R v O N a

(2009) 24 VR 197; [2009] VSCA 146

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Sentence
4. › Commonwealth sexual offences committed outside Australia
5. › Child sex tourism provisions
6. › Whether sentencing judge erred in failing to give weight to delay
7. › Whether sentencing judge failed to take account of purpose of provisions
8. › Whether sentence manifestly excessive
9. › Crimes Act 1914 (Cth), ss 50BA(1), 50BC(1)(a)
1. Criminal Law
2. › Sentencing
3. › Delay
4. › Whether delay attributable to accused's conduct reduces mitigatory weight
5. › Whether sentencing judge required to treat delay as discrete mitigating factor where not pressed by defence counsel
1. Criminal Law
2. › Sentencing
3. › Extra-curial punishment
4. › Sex offender registration and reporting requirements
5. › Whether registration relevant to sentencing
6. › Whether reporting obligations operate with unusual severity
7. › Sex Offenders Registration Act 2004 (Vic), s 34
8. › Sentencing Act 1991 (Vic), s 5(2BC)
1. Constitutional Law (Cth)
2. › Inconsistency
3. › Section 109 of the Constitution
4. › Operational inconsistency
5. › Whether State sentencing provision prohibiting regard to sex offender registration inconsistent with Commonwealth sentencing provision
6. › Whether inconsistency only operational
7. › Sentencing Act 1991 (Vic), s 5(2BC)
8. › Crimes Act 1914 (Cth), s 16A(2)
9. › Constitution, s 109

Quick Take

Section 5(2BC) of the Sentencing Act 1991 (Vic), which prohibits courts from considering sex offender registration consequences when sentencing, is picked up by s 79(1) of the Judiciary Act 1903 (Cth) and applies to Commonwealth offenders. Any inconsistency with s 16A of the Crimes Act 1914 (Cth) is operational only, arising only where a sentencing judge considers registration relevant to a specific discretionary factor in s 16A(2). Even absent the statutory prohibition, sex offender registration and reporting obligations are generally irrelevant to sentencing and constitute extra-curial punishment only in exceptional circumstances where they operate with unusual severity on a particular offender.