Wignall v The Queen [2010] VSCA 327

1 The applicant was convicted after a trial before a County Court jury of one count of rape and one count of threat to kill (presentment X00345216.1). He had pleaded guilty to one count of false imprisonment and one count of common assault. On a separate presentment, relating to a different complainant, he had pleaded guilty to three counts of sexual penetration of a child under 16 (presentment X00345216.2).

TES on first presentment: 4years 6 months' imprisonment

TES on second presentment: 1 year 6 months' imprisonment

3 The sentencing judge directed that the total effective sentence on the first presentment be served cumulatively on the total effective sentence on the second presentment, leading to a total effective sentence overall of six years' imprisonment. A non-parole period of four years was fixed.

4 During the charge to the jury, the judge gave a direction on consent which accorded with the model direction on that topic in the Victorian Charge Book but which was subsequently held by this Court in Worsnop v The Queen[1] to be erroneous in law. The decision in Worsnop was followed shortly afterwards in Gordon v The Queen.[2]

5 Following those decisions, counsel for the applicant gave notice of intention to seek leave to add a ground complaining about that part of the judge's direction. Quite properly, the Crown has conceded that the charge in the present case was erroneous. The Crown accepts, moreover, that the impugned direction has led to a substantial miscarriage at trial and that the applicant is entitled to a retrial on the count of rape. In Worsnop, by contrast, the appeal was dismissed notwithstanding the erroneous direction, by application of the proviso.

6 According to the Crown's submission in the present case:

The applicant has suffered a substantial miscarriage of justice and the proviso cannot be applied. There is a fundamental defect in the conduct of the trial on the only real issue to be determined by the jury and in circumstances where the applicant had a viable defence.

7 By consent, therefore, the conviction on count 2 will be quashed and we will direct that the applicant be re-tried on that count. The quashing of that conviction requires that the applicant (now appellant) be resentenced.

8 Before we proceed to make the orders, we wish to commend both counsel and the Court of Appeal Registry on their initiative, first in the identification of this ground and secondly, in ensuring that, given the Crown's concession, the appeal was listed at the earliest opportunity. The Court has a very substantial load of criminal appeals, and it is most welcome when a matter can be disposed of as quickly as this has been disposed of.

Recording of pre-sentence detention declarations

9 The second and final matter to add concerns pre-sentence detention. Counsel for the Crown has pointed out that, although the sentencing judge made a declaration of pre-sentence detention and ordered that the details of the declaration be entered in the records of the Court, that did not occur. As a result, so we have been told, Corrections Victoria were wholly unaware of the pre-sentence detention, and that might, in other circumstances, have created very real difficulties.

10 It is appropriate in the circumstances to emphasise how important it is that court staff ensure, when a declaration of pre-sentence detention is made, that the details are entered in the records of the relevant Court.

1 The application for leave to appeal against conviction is granted.

2 The appeal is treated as instituted and heard instanter and is allowed.

3 The conviction sustained by the appellant in the Court below on count 2 of presentment X00345216.1 ('first presentment') is quashed and the sentence passed thereon is set aside.

4 The Court directs a new trial to be had on count 2 of the first presentment.

5 The appellant is remanded in custody to appear before the County Court at a mention on 21 January 2011.[3]

6 The sentences imposed below on counts 3, 4 and 5 of the first presentment are re-imposed but the directions for cumulation and the non-parole period are set aside.

7 The Court directs that the sentences imposed on counts 3, 4 and 5 of presentment X00345216.1 be served concurrently, making a total effective sentence of 10 months' imprisonment.

8 The sentences imposed below, the directions for cumulation and the non-parole period on presentment X00345216.2 ('second presentment') are affirmed.

9 The Court directs that six months of the sentence imposed on the first presentment be served cumulatively upon the sentence imposed on the second presentment, making a total effective sentence of two years' imprisonment.

11 It is declared that the period of 623 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

12 We grant the appellant an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998 (Vic).

[1] [2010] VSCA 188 ('Worsnop').

[2] [2010] VSCA 207.

[3] This order is made in conformity with s 277(2) of the Criminal Procedure Act 2009 (Vic).