R v ONA

[2009] VSCA 146

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 429 of 2006

THE QUEEN

v

ONA

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JUDGES:	ASHLEY and  NEAVE JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 August and 4 September 2008
DATE OF JUDGMENT:	18 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 146
JUDGMENT APPEALED FROM:	R v ONA (Unreported, County Court of Victoria, Judge Nixon, 14 December 2006)

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CRIMINAL LAW – Appeal – Sentence –  Appellant pleaded guilty to two Commonwealth sexual offences committed on a person under the age of 16 while outside Australia – Whether judge erred in failing to give appropriate weight to delay – Whether judge failed to take account of purpose of ‘child sex tourism’ provisions in circumstances where offences were committed by the appellant while overseas for legitimate business reasons – Whether judge failed to take account of psychologist’s report – Whether sentence, cumulation order and non-parole period manifestly excessive – Whether sentencing discretion miscarried as a result of judge’s failure to take account of impact of lifetime reporting requirements under the Sex Offenders Registration Act 2004 – Appeal dismissed.

CONSTITUTIONAL LAW – Application for leave to add additional ground of appeal – Whether State law prohibited judge from having regard to the consequences of sex offender registration when sentencing appellant for Commonwealth offence –  Whether State law ‘picked up’ by Commonwealth law – Alternatively, whether State law invalid because of Commonwealth law – SentencingAct 1991 s 5(2BC) – Crimes Act 1914 s 16A(2) – Judiciary Act 1901 ss 68(1) and 79(1) – Constitution s 109 – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Woinarski QC	Commonwealth Office of Public Prosecutions
For the Appellant	Mr R Richter QC with Mr M Croucher	Galbally & O’Bryan

ASHLEY JA:

1. I have had the advantage of reading the reasons for judgment of Neave JA in draft.  I agree with her Honour that the appeal should be dismissed.  I generally agree with her Honour’s analysis why that should be so.  But I wish to say something about grounds 1 and 2, and proposed ground 5.  I do so gratefully accepting her Honour’s description of the circumstances of the offending.

1. Ground 1 complains that the learned sentencing judge erred –

   (a)In failing to give any weight to the delay between the charging of the appellant and the imposition of sentence;

   (b)In reasoning to the effect that the delay was irrelevant because ‘none of [it] can really be regarded as the Crown’s responsibility.’

   The judge’s sentencing remarks do not enable either aspect of that ground to be made out. 

1. With respect to ground 1(a), the judge did in substance give weight to the delay.  He did so in the appellant’s favour, by noting his rehabilitation in the period between arrest and sentence.

1. Counsel argued that the judge should have accorded delay more weight in favour of the appellant, for the delay meant that the charges had been left hanging over the appellant’s head for a period of…