Livas v The Queen

[2015] ACTCA 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Akis Emmanouel Livas v The Queen

Citation:

[2015] ACTCA 54

Hearing Date(s):

13 August 2015

DecisionDate:

13 August 2015

Before:

Murrell CJ, Perry J & Walmsley AJ

Decision:

Appeal dismissed

Catchwords:

CRIMINAL LAW – Appeal – particular offences – sexual intercourse without consent – consent vitiated through fraudulent representation – sentence – whether sentencing judge erred in imposing a period of immediate full-time imprisonment – objective seriousness of offence

Legislation Cited:

Crimes Act 1900 (ACT) ss 54(1), 67(1)(g)

Cases Cited:

Ibbs v The Queen (1987) 163 CLR 447

Parties:

Akis Emmanouel Livas (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr S Gill (Appellant)

Mr S Drumgold (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number(s):

ACTCA 10 of 2015

Decision under appeal: 

Court/Tribunal:            Supreme Court of the ACT

Before:  Penfold J

Date of Decision:        6 February 2015

Case Title:                   R v Livas

Citation: [2015] ACTSC 50

Court File Number(s):   SCC 62 of 2014

THE COURT:

Background

1. This is an appeal against sentence. On 6 February 2015 the appellant pleaded guilty to one count of sexual intercourse without consent, the apparent consent having been obtained by fraud. Section 54(1) of the Crimes Act 1900 (ACT) creates the offence of having sexual intercourse without consent, being reckless as to whether that other person consents.

1. Section 67 of the Crimes Act provides a non-exhaustive list of circumstances in which consent is negated. Section 67(1)(g) of the Crimes Act provides that consent of a person to sexual intercourse with another person is negated if that consent is caused by a fraudulent misrepresentation of any fact made by the other person.

1. There are other grounds identified by s 67 for vitiating consent, and they include the infliction of violence and threats of violence.

1. The penalty for the offence is 12 years imprisonment. The appellant was sentenced to a term of imprisonment of 25 months. An order was made by the sentencing judge that the sentence be suspended after the appellant had served eight months of full-time custody, provided he give an undertaking to comply with the conditions of a 24-month Good Behaviour Order.

The Appeal

1. In his notice of appeal, the appellant complained that the sentencing judge had:

(a)taken an immediately served custodial period as a starting point because the offence was rape;

(b)failed to consider periodic detention as an alternative to the full-time component of the sentence of imprisonment, and

(c)not treated the fact that consent was fraudulently obtained as reducing the objective seriousness of the offence.

1. Ground (b) was not pressed and grounds (a) and (c) were dealt with together. The appellant asks that the appeal be allowed, the sentence quashed and the case remitted for him to be sentenced according to law.

The Offence

1. At the time of the offence, the complainant worked as a sex worker from her home in a Canberra suburb. In October 2010, the appellant made an appointment to spend an…