Wyper v The Queen; R v Wyper

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Bromwich J,Robinson AJ
• Judgment Date: 11 December 2017
• Date: 11 December 2017
• Docket Number: File Numbers: ACTCA 3 of 2017; ACTCA 21 of 2017

[2017] ACTCA 59

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Murrell CJ, Bromwich J and Robinson AJ

File Numbers: ACTCA 3 of 2017; ACTCA 21 of 2017

Gavin Wyper

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel

Mr K Archer and Mr A Hopkins (Appellant)

Mr J White SC (Respondent)

Cases Cited:

Barbaro v The Queen [2014] HCA 2; 253 CLR 58

Cashin v The Queen [2017] ACTCA 13

Cherry v The Queen [2017] NSWCCA 150

Cruz v The Queen [2017] ACTCA 48

Dinsdale v The Queen [2000] HCA 54; 202 CLR 321

Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 91 ALJR 1063

Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129; 172 A Crim R 181

Doe v The Queen [2008] NSWCCA 203; 187 A Crim R 328

GW v The Queen [2015] ACTCA 15; 306 FLR 104

Hargreaves v The Queen [2011] HCA 44; 245 CLR 257

Hili v The Queen [2010] HCA 45; 242 CLR 520

Liberato v The Queen (1985) 159 CLR 507

M v The Queen (1994) 181 CLR 487

MFA v The Queen [2002] HCA 53; 213 CLR 606

Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80

Munda v State of South Australia [2013] HCA 38; 249 CLR 600

Munro v The Queen [2014] ACTCA 11

Ngerengere (No 3) [2016] ACTSC 229

O'Rafferty v The Queen [2014] ACTCA 35

R v Baden-Clay [2016] HCA 35; 258 CLR 308

R v GAR (No 2) [2010] NSWCCA 164

R v Getachew [2012] HCA 10; 248 CLR 22

R v Hamid [2006] NSWCCA 302; 164 A Crim R 179

R v Hidic [2017] ACTSC 307

R v Hill [2015] ACTSC 289

R v Lee [2017] ACTCA 30

R v Murray (1987) 11 NSWLR 12

R v Pham [2015] HCA 39; 256 CLR 550

R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103

Samani v The Queen [2016] ACTCA 48

South v The Queen [2007] NSWCCA 117

Wong v The Queen [2001] HCA 64; 207 CLR 584

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 11, 33(za)

Crimes Act 1900 (ACT) s 54(1)

Court Procedures Rules 2006 (ACT) r 5531

Supreme Court Act 1933 (ACT) ss 37O(2)(a)

Texts Cited:

Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT)

APPEAL — GENERAL PRINCIPLES — Appeal against conviction — whether verdict is unreasonable or cannot be supported having regard to the complainant's evidence — complainant's credibility and reliability as a witness — whether failure to put defence case to jury resulted in miscarriage of justice — whether leave is required where alleged failure to put defence case — whether failure to give appropriate direction about onus of proof regarding alleged motive to lie — no objection taken

APPEAL — GENERAL PRINCIPLES — Crown appeal against sentence — whether sentence manifestly inadequate — intensive correction order — nature of sentencing discretion — sentencing principles in family violence offences — not typical family violence offence — nature of intensive correction orders

Decision:

The appellant is refused leave to appeal on ground (c).

The appeals against conviction and sentence are dismissed.

THE COURT:

The appeals

1 On 20 December 2016, a jury found Gavin Wyper (the appellant) guilty of the offence that, on 17 January 2016, he engaged in sexual intercourse with the complainant without her consent, being reckless as to whether she was consenting. The offence is contrary to s 54(1) of the Crimes Act 1900 (ACT). It attracts a maximum penalty of 12 years' imprisonment.

2 On 2 May 2017, Refshauge J (the trial judge) sentenced the appellant to two years and six months' imprisonment from 2 May 2017 and ordered that the sentence be served by way of intensive correction order (ICO) in the community under s 11 of the Crimes (Sentencing) Act 2005 (ACT) ( Sentencing Act): R v Wyper (No 2) [2017] ACTSC 103 ( Wyper (No 2)). The trial judge imposed a community service condition on the ICO, requiring that the appellant perform 100 hours of community service work within 12 months.

3 The appellant has already served the community service condition.

4 The appellant sought to appeal against the conviction on the grounds that:

• (a) The verdict was “unsafe and unsatisfactory” (unreasonable or unsupportable) having regard to the unreliability of the complainant's evidence: Supreme Court Act 1933 (ACT) ( SCA) s 37O(2)(a)(i).

• (b) The trial judge failed to accurately and fairly put the defence case to the jury, resulting in a miscarriage of justice: SCA s 37O(2)(a)(iii).

• (c) The trial judge failed to clearly direct the jury on the onus of proof applying to the defence case that the complainant had a motive to lie, thereby misstating the law and/or causing a miscarriage of justice: SCA s 37O(2)(a)(ii) and/or (iii).

5 Rule 5531 of the Court Procedures Rules 2006 ( CPR) provides that, unless the Court of Appeal orders otherwise, an appellant cannot appeal against “a direction given by the trial judge” or “the trial judge's failure to give a direction” if the appellant did not take objection at the trial. In relation to ground (c), leave is required. The parties disagreed about whether the appellant required leave to pursue ground (b).

6 The prosecution appealed on the ground that the sentence was manifestly inadequate.

7 Although he was the respondent to the prosecution appeal against sentence, throughout these reasons we will refer to Mr Wyper as the appellant.

8 For the reasons that appear below, both the appeal against conviction and the appeal against sentence will be dismissed.

Evidence

9 From about July 2014 to December 2015, the appellant and the complainant maintained an intimate relationship. They kept separate homes, but the complainant often stayed overnight at the appellant's home.

10 In December 2015, the complainant travelled overseas. While she was overseas, she was told that the appellant had resumed a relationship with a former girlfriend. When the complainant returned to Australia, she raised the matter with the appellant, who reassured her that he wanted to remain in a relationship with her. The complainant moved into the appellant's house.

11 At about 8:30 am on Sunday 17 January 2016, the appellant asked the complainant to move out of his house. The appellant declined to provide a reason for the request.

12 From about that point, the appellant's account of events differed significantly from the complainant's account.

13 According to the complainant, she went into the bedroom and the appellant followed her. The appellant repeated his request that she leave. She said that she did not want to leave. The appellant then said: “do you want me to fuck you, make you happy, then you will leave?” The appellant positioned himself on top of the complainant, held her down with his hand, pulled down her pants, parted her legs and digitally penetrated her for a couple of minutes. She experienced pain. She told the appellant that he was hurting her and that she wanted to leave. He stopped the sexual intercourse and got off the bed. The complainant went to the bathroom. During the assault, the complainant was frightened and urinated on the bed. Immediately afterwards, she poured water and mouthwash onto the wet area. She then decided to pour liquid onto the spare bed with a view to disrupting the appellant's capacity to sleep comfortably. She proceeded to pack her belongings. The appellant watched her while she was packing. She drove away.

14 The appellant denied that he had engaged in digital penetration. He gave evidence that, when he asked the complainant to move out, her response was to slam a water bottle onto the kitchen table. Because the complainant was raising her voice, the appellant went outside. He came back into the house and, after some time, he heard “coat hangers clanging”. He assumed that the complainant was packing her belongings. At one point, he helped the complainant to retrieve a radio from a high bench. Otherwise, he avoided the complainant. After the complainant had left, the appellant could not find the television remote control. While looking for the remote control, he discovered fresh scratches on walls and stab marks in a meditation cushion. He inspected the house and discovered that other items that had been damaged. As he discovered the damage, he sent text messages to the complainant. He noticed that the sheets in the master bedroom had “bluey green liquid” on them.

15 Commencing at 9:22 am on that day, the appellant and the complainant exchanged the following text messages:

09:22 am — appellant: “I am calling the police and reporting the damage to my walls, meditation cushion and the stealing of my tv remote.”

09:23 am — appellant: “Oh and nice effort with my spices…”

09:26 am — appellant: “I will tell [the complainant's daughter] of your efforts… and u have my keys.”

09:33 am — complainant: “your Tv remote in your place”

09:35am — appellant: “Where is it?”

09:36am — complainant: “not tell you”

09:37am — appellant: “I will be getting quotes for repairs and painting and replacement remotes etc”

09:39am — appellant: “and my bed you bitch”

09:40am — complainant: “what?”

09:42am — appellant: “You are in big trouble … coming to your place”

09:44am — complainant: “what is trouble?”

09:48am — appellant: “Replacement of my chair as well … a couple of thousand dollars of damage”

09:50am — appellant: “Remote to my robot.. damage to my billiard table ….”

09:52am — missed call from appellant, voice mail transcribed: “Hey and my busy table and my remote to my … Where the hell are they. Tell you what … going to cost you.”

09:53am — appellant: “damage to my spare bed …”

09:56am — appellant: “taking photos to send to your work”

10:02 am — complainant: “the punishments are for botj” “Both”

10:14 am — appellant: “And computer screen”

10:17am — appellant: “You...