Wilson v The Queen - [2012] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0184

STEVEN WILSON	Applicant
	v
THE QUEEN	Respondent

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JUDGES	REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 March 2012
DATE OF JUDGMENT	8 March 2012
MEDIA NEUTRAL CITATION	[2012] VSCA 40
JUDGMENT APPEALED FROM	DPP v Wilson (Unreported, County Court of Victoria, Judge Leckie, 7 July 2011)

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ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL

PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Sentence – Three stalking offences – Photographs of victims from various social networking websites posted on pornographic sites – Whether sentencing judge made factual errors about the number of times the applicant linked particular victim to pornographic sites – Whether plea of guilty under duress – Whether sentencing judge misused victim impact statement which referred also to earlier stalking offence against same person – Whether sentencing judge failed to give proper weight to time the applicant spent in custody after his non-parole period for other offences had expired – Whether judge failed to give sufficient weight to principle of totality – Application for leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	The Applicant appeared in person
For the Respondent	Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA:

The applicant pleaded guilty in the County Court at Wangaratta to three charges of stalking, contrary to s 21A of the Crimes Act 1958. The maximum penalty for that offence is 10 years’ imprisonment.

On 7 July 2011 he was sentenced as follows:

Charge 1 10 months’ imprisonment

Charge 2 3 months’ imprisonment

Charge 3 6 months’ imprisonment

The sentencing judge ordered that two months of the sentence imposed on charge 2 and three months of the sentence imposed on charge 3 be served cumulatively upon each other and upon the sentence imposed on charge 1. The total effective sentence was 15 months’ imprisonment. A non-parole period of six months was fixed. His Honour made a declaration to the effect that the applicant had been in custody for 66 days in respect of these offences.

The applicant sought leave to appeal against that sentence. On 26 October 2011, Neave JA refused that application. Her Honour concluded that none of the grounds upon which the applicant relied was reasonably arguable.

The applicant has elected, pursuant to s 315(2) of the Criminal Procedure Act 2009, to renew his application, and have this Court consider afresh the question whether leave to appeal should be granted.

The circumstances of the offending were set out in some detail in a statement of agreed facts that was tendered on the plea. However, before turning to what was contained in that statement, it should be noted that the applicant had, between July 2006 and September 2007, committed a number of offences, including stalking, producing and possessing child pornography, and using the postal service for the purpose of harassment. He was charged with those…

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 Wilson v The Queen

Details

AGLC: Wilson v The Queen [2012] VSCA 40
Case: [2012] VSCA 40
Decision Date: 8 March 2012

CaseChat Overview and Summary

The applicant, Wilson, sought leave to appeal against his sentence for three stalking offences. The offences involved posting photographs of victims from various social networking websites on pornographic sites. The court had to determine if the sentencing judge erred in facts regarding the number of times the applicant linked a particular victim to pornographic sites, whether the plea of guilty was under duress, whether the judge misused a victim impact statement that also referenced an earlier stalking offence against the same person, whether the judge failed to adequately consider the time the applicant spent in custody after his non-parole period for other offences had expired, and whether the judge failed to give sufficient weight to the principle of totality.

The court examined the grounds for appeal and found that the applicant's arguments lacked merit. The court concluded that there were no factual errors made by the sentencing judge concerning the number of times the applicant linked a particular victim to pornographic sites. Regarding the plea of guilty, the court found no evidence to support the claim that it was made under duress. The court also determined that the sentencing judge did not misuse the victim impact statement and had appropriately weighed the time the applicant spent in custody post-non-parole period. The court further found that the sentencing judge had considered the principle of totality in the sentencing process.

Accordingly, the court refused the application for leave to appeal. The reasoning was that none of the grounds for appeal had a reasonable chance of success, and there were no grounds that demonstrated the applicant’s sentence was manifestly excessive or inadequate. The court upheld the original sentencing, affirming the judge's approach and considerations during the sentencing process.

Orders