SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0178
| CLINTON JAMES OSBORNE | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2017 0179
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| CLINTON JAMES OSBORNE | Respondent |
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| 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…
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- AGLC
- Clinton James Osborne v The Queen [2018] VSCA 160
- Case
- [2018] VSCA 160
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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