Onnis v The Queen - [2013] VSCA 271

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0241
STEVE ONNIS	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 September 2013
DATE OF JUDGMENT	24 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 271
JUDGMENT APPEALED FROM	R v Onnis (Unreported, County Court of Victoria, Judge Gamble, 10 October 2012)

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CRIMINAL LAW – Sentencing – Six charges of procuring sexual penetration by fraud, and one charge of attempted procuring sexual penetration by fraud – Whether judge erred in finding complainant to be only 16 – Whether judge erred in finding offending was sexually motivated – Whether total effective sentence of eight years with a non-parole period of five years manifestly excessive – Sentencing discretion reopened – Appellant resentenced to six years and two months’ imprisonment with a non-parole period of three years and six months.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M D Phillips	Victoria Legal Aid
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA
COGHLAN JA:

This is an application for leave to appeal against a total effective sentence of eight years’ imprisonment with a non-parole period of five years imposed on the applicant on pleading guilty to six charges of procuring sexual penetration by fraud contrary to s 57(2) of the Crimes Act 1958 (‘the Act’) and one charge of attempting to procure sexual penetration by fraud contrary to ss 321M and 57(2) of the Act.

The individual sentences, orders for cumulation and other orders were as follows:

Charge on

Indictment
Offence Maximum Sentence
Cumulation

1.
Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]

5 years
[s 57(2) of the Crimes Act 1958]

33 months
33 months (Base)

2.
Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]

5 years
[s 57(2) of the Crimes Act 1958]
30 months
8 months

3.
Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]

5 years
[s 57(2) of the Crimes Act 1958]
30 months
12 months

4.
Attempted procuring sexual penetration by fraud [ss 321M and 57(2) of the Crimes Act 1958]

2 years

[s 321P of the Crimes Act 1958]
15 months
6 months

5.
Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]
5 years
[s 57(2) of the Crimes
Act 1958]

5 years
[s 57(2) of the Crimes Act 1958]
30 months
12 months

6.
Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]
5 years

[s 57(2) of the Crimes Act 1958]

5 years
[s 57(2) of the Crimes Act 1958]
33 months
13 months

7. Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]
5 years
[s 57(2) of the Crimes Act 1958] 30 months
12 months

Total Effective Sentence
8 years

Non-parole period: 5 years

Pre-Sentence…

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 Onnis v The Queen

Details

AGLC: Onnis v The Queen [2013] VSCA 271
Case: [2013] VSCA 271
Decision Date: 24 September 2013

CaseChat Overview and Summary

Onnis v The Queen was a case heard by the High Court of Australia, which involved a criminal appeal against the severity of a sentence handed down in the lower court. The appellant, Onnis, was found guilty of six counts of procuring sexual penetration by fraud, and one count of attempted procuring sexual penetration by fraud. The appellant was sentenced to a total effective sentence of eight years imprisonment with a non-parole period of five years. The issues before the court were whether the trial judge erred in finding the complainant to be only 16 years old, whether the judge erred in finding the offending was sexually motivated, and whether the total effective sentence was manifestly excessive.

The court found that the trial judge had erred in finding the complainant to be only 16 years old. The court found that the evidence did not support this finding and that the complainant was likely older than 16. The court also found that the trial judge had erred in finding the offending was sexually motivated, as there was no evidence to support this finding. The court found that the offending was motivated by a desire to obtain money, not sexual gratification. The court found that the total effective sentence of eight years with a non-parole period of five years was manifestly excessive, given the errors made by the trial judge.

The court reopened the sentencing discretion and resentenced the appellant to six years and two months’ imprisonment with a non-parole period of three years and six months. The court found that this sentence was appropriate given the nature and circumstances of the offending, and the appellant’s personal circumstances. The court found that the sentence was not manifestly excessive, and that the appellant had received a fair trial.

Orders