Ash v the Queen - [2011] VSCA 112

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 129 of 2010

JOHN WILLIAM ASH
	v
THE QUEEN

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JUDGES	NEAVE, REDLICH, HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 April 2011
DATE OF JUDGMENT	15 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 112
JUDGMENT APPEALED FROM	R v Ash (Unreported, County Court, Judge Wood, Date of Verdict: 16 March 2010, Date of Sentence: 7 May 2010)

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CRIMINAL LAW – Conviction – Applicant found guilty of sexual penetration with a 16 or 17 year old child under his care, supervision or authority – Acquitted of other counts of sexual offending against same victim – Transposition of count numbers in charge – Jury not mistaken or confused – Verdict not unsafe and unsatisfactory – Ample evidence supporting conviction despite acquittals – Guilty verdict not inconsistent with acquittals – Open for jury to reject complainant’s account in part – MFA v The Queen (2002) 213 CLR 606; R v TK (2009) 74 NSWLR 299, applied – Application dismissed.

CRIMINAL LAW – Sentence – Whether manifestly excessive – Good character – Lack of prior convictions – Low-risk of re-offending – Position of authority – Vulnerable victim – Offending caused lasting harm – Application dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Brian Birrell
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

The applicant, John William Ash, was convicted of one count of sexual penetration with a 16 or 17 year old child under his care, supervision or authority[1] (count 6) by a majority verdict of a County Court jury. The jury unanimously acquitted him of two counts of indecent act with a 16 year old child under his care, supervision or authority (counts 1 and 5) and three other counts of sexual penetration with a 16 or 17 year old child under his care, supervision or authority (counts 2, 3 and 4). All of counts on the presentment involved alleged sexual acts against the same complainant, ACL. After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the applicant to 18 months’ imprisonment, 12 months of which was suspended for a period of two years.
[1]See Crimes Act 1958, s 48(1).

The applicant seeks leave to appeal against conviction and sentence.

Background

The Crown case was that all of the offences occurred when ACL, then aged between 16 and 17, was living with the applicant and his wife. She had moved into the applicant’s house after her mother had told her to leave home after they had an argument. ACL was a student at the school where the applicant, who was then aged between 44 and 45, was a teacher. He had taught the complainant various subjects in the four years before the offences occurred.

The defence case was that none of the offences had occurred and that the complainant’s accusations were the result of a ‘schoolgirl fantasy’.

The complainant’s evidence was that, after…

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 Ash v the Queen

Details

AGLC: Ash v the Queen [2011] VSCA 112
Case: [2011] VSCA 112
Decision Date: 15 June 2011

CaseChat Overview and Summary

In the case of Ash v The Queen, the applicant was found guilty of engaging in sexual penetration with a child under their care, supervision, or authority, who was aged between 16 and 17 years old. The applicant was acquitted of other charges of sexual offences against the same victim. The primary legal issue before the court was whether the jury's verdict was unreasonable or unsupported by the evidence, given the transposition of count numbers in the charge sheet. The court was also required to consider whether the sentence imposed was manifestly excessive.

The court determined that the jury's verdict was not mistaken or confused, and that there was ample evidence to support the conviction despite the acquittals on other charges. The court held that it was open to the jury to reject part of the complainant's account, and that the guilty verdict was not inconsistent with the acquittals. The court applied the principles established in MFA v The Queen and R v TK, and dismissed the application. Regarding the sentence, the court found that it was not manifestly excessive, taking into account the applicant's good character, lack of prior convictions, low risk of re-offending, position of authority, and the vulnerability of the victim. The court also noted that the offending caused lasting harm, and dismissed the application.

The final orders of the court were to dismiss the application regarding both the conviction and the sentence. The applicant's appeal against the conviction and sentence was therefore unsuccessful.

Orders