R v Haven (a pseudonym)

Case [2022] ACTCA 61


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

R v Haven (a pseudonym)

Citation:

[2022] ACTCA 61

Hearing Date:

16 August 2022

DecisionDate:

11 November 2022

Before:

McCallum CJ, Mossop and Kennett JJ

Decision:

The appeal is dismissed.

Catchwords:

APPEAL – CRIMINAL LAW – Crown appeal against sentence – sexual intercourse without consent – young offender – whether complete suspension of sentence of imprisonment manifestly inadequate – sentence lenient but no appealable error demonstrated – appeal dismissed

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), Ch 8A, ss 7, 33(1), 133C, 133D, 133G

Crimes Act 1900 (ACT), ss 54, 55

Cases Cited:

Azzopardi v R [2011] VSCA 372; 35 VR 43

Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Director of Public Prosecutions (Victoria) v Dalgliesh [2017] HCA 41; 262 CLR 428
House v The King (1936) 55 CLR 499
LB v The Queen [2016] ACTCA 6
MT v The Queen [2021] ACTCA 26; 17 ACTLR 22
R v Ballantyne (Unreported Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014)
R v EO [2017] ACTSC 138
R v Finau (No 2) [2020] ACTSC 193
R v Horton-Hegarty [2018] ACTCA 22
R v Nicholas; R v Palmer [2019] ACTCA 36
R v MT [2014] ACTSC 162
R v PM [2009] ACTSC 24
R v TL [2017] ACTCA 18
R v UG [2020] ACTCA 8
R v Verdins [2007] VSCA 102; 16 VR 269

Wyper v The Queen; R v Wyper [2017] ACTCA 59

Parties:

The Queen (Appellant)

Brian Haven (a pseudonym) (Respondent)

Representation:

Counsel

A Williamson (Appellant)

T Jackson and S Robinson (Respondent)

Solicitors

ACT Director of Public Prosecutions (Appellant)

JDR Law (Respondent)

File Number:

ACTCA 6 of 2022

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Norrish AJ

Date of Decision:          4 February 2022

Case Title:  R v Haven (a pseudonym)

Citation: [2022] ACTSC 25

THE COURT:

Introduction

  1. On 4 February 2022 an acting judge of the Supreme Court sentenced the respondent for an offence against s 54(1) of the Crimes Act 1900 (ACT), engaging in sexual intercourse without consent. The sentence imposed was two years and seven months’ imprisonment but that sentence was wholly suspended subject to a good behaviour order for three years.

  1. The Crown has appealed against that sentence. The only ground of appeal which was pressed was that the sentence was manifestly inadequate. That was because the suspension of the imprisonment resulted in a sentence that was manifestly inadequate. The Crown argued that suspending the sentence in its entirety failed to maintain an adequate standard of punishment for offences of this nature and did not achieve the purposes of sentencing – particularly general deterrence and denunciation. The Crown submitted that notwithstanding the respondent’s youth, the objective seriousness of the offence in combination with the respondent’s demonstrated lack of remorse and limited prospects of rehabilitation, required the…

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AGLC
R v Haven (a pseudonym) [2022] ACTCA 61
Case
[2022] ACTCA 61
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Crown against the sentence imposed on the respondent, Haven (a pseudonym), who had been convicted of sexual intercourse without consent. The appeal was heard by McCallum CJ, Mossop and Kennett JJ.

The central legal issue before the Court was whether the sentence of imprisonment, which had been completely suspended, was so manifestly inadequate as to demonstrate an error of law. The Crown contended that the sentence was unduly lenient given the nature of the offence and the circumstances of the offender.

The Court acknowledged that the sentence imposed was lenient. However, it found that while the sentence might have been at the lower end of the available sentencing range, it did not reach the threshold of being demonstrably or manifestly inadequate. The Court applied the principles governing Crown appeals against sentence, which require a higher degree of error than simply disagreeing with the sentencing judge's discretion. No appealable error was demonstrated, and therefore the appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

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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