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R v Haven (a pseudonym)

R v Haven (a pseudonym)

Case [2022] ACTSC 25 4 February 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Haven (a pseudonym)
Citation:	[2022] ACTSC 25
Hearing Dates:	31 January 2022; 1 February 2022; 4 February 2022
DecisionDate:	4 February 2022
Before:	Norrish AJ
Decision:	See [83]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – youth – disadvantaged background – mental instability – specific deterrence
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 86 Crimes (Sentencing) Act 2005 (ACT) Part 8A, ss 7, 12, 33, 133C, 133G
Cases Cited:	Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cranfield v The Queen [2018] ACTCA 3 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Kearsley v The Queen [2017] NSWCCA 28; 265 A Crim R 233 Moiler v The Queen [2021] NSWCCA 73 R v Engert (1995) 84 A Crim R 67 R v EO [2017] ACTSC 138 R v Guode [2020] HCA 8; 267 CLR 141 R v Horton-Hegarty [2018] ACTCA 22 R v Nicholas; R v Palmer [2019] ACTCA 36 R v PM [2009] ACTSC 24 R v Verdins [2007] VSCA 102; 16 VR 269 Veen v The Queen (No 2) (1988) 164 CLR 465
Parties:	The Queen (Crown) Brian Haven (a pseudonym) (Offender)
Representation:	Counsel K Marson (Crown) S Robinson (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) JDR Law (Offender)
File Number:	SCC 146 of 2021

NORRISH AJ:

The offender appears before me in relation to a serious crime that carries 12 years imprisonment by way of maximum penalty. He pleaded guilty ultimately in this court to an offence that he, on 29 February 2020 at Canberra, engaged in sexual intercourse with the victim without her consent and was reckless as to whether she had consented.

In relation to that pleading, I note the history of the matter so far as the matter being before the court for various mentions before the plea was entered. I am ultimately proposing to afford a discount of 15 per cent on the otherwise appropriate sentence, having regard to the fact that the giving of the plea is of utilitarian benefit beyond that of a plea entered at the commencement of a trial, and it certainly is significant in a sexual assault case, that it saves the victim the ordeal of having to give evidence about her experience.

With regard to the facts of the matter, the offender and the victim were known to one another. They had been in what was described in the facts as an ‘intimate relationship’, which lasted over a relatively short period between October and November 2019. I am informed in the facts that the victim then commenced a relationship with another male and the relationship with the offender concluded although I would understand that they maintained some contact. Both the victim and the offender were persons who met through…

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 R v Haven (a pseudonym)

Details

AGLC: R v Haven (a pseudonym) [2022] ACTSC 25
Case: [2022] ACTSC 25
Decision Date

CaseChat Overview and Summary

The matter before the Supreme Court of the Australian Capital Territory involved an offence of sexual intercourse without consent, committed by Brian Haven (pseudonym), against a victim with whom he had an intimate relationship. The offender pleaded guilty to the offence, which carried a maximum penalty of 12 years imprisonment. The court was required to decide on the appropriate sentence, taking into account the circumstances of the offender, the nature of the offence, and the relevant sentencing principles and legislation. The court considered the purposes of sentencing, the offender's background, mental state, and prospects for rehabilitation, as well as the utilitarian benefits of the offender's guilty plea. The court also examined comparative cases and the principles of individualised justice and rehabilitation for young offenders. The court ultimately decided to impose a sentence of 2 years and 7 months imprisonment, wholly suspended for 3 years, with a Good Behaviour Order and supervision by the Director-General. The sentence was reduced from 3 years imprisonment, with a 15% discount for the offender's guilty plea, which was entered late but still held significant utilitarian value in sparing the victim from giving evidence.

Orders