACTSC 148. As a result, it falls upon me to re-sentence him.…
R v WR (No 5) [2015] ACTSC 258
Citation 11 (Para 1)

…I do not consider that this finding is inconsistent with the comments of Refshauge J in OH v Driessen [2015] ACTSC 148 at [138] to [149]. Indeed, I also consider that, consistent with Refshauge J's conclusions, WR was in a position of trust directly in relation to the two victims arising from their apparent genuine…

See all citing cases →

Cases Cited

R v Holder [2019] SASCFC 73
Citation 1

…ationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen , quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must a…
R v JJ [2014] ACTCA 23
Citation 2 (Para 1)

…This approach must, of course, be informed by the statutory approach to the sentencing of young offenders and the common law. Thus, in R v JJ [2014] ACTCA 23 at [14]-[15], the Court of Appeal held:…
Proud v Sladic [2014] ACTCA 26
Citation 3 (Para 1)

…The real issue, then, was whether the seriousness of the offences justified the rather exceptional approach (see Proud v Sladic [2014] ACTCA 26 at [42]) of a non-conviction order. Clearly the most important issue was the nature, number and seriousness of the offences. Her Honour was well aware of the issue of the…
R v Carney [2013] ACTSC 266
Citation 4 (Para 1)

…There is no doubt that aggravating factors must be proved beyond reasonable doubt. See R v Olbrich (1999) 199 CLR 270 at 281; [27]; R v Carney [2013] ACTSC 266 at [149].…
Cooper v Corvisy (No 2) [2010] ACTSC 166
Citation 5 (Para 1)

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to those appeals. They, therefore, apply to this appeal. They may be summarised as follows.…
R v Thorn [2010] ACTCA 10
Citation 6 (Para 33)

…See also R v Thorn [2010] ACTCA 10 (at [33]).…
Hawkins v Hawkins [2009] ACTSC 148
Citation 7 (Para 32)

…n summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]-[35]): 32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]): 46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy t…
Sleiman v Murray [2009] ACTSC 82
Citation 8

…147 CLR 383 R v JJ [2014] ACTCA 23 R v Olbrich (1999) 199 CLR 270 R v PM [2009] ACTSC 24 R v Traiconi (1990) 49 A Crim R 417 R v TW (2011) 6 ACTLR 18 Sleiman v Murray (2009) 231 FLR 224 Suleman v The Queen [2009] NSWCCA 70 Weininger v The Queen (2003) 212 CLR 629…
Suleman v R [2009] NSWCCA 70
Citation 9 (Para 1)

…The New South Wales Court of Criminal Appeal had occasion to consider the position in Suleman v The Queen [2009] NSWCCA 70 at [22]-[26]:…
R v PM [2009] ACTSC 24
Citation 10 (Para 1)

…In R v PM [2009] ACTSC 24 at [53], I said, in a passage approved by the Court of Appeal in R v CV (2013) 233 A Crim R 67 at 78:…
The Queen v Morse [2009] NZCA 51
Citation 11

…34. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customaril…
Rama v The Queen [2006] ACTCA 25
Citation 12

…an be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this…
R v MAK [2005] NSWCCA 369
Citation 13

…sabled. But the offender would know, or should have known, that he or she is in a position of trust with respect to the victim. In R v MAK [2005] NSWCCA 369 it was held in a sexual assault case that there was no position of trust between the offender and the victim simply because they had a prior encounter where not…
R v Johnson [2005] NSWCCA 186
Citation 14

…ries of aggravating factors recognised by the common law at the time the section was created: R v Wickham [2004] NSWCCA 193; R v Johnson [2005] NSWCCA 186.…
R v Martin [2005] NSWCCA 190
Citation 15 (Para 40)

…f the relationship that imposed a position of trust on one or both of the participants. Such relationships were considered in R v Martin [2005] NSWCCA 190 at [40] and included a real estate agent fraudulently omitting to account to a client and dishonesty offences by a solicitor in carrying out his duties. 26 It has…
R v Wickham [2004] NSWCCA 193
Citation 16

…t intended to extend the categories of aggravating factors recognised by the common law at the time the section was created: R v Wickham [2004] NSWCCA 193; R v Johnson [2005] NSWCCA 186.…
Weininger v The Queen [2003] HCA 14
Citation 17 (Para 1)

…This approach appears to be consistent with that taken by the High Court in Weininger v The Queen (2003) 212 CLR 629 at 640; [32], where Gleeson CJ, McHugh, Gummow and Hayne JJ said:…
R v Olbrich [1999] HCA 54
Citation 18 (Para 1)

…There is no doubt that aggravating factors must be proved beyond reasonable doubt. See R v Olbrich (1999) 199 CLR 270 at 281; [27]; R v Carney [2013] ACTSC 266 at [149].…
R v Wright [1998] VSCA 84
Citation 19

…See also, B (a child) (1995) 82 A Crim R 234 at 243; R v Mills [1998] 4 VR 235 at 241.…
R v De Simoni [1981] HCA 31
Citation 20 (Para 1)

…ces with which OH has not been convicted nor even charged, they cannot be taken into account for the purposes of sentencing. As held in R v De Simoni (1981) 147 CLR 383 at 389, an offender should not be punished for an offence of which he or she has not been convicted.…

Legislation Cited

Crimes (Child Sex Offenders) Act 2005 (ACT) 10, 117, 2, 23, 54, 59, 60(c), 8, 89, 9
11 mentions (from Para 1)
Magistrates Court Act 1930 (ACT) 216, 287, 288
4 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT) 133, 17
3 mentions
Court Procedures Act 2004 (ACT) 69
2 mentions (from Para 1)
Crimes Act 1900 (ACT) 62
2 mentions (from Para 1)
Human Rights Act 2004 (ACT)
1 mention (from Para 1)