JUDGES:	MAXWELL ACJ, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 May 2018
DATE OF JUDGMENT:	21 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 160
JUDGMENT APPEALED FROM:	DPP v Osborne (Unreported, County Court of Victoria, Judge Smith, 8 March 2017, 30 March 2017 and 24 July 2017 (Conviction), 20 July 2017 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 – Fitness to stand trial – Pre-sentence report disclosed ‘complex delusional system’ – Applicant’s longstanding grievance against chemical company – Conspiracy theory – Whether able to give proper instructions – No issue raised at trial – No evidence from trial counsel – Madafferi v The Queen [2017] VSCA 302 applied – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – False imprisonment – Acquittal on charge of indecent assault – Same complainant, same occasion – Whether verdicts inconsistent – Relevant evidentiary differences – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Offender appeal – Crown appeal – Sexual penetration of child under 16 (2 charges) – Aggregate sentence of three years’ imprisonment – Applicant sentenced as serious sexual offender – No power to impose aggregate sentence – Whether sentence manifestly inadequate – Pre-sentence report disclosed ‘complex delusional system’ – Whether applicant suitable vehicle for general deterrence – Dead time – Two years in custody on other offences resulting in acquittal – Sentence manifestly inadequate – Prior convictions – Offended while on bail – Discount for dead time – Resentenced to five years and six months’ imprisonment with non-parole period of four years – Sentencing Act 1991 s 9(1A).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Papas QC	Schembri & Co Lawyers
For the Crown	Mr P J Doyle	Mr J Cain, Office of Public Prosecutions

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MAXWELL ACJ:

Summary

The applicant[1] was convicted, after a trial in the County Court, of two charges of sexual penetration of a child under 16. He was given an aggregate sentence of three years’ imprisonment.
[1]While Mr Osborne is the respondent to the Director’s sentence appeal, it is convenient to refer to him as the applicant throughout.

In a second trial, the applicant was acquitted of a charge of indecent assault against a different victim, but convicted of having falsely imprisoned her. On that charge, he was sentenced to nine months’ imprisonment, which was made wholly cumulative on the sentence imposed for the sexual penetration charges. That produced a total effective sentence of three years and nine months’ imprisonment. A non-parole period of two years and six months was fixed.

The applicant now seeks leave to appeal against his convictions at both trials, and against sentence. The Director of Public Prosecutions has appealed against the aggregate sentence of three years on the sexual…

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 Osborne v The Queen

Details

AGLC: Clinton James Osborne v The Queen [2018] VSCA 160
Case: [2018] VSCA 160
Decision Date: 21 June 2018

CaseChat Overview and Summary

The appellant, Osborne, appealed against his conviction and sentence for sexual penetration of a child under 16 years of age. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria. The primary contention was regarding the fitness of the appellant to stand trial and the adequacy of his sentence. The appeal also raised the issue of the consistency of the verdicts on different charges pertaining to the same complainant and occasion.

The court considered whether the appellant was fit to stand trial, noting that a pre-sentence report revealed a complex delusional system. The appellant's longstanding grievance against a chemical company and associated conspiracy theories were also examined. The court found that there was no evidence from the trial counsel to support the claim that the appellant was unfit to stand trial at the time of his trial. The court applied the principles from Madafferi v The Queen, confirming that leave to appeal was refused as the issue was not raised at trial. The court also examined the consistency of the verdicts on different charges, finding relevant evidentiary differences that justified the differing outcomes. Again, leave to appeal was refused.

The court found that the sentence imposed was manifestly inadequate given the nature of the offences. Despite the appellant's pre-sentence report revealing a complex delusional system, the court considered him a suitable vehicle for general deterrence. The court accounted for the 'dead time' the appellant had already spent in custody on other offences that resulted in acquittal. The appellant was ultimately resentenced to five years and six months' imprisonment with a non-parole period of four years, in accordance with the Sentencing Act 1991 section 9(1A). The appeal against the sentence was allowed, and the sentence was varied as per the court's ruling.

Orders