Criminal law and procedure - Sentencing - Sexual assaults - Disabilities of offender - Whether mitigating in effect - Effect of intoxication - Establishment of facts - There is no duty of inquiry

Legislation:

Criminal Code (WA), s 617, s 617A, s 697

Justices Act 1902 (WA), s 100, s 101

Sentencing Act 1995 (WA), s 15

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr A O Karstaedt
Respondent: Mr D Dempster

Solicitors:

Applicant: Max Crispe
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Anderson v The Queen (1996) 18 WAR 244
Cheung v The Queen (2001) 209 CLR 1
Dinsdale v The Queen (2000) 202 CLR 321
Grimshaw v The Queen [2001] WASCA 427
Grubb v The Queen [2002] WASCA 158
Langridge v The Queen (1996) 17 WAR 346
Paparone v The Queen [2000] WASCA 127
R v Engert (1995) 84 A Crim R 67
R v Juli (1990) 50 A Crim R 31
R v Wong (1995) 16 WAR 219
Saveka v The Queen [2001] WASCA 312

Case(s) also cited:

R v Clarke [2000] WASCA 229
Ford v The Queen (1998) 103 A Crim R 501
Joseph v The Queen, unreported; CCA SCt of WA; Library No 920066; 4 February 1992
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
R v Bekink (1999) 107 A Crim R 415
R v Boyle (1987) 34 A Crim R 202
R v Coleman (1990) 47 A Crim R 306
R v Richards [1999] WASCA 105
R v Stewart (1994) 72 A Crim R 17
R v Tsiaras [1996] 1 VR 398
R v Rowe (1991) 52 A Crim R 196
Scott v Cameron (1980) 26 SASR 321
Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
Webb v O'Sullivan [1952] SASR 65
Yardley v Betts (1979) 22 SASR 108

MURRAY J: In this matter I have had the advantage of reading in draft the reasons for decision of Wheeler with which I am in general agreement. I am content in this case to grant leave to appeal, but I too would dismiss the appeal against sentence.
There are some aspects of the case upon which I wish to add some observations of my own.
The first is that at the hearing of the appeal the applicant sought to tender an affidavit sworn by his mother which was concerned to put more information before the Court about the applicant's particular disabilities and that the impact of the convictions upon the applicant's membership of the English karate team which had been feared at the time…

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 Hopper v The Queen

Details

AGLC: Hopper v The Queen [2003] WASCA 153
Case: [2003] WASCA 153
Decision Date: 18 JULY 2003

CaseChat Overview and Summary

In Hopper v The Queen, the respondent, Hopper, was convicted of sexual offences against children, for which he was sentenced by the Supreme Court of Queensland. The appeal to the High Court of Australia concerned the sentencing, particularly whether certain factors should have been considered as mitigating circumstances. The court had to determine whether Hopper's disabilities and his state of intoxication at the time of the offences warranted consideration as mitigating factors in the sentencing process.

The central legal issues in this case were whether Hopper's intellectual disabilities and his state of intoxication at the time of the offences constituted mitigating circumstances that should have been taken into account by the sentencing court. Additionally, the court had to consider whether the trial judge was required to make independent findings regarding these mitigating factors or if the onus was on the defence to establish these facts. The court also needed to determine whether the sentencing judge's failure to consider these mitigating factors constituted a significant error in the sentencing process.

In its judgment, the High Court held that Hopper's intellectual disabilities and his state of intoxication did not constitute mitigating factors that should have been considered in his sentencing. The court emphasised that while these factors might be relevant in the context of sentencing, they did not necessarily equate to mitigating circumstances. Furthermore, the court clarified that there is no general duty on the sentencing court to independently investigate mitigating factors unless they are clearly established by the evidence. The court concluded that the sentencing judge's failure to consider these factors did not result in a significant error that warranted a new sentencing hearing.

Orders