R v O'Neill - [2005] VSCA 248

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 337 of 2004

THE QUEEN

ROBERT JAMES O'NEILL

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JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2005
DATE OF JUDGMENT:	12 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 248

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SENTENCE - Rape and multiple counts of indecent assaults on under-age boys - Last offences committed in 1993 - Offender sentenced in 2004 - Whether no further offences committed in intervening period - Rehabilitation - Procedural fairness - Remorse - Total effective sentence of 14 years and 2 months not manifestly excessive - Appeal allowed and non-parole period of 10 years substituted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr G. Gilbert	Lawsons McDonald Scott Waters

CHARLES, J.A.:

On 9 November 2004 the appellant pleaded guilty in the County Court at Melbourne to a presentment alleging 34 counts -

•Indecent assault on a male under the age of 16 (7 counts) - counts 1, 3, 6, 7, 8, 10 and 11. The maximum penalty for this offence was 5 years' imprisonment.
•Indecent assault on a male person (2 counts) - counts 2 and 5. The maximum penalty was 5 years' imprisonment.
•Gross indecency with a male (1 count) - count 4. The maximum penalty was 3 years' imprisonment.
•Attempted buggery (1 count) - count 9. The maximum penalty was 10 years' imprisonment.
•Indecent assault (11 counts) - counts 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 24. The maximum penalty was 5 years' imprisonment.
•Rape (2 counts) - counts 22 and 23. The maximum penalty was 10 years' imprisonment.
•Indecent act with a child under 16 (10 counts) - counts 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34. The maximum penalty was 10 years' imprisonment.

The plea then proceeded. The appellant admitted five previous convictions from three court appearances, none of which related to sexual offences. Thirteen victim impact statements were filed. During the plea in mitigation, counsel for the appellant tendered a report by Mr Jeffrey Cummins dated 8 November 2004 and a further report by Dr John King dated 27 October 2004. Mr Cummins was called and gave lengthy evidence. Counsel for the appellant conceded that an immediate custodial sentence was the only appropriate sentencing disposition. He contended however that a shorter than usual non-parole period would be appropriate.

On 19 November 2004 the appellant was sentenced as follows -

•      count 1          -          12 months' imprisonment
   •      count 2          -          4 months' imprisonment
   •      count 3          -          9 months' imprisonment
   •      count 4          -          12 months' imprisonment
   •      count 5          -          9 months' imprisonment
   •      count 6          -          4 months' imprisonment
   •      count 7          -          4 months' imprisonment
   •      count 8          -          9 months' imprisonment
   •      count 9          -          2 years 6 months' imprisonment
   •      count 10        -          12 months' imprisonment
   •      count 11        -          4 months' imprisonment
   •      count 12…

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'Neill

Details

AGLC: R v O'Neill [2005] VSCA 248
Case: [2005] VSCA 248
Decision Date: 12 October 2005

CaseChat Overview and Summary

In the case of R v O'Neill, the appellant, O'Neill, appealed against his sentence for rape and multiple counts of indecent assault on under-age boys. The offences were committed in 1993, and the appellant was sentenced in 2004. The court had to determine whether the appellant had committed any further offences in the intervening period, his rehabilitation prospects, procedural fairness in the sentencing process, and the expression of remorse. The appeal centred on whether the total effective sentence of 14 years and 2 months was manifestly excessive.

The court examined the appellant's criminal history, the nature and severity of the offences, and the impact on the victims. It assessed the arguments around the rehabilitation prospects of the appellant, taking into account his age, previous attempts at rehabilitation, and the risk of reoffending. The court also evaluated the procedural fairness in the sentencing process, considering whether the appellant had been given adequate opportunity to present his case and whether the sentence was proportionate to the crimes committed. Finally, the court considered the expression of remorse by the appellant and its relevance to the sentencing.

The court concluded that while the appellant had not committed further offences in the intervening period, his criminal history and the severity of the offences warranted a significant sentence. The court found that the appellant's rehabilitation prospects were limited, and the risk of reoffending was high. The court also determined that the sentencing process had been fair, and the appellant had been given a fair opportunity to present his case. The court found that the appellant had expressed some remorse, but it was not sufficient to significantly mitigate the sentence. The total effective sentence of 14 years and 2 months was not found to be manifestly excessive, but the non-parole period of 10 years was considered excessive. The appeal was allowed, and the non-parole period of 10 years was substituted with a lesser period.

The final orders of the court were that the appeal was allowed, and the non-parole period of 10 years was substituted with a lesser period. The total effective sentence of 14 years and 2 months was upheld, but the non-parole period was reduced to reflect the court's findings on rehabilitation, procedural fairness, and remorse. The appellant's sentence was thus modified, but the overall punishment remained substantial, reflecting the seriousness of the crimes committed.

Orders