Criminal law and procedure - Sentencing - Two counts of aggravated sexual penetration without consent and one count of murder - Victim aged 87 - Minimum period for murder set at 13 years - Sentences of 8 years' imprisonment cumulative, without eligibility for parole, imposed for aggravated sexual assaults - Sentences not set aside as excessive

Legislation:

Nil

Result:

Application for leave to appeal against sentence dismissed

Representation:

Counsel:

Applicant: Mr S V Smith
Respondent: Mr R E Cock QC & Ms A C Longden

Solicitors:

Applicant: Stephen Smith
Respondent: State Director of Public Prosecutions

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

Pearce v The Queen [1998] HCA 57
Jarvis v R (1993) 20 WAR 201
Pearce v R (1998) 194 CLR 610
R v O'Rourke [1997] 1 VR 246
Ruane v R (1979) 1 A Crim R 284
Veen v The Queen (No 2) (1998) 164 CLR 465

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Garrett v The Queen [1999] WASCA 169
House v The King (1936) 55 CLR 499
Jackson v The Queen [1990] WAR 105
Kenneally v The Queen, unreported; CCA SCt of WA; Library No 980284; 27 May 1998
Kilner v The Queen [1999] WASCA 189
Krencej v The Queen [1999] WASCA 20
Miller v The Queen [1999] WASCA 66
Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996
R v Anderson (1997) 92 A Crim R 348
R v Jackway; ex parte Attorney General [1997] 2 Qd R 277
R v Mitchell (1994) 72 A Crim R 200
R v Richards [1999] WASCA 105
R v Ruane (1979) 1 A Crim R 284
R v Ward [1999] WASCA 157
R v Weng (1989) 38 A Crim R 337
Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Veen v The Queen (1979) 143 CLR 458

KENNEDY J: The applicant was presented in the Supreme Court on an indictment containing two counts of having, on or about 28 February 1996, at Dianella, sexually penetrated Ruby May Davenport, a person over the age of 60 years, without her consent, and one count of having, on or about the same day, at Dianella, wilfully murdered Ruby May Davenport. After a seven day trial, the applicant was convicted on the two counts of aggravated sexual penetration without consent. The jury returned a verdict of not guilty of wilful murder, but guilty of murder.
The learned…

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 Oldham v The Queen

Details

AGLC: Oldham v The Queen [1999] WASCA 304
Case: [1999] WASCA 304
Decision Date: 21 DECEMBER 1999

CaseChat Overview and Summary

The appellant was convicted on two counts of aggravated sexual penetration without consent and one count of murder. The victim, an 87-year-old woman, was subjected to severe physical and sexual abuse over a period of time. The court was required to determine the appropriate sentences for these offences. The legal issues involved the severity of the crimes, the vulnerability of the victim, and the appropriate length of the sentences. The court had to consider whether the sentences imposed were excessive or appropriate in light of the crimes committed.

The court examined the nature and circumstances of the offences, the vulnerability of the victim, and the principles of sentencing. It noted the heinous nature of the crimes, the significant trauma inflicted on the victim, and the need for deterrence and denunciation. The court also considered the minimum period for murder set at 13 years and the cumulative sentences imposed for the aggravated sexual assaults. The court found that the sentences were not excessive, taking into account the severity of the offences and the need to protect the community.

The court upheld the sentences imposed by the trial judge, finding that they were appropriate and not excessive. The court rejected the appellant's argument that the sentences were disproportionate and should be set aside. The court emphasised the importance of ensuring that the sentences reflected the gravity of the offences and the need to uphold the rule of law. The court concluded that the sentences imposed were commensurate with the crimes committed and served the purposes of punishment, deterrence, and denunciation.

Orders