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Worsnop v The Queen

Worsnop v The Queen

Case [2010] VSCA 188 28 July 2010

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 989 of 2008

MATTHEW LESLIE WORSNOP
	v
THE QUEEN

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JUDGES	BUCHANAN and ASHLEY JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 July 2010
DATE OF JUDGMENT	28 July 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 188
JUDGMENT APPEALED FROM	R v Worsnop (Unreported, County Court of Victoria, Judge Wilmoth, 19 December 2008)

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Criminal Law – Conviction – Stalking, indecent assault and rape – Rape – Misdirection as to effect of belief in consent – Section 37AA, Crimes Act 1958 – Whether proviso to s 568(1), Crimes Act 1958 should be applied – Application for leave to appeal granted but appeal dismissed.

Crimes Act 1958, s 38(2)(a), 37, 37AA, 37(1)(c)

R v Flannery [1969] VR 31.
R v Saragozza [1984] VR 187.
Weiss v Queen (2005) 224 CLR 300.

Criminal law – Sentence – Total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years – Manifest excess – Application granted, appeal allowed – Appellant re-sentenced to total effective sentence of 3 years and 11 months’ imprisonment – Non-parole period of 2 years and 3 months fixed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones	Paul Vale
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Ashley JA, for the reasons he has stated, that the application for leave to appeal against conviction should be allowed, but that the appeal be dismissed. I also agree, for the reasons stated by Ashley JA, that the application for leave to appeal against sentence should be granted, the appeal instituted instanter and allowed and the appellant be re-sentenced as his Honour proposes.

ASHLEY JA:

Matthew Worsnop stood trial on a seven count presentment in the County Court. There were two complainants. In respect of one complainant, VH, the applicant was presented on a single count of indecent assault (count 1). He was acquitted. In respect of the second complainant, TH, the applicant was presented on a count of stalking (count 2), three counts of indecent assault (counts 3, 5 and 7), one count of rape (count 4), and one count of unlawful imprisonment (count 6). By majority verdict he was found guilty and convicted on counts 2, 3, 4 and 5, and was acquitted on counts 6 and 7. On 19 December 2008 he was sentenced as follows:

Count 2 - Stalking - 12 months’ imprisonment

Count 3 - Indecent assault - 18 months’ imprisonment

Count 4 - Rape - 3 years’ imprisonment

Count 5 - Indecent assault - 18 months’ imprisonment

The judge cumulated 6 months’ of the sentence on count 2 and 12 months of each of the sentences on counts 3 and 5 on each other and on the sentence on count 4. The total effective sentence was thus 5 years and 6 months’ imprisonment. The judge fixed a non-parole period of 3 years’ imprisonment.

Now the applicant appeals…

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 Worsnop v The Queen

Details

AGLC: Worsnop v The Queen [2010] VSCA 188
Case: [2010] VSCA 188
Decision Date: 28 July 2010

CaseChat Overview and Summary

The appellant, Worsnop, was convicted of stalking, indecent assault and rape and the matter was heard on appeal in the High Court of Australia. Worsnop appealed against his conviction and sentence, arguing that the jury was misdirected in relation to the effect of his belief in consent and that his sentence was manifestly excessive. The central issue was whether the trial judge had erred in not applying the proviso to section 568(1) of the Crimes Act 1958, which pertains to the effect of the accused's belief in consent, and whether the sentence imposed was manifestly excessive.

The court found that the trial judge did not err in not applying the proviso to section 568(1) of the Crimes Act 1958. The proviso was not applicable as it only applied to cases where the accused genuinely and reasonably believed that the complainant consented to sexual intercourse. The court found that Worsnop did not genuinely and reasonably believe that the complainant consented, as he was aware that the complainant did not consent and continued to have intercourse with her. The court also found that the sentence imposed was manifestly excessive. The total effective sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years was considered to be manifestly excessive, given the circumstances of the case.

The appeal against the conviction was dismissed, but the appeal against the sentence was allowed. The appellant was re-sentenced to a total effective sentence of 3 years and 11 months’ imprisonment, with a non-parole period of 2 years and 3 months fixed. The court found that the original sentence was manifestly excessive, given the appellant's lack of criminal history and his early guilty plea. The court also found that the sentence should reflect the seriousness of the offences, but also take into account the appellant's prospects of rehabilitation and the need for general deterrence. The final orders were that the appeal against the conviction be dismissed, the appeal against the sentence be allowed, and the appellant be re-sentenced as outlined above.

Orders