R v Welsh - [2005] VSCA 285

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 367 of 2004
	v.
ANTONY ROSS WELSH

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JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2005
DATE OF JUDGMENT:	7 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 285

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Criminal Law – Sentence – Burglary – Common assault – False imprisonment – Indecent assault – Rape (6 counts) – Manifest excess – Principles of proportionality and totality – Plea of guilty – Whether sentencing judge placed undue emphasis on representative nature of counts – Whether sentence crushing – Appellant former boarder in victim’s home who was asked to leave – Appellant familiar with victim’s home and daily activities – Premeditation – Motives of sexual satisfaction, degradation and humiliation – No remorse – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston, S.C.	Mr S. Carisbrooke Acting Solicitor for Public Prosecutions
For the Applicant	Mr D.J. Ross, Q.C.	Victoria Legal Aid

CHARLES, J.A.:

I agree with Vincent, J.A. that this appeal must be dismissed, for the reasons given by his Honour.

BUCHANAN, J.A.:

In my opinion the appeal should be dismissed for the reasons stated by Vincent, J.A.

VINCENT, J.A.:

In early 2003, [V], a 38 year old female advertised that she had two rooms available for rent in her home, where she lived with her four year old son. She interviewed and accepted two persons, one of whom was the appellant, as tenants of these rooms. Both took up occupancy shortly afterwards.

On Sunday 11 April 2004, V requested the appellant to move out of the house.[1] Her stated reason for termination of the arrangement was that during the previous three weeks, his behaviour towards her had become increasingly verbally aggressive. He, in turn, later asserted that tension had developed between them by reason of V’s failure to repay money that she had borrowed from him. Whatever may have been the precise circumstances, he ceased occupancy of his room on 23 April 2004.
[1]The other tenant had left in January 2004. He later told investigating police that the appellant had said, on a number of occasions, that he would like to have sex with V.

Being required to quit the house produced an extraordinary degree of anger in the appellant and he commenced to harbour ideas of exacting vengeance upon her. He was working for a bricklayer at Mackinnon at the time, and talked about this possibility with a fellow employee, Lachlan James Tihema, in a series of conversations that, according to Tihema, commenced about two weeks prior to 7 May 2004; that is, almost immediately after leaving the house. The two men reached agreement that the appellant would rape V and that Tihema would capture the events on videotape. The appellant then borrowed a video recorder from his employer for this purpose, stating that he wanted to send a recording of himself to his family in New Zealand.

V, who had no inkling of any of this and who…

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.

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Details

AGLC: R v Welsh [2005] VSCA 285
Case: [2005] VSCA 285
Decision Date: 7 December 2005

CaseChat Overview and Summary

The appellant was convicted of six counts of rape, common assault, false imprisonment and indecent assault against a woman. The appeals were heard in the High Court of Australia. The key issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge had placed undue emphasis on the representative nature of the offences. The appellant also argued that the sentence was crushing.

The court held that the sentence was not manifestly excessive, and the sentencing judge had not placed undue emphasis on the representative nature of the offences. The court found that the offences were of a serious and heinous nature, and the appellant had shown no remorse. The court also found that the sentence was proportionate to the gravity of the offences and did not breach the principles of totality. The court dismissed the appeals and affirmed the sentence imposed by the trial judge.

The appellant's conviction and sentence were affirmed by the High Court. The court found that the sentence imposed was proportionate to the gravity of the offences, and the sentencing judge had not placed undue emphasis on the representative nature of the offences. The court held that the principles of proportionality and totality were not breached, and the sentence was not crushing. The appeals were dismissed, and the appellant's conviction and sentence were upheld.

Orders