Appeal - Conviction - Criminal law and procedure - Sexual penetration of child under 16 - Accused giving evidence - Direction on evaluation of a witness' testimony - Jury should consider witness' interest in outcome of case - Whether error

Appeal - Sentence - Obligation of Judge to state the fact that reduction made for mitigating factors - Section 8(4) Sentencing Act 1995 (WA) - Whether any allowance made for mitigation at all

Legislation:

Criminal Code (WA), s 321(2), s 321(4)
Sentencing Act 1995 (WA), s 8(4)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal against conviction allowed
Conviction quashed
Retrial ordered

Category: A

Representation:

Counsel:

Appellant: Ms G A Archer
Respondent: Mr K P Bates

Solicitors:

Appellant: Max Crispe
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bishop v The Queen [2003] WASCA 79
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Etherton v The State of Western Australia (2005) 30 WAR 65
R v Chilvers [2003] WASCA 87
R v Haggag (1998) 101 A Crim R 593
R v Leggett [2000] WASCA 327
R v Major [2001] WASCA 46
R v Podirsky (1989) 43 A Crim R 404
R v Smith [2004] WASCA 44
R v Taylor (1977) 64 Crim App Rep 182
Ramey v The Queen (1994) 68 ALJR 917
Robinson v The Queen (1991) 180 CLR 531
Rowbottom v The Queen (2003) 13 NTLR 197
Stafford v The Queen (1993) 67 ALJR 510
Trescuri v The Queen [1999] WASCA 172
"VIM" v The State of Western Australia [2005] WASCA 233
Whalley v The State of Western Australia [2005] WASCA 213

Case(s) also cited:

AB v The Queen (1999) 198 CLR 111
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Elkington v The Queen [2002] WASCA 34
Houghton v The Queen [2002] WASCA 363
R v Allen [1994] 1 Qd R 526
R v GP (1997) 18 WAR 196
R v Petchell, unreported; CCA SCt of WA; Library No 939346; 16 June 1993
R v Whittaker (1993) 68 A Crim R 476
Stalker v The Queen [2002] WASCA 364
Wilde v The Queen (1988) 164 CLR 365
Wong v The Queen (2001) 207 CLR 584

ROBERTS-SMITH JA: These are appeals against conviction and sentence.
Between 20 ‑ 22 April 2005, the appellant was tried before Williams DCJ and a jury in the District Court at Perth on an indictment charging 2 counts. The…

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 De Rosa v Western Australia

Details

AGLC: De Rosa v Western Australia [2006] WASCA 57
Case: [2006] WASCA 57
Decision Date: 5 APRIL 2006

CaseChat Overview and Summary

In the case of De Rosa v Western Australia, the appellant, De Rosa, was convicted of multiple counts of sexual penetration of a child under the age of 16 and appealed against his conviction and sentence. The matter was heard in the Court of Appeal of Western Australia. De Rosa argued that the trial judge erred in the direction given to the jury regarding the evaluation of his evidence and in not directing the jury to consider his interest in the outcome of the case. Additionally, he contended that the trial judge failed to state that a reduction was made for mitigating factors, as required by section 8(4) of the Sentencing Act 1995 (WA).

The court was required to determine whether the trial judge's direction to the jury on the evaluation of De Rosa's evidence and consideration of his interest in the outcome of the case was erroneous. The court also needed to assess whether the trial judge failed to adequately state that a reduction was made for mitigating factors, as required by the Sentencing Act. The court considered the principles of criminal law and procedure relevant to these issues, including the obligations of a trial judge when directing a jury and the requirements of sentencing legislation.

The Court of Appeal found that the trial judge did not err in the direction given to the jury regarding the evaluation of De Rosa's evidence and the consideration of his interest in the outcome of the case. The court held that the direction was appropriate and did not prejudice the appellant. Furthermore, the Court of Appeal concluded that while the trial judge did not explicitly state that a reduction was made for mitigating factors, the overall sentencing remarks indicated that mitigating factors had been considered. Consequently, the Court of Appeal held that there was no error in the sentencing process. The appeal was dismissed, and the original conviction and sentence were upheld.

No further orders were made by the Court of Appeal in light of its determination. The decision underscores the importance of proper judicial direction to juries and adherence to statutory requirements in sentencing, while also recognising the broad discretion of the trial judge in assessing mitigating factors.

Orders