Citation: R v Obbens [2022] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 27 May 2022
Judge(s): Basten AJA; Hamill and Dhanji JJ
Background
The respondent, a former dormitory master at a Catholic school, was sentenced in February 2022 for an indecent assault committed in 1989 against a 12 or 13-year-old student in his care. A factually more serious related offence was taken into account on a Form 1. The offences involved a gross breach of trust: the respondent exploited a child who came to him with a medical complaint, and then sought the child out a second time that night.
Critically, the respondent had already served a separate three-year aggregate sentence imposed in 2016 for three similar offences committed against different child victims between 1987 and 1989. He was released in March 2018 and had not reoffended since at least 1990.
The sentencing judge, Judge Williams SC of the District Court, imposed an 18-month community corrections order rather than a further term of imprisonment, largely because of the punishment already served, the respondent's demonstrated rehabilitation, his age (76), significant health issues, and the difficulties he had experienced in custody. The Director of Public Prosecutions appealed, arguing the sentence was manifestly inadequate and that the totality principle had been misapplied.
Legal Issues
- Whether the sentencing judge correctly applied the totality principle when the current offences were committed at around the same time as the 2016 offences but were dealt with years later.
- Whether the sentence of a community corrections order was manifestly inadequate in circumstances where a full-time custodial sentence would ordinarily have been expected.
- Whether the sentencing judge was correct to conclude that imprisonment was not the only appropriate penalty, having considered all alternatives as required by s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Decision
The Court of Criminal Appeal dismissed both grounds of appeal. The central question, the Court held, was not simply how to apply the totality principle but whether the sentencing judge was correct to conclude that imprisonment was not the only appropriate penalty. The Court found that conclusion was not merely open to the sentencing judge but was "obviously correct."
On totality, the Court confirmed that the proper approach does not require a sentencing court to "reverse engineer" the earlier sentence. Rather, the court must assess the overall criminality and the overall punishment, ensuring the offender does not suffer a more severe total penalty merely because related offences in the same timeframe happened to be dealt with at different times. Noting that, had the current offences been dealt with in 2016, a community corrections order would not then have been an available sentencing option, Basten AJA observed that some additional punishment was appropriate but that it did not have to take the form of imprisonment.
The respondent's subjective case was substantial. Psychological evidence confirmed genuine remorse, continued insight, and an absence of the cognitive distortions common to child sex offenders. His isolation and difficulties obtaining medication in custody, combined with his age, multiple health conditions, and extensive period of non-offending, all supported a non-custodial outcome. The Court found that the community corrections order reflected the kind of flexibility of approach endorsed by the High Court in Mill v The Queen and Johnson v The Queen.
No error on the part of the sentencing judge affecting the outcome was established. The overall effect of the punishment, taking the 2016 sentence and the current order together, was not manifestly inadequate.
Orders Made
- The Director of Public Prosecutions' appeal against the inadequacy of sentence was dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that when related offences are sentenced at different times, the correct approach to totality requires assessing overall criminality and overall punishment across both proceedings, rather than mechanically reverse-engineering the earlier sentence.
- A community corrections order can be the appropriate sentencing disposition even for serious child sexual offences, where the offender has already served a significant custodial sentence for comparable offending committed in the same period and strong rehabilitation evidence is present.
- Under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must consider all possible alternatives before concluding that imprisonment is the only appropriate penalty; the Court confirmed that this threshold was correctly applied here.
- The principle that an offender should not suffer greater total punishment simply because related offences were dealt with in separate proceedings, rather than together, remains a significant constraint on re-sentencing in delayed prosecution cases.
- Significant subjective factors, including advanced age, serious health conditions, documented difficulties in custody, genuine remorse, and an extended period of non-offending, can displace what would otherwise be the ordinary sentencing outcome for offences of this nature.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 8, 25AA(3), 33, 87, 88
Cases
- R v Obbens [2022] NSWDC 47 (sentencing judgment under appeal)
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Boulton v R (2014) 46 VR 308; [2014] VSCA 342
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Todd [1982] 2 NSWLR 517
- 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 MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- Franklin v R [2013] NSWCCA 122
- McIntosh v R [2015] NSWCCA 184
- R v Jarrold [2010] NSWCCA 69
- R v Wilson [2005] NSWCCA 219
- Woodward v R [2017] NSWCCA 44