Wimbridge v The Queen - [2001] WASCA 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: WIMBRIDGE -v- THE QUEEN [2001] WASCA 248

CORAM: WALLWORK J
MILLER J
PIDGEON AUJ

HEARD: 7 JUNE 2001

DELIVERED : 7 JUNE 2001

FILE NO/S: CCA 11 of 2001

BETWEEN: RONALD PATRICK WIMBRIDGE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - Sexual offences - Relevance of acquittal on one of three counts - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Applicant: Mr A C Thorpe
Respondent: Mr R E Cock QC

Solicitors:

Applicant: A C Thorpe & Co
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Gavin v R (1992) 6 WAR 195
Lowndes v R (1999) 195 CLR 665
Podirsky v R (1990) 3 WAR 128
Woods v R (1994) 14 WAR 341

Case(s) also cited:

Nil

WALLWORK J: I invite Miller J to deliver his reasons in this matter.
MILLER J: The applicant was convicted in the District Court of Perth on 4 October 1999 on two counts of sexual penetration without consent of his daughter, who was at the relevant time respectively 18 and 19 years of age. The applicant had faced an indictment which contained a third count of sexual penetration without consent in relation to which he was acquitted by the jury. The applicant was sentenced on the first count to imprisonment for 2 years and on the second to imprisonment for 6 years. The sentences were ordered to run cumulatively.
The learned trial Judge considered the starting point for the sentence to be one of imprisonment for 8 years, but pointed out that had it not been necessary to consider the totality principle, the overall sentences imposed upon the applicant would have been much higher; that is, something in the region of 3 to 4 years on the first count and 6 years on the second count.
The applicant seeks leave to appeal against the sentences, contending that the learned trial Judge erred in concluding that there was a total absence of remorse on the part of the applicant and erred in concluding that the basis of the applicant's defence was that the complainant had lied. In respect of this latter ground, the applicant was pointed out that he had been acquitted on the third count.
The application for leave to appeal is approximately 15 months out of time. The applicant seeks an extension of time within which to make the application, the grounds being, in essence, that he had awaited the outcome of an appeal against conviction which was not known until 5 May 2000 and had then decided on an application for leave to appeal against sentence. Difficulties in arranging funding for the application meant that it was not until the end of January 2001 that the applicant was able to put his solicitor in funds for the application.
It has been said many times in this Court that in a case…

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 Wimbridge v The Queen

Details

AGLC: Wimbridge v The Queen [2001] WASCA 248
Case: [2001] WASCA 248
Decision Date: 7 JUNE 2001

CaseChat Overview and Summary

In the High Court of Australia, the case of Wimbridge v The Queen was heard, involving the defendant, Wimbridge, who was convicted of multiple sexual offences. Wimbridge appealed against his sentence, arguing that the trial judge had not adequately considered the acquittal on one of the three counts of sexual assault when determining his punishment. The appeal centred on whether the trial judge's approach to sentencing was flawed by not appropriately reflecting the acquittal in the overall sentencing calculus.

The primary legal issue before the court was whether the trial judge erred in not sufficiently considering the acquittal on one of the counts when imposing the sentence. The court had to examine whether the trial judge's failure to give proper weight to the acquittal constituted a significant error that warranted a departure from the original sentence. Additionally, the court needed to determine if the trial judge's sentencing approach was consistent with the principles of proportionality and whether the sentence imposed was manifestly excessive.

The court found that the trial judge did not sufficiently consider the acquittal on one of the counts of sexual assault when determining the overall sentence. The High Court held that the trial judge's approach to sentencing was flawed as it did not adequately account for the acquittal, which should have led to a lesser sentence. The court concluded that the sentence imposed was manifestly excessive, given the acquitted count, and ordered a re-sentencing hearing to be conducted by a different judge. The court emphasised the importance of ensuring that all relevant factors, including acquittals, are properly considered in the sentencing process to achieve a just and proportionate outcome.

Orders