KENWORTHY -v- THE QUEEN [No 2] [2016] WASCA 207
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 207 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:22/2016 | 20 SEPTEMBER 2016 | |
| Coram: | BUSS P MAZZA JA MITCHELL JA | 30/11/16 | |
| 51 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Appeal against sentence allowed Appellant resentenced to a total effective sentence of 2 years 9 months' imprisonment, with release on recognisance after 22 months | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM GAVIN KENWORTHY THE QUEEN |
Catchwords: | Criminal law Application for leave to appeal against conviction Accessing and transmitting child pornography using a carriage service Whether verdict unreasonable Whether trial judge erred in failing to direct jury as to control Criminal law Application for leave to appeal against sentence Accessing and transmitting child pornography using a carriage service Total effective sentence of 3 years 9 months' imprisonment |
Legislation: | Criminal Code (Cth), s 474.19 |
Case References: | Bibovic v The State of Western Australia [2016] WASCA 22 Burrell v The Queen [2013] VSCA 146 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Chamberlain v The Queen [No 2] (1984) 153 CLR 514 Director of Public Prosecutions (Vic) v Guest [2014] VSCA 29 Director of Public Prosecutions v D'Allesandro [2010] VSCA 60; (2010) 26 VR 477 EAGD v The State of Western Australia [No 2] [2014] WASCA 68 Godfrey v The Queen [2013] WASCA 247 Heathcote (a pseudonym) v The Queen [2014] VSCA 37 Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562 Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 M v The Queen (1994) 181 CLR 487 Mansell v The State of Western Australia [No 6] [2013] WASCA 120 Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 Naysmith v The Queen [2013] WASCA 32 R v Baden-Clay [2016] HCA 35 R v De Leeuw [2015] NSWCCA 183 R v Hayes [2012] SASCFC 96 R v Hogan [2015] SASCFC 12 R v Lee [2013] WASCA 216 R v Martin [2014] NSWCCA 283; (2014) 246 A Crim R 477 R v O'Connor [2012] SASCFC 15 R v Oliver [2003] 2 Cr App R (S) R v Pham [2015] HCA 39; (2015) 90 ALJR 13 Rivo v The Queen [2012] VSCA 117 Shepherd v The Queen (1990) 170 CLR 573 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Smit v The State of Western Australia [2011] WASCA 124 Taylor v The Queen [2015] TASCCA 7 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KENWORTHY -v- THE QUEEN [No 2] [2016] WASCA 207 CORAM : BUSS P
- MAZZA JA
MITCHELL JA
- CACR 23 of 2016
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction :
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Details
- Case
- [2016] WASCA 207
- Decision Date
CaseChat Overview and Summary
The appellant, Kenworthy, applied for leave to appeal against his conviction and sentence for accessing and transmitting child pornography via a carriage service. The application was heard in the High Court of Australia. The primary legal issues were whether the verdict was unreasonable and whether the trial judge failed to direct the jury correctly regarding control. The appellant argued that the verdict was unreasonable, as the evidence did not establish that he had control over the materials accessed and transmitted. Additionally, the appellant contended that the trial judge should have directed the jury on the concept of control in relation to the offence.
The High Court found that the verdict was not unreasonable, as there was sufficient evidence to establish the appellant's guilt. The court held that the trial judge's directions to the jury adequately covered the concept of control, and no further direction was required. Consequently, the appeal against the conviction was dismissed. Regarding the sentence, the High Court determined that the total effective sentence of 3 years 9 months' imprisonment was excessive. The court found that the sentence should be reduced to reflect a more proportionate punishment for the offence committed. The appeal against the sentence was allowed, and the appellant was resentenced to a total effective sentence of 2 years 9 months' imprisonment, with release on recognisance after 22 months.
The High Court found that the verdict was not unreasonable, as there was sufficient evidence to establish the appellant's guilt. The court held that the trial judge's directions to the jury adequately covered the concept of control, and no further direction was required. Consequently, the appeal against the conviction was dismissed. Regarding the sentence, the High Court determined that the total effective sentence of 3 years 9 months' imprisonment was excessive. The court found that the sentence should be reduced to reflect a more proportionate punishment for the offence committed. The appeal against the sentence was allowed, and the appellant was resentenced to a total effective sentence of 2 years 9 months' imprisonment, with release on recognisance after 22 months.
Orders
Orders of the court
Appeal against conviction dismissed
Appeal against sentence allowed
Appellant resentenced to a total effective sentence of 2 years 9 months' imprisonment, with release on recognisance after 22 months
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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