Kenworthy v The Queen [No 2]

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KENWORTHY -v- THE QUEEN [No 2] [2016] WASCA 207



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASCA 207
THE COURT OF APPEAL (WA)
Case No:CACR:22/201620 SEPTEMBER 2016
Coram:BUSS P
MAZZA JA
MITCHELL JA
30/11/16
51Judgment 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
HEARD : 20 SEPTEMBER 2016 DELIVERED : 30 NOVEMBER 2016 FILE NO/S : CACR 22 of 2016
    CACR 23 of 2016
BETWEEN : GRAHAM GAVIN KENWORTHY
    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.

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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