R v O'Neill [2005] VSCA 248

[2005] VSCA 248

Court of Appeal (Vic)|2005-10-12|Before: CHARLES, BUCHANAN and VINCENT, JJ.A.

At a glance

AI case summary

Result

appellant. Appeal allowed on Ground 1 (procedural fairness). Individual sentences and cumulation orders confirmed. Total effective sentence of 14 years and 2 months upheld. Non-parole period reduced from 11...

Key principles

A sentencing judge who, during the plea hearing, indicates acceptance of a submission that the offender has not re-offended for a substantial period, but subsequently changes...
The failure to afford procedural fairness in this manner constitutes an error warranting appellate intervention, requiring the re-exercise of the sentencing discretion.
Evidence of rehabilitation and reduced risk of re-offending, while relevant, does not automatically require a finding of 'significant' rehabilitative prospects where the...
A sentencing judge's reference to a plea of guilty as 'of some significance', coupled with reference to evidence of remorse from a psychological report, constitutes sufficient...

Issues before the court

Whether a sentencing judge's change of view on a factual submission, without notice to the parties, constitutes a denial of procedural fairness
Whether the sentencing judge failed to give sufficient weight to evidence of rehabilitation

Plain English Summary

A man who sexually abused 23 boys over 21 years while coaching junior sports was sentenced to 14 years and 2 months in prison. On appeal, the Court found that the sentencing judge had made an error by initially indicating she accepted that the man had not offended for 10 years before his arrest, but later changing her mind without telling the man's lawyers. This denied him a fair hearing because his lawyers could have called evidence to prove he had stopped offending. Although this error was found, the Court decided the overall prison sentence was appropriate given the seriousness of the crimes. However, the Court reduced the minimum time the man must serve before being eligible for parole from 11 years to 10 years, to account for the fact that he had not re-offended during that period.

AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.

Judgment (23 paragraphs)

[1]

[2005] VSCA 248

[2]

[6]

2 The plea then proceeded. The appellant admitted five previous convictions from three court appearances, none of which related to sexual offences. Thirteen victim impact statements were filed. During the plea in mitigation, counsel for the appellant tendered a report by Mr Jeffrey Cummins dated 8 November 2004 and a further report by Dr John King dated 27 October 2004. Mr Cummins was called and gave lengthy evidence. Counsel for the appellant conceded that an immediate custodial sentence was the only appropriate sentencing disposition. He contended however that a shorter than usual non-parole period would be appropriate.

3 On 19 November 2004 the appellant was sentenced as follows -

• count 1 - 12 months' imprisonment

• count 2 - 4 months' imprisonment

• count 3 - 9 months' imprisonment

• count 4 - 12 months' imprisonment

• count 5 - 9 months' imprisonment

• count 6 - 4 months' imprisonment

• count 7 - 4 months' imprisonment

• count 8 - 9 months' imprisonment

• count 9 - 2 years 6 months' imprisonment

• count 10 - 12 months' imprisonment

• count 11 - 4 months' imprisonment

• count 12 - 6 months' imprisonment

• count 13 - 6 months' imprisonment

• count 14 - 9 months' imprisonment

• count 15 - 4 months' imprisonment

• count 16 - 6 months' imprisonment

• count 17 - 12 months' imprisonment

• count 18 - 6 months' imprisonment

• count 19 - 6 months' imprisonment

• count 20 - 4 months' imprisonment

• count 21 - 6 months' imprisonment

• count 22 - 5 years' imprisonment

• count 23 - 5 years' imprisonment

• count 24 - 9 months' imprisonment

• count 25 - 6 months' imprisonment

• count 26 - 9 months' imprisonment

• count 27 - 12 months' imprisonment

• count 28 - 6 months' imprisonment

• count 29 - no sentence announced

• count 30 - 6 months' imprisonment

• count 31 - 6 months' imprisonment

• count 32 - 4 months' imprisonment

• count 33 - 12 months' imprisonment

• count 34 - 9 months' imprisonment.

In the afternoon of 24 November 2004 the judge imposed in relation to count 29 a sentence of six months' imprisonment.

4 The judge then directed that count 22 become the base sentence and ordered cumulation on a number of sentences. On 24 November the judge recalled the matter for correction of the sentences and again in the afternoon of 24 November for a further sentence correction. The final orders made by the judge were that count 22 be the base sentence and that four years of the sentence imposed on count 23, one year of the sentence imposed on count 9, three months of the sentence imposed on counts 1, 4, 10, 17, 27 and 33, two months of the sentence imposed on counts 3, 5, 8, 14, 24, 26 and 27, and one month of the sentence imposed on counts 2, 6, 7, 11, 12, 13, 15, 16, 18, 19, 20, 21, 25, 28, 29, 30, 31 and 32 be served cumulatively on the base sentence, resulting in a total effective sentence of 14 years and two months' imprisonment. The judge directed that the appellant serve a minimum term of 11 years' imprisonment before becoming eligible for parole.

5 The appellant was declared a serious sexual offender.

6 The appellant sought leave to appeal against sentence on the grounds that -

[20]

25 Finally it is argued that the sentence is manifestly excessive. The argument is that, taking into account the relevant maximum penalty available at the time, the fact that although large in number the majority of the counts on the presentment were said not to involve offending of a grave nature, and the matters put on the plea, the total effective sentence was very heavy indeed for a man aged 60 with no relevant prior history. Mr Gilbert submitted that it was difficult to imagine the length of the sentence which the appellant would have received following a plea of not guilty. He also argued that given his age and his compromised physical condition as a result of his stroke, the sentence will operate more harshly on him. It was submitted that the sentence was also crushing.

26 Notwithstanding these matters, the overall sentence imposed cannot in my view be said to be manifestly excessive. The evidence showed a very substantial number of victims of a young and vulnerable age, damaged by the actions of the appellant in circumstances of very serious breaches of trust. The offending occurred over a period exceeding 20 years, and the appellant's offences were often accompanied by the consumption of alcohol by under-aged victims until they were intoxicated. Her Honour had multiple victim impact statements before her referring to the ongoing and serious effects of the appellant's offending.

27 Her Honour's sentencing reasons were carefully expressed, and arrived at after an adjournment to enable her to give thought to the submissions put during the plea. Her sentencing remarks show a careful analysis of relevant sentencing considerations and in particular the evidence of Mr Cummins, whose evidence was, as I have said, firmly rejected on a number of points. Her Honour was, I think, entitled to reject the view that the appellant was unable to comprehend the wrongfulness of his actions, particularly having regard to the evidence that on a number of occasions the appellant had told complainants that they should not tell anyone what he had done. Her Honour found the appellant's offending was not just situational and opportunistic, and plainly accepted that there had been a breach of trust involved in the determined and systematic exploitation of boys in the appellant's care. General deterrence was obviously very important. There was a need to denounce the appellant's offences and for condign punishment and to include the protection of the community in the appropriate sentence. Her Honour took into account the plea of guilty and the stage at which it was entered, the fact that the prior convictions were not relevant, that the age and health of the appellant would make imprisonment more difficult for him, and that he had some rehabilitative prospects. In all these circumstances, and taking into account the maximum penalty applicable to each count, the individual sentences imposed by the judge seem to me moderate, as also were the orders for cumulation.

28 The appeal having succeeded on ground 1, one must then consider the consequences in the re-exercise of the discretion.

29 The judge found, as I have said, that the plea of guilty was of some significance and that the appellant had rehabilitative prospects. The fact that the appellant had not re-offended between 1993 (or 1995) and 2002 was not in my view nearly as significant as the appellant would have it. The offences had continued for a very long time, were very serious, and had caused great harm to a large number of individuals. Lack of subsequent offending no doubt suggested that there was a reduced risk to the community and less need for protection. But this lack of subsequent offending might also have been explained by the appellant's age and his having less opportunity to offend by virtue of his having given up the voluntary occupations which had given him the opportunities for sexually abusing boys, of which he had long availed himself.

30 In these circumstances, I would impose exactly the same individual sentences on each count as those fixed by the sentencing judge and make the same orders for cumulation of sentence, leaving the total effective sentence at 14 years and 2 months. I would, however, set aside the non-parole period fixed, and substitute a non-parole period of 10 years.