Director of Public Prosecutions v Sullivan (No 4)

[2025] ACTSC 80

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Sullivan (No 4)

Citation: 

[2025] ACTSC 80

Hearing Date: 

7 February 2025

Decision Date: 

7 February 2025

Reasons Date

12 March 2025

Before:

Baker J

Decision: 

See [19]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – application for adjournment of sentence hearing by prosecution – Crown Tender Bundle provided late – character references filed by accused – prosecution entitlement to provide character evidence in reply – where offender sought longer adjournment to obtain ICOAR – longer adjournment not opposed

Legislation Cited: 

Crimes Act 1900 (ACT), ss 24, 54

Cases Cited: 

DPP v DL [2018] ACTCA 61

Texts Cited:

Practice Direction No 4 of 2018, ACT Supreme Court

Parties: 

Director of Public Prosecutions ( Crown)

Jake Sullivan ( Offender)

Representation: 

Counsel

T Hickey ( DPP)

S Howell ( Offender)

Solicitors

ACT Director of Public Prosecutions

Hugo Law Group ( Offender)

File Number:

SCC 322 of 2022

BAKER J:      

Introduction

1․The offender, Jake Sullivan, was convicted by a jury of a number of sexual assault offences.

2․At the outset of the hearing of the proceedings on sentence, the prosecution sought an adjournment to enable it to respond to character evidence filed by the accused. I held that the adjournment should be granted. These are my reasons for so holding.

Background

3․On 24 September 2024 the offender was convicted by a jury of the following offences:

(a)Sexual intercourse without consent pursuant to s 54 of the Crimes Act 1900 (ACT);

(b)Sexual intercourse without consent pursuant to s 54 of the Crimes Act;

(c)Assault occasioning actual bodily harm pursuant to s 24 of the Crimes Act.

4․On 2 October 2024, the Registrar listed the proceedings for a sentence hearing on 7 February 2025, and also made the standard sentence directions (in accordance with Practice Direction No 4 of 2018) for the filing and service of evidence at the sentencing hearing:

1.     A copy of any expert report to be relied upon must be served on the other party no later than 2 weeks prior to the sentence date.

2.     The other party must notify the party relying on the expert report within 2 clear working days of receipt of the report:

a.    whether or not the expert is required for cross examination;

b.    if required, whether the expert is required to be present in person or by telephone;

c.     if appropriate, that the requirement for the expert will be withdrawn if the tendering party does not press specified parts of the expert's report.

3.     A copy of the Crown Tender Bundle must be emailed to chambers and the Defence no later than 4 clear working days prior to the sentence date. If any documents are not available by this date (e.g. the PSR), it is to be noted on the bundle index that they will be provided later.

4.     A hard copy of the Crown Tender Bundle must be tendered at the sentence hearing, subject to any objection.

5.     A copy of any reports, statements or other documents to be relied upon by the Defence is to be emailed to chambers and the DPP no later than 2 clear working days prior to the sentence date.

6.     A hard copy of the Defence documents must be tendered at the sentence hearing, subject to any objection.

7.     Liberty is granted to the parties to file any written submissions (limited to not more than 5 pages). Any written submissions must be emailed to chambers (in Word or rich text format) and to the other party at the same time as each party's respective documents are emailed in accordance with paragraphs 3 and 5 above. A hard copy must be filed in court at the sentence hearing.

5․On 5 February 2025, the offender’s legal representative emailed sentence submissions, two affidavits and six character references to my Chambers.

6․On the morning of 6 February 2025, the offender’s solicitor provided three further character references. Later that afternoon, the prosecutor provided the Crown Tender Bundle, which included the pre-sentence report and victim impact statement. At that time, the prosecution also advised counsel for the accused that the prosecution would be objecting to the calling of character evidence.

7․The prosecution sentencing submissions were first provided to the Court and to the offender’s counsel on the morning of the sentence hearing.

Submissions

8․In his written submissions, the prosecutor indicated that the prosecution objected to the character references that were sought to be adduced on behalf of the offender.

9․The basis for that objection was not entirely clear. The sole ground for the objection stated in the submissions was that as the offender made the “deliberate decision” not to adduce character evidence at trial after the prosecution foreshadowed its intention to respond to such evidence, any attempt to subsequently do so at sentencing was unfair to the prosecution.

10․That submission was pressed, albeit faintly so, by the prosecutor in his oral submissions at the commencement of the sentence proceedings. However, the prosecutor ultimately indicated that he sought an adjournment to enable the prosecution to obtain evidence in reply to the character evidence sought to be adduced. The prosecutor submitted that the adjournment was necessary to ensure that fairness was also accorded to the prosecution.

11․Mr Howell, who appeared on behalf of the offender, opposed an adjournment on two grounds. First, he submitted that allowing the adjournment would be procedurally unjust, particularly the adjournment was only to permit the prosecution further time to adduce material rebutting the defence’s character evidence, when there has been a gap of several months between the trial and the sentence hearing. He emphasised that it is the responsibility of both parties to assist the Court on sentence.

12․Second, Mr Howell indicated that it was his understanding that the rebuttal evidence may consist of unrelated allegations of a sexual character that have been by another witness against the accused. Mr Howell submitted that allowing the prosecution to adduce evidence, which may involve allegations of an uncharged criminal act would place the offender in an “invidious position” of choosing between abrogating his right to silence to challenge that allegation or not doing so as he may be prosecuted for it in the future. Mr Howell submitted that an adjournment should be granted where this consequence would result.

Determination

13․The prosecution’s submission that the offender’s character references should not be admitted because the offender did not rely on character evidence at trial must be rejected. The offender is not bound by the course taken at trial. There are good reasons why a person who did not rely on character evidence at trial (particularly before a jury) may nonetheless wish to rely on character evidence at sentence.

14․As outlined above, the character references were filed on behalf of the offender two days before the sentence hearing. These references were filed in accordance with the directions made by the Registrar, which in turn were made in accordance with Practice Direction 4 of 2018. That Practice Direction requires that any documents to be relied on by defence are to be filed no later than two clear days before a sentence hearing.

15․Although it does not frequently do so, the prosecution is entitled to rely on evidence in reply to character evidence sought to be adduced by an offender. Where character evidence is filed on behalf of an offender shortly before a sentence hearing, it will be necessary to adjourn the sentence proceedings so as to afford the prosecution procedural fairness: see similarly DPP v DL [2018] ACTCA 61 at [37]. This will be so even where the offender’s material is served in accordance with the practice note. It is not incumbent on the prosecution to predict what evidence will be adduced on behalf of an offender. (The position will, of course, be different if the offender’s legal representative put the prosecution on notice of the material that will be adduced.)

16․As to the offender’s second ground for opposing the adjournment, I do not consider it appropriate to determine the admissibility of evidence that has not yet been obtained when considering the merits of the prosecution’s adjournment application. I do not know exactly what the evidence is that the prosecution will seek to adduce. The admissibility of such evidence should only be determined once it is filed by the prosecution, at which time the particular questions of admissibility (if any) will be clear.

17․For these reasons, I informed the parties that I would grant the prosecution an adjournment to enable evidence to be adduced in reply to the offender’s character evidence, but that I was minded to adjourn the proceedings for only one week to enable this to occur, so as not to further delay the sentence hearing.

18․In circumstances where I had granted the prosecutor’s application for an adjournment, Mr Howell indicated that he sought that the adjournment be for a longer period, so as to enable the preparation of an Intensive Correction Order Assessment Report with respect to the offender. The prosecution did not oppose this course.

Orders

19․Accordingly, I made the following orders:

(a)The matter is adjourned.

(b)I list the matter before myself at 2pm on Wednesday, 2 April 2025.

(c)I order that an ICOAR to be prepared for Mr Sullivan.

(d)The prosecution is to provide any evidence which it seeks to adduce on or before 24 February 2025.

(e)The offender is to file and serve any evidence or other material in reply on or before 10 March 2025.

(f)Any further submissions of either party addressing the admissibility of that material or its impact on sentence is to be filed by 17 March 2025.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A McKay

Date: 11 March 2025