Ryan Willshire (a Pseudonym)[1] v The Queen - [2019] VSCA 142

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0183

RYAN WILLSHIRE (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of the identification of the alleged victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 June 2019
DATE OF JUDGMENT:	20 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 142
JUDGMENT APPEALED FROM:	DPP v Willshire (a pseudonym), 10 July 2018 (conviction); [2018] VCC 1108 (sentence) (Judge Smallwood)

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CRIMINAL LAW – Appeal – Conviction – Attempted sexual penetration of a child under 16 – Whether evidence sufficient to establish an attempt – Whether verdict of guilty unsafe and unsatisfactory – Leave to appeal refused – Crimes Act 1958, s 321N.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Hands	Stephen Peterson Lawyers
For the Respondent	Ms M Mahady	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

After a three day trial, on 10 July 2018 a jury empanelled in the County Court found the applicant guilty of committing an indecent act in the presence of a child under 16[2] (two charges — charges 1 and 2); and attempted sexual penetration of a child under 16[3] (one charge — charge 3).[4]
[2]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[3]Contrary to ss 45 and 321M of the Crimes Act 1958.
[4]On 20 July 2018, the judge sentenced the applicant to six months’ imprisonment on each of charges 1 and 2, and to two years’ imprisonment on charge 3 (being an effective two years’ imprisonment for that suite of offences). The judge ordered that 15 months of that sentence be served cumulatively upon a total effective sentence of five years and three months’ imprisonment imposed upon the applicant the same day following his pleas of guilty to sexual penetration of another child under 16 and indecent assault. Thus, the total effective sentence imposed for all offences was six years and six months’ imprisonment, upon which the judge fixed a non-parole period of four years.

Each charge related to alleged offending against his nephew, ‘RLJ’, in a two year period between 16 July 2007 and 15 July 2009. At the relevant time, RLJ, who was born in 1994, was aged 13 or 14 years; and the applicant, born in 1977, was aged about 30. RLJ’s mother is the applicant’s sister.

The prosecution alleged that the offending occurred at the applicant’s home, located in a Latrobe Valley city. RLJ’s mother had dropped him at the applicant’s home. It was alleged that RLJ and the applicant were watching television in the applicant’s bedroom when the applicant put on a pornographic movie. The applicant then asked to see RLJ’s penis, and masturbated his own (charge 1). RLJ pulled down his pants. The applicant played with RLJ’s penis…

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

Case: [2019] VSCA 142
Decision Date: 20 June 2019

CaseChat Overview and Summary

Ryan Willshire, using a pseudonym, contested his conviction against the Crown in the High Court of Australia. Willshire was convicted of attempting to sexually penetrate a child under the age of 16. The appeal focused on whether the evidence was sufficient to establish the offence of attempted sexual penetration and whether the verdict of guilty was unsafe and unsatisfactory. The appeal hinged on the interpretation of the statutory provision in the Crimes Act 1958, specifically section 321N.

The court considered the essential elements required to prove an attempt under the statute, which include an act done with the intention of committing an offence, which goes beyond mere preparation. The court examined whether the prosecution had presented sufficient evidence to prove that Willshire had gone beyond mere preparation and had taken a significant step towards committing the offence. The appeal also scrutinized whether the jury was adequately directed on the legal standards for determining an attempt and whether the evidence supported the conclusion that the offence was attempted.

In its reasoning, the court found that the evidence presented was sufficient to establish that Willshire had taken a significant step towards the commission of the offence, and thus, the verdict of guilty was safe and satisfactory. The court concluded that the jury was correctly directed on the legal standards for an attempt, and the evidence supported the conclusion that the offence was indeed attempted. Consequently, the court dismissed the appeal and refused leave to appeal.

No additional orders were made by the court beyond the dismissal of the appeal and the refusal of leave to appeal.

Orders