Kenworthy v The Queen
[2016] WASCA 49
•17 MARCH 2016
KENWORTHY -v- THE QUEEN [2016] WASCA 49
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 49 | |
| THE COURT OF APPEAL (WA) | 17/03/2016 | ||
| Case No: | CACR:22/2016 | 2 MARCH 2016 | |
| Coram: | MAZZA JA | 2/03/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM GAVIN KENWORTHY THE QUEEN |
Catchwords: | Criminal law Using a carriage service for child pornography material Total effective sentence 3 years 9 months' imprisonment Appeals against conviction and sentence Application for bail pending appeals; alternatively, an urgent appeal order Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1 pt C Criminal Code (Cth), s 474.19 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KENWORTHY -v- THE QUEEN [2016] WASCA 49 CORAM : MAZZA JA HEARD : 2 MARCH 2016 DELIVERED : 2 MARCH 2016 PUBLISHED : 17 MARCH 2016 FILE NO/S : CACR 22 of 2016
- CACR 23 of 2016
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KEEN DCJ
File No : IND 1791 of 2014
Catchwords:
Criminal law - Using a carriage service for child pornography material - Total effective sentence 3 years 9 months' imprisonment - Appeals against conviction and sentence - Application for bail pending appeals; alternatively, an urgent appeal order - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C
Criminal Code (Cth), s 474.19
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms E J Martin
Solicitors:
Appellant : Hammond Legal
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Nil
- MAZZA JA:
(This judgment was delivered extemporaneously on 2 March 2016 and has been edited from the transcript.)
1 This is the appellant's application for bail pending his appeals against conviction and sentence pursuant to cl 4A of pt C of Sch 1 to the Bail Act 1982 (WA). Alternatively, the appellant seeks an urgent appeal order. For the appellant to succeed in the bail application, he must demonstrate that there are exceptional reasons why he should not be kept in custody, and that it is otherwise proper to grant him bail, having regard to cl 1 and cl 3 of pt C of sch 1.
2 The decisive issue here is whether the appellant has demonstrated 'exceptional reasons'. If he has, there would be no other reason to keep him in custody.
3 The relevant legal principles are well known and are not in dispute. The word 'exceptional' has its ordinary meaning. Whether 'exceptional reasons' exist depend upon a consideration of all of the relevant circumstances in the individual case. However, the inquiry will generally be focused on the merits of the appeal (or appeals) in question. Another factor sometimes of relevance is whether the appellant will serve, or substantially serve, the sentence imposed upon him or her by the time the proceedings are completed. So far as the merits are concerned, the appellant must show that the grounds of appeal are strongly arguable.
Background to the application
4 The appellant was charged on indictment in the District Court with two counts of accessing child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth), and five counts of transmitting child pornography material, contrary to s 474.19(1)(a)(iii) of the Criminal Code.
5 On 25 September 2015, he was found guilty by a jury as charged, and was duly convicted of the offences. On 5 February 2016, he was sentenced to a total effective sentence of 3 years 9 months' imprisonment, with a non-parole period of 2 years 6 months' imprisonment, backdated to commence on 3 February 2016.
6 It is unnecessary to canvass the evidence at any length. It was common ground at trial that someone in Western Australia, using the email addresses '[email protected]' and '[email protected]', transmitted or received online child pornography. The only issue in dispute at trial was the identity of the offender.
7 The Crown case was entirely circumstantial, but it included that:
(a) The subscriber details for the two email addresses had certain connections with the appellant.
(b) A search of the appellant's premises by the Australian Federal Police had located a piece of paper in the appellant's diary with the appellant's fingerprint on it. That piece of paper contained the email username, subscriber name, date of birth, telephone number, driver's licence number and the address used to register the 'janlove11' account.
(c) An email had been transmitted from the 'janlove11' account to the 'pissbek' account.
(d) The offender had connected to the internet via a prepaid WiFi dongle with the internet provider Dodo, and had purchased from Dick Smith in Bunbury. The dongle had been recharged three out of four times in the Bunbury area. The appellant lived and worked in that area.
(e) Although the particular dongle used in the commission of the offences was not located by investigators, two other Dodo dongles were found at the appellant's place of work.
8 The appellant elected, as was his right, not to testify; but his defence was that, while someone had engaged in the acts the subject of each charge, he was not the offender.
9 As his counsel submitted at the hearing of this application, the appellant's case was, in part, that he was the co-owner and manager of a tavern in the Australind area; and that a computer seized by police, and which had offending material on it, could have been accessed by others who patronised that tavern.
10 The learned trial judge accurately summarised the defence case in his Honour's summing up (ts 441 - 443). I will not repeat that summary, but I am cognisant of the matters raised in the appellant's defence at trial.
Appeals to this court
11 The appellant has filed appellant's cases in relation to both appeals.
12 The appeal against conviction relies upon two grounds. Ground 1 is that the verdicts are unreasonable or cannot be supported on the evidence. Ground 2 is that there was a miscarriage of justice by reason of an alleged failure by the learned trial judge to direct the jury that it needed to be satisfied beyond reasonable doubt that the appellant had control over the child pornography the subject of each count.
13 The appeal against sentence alleges three grounds. Ground 1 is that the wrong type of sentence was imposed, in that his Honour should have made a conditional release order. Ground 2 is, in substance, that the total effective sentence infringed the first limb of the totality principle. Ground 3 is that the individual sentences imposed on counts 5 and 7 were manifestly excessive.
14 In each appeal, the appellant asserts that the grounds of appeal are strongly arguable, and that by the time the appeals are heard and determined, the appellant will have served a 'significant part' of his non-parole term (appeal ts 8).
Disposition of the application
15 I have read and considered all of the materials put before me by the parties. On the basis of that material, I have not been persuaded that, in either appeal, the grounds are sufficiently strong so as to amount to exceptional reasons for a grant of bail.
16 Further, I am unpersuaded that the appellant will have served a significant part of the custodial portion of his term of imprisonment before the appeal is heard and determined. Accordingly, I would dismiss the application for bail pending appeal.
17 That leaves the application for an expedited appeal. I would not make the order sought by the appellant. The sentence is not so short, and the merits of the appeal are not so strong, so as to justify such an order. Therefore, the application for an expedited hearing is dismissed.
18 The orders that I make are:
1. The application for bail pending appeal is dismissed.
2. The application for an expedited hearing is dismissed.
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