R v ONA

Case [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…

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R v ONA [2009] VSCA 146
Case
[2009] VSCA 146
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CaseChat Overview and Summary

The appellant, ONA, appealed against his sentence for two Commonwealth sexual offences committed on a person under the age of 16 while overseas. The respondent was the Commonwealth. The primary judge found the offences to be of extreme gravity, but took into account a number of factors in mitigation. The appellant was sentenced to a total of 11 years imprisonment, with a non-parole period of seven years and three months. The appellant appealed on the basis that the judge failed to give appropriate weight to the delay between the commission of the offences and the sentencing hearing, did not take account of the purpose of the ‘child sex tourism’ provisions, did not take account of a psychologist’s report and that the sentence was manifestly excessive.

The court noted that the delay between the commission of the offences and the sentencing hearing was a matter that the judge had considered in mitigation. The court found that the delay was not of such significance as to warrant a substantial reduction in sentence. The court found that the judge had properly considered the purpose of the ‘child sex tourism’ provisions and had appropriately weighed this against the appellant’s legitimate business reasons for being overseas. The court found that the psychologist’s report was a matter of mitigation and did not warrant a substantial reduction in sentence. The court found that the sentence was not manifestly excessive, and was within the range of sentences that could be imposed for such offences. The court noted that the appellant would also be subject to lifetime registration as a sex offender, but found that this was a matter of punishment, not mitigation.

The appeal was dismissed. The court granted the application for leave to add an additional ground of appeal concerning the impact of lifetime reporting requirements under the Sex Offenders Registration Act 2004. The court found that State law did not prohibit the judge from having regard to the consequences of sex offender registration when sentencing the appellant for a Commonwealth offence. The court found that the State law was not ‘picked up’ by Commonwealth law, and was not invalid because of Commonwealth law. The court found that the State law was consistent with the purpose of the Sex Offenders Registration Act 2004, and did not prevent the judge from taking into account the impact of lifetime registration when sentencing the appellant. The court found that the sentence was not manifestly excessive, and was within the range of sentences that could be imposed for such offences.

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