R v O'Blein - [2009] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 598 of 2009

THE QUEEN
	v
DAVID O'BLEIN

---

JUDGES:	VINCENT, NEAVE JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2009
DATE OF ORDERS:	10 June 2009
DATE OF REASONS:	26 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 159
JUDGMENT APPEALED FROM:	R v O’Blein (Unreported, County Court of Victoria, Judge Pilgrim, 8 April 2009)

---

Criminal law – Theft – Armed robbery – Possession of an unregistered firearm – Failure to specify non parole period in accordance with s 6AAA Sentencing Act 1991 (Vic) – Appellant aged 20 years – Subject of serious assault in adult prison – Application of sentencing principles for youthful offenders – R v Mills (1998) 4 VR 235 – Suitability for Youth Justice Centre Order – Failure to regard pre-sentence report constituting sentencing error in all the circumstances – Appeal allowed – Appellant re-sentenced to period of detention in Youth Justice Centre.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr P F Tehan QC	Victoria Legal Aid

VINCENT JA

I agree with the reasons of Coghlan AJA.

NEAVE JA:

I have read the reasons of Coghlan AJA. I agree that the application for leave to appeal against sentence should be granted, and the appeal allowed, for the reasons given by his Honour.

COGHLAN AJA:

On Wednesday 10 June 2009 we heard this application. The application for leave to appeal against sentence was granted. The appeal was treated as having been instituted and heard instanter and was allowed. The sentences imposed in the court below were set aside. For reasons set out in the recommendation of Ms Makepeace, the Court was of the view that the appellant should be sentenced to a period of detention in a youth justice centre rather than adult prison. The following sentence was imposed:
Count 2 To be detained for a period of 30 months;
Count 1 To be detained for a period of one month to be served cumulatively on count 2;
Count 3 To be detained for a period of seven days which is to be served concurrently.
Pursuant to s 6AAA of the Sentencing Act, the Court indicated that, had not the appellant pleaded guilty, an effective sentence of three years and six months' imprisonment with a non-parole period of 21 months would have been ordered. It was declared that the period of 277 days, which did not include the day the application was heard, had been served under the sentences imposed and it was directed that the declaration and its details be entered in the records of the Court. We said we would publish our reasons which we now do.

Background

On 3 March 2009 the appellant pleaded guilty in the County Court of Mildura to one count of theft, one count of armed robbery and one count of possession of an unregistered firearm.

He admitted 18 findings of guilt…

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 R v O'Blein

Details

AGLC: R v O'Blein [2009] VSCA 159
Case: [2009] VSCA 159
Decision Date: 26 June 2009

CaseChat Overview and Summary

The case of R v O'Blein involved the appellant, who was 20 years old at the time of the offence, being convicted of armed robbery and possession of an unregistered firearm. The appellant appealed against his sentence, claiming that the trial judge had failed to specify the non-parole period in accordance with section 6AAA of the Sentencing Act 1991 (Vic), and that the sentence did not adequately consider the principles for sentencing youthful offenders. The appellant also argued that there was an error in the trial judge's failure to regard the pre-sentence report, and that the sentence was inappropriate given the appellant's history of being a victim of serious assault in adult prison.

The central legal issues in this appeal were whether the trial judge erred in failing to specify the non-parole period and whether the sentence imposed was inappropriate given the appellant's youth and circumstances. The court was required to consider the principles of sentencing for youthful offenders, as outlined in R v Mills, and whether the sentence imposed was suitable for the appellant's circumstances, including his age and history of victimisation.

The Court of Appeal found that the trial judge had indeed erred in not specifying the non-parole period, which is a mandatory requirement under section 6AAA of the Sentencing Act 1991 (Vic). The court also found that the trial judge had failed to adequately consider the principles for sentencing youthful offenders, as outlined in R v Mills, and had not given appropriate weight to the pre-sentence report. The court held that the sentence imposed was inappropriate given the appellant's age and circumstances, and that a sentence of detention in a Youth Justice Centre would be more suitable. The appeal was allowed, and the appellant was re-sentenced to a period of detention in a Youth Justice Centre.

The final orders of the Court of Appeal were that the appellant's conviction be upheld, but his sentence was quashed and replaced with a period of detention in a Youth Justice Centre. The court emphasised the importance of considering the principles for sentencing youthful offenders and the mandatory requirement to specify the non-parole period in accordance with section 6AAA of the Sentencing Act 1991 (Vic).

Orders