Lyttle, J.A. v The Queen - [1991] FCA 768

Re: JAMES AUGUSTINE LYTTLE
And: THE QUEEN
No. ACT G61 of 1991
FED No. 768
Criminal Law
(1991) 57 A Crim R 398

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Ryan(1) and Von Doussa(1) JJ.

CATCHWORDS

Criminal Law - Sentence - appeal against severity - engaging in sexual intercourse without consent - whether errors of fact made by sentencing Judge - relevance of prior longstanding relationship with victim - appellant a first offender previously of good character and unlikely to offend again - whether immediate custodial sentence manifestly excessive.

R v Boudelah (1991) 100 ALR 93

R v Berry (1988) 10 Cr App R(S)13

Yardley v Betts (1979) 22 SASR 108 Referred to.

HEARING

CANBERRA

#DATE 29:11:1991

Counsel for the Appellant : Mr J. Pappas

Solicitors for the Appellant : Pappas, J. Attorney

Counsel for the Respondent : Mr K. Hempenstall

Solicitors for the Respondent: Director of Public Prosecutions

ORDER

That the appeal be allowed.

That the sentence imposed in the Supreme Court of the Australian Capital Territory on 22 October 1991 be set aside and in lieu thereof the appellant be sentenced to a term of imprisonment of two years to commence from 22 October 1991. Pursuant to s.556B of the Crimes Act 1900 it is directed that the appellant be released after he has served a period of six calendar months imprisonment upon his giving security on his own recognisance in the sum of $2,000 to be of good behaviour for 18 calendar months and during that period to be subject to the supervision on probation under the Director of Adult Correctional Services or someone recommended by him.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal against the severity of a sentence imposed by Miles C.J. in consequence of the appellant's conviction by a jury on a charge of having engaged in sexual intercourse with a woman without her consent.

The appellant had a long-standing relationship with the victim which had extended over more than two years. During that period they had lived together for extensive periods apparently broken only by the necessity for the appellant to work from time to time away from Canberra. That cohabitation came to an end in May 1990 when the appellant complied with the victim's request to move out of her home.
At about the time of this rupture the victim wrote the appellant a letter in which she professed that her love for him had not diminished but that her commitment to their relationship had. That letter went on to indicate that the victim would not contemplate moving to Wagga with the appellant and, despite her continuing love for him, was not prepared to hold him back from the advancement of which she believed him capable. Perhaps because of the tone of that letter, the appellant continued to visit the victim two or three times a week and consensual…

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 Lyttle, J.A. v The Queen

Details

AGLC: Lyttle, J.A. v. R [1991] FCA 768 ((1991) 57 A Crim R 398)
Case: [1991] FCA 768
Decision Date: 29 NOVEMBER 1991

CaseChat Overview and Summary

The appellant, J.A. Lyttle, was convicted and sentenced in the Supreme Court of the Australian Capital Territory for engaging in sexual intercourse without the consent of the victim. Lyttle appealed against the severity of his sentence, arguing that the original sentence was manifestly excessive and that the sentencing judge had made factual errors in the assessment of the case. The appeal was heard by the High Court of Australia.

The central legal issues in the appeal were whether the sentencing judge had made any factual errors in assessing the case, and whether the sentence imposed was manifestly excessive. The court had to consider the relevance of the prior longstanding relationship between Lyttle and the victim, the fact that Lyttle was a first offender with a previously good character, and the likelihood of Lyttle reoffending. The court also had to determine if the original sentence was manifestly excessive and whether an alternative sentence would be more appropriate.

In delivering the judgment, the court found that there were no factual errors made by the sentencing judge. However, the court found that the original sentence was manifestly excessive. The court took into account the prior longstanding relationship between Lyttle and the victim, Lyttle's previously good character, and the low likelihood of him reoffending. The court considered these factors to be significant and concluded that a more lenient sentence was appropriate. The court set aside the original sentence and imposed a new sentence of two years imprisonment, to commence from the date of the original sentence, with a release after six months on specific conditions.

The final orders of the court were that the appeal be allowed, the original sentence be set aside, and a new sentence of two years imprisonment be imposed, with release after six months on specific conditions. The court also directed that the appellant be released after serving six months of his sentence, upon giving security on his own recognisance in the sum of $2,000, and be of good behaviour for 18 calendar months, subject to supervision on probation.

Orders

Orders of the court

That the appeal be allowed.

That the sentence imposed in the Supreme Court of the Australian Capital Territory on 22 October 1991 be set aside and in lieu thereof the appellant be sentenced to a term of imprisonment of two years to commence from 22 October 1991. Pursuant to s.556B of the Crimes Act 1900 it is directed that the appellant be released after he has served a period of six calendar months imprisonment upon his giving security on his own recognisance in the sum of $2,000 to be of good behaviour for 18 calendar months and during that period to be subject to the supervision on probation under the Director of Adult Correctional Services or someone recommended by him.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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