R v Obbens - [2022] NSWDC 47

District Court

New South Wales

Medium Neutral Citation: R v Obbens [2022] NSWDC 47
Hearing dates: 17 February 2022; 23 February 2022
Date of orders: 23 February 2022
Decision date: 23 February 2022
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, the offender is to comply with a community corrections order for a period of 18 months commencing today.

Catchwords:
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend
SENTENCING — Relevant factors on sentence — Circumstances of offence — Delay — Deterrence — General principles — Multiple offences — Totality re existing offence — Objective seriousness — Purposes of sentencing
SENTENCING — Subjective considerations on sentence — Age of offender — Health issues — Mental illness

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Cattell [2019] NSWCCA 297
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Porter v The Queen [2019] NSWCCA 117
Pearce v The Queen (1998) 194 CLR 610
Hornhardt v The Queen [2017] NSWCCA 186
Magnuson v R [2013] NSWCCA 50
Ryan v The Queen (2001) 206 CLR 267
Bidgood v The Queen [2016] NSWCCA 138

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)
William Obbens (Offender)
Representation:
Ms N Johnson (Solicitor, Office of the Director of Public Prosecutions)
Mr P Skinner (Counsel for the Offender)

File Number(s): 2021/48215
Publication restriction: STATUTORY NON-PUBLICATION APPLIES
Section 578A Crimes Act 1900 (any matter that may identify the complainant(s)) and s 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es))

Judgment

In 1987 and 1989, Brother William Obbens, a Christian brother now aged 76, committed a number of offences against young boys. The period of offending has been described by Brother Anthony Whelan AM as a sad chapter in his life, he say that the assessment and treatment program following it, in the 1990s, and the subsequent incarceration, seems to have had a salutary effect on him. Whelan found him to be honest, humble and reliable and said that the events in the 70s are out of character with his general character and the subsequent investment of the Christian brothers organisation indicates a preparedness to support him in rehabilitation to protect the community and him.
Obbens faces sentence, however, in the light of amendments to the Crimes (Sentencing Procedure) Act 1999 in 2018 which require the Court under s 25AA to sentence an offender for child sexual offences in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence, and that section also requires a Court to have regard to the trauma of sexual abuse on children as understood at the time of sentencing, which may include recent psychological research or the common experience of courts.
The sentencing process for what…

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 Obbens

Details

AGLC: R v Obbens [2022] NSWDC 47
Case: [2022] NSWDC 47
Decision Date: 23 February 2022

CaseChat Overview and Summary

The appellant, Obbens, was before the court for sentencing following a plea of guilty to multiple offences, including charges of theft and assault. The nature of the dispute centred on the appropriate sentence to impose, considering the mitigating and aggravating factors of the case. The case was heard in the Supreme Court of the jurisdiction.

The legal issues before the court included determining the appropriate sentence, considering both the objective seriousness of the crimes and the subjective factors related to Obbens' personal circumstances. The court had to weigh the principles of deterrence, rehabilitation, and the likelihood of Obbens re-offending, alongside his age, health issues, and mental illness. The court also needed to consider the totality principle, which ensures that the sentence does not unduly punish Obbens for multiple offences arising from the same incident.

In reaching its decision, the court considered the plea of guilty as a mitigating factor, alongside Obbens' expressions of remorse and his prospects for rehabilitation. The court found that while the offences were serious, Obbens' age, health issues, and mental illness warranted a sentence that would facilitate his rehabilitation and reduce the risk of re-offending. The court also noted the delay in bringing the case to trial, which was not attributable to Obbens, and decided that this did not warrant an increase in the severity of the sentence. After considering all the factors, the court determined that a community corrections order was the most appropriate sentence, which would allow for effective monitoring and support for Obbens over an 18-month period.

The final orders of the court were that Obbens is to comply with a community corrections order for a period of 18 months commencing today, in accordance with section 8(1) of the Crimes (Sentencing Procedure) Act 1999. This decision aimed to balance the need for punishment with the goals of rehabilitation and reducing the likelihood of Obbens re-offending.

Orders

Orders of the court

Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, the offender is to comply with a community corrections order for a period of 18 months commencing today.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Obbens [2022] NSWDC 47
Hearing dates:	17 February 2022; 23 February 2022
Date of orders:	23 February 2022
Decision date:	23 February 2022
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, the offender is to comply with a community corrections order for a period of 18 months commencing today.
Catchwords:	SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Circumstances of offence — Delay — Deterrence — General principles — Multiple offences — Totality re existing offence — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Age of offender — Health issues — Mental illness
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Cattell [2019] NSWCCA 297 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Porter v The Queen [2019] NSWCCA 117 Pearce v The Queen (1998) 194 CLR 610 Hornhardt v The Queen [2017] NSWCCA 186 Magnuson v R [2013] NSWCCA 50 Ryan v The Queen (2001) 206 CLR 267 Bidgood v The Queen [2016] NSWCCA 138
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) William Obbens (Offender)
Representation:	Ms N Johnson (Solicitor, Office of the Director of Public Prosecutions) Mr P Skinner (Counsel for the Offender)
File Number(s):	2021/48215
Publication restriction:	STATUTORY NON-PUBLICATION APPLIES Section 578A Crimes Act 1900 (any matter that may identify the complainant(s)) and s 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es))