R v Wortley - [2021] NSWDC 785

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Wortley [2021] NSWDC 785
Hearing dates: 15 December 2021
Date of orders: 17 December 2021
Decision date: 17 December 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 3 years 2 months with a non-parole period of 1 year 7 months.

Catchwords:
CRIME - Sexual intercourse without consent - Intentionally record intimate image w/o consent (DV)
SENTENCING - Relevant factors on sentence – late guilty plea- some early admission- no-consensual sexual intercourse during a relationship – sleeping victim - no” means “no” - offender expresses regret and remorse but has difficulty accepting the wrongness of his actions- strong subjective case – purposes of sentencing - rehabilitation and retribution considered - need for custodial sentence

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Burton v R [2020] NSWCCA 54
Blackman & Walters v R [2001] NSWCCA 121
Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41
Doe v R ([2013] NSWCCA 248; (2013) 187 A Crim R 328
DPP (Vic) v DJK [2003] VSCA 109
MRM v R [2015] NSWCCA 195
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v AJP [2004] NSWCCA 434
R v Francis [2021] NSWDC 870
R v Herring (1956) 73 WN (NSW) 203
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14.

Texts Cited:
Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR.
Category: Sentence
Parties: Matthew James Wortley (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr E Özen SC (for the offender)
Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)
Solicitors:
Ly Lawyers (for the offender)

File Number(s): 2020/00197678
Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; s.15A Children (Criminal Proceedings) Act 1987

sentence

Matthew Wortley was committed for trial on a number on a number of counts relating to his former partner; the complainant in this matter. Her name is not to be published. It is up to her whether she wishes that name to be published and I have no information that she does.
The trial was listed for September 2021 but could not proceed because of the pandemic. As list judge I was then informed that the parties were “in discussion” and that it was unlikely that a new date would need to be fixed for trial.

Plea

On 23 November 2021 an indictment containing six counts was put before the court. Wortley pleaded guilty to four of those counts. Each involved an offence pursuant to s 61I of the Crimes Act 1900. Two other matters were placed on Crimes (Sentencing Procedure)…

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 R v Wortley

Details

AGLC: R v Wortley [2021] NSWDC 785
Case: [2021] NSWDC 785
Decision Date: 17 December 2021

CaseChat Overview and Summary

The matter of R v Wortley was heard in the Supreme Court of Victoria, where the defendant was charged with sexual intercourse without consent, and intentionally recording an intimate image without consent. The dispute arose from a relationship between the defendant and the victim, during which the defendant engaged in non-consensual sexual acts and recorded an intimate image of the victim without her consent. The defendant expressed regret and remorse, but had difficulty accepting the wrongness of his actions.

The primary legal issue before the court was to determine the appropriate sentence for the defendant, considering the various relevant factors. The court was required to consider the late guilty plea, the defendant's early admission of some facts, the nature of the offences, and the purposes of sentencing, including rehabilitation and retribution. The court also considered the strong subjective case against the defendant and the need for a custodial sentence.

The court found that the offences were of a serious nature, and the defendant's actions were a blatant disregard for the victim's autonomy and dignity. Although the defendant expressed regret and remorse, the court found that he had difficulty accepting the wrongness of his actions. The court held that a custodial sentence was necessary to adequately reflect the seriousness of the offences, to provide retribution, and to promote rehabilitation. The court ultimately sentenced the defendant to an aggregate sentence of three years and two months, with a non-parole period of one year and seven months.

Orders

Orders of the court

Aggregate sentence of 3 years 2 months with a non-parole period of 1 year 7 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Wortley [2021] NSWDC 785
Hearing dates:	15 December 2021
Date of orders:	17 December 2021
Decision date:	17 December 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 3 years 2 months with a non-parole period of 1 year 7 months.
Catchwords:	CRIME - Sexual intercourse without consent - Intentionally record intimate image w/o consent (DV) SENTENCING - Relevant factors on sentence – late guilty plea- some early admission- no-consensual sexual intercourse during a relationship – sleeping victim - no” means “no” - offender expresses regret and remorse but has difficulty accepting the wrongness of his actions- strong subjective case – purposes of sentencing - rehabilitation and retribution considered - need for custodial sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Burton v R [2020] NSWCCA 54 Blackman & Walters v R [2001] NSWCCA 121 Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41 Doe v R ([2013] NSWCCA 248; (2013) 187 A Crim R 328 DPP (Vic) v DJK [2003] VSCA 109 MRM v R [2015] NSWCCA 195 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v AJP [2004] NSWCCA 434 R v Francis [2021] NSWDC 870 R v Herring (1956) 73 WN (NSW) 203 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14.
Texts Cited:	Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR.
Category:	Sentence
Parties:	Matthew James Wortley (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr E Özen SC (for the offender) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions) Solicitors: Ly Lawyers (for the offender)
File Number(s):	2020/00197678
Publication restriction:	The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; s.15A Children (Criminal Proceedings) Act 1987