OH v Driessen (No 2)

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.