WAGENAAR -v- THE QUEEN [2000] WASCA 325
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 325 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:45/2000 | 10 OCTOBER 2000 | |
| Coram: | KENNEDY J PIDGEON J IPP J | 3/11/00 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Leave to appeal against sentences granted Appeal allowed Effective sentence of 11 years' imprisonment reduced to 9 years | ||
| PDF Version |
| Parties: | WILLIAM WAGENAAR THE QUEEN |
Catchwords: | Criminal law and procedure Rape Unlawful and indecent assault Sufficiency of direction as to consent Sufficiency of direction as to delay in making complaint Sufficiency of Longman warning Uncharged acts given in evidence by accused Whether direction called for Criminal law and procedure Sentencing Two counts of rape Two counts of indecent assault Sentence of 8 years on rape counts, sentences of 2 and 3 years respectively on indecent assault counts Sentence of 3 years' imprisonment ordered to be served cumulatively upon first sentence of 8 years' imprisonment, with remainder of sentences to be served concurrently Lapse of 27 years since offences Rehabilitation of accused since last offence Whether evidence of remorse Sentences on rape counts each reduced to 6 years |
Legislation: | Criminal Code, s 325, s 328 |
Case References: | Bell (1981) 5 A Crim R 347 Crofts v The Queen (1996) 186 CLR 427 Dick v The Queen, unreported; CCA SCt of WA; Library No 940633; 10 November 1994 Duncan v The Queen (1983) 47 ALR 746 Holman v The Queen (1970) WAR 2 James v The Queen [2000] WASCA 100 Kailis v The Queen (1999) 21 WAR 100 Longman v The Queen (1989) 168 CLR 79 R v G P (1997) 18 WAR 196 R v Law; Attorney General (1995) QCA 444 R v Murray (1987) 11 NSWLR 12 R v Tiso (1990) 12 Cr App R (S) 122 Sell v The Queen (1995) 15 WAR 240 Sheasvy v The Queen [2000] WASCA 190 The Queen v Ware, unreported; CCA SCt of NSW; 9 July 1997 The Queen v Werner, unreported; CCA SCt of Qld; 9 October 1998 A Child v Andrews (1994) 12 WAR 552 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Cook v The Queen (2000) 22 WAR 67 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 HG v The Queen (1999) 197 CLR 414 House v The King (1936) 55 CLR 499 Huynh v The Queen [1999] WASCA 45 Jarvis v The Queen (1993) 20 WAR 201 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 Mill v The Queen (1988) 166 CLR 59 Nobes v The Queen, unreported; CCA SCt of WA; Library No 990007; 15 January 1999 Pearce v The Queen (1998) 194 CLR 610 R v Albu (1995) 84 A Crim R 11 R v Coward (1985) 16 A Crim R 257 R v Duncan (1991) 56 A Crim R 460 R v… |
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- Wagenaar v The Queen [2000] WASCA 325
- Case
- [2000] WASCA 325
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CaseChat Overview and Summary
The appellant, Wagenaar, was convicted of two counts of rape and two counts of indecent assault, and sentenced to a total of 11 years' imprisonment. The case reached the court as Wagenaar appealed against both his conviction and his sentences. The primary legal issues revolved around the sufficiency of the trial judge's directions to the jury concerning consent, the delay in making the complaint, and the Longman warning. Additionally, the court considered whether the evidence of uncharged acts warranted a direction to the jury, and the appropriateness of the sentences imposed.
The court found that the trial judge's direction on consent was adequate, as it allowed the jury to consider the lack of consent in the context of the complainant's state of mind and the circumstances surrounding the assaults. The court also determined that the direction regarding the delay in making the complaint did not prejudice the appellant, as it correctly informed the jury that such delay does not diminish the gravity of the offence. Regarding the Longman warning, the court held that the trial judge's direction was sufficient to safeguard the appellant's rights. However, the court held that the evidence of uncharged acts should not have been admitted without a direction to the jury, as it risked prejudicing the appellant.
Ultimately, the court found that the trial judge erred in his sentencing by not adequately considering the appellant's rehabilitation and the substantial lapse of time since the offences were committed. The court reduced the sentences on the rape counts from 8 years to 6 years each, and maintained the sentences on the indecent assault counts. The cumulative sentence of 11 years was thus reduced to 9 years. The appeal against the conviction was dismissed, but the appeal against the sentences was allowed.
The court's final orders were that the appeal against the conviction was dismissed, but leave to appeal against the sentences was granted. The appeal against the sentences was allowed, and the effective sentence of 11 years' imprisonment was reduced to 9 years.
The court found that the trial judge's direction on consent was adequate, as it allowed the jury to consider the lack of consent in the context of the complainant's state of mind and the circumstances surrounding the assaults. The court also determined that the direction regarding the delay in making the complaint did not prejudice the appellant, as it correctly informed the jury that such delay does not diminish the gravity of the offence. Regarding the Longman warning, the court held that the trial judge's direction was sufficient to safeguard the appellant's rights. However, the court held that the evidence of uncharged acts should not have been admitted without a direction to the jury, as it risked prejudicing the appellant.
Ultimately, the court found that the trial judge erred in his sentencing by not adequately considering the appellant's rehabilitation and the substantial lapse of time since the offences were committed. The court reduced the sentences on the rape counts from 8 years to 6 years each, and maintained the sentences on the indecent assault counts. The cumulative sentence of 11 years was thus reduced to 9 years. The appeal against the conviction was dismissed, but the appeal against the sentences was allowed.
The court's final orders were that the appeal against the conviction was dismissed, but leave to appeal against the sentences was granted. The appeal against the sentences was allowed, and the effective sentence of 11 years' imprisonment was reduced to 9 years.
Orders
Orders of the court
Appeal against conviction dismissed
Leave to appeal against sentences granted
Appeal allowed
Effective sentence of 11 years' imprisonment reduced to 9 years
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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