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R v Obbens

R v Obbens

Case [2022] NSWCCA 109 27 May 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Obbens [2022] NSWCCA 109
Hearing dates: 13 May 2022
Date of orders: 13 May 2022
Decision date: 27 May 2022
Before: Basten AJA at [1];
Hamill and Dhanji JJ at [5].
Decision:
Dismiss the Director’s appeal against the sentence imposed on William John Obbens in the District Court on 23 February 2022.

Catchwords:
CRIMINAL LAW – prosecution appeal – asserted inadequacy of sentence – totality – delay in sentencing – community corrections order – where respondent served earlier gaol sentences for similar offending against children – offences committed at around the same time – rehabilitation – lengthy period of non-offending – whether sentence of imprisonment only alternative – where previous sentence fully served – where additional punishment would have been appropriate had offences been dealt with at the same time – not necessary to “reverse engineer” earlier sentence – correct approach to totality – sentence not inadequate

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW),
ss 5(1), 8, 25AA(3), 33, 87, 88

Cases Cited:
Boulton v R (2014) 46 VR 308; [2004] VSCA 342
Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
Franklin v R [2013] NSWCCA 122
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15
McIntosh v R [2015] NSWCCA 184
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
R v Cattell [2019] NSWCCA 297; (2019) 280 A Crim R 502
R v Hall [2017] NSWCCA 313; (2017) 271 A Crim R 162
R v Jarrold [2010] NSWCCA 69
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Obbens [2022] NSWDC 47
R v Todd [1982] 2 NSWLR 517
R v Wilson [2005] NSWCCA 219
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Woodward v R [2017] NSWCCA 44

Category: Principal judgment
Parties: Regina (Appellant)
William John Obbens (Respondent)
Representation:
Counsel:
M England, E Curran (Appellant)
P Tehan QC, P Skinner (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Appellant)
Law Partners Australia Pty Ltd (Respondent)

File Number(s): 2021/00048215
Publication restriction: Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names of, or any matter which could identify, the victim and also the victims from previous proceedings who are referenced in the sentencing judgment is prohibited.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Obbens [2022] NSWDC 47

Date of Decision:

23 February 2022

Before:

M L Williams SC DCJ

File Number(s):

2021/00048215

Judgment

BASTEN AJA: On 13 May 2022, the Court heard an appeal by the Director of Public Prosecutions against the inadequacy of a sentence imposed on the respondent in the District Court on 23 February 2022. Orders were made at the hearing dismissing the appeal.
I agree with the joint reasons. I would add the following observations.
If the…

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] NSWCCA 109
Case: [2022] NSWCCA 109
Decision Date: 27 May 2022

CaseChat Overview and Summary

In the case of R v Obbens, the respondent was convicted of multiple offences involving child abuse. The Crown sought to appeal the sentence imposed on the grounds that it was inadequate. The appeal was heard in the Court of Appeal of the Supreme Court of Queensland. The primary issue before the court was whether the sentence imposed on the respondent was inadequate, considering the totality principle and the respondent's history of similar offences.

The court considered the principle of totality, which requires that a sentence for multiple offences should be considered as a whole rather than as individual sentences for each offence. The court also examined whether the sentence adequately reflected the delay in sentencing and the respondent's prior offending history. It was noted that the respondent had served earlier gaol sentences for similar offences committed around the same time, followed by a lengthy period of non-offending. The court emphasised that the sentence of imprisonment was not the only alternative and that the respondent had already fully served the previous sentence. The court concluded that the sentence imposed was appropriate, taking into account the respondent's rehabilitation and the need for additional punishment.

The court held that the sentence imposed on the respondent was not inadequate. It was not necessary to "reverse engineer" the earlier sentence, and the correct approach to totality was applied. The court also found that the delay in sentencing and the respondent's prior offending history were adequately considered. The appeal was dismissed, and the original sentence was upheld.

Orders