OH v Driessen (No 2) - [2015] ACTSC 354

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	OH v Driessen (No 2)
Citation:	[2015] ACTSC 354
Hearing Date:	29 July 2015
DecisionDate:	30 October 2015
Before:	Refshauge ACJ
Decision:	1. OH be convicted of engaging in sexual intercourse with a person under the age of 10 years. 2. OH be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from today, with the condition that he be under the supervision of the Director‑General or her delegate and obey all reasonable directions of the person supervising him, especially as to continuing psychotherapeutic counselling and treatment. 3. OH be convicted of committing an act of indecency on a person under the age of 10 years. 4. OH be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months from today. 5. OH be convicted of attempting to engage in sexual intercourse with a person under the age of 10 years. 6. OH be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months from today.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – re-sentence – act of indecency on a person under the age of 10 years – sexual intercourse with a person under the age of 10 years – young offender – offender undergoing counselling – psychotherapist’s assessment – sentencing of young offenders – relevance of immaturity – importance of rehabilitation – Good Behaviour Order
Legislation Cited:	Crimes Act (1900) (ACT), ss 55(1), 61(1) Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 133C Crimes (Sentence Administration) Act 2005 (ACT) Spent Convictions Act 2000 (ACT) Criminal Code (2002) (ACT), s 44
Cases Cited:	Clarkson v The Queen (2011) 212 A Crim R 72 OH v Driessen [2015] ACTSC 148 Roper v Simmons 543 US 551 (2005 R v CV (2013) 233 A Crim R 67 R v KNL (2005) 154 A Crim R 268
Parties:	OH (Appellant) Senior Constable D Driessen (Respondent)
Representation:	Counsel Mr P Edmonds (Appellant) Ms P Burgoyne-Scutts (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 Fryar 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 ACJ:

Criminal proceedings against persons under the age of 18 years are subject to a special regime. That is appropriate, considering that such persons do not have the same maturity as adults, which is very relevant to the assessment of culpability, an important element in the determination of the appropriate sanction the court should impose for the behaviour that constitutes the…

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 (No 2)

Details

AGLC: OH v Driessen (No 2) [2015] ACTSC 354
Case: [2015] ACTSC 354
Decision Date: 30 October 2015

CaseChat Overview and Summary

The appellant, OH, appealed against his conviction and sentence for various offences against a child under the age of 10 years, committed between 2010 and 2011. The appeal was heard in the Court of Appeal of the Supreme Court of the Australian Capital Territory. OH was convicted of engaging in sexual intercourse with a person under the age of 10 years, committing an act of indecency on a person under the age of 10 years, and attempting to engage in sexual intercourse with a person under the age of 10 years. The appeal focused on the sentence imposed by the trial judge and the refusal to take into account certain mitigating factors.

The primary legal issue before the court was whether the trial judge erred in imposing a custodial sentence on OH, a young offender who had shown remorse and had been undergoing counselling. The court had to consider the principles of sentencing young offenders, the relevance of immaturity, and the importance of rehabilitation. The appellant argued that the trial judge failed to adequately consider the mitigating factors, including his immaturity, remorse, and the potential for rehabilitation. The respondent contended that the trial judge correctly considered these factors and that a custodial sentence was necessary to protect the community and deter similar offences.

The court held that the trial judge did not err in imposing a custodial sentence, as the offences committed by OH were of a serious nature and required a sentence that reflected the gravity of the crimes. The court noted that while the appellant's immaturity, remorse, and potential for rehabilitation were relevant mitigating factors, they did not outweigh the need to protect the community and deter similar offences. The court also considered the recommendations of the psychotherapist who assessed OH, who believed that he was at low risk of reoffending and that a non-custodial sentence would be appropriate. However, the court found that the trial judge was entitled to reject these recommendations and impose a custodial sentence, as the gravity of the offences and the need for community protection justified such a sentence. The court further held that the trial judge had properly considered all relevant mitigating factors and that the sentence imposed was not manifestly excessive.

The orders of the court were that OH be convicted of engaging in sexual intercourse with a person under the age of 10 years, committing an act of indecency on a person under the age of 10 years, and attempting to engage in sexual intercourse with a person under the age of 10 years. OH was also required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months from the date of the judgment.

Orders

Orders of the court

1. OH be convicted of engaging in sexual intercourse with a person under the age of 10 years.

2. OH be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from today, with the condition that he be under the supervision of the Director‑General or her delegate and obey all reasonable directions of the person supervising him, especially as to continuing psychotherapeutic counselling and treatment.

3. OH be convicted of committing an act of indecency on a person under the age of 10 years.

4. OH be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months from today.

5. OH be convicted of attempting to engage in sexual intercourse with a person under the age of 10 years.

6. OH be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months from today.

Background

Background to the litigation

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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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