The Queen(Crown) v Gavin Wyper

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 02 May 2017
• Docket Number: File Number: SCC 109 of 2016
• Date: 02 May 2017

The Queen

(Crown)

and

Gavin Wyper

(Defendant)

[2017] ACTSC 103

Before:

Refshauge J

File Number: SCC 109 of 2016

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and punishment — sentencing — engaging in sexual intercourse without consent and being reckless as to consent — family violence offence — guilty verdict following trial by jury — considerations of subjective circumstances — good character — lack of criminal record — general deterrence — Intensive Corrections Order made

Cases Cited:

R v Bartlett (No 2) [2017] ACTSC 51

R v Ngerengere (No 3) [2016] ACTSC 299

R v Wyper [2017] ACTSC 50

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), ss 11, 11(3), 78, 78(6)

Representation:

Counsel

Ms S McMurray (Crown)

Mr J Lawton (Defendant)

Decision:

1. The conviction of Gavin Wyper, entered on 1 March 2017, for engaging in sexual intercourse with the victim without her consent and being reckless as to whether she was consenting be confirmed.

2. Gavin Wyper be sentenced to imprisonment for two years and six months to commence on 2 May 2017.

3. That sentence be served by intensive correction in the community in accordance with s 11 of the Crimes (Sentencing) Act 2005 (ACT).

4. The following additional condition be included, namely a community service condition that Gavin Wyper perform 100 hours of community service work within 12 months from 2 May 2017.

Refshauge J

1 On 20 December 2016, Gavin Wyper was found guilty by a jury of engaging in sexual intercourse with AY without her consent and being reckless as to whether she was consenting.

2 On 1 March 2017, I convicted Mr Wyper of that offence but adjourned the sentencing until today in order that the Director-General might assess Mr Wyper for suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order: R v Wyper [2017] ACTSC 50.

3 Where a court finds that a sentence of full-time imprisonment is appropriate and, indeed, would often be the sentence imposed on an offender who committed the offence for which he or she is convicted, the Court may order as an alternative that the sentence of imprisonment be served by Intensive Correction Order where the Court considers that there is a justification for it.

4 I have described the sentencing option of an Intensive Correction Order in some detail in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]–[27]. I do not need to set out what I there said, but make the following brief comments.

5 An Intensive Correction Order is clearly more lenient than the serving of a sentence of imprisonment in full-time custody but it is, nevertheless, a sentence of imprisonment to be served in the community, though under such intensive conditions that the courts have made it clear that it remains both a punitive sentence and one with such features as are likely to achieve the purpose of general deterrence.

6 In addition, it serves purposes such as rehabilitation, re-integration into the community, or the opportunity to permit an offender to continue with the pro-social circumstances under which he or she lives in the community so as to reduce the risk of recidivism.

7 Sexual offending is, of course, a very serious matter which ordinarily warrants a term of imprisonment to be served in full-time custody because of the need to respect sentencing purposes such as general deterrence, punishment, the need to make the offender accountable for his or her actions, to denounce the conduct, and to recognise the harm done to the victim.

8 Nevertheless, there are other purposes of sentencing which justify other options. In this case, given Mr Wyper's subjective circumstances, including, especially, his good character, his age, and his lack of any criminal record or, indeed, any trouble with the law at all, and the general characterisation by his referees that the conduct was ‘out of character’, he is entitled to rely on these matters to justify a moderation of the sentence. See R v Bartlett (No 2) [2017] ACTSC 51 at [6].

Intensive Correction Order Assessment

9 When the sentencing proceedings resumed today, I received a comprehensive and helpful Assessment Report of Mr Wyper's suitability for an Intensive Correction Order. It was based on six interviews and six telephone calls with Mr Wyper, interviews with one of his sons, an inspection of relevant records and premises, the administration of appropriate tests, and correspondence with various government agencies.

10 Mr Wyper was compliant with the assessment though he maintained his innocence of the offence and, indeed, had commenced an appeal against his conviction. Nevertheless, he indicated his willingness to engage with the Order if it were to be made.

11 He co-operated fully with the assessment. The relevant background information in the assessment is consistent with the subjective circumstances of Mr Wyper as I described them in R v Wyper at [34]–[53].

12 Mr Wyper, however, has been in a new relationship for about nine months. It is a positive and supportive relationship and his partner is aware of his conviction.

13 Mr Wyper has no history of problematic alcohol use and does not appear to have used illicit drugs. Drug testing...