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Ortisi v The King

Ortisi v The King

Case [2025] VSCA 42 21 March 2025

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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…

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 Ortisi v The King

Details

AGLC: Ortisi v The King [2025] VSCA 42
Case: [2025] VSCA 42
Decision Date: 21 March 2025

CaseChat Overview and Summary

Ortisi appealed against his conviction and sentence for a series of sexual offences, including rape, committed on a single day. The jury acquitted Ortisi of all charges related to the first three incidents but found him guilty of two counts of rape and other offences related to the fourth incident. Ortisi's appeal against his conviction and sentence was heard in the High Court of Australia.

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