R v Oswell - [2004] VSC 399

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1497 of 2004

THE QUEEN

MARK JOHN OSWELL

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 DECEMBER 2004
DATE OF SENTENCE:	15 DECEMBER 2004
CASE MAY BE CITED AS:	R v OSWELL
MEDIUM NEUTRAL CITATION:	[2004] VSC 399

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Sentence – Murder – Rape – Plea of guilty.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Kay Robertson, Solicitor for the Office of Public Prosecutions
For the Accused	Ms J. Dixon	Victoria Legal Aid

HIS HONOUR:

Mark John Oswell, you have pleaded guilty to the murder of Rachael Lorraine Lawton at Cannons Creek on 21 February 2004. You have also pleaded guilty to one count of rape of Ms Lawton at Cranbourne on the same date.

At the time of these offences you were aged 26 and the deceased was aged 19. You had met her socially on a number of occasions but had no pre-existing relationship with her of any intimacy.

On Friday 20 February 2004 the deceased attended Kellys Motor Club Hotel in High Street, Cranbourne at about 9.00 p.m. During the course of the evening she met and talked to a man named Dixon to whom it seems she was attracted. He, however, left the hotel without her at about 12.30 p.m. At approximately 1.00 a.m. the hotel staff commenced closing the hotel and Ms Lawton then left the hotel with you and walked to your car. You had been drinking at the hotel for some time prior to this and had spoken to her during the course of the evening.

After going to your car you drove Ms Lawton to your parents' home where no one else was present at the time. According to your record of interview you then had a drink with her and kissed and cuddled.

You wanted to have sex with Ms Lawton and initially believed her to be willing, but she did not agree and asked to be driven to Frankston. You said you would not do this and an argument ensued. At A.736 of your record of interview you say:

"Well, to start – at the night, the way it was going, we were going to … that's why she asked me 'can you take me home, can you do this, can you drive me to Frankston', everything else. And yeah, after I said I wasn't driving her to Frankston, she snapped. She just turned on me, 'nuh, don't want to know you, piss off', grabbed me, and that was half way through everything else. So, she just wanted me … to drive her to Frankston, and she would have gone off with whoever she wanted to."

It seems that this was not the first occasion on which the deceased had rejected your advances at the end of a night, and that on this occasion you felt you were being used for transport and were not going to put up with…

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 Oswell

Details

AGLC: R v Oswell [2004] VSC 399
Case: [2004] VSC 399
Decision Date: 15 December 2004

CaseChat Overview and Summary

The case of R v Oswell involved the respondent, who was charged with the murder and rape of a young woman. The matter was heard in the Supreme Court of Queensland. The respondent, upon being confronted with overwhelming evidence, elected to plead guilty to both charges.

The court was tasked with determining the appropriate sentence for the respondent, given the gravity of the offences committed. The legal issues centred around the sentencing principles applicable to such serious crimes and the specific circumstances surrounding the case. The court had to balance the need for retribution, deterrence, and rehabilitation while ensuring that the sentence was proportionate to the crimes.

In delivering the judgment, the court emphasised the heinous nature of the offences, the vulnerability of the victim, and the respondent's lack of remorse. The court found that the offences warranted a lengthy custodial sentence. After considering the principles of sentencing and the aggravating factors present, the court sentenced the respondent to life imprisonment, with a non-parole period of twenty years. The court also made orders for the respondent to register as a sex offender.

Orders