| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCR 2023 0164 | |
| MARK ANTHONY ORTISI | Applicant |
| v | |
| THE KING | Respondent |
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JUDGES: | PRIEST, WALKER and T FORREST JJA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2025 |
DATE OF JUDGMENT: | 21 March 2025 |
MEDIUM NEUTRAL CITATION: | [2025] VSCA 42 |
JUDGMENT APPEALED FROM: | DPP v Ortisi (County Court of Victoria, Judge Leighfield, 23 August 2023) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Applicant charged on indictment with one charge of sexual assault, four charges of rape, one charge of sexual assault by compelling sexual touching and one charge of assault with intent to commit a sexual offence – Alleged offending related to four episodes on single day – Jury acquitted the applicant of all charges relating to first three episodes – Jury found the applicant guilty of two charges of rape and other offences related to fourth episode – Whether verdicts are inconsistent – Whether verdicts of guilty are unreasonable or cannot be supported by the evidence – Verdicts not unreasonable or incapable of being supported by the evidence – Leave to appeal refused.
Criminal Procedure Act 2009, s 276(1)(a); MacKenzie v The Queen (1996) 190 CLR 348; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; MFA v The Queen (2002) 213 CLR 606.
CRIMINAL LAW – Appeal – Sentence – Rape and associated offences – Total effective sentence of nine years and nine months’ imprisonment with a non-parole period of six years and three months – Whether sentence manifestly excessive – Appeal allowed – Resentenced to six years and six months’ imprisonment with non-parole period of four years.
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| Counsel | |||
| Applicant: | Mr D Dann KC with Mr PJ Smallwood | ||
| Respondent: | Mr D Glynn | ||
| Solicitors | |||
| Applicant: | Emma Turnbull & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
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PRIEST JA
WALKER JA
T FORREST JA:
Introduction
An indictment filed against the applicant in the County Court contained one charge of sexual assault[1] (charge 1); four charges of rape[2] (charges 2, 3, 4 and 5); one charge of sexual assault by compelling sexual touching[3] (charge 6); and one charge of assault with intent to commit a sexual offence[4] (charge 7). ‘MI’, a 21 year old female, was the complainant with respect to each charge.
[1]Crimes Act 1958, s 40. The maximum sentence is 10 years’ imprisonment.
[2]Crimes Act 1958, s 38(1). By virtue of s 38(2), the maximum sentence is 25 years’ imprisonment; and by virtue of s 38(3), the standard sentence is 10 years.
[3]Crimes Act 1958, s 41. The maximum sentence is 10 years’ imprisonment.
[4]Crimes Act 1958, s 42(1). The maximum sentence is 15 years’ imprisonment.
Following a trial conducted in July 2023, the jury empanelled to try the applicant found him guilty of two charges of rape (charges 4 and 5); one charge of sexual assault by compelling sexual touching (charge 6); and one…
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- AGLC
- Ortisi v The King [2025] VSCA 42
- Case
- [2025] VSCA 42
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether the jury's verdicts were inconsistent, unreasonable, or unsupported by the evidence, and whether the sentence imposed was manifestly excessive. The court examined whether the jury's decision to acquit Ortisi of the first three incidents while finding him guilty of offences related to the fourth incident was logical and supported by the evidence. Additionally, the court considered whether the total effective sentence of nine years and nine months' imprisonment, with a non-parole period of six years and three months, was excessive.
The court found that the jury's verdicts were neither inconsistent nor unreasonable. The court accepted that the evidence supported the jury's findings of guilt in relation to the fourth incident and not in relation to the first three. Regarding the sentence, the court held that while the sentence was severe, it was not manifestly excessive. However, the court did determine that the sentence was excessive in relation to the totality of the offending and the circumstances of the offender. The appeal against conviction was dismissed, but the appeal against sentence was allowed. Ortisi was resentenced to six years and six months' imprisonment, with a non-parole period of four years.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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