R v Livas - [2015] ACTSC 50

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Livas
Citation:	[2015] ACTSC 50
Hearing Date:	6 February 2015
DecisionDate:	6 February 2015
Before:	Penfold J
Decision:	See [38] to [41] below.
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender pleaded guilty to sexual intercourse without consent – consent obtained by fraudulent representation that envelope given to sex worker before sexual intercourse contained payment as agreed – envelope contained only folded paper bag – early plea of guilty not adhered to – challenge to charge of sexual intercourse without consent – offender absent from territory for two years – Supreme Court trial listed – plea of guilty entered 5 days before listed trial – small plea of guilty discount available – victim impact statement – no force or violence used – relatively minor criminal history of traffic offending and dishonesty offences – difficulty in maintaining interpersonal relationships – good history of employment – supportive family – limited remorse and insight displayed by offender – serious sexual offences to be taken seriously – some full-time custody necessary.
Legislation Cited:	Crimes Act 1900 (ACT), s 54(1) Crimes (Sentence Administration) Act2005 (ACT)
Cases Cited:	Steve Onnis v The Queen [2013] VSCA 271
Parties:	The Queen (Crown) Akis Emmanouel Livas (Offender)
Representation:	Counsel Mr J White (Crown) Mr A Doig (Offender)
Solicitors ACT Director of Public Prosecutions Crown) Canberra Criminal Lawyers (Offender)
File Number:	SCC 62 of 2014

Introduction

Akis Livas has pleaded guilty to one offence of sexual intercourse without consent, the apparent consent of the complainant, having been obtained by fraud. The offence arises under s 54(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of imprisonment for 12 years.

The incident from which this charge arose took place in October 2010. The complainant worked as a self-employed sex worker from her home in a Canberra suburb. Mr Livas made an appointment with her for a one-hour session, including sexual intercourse, which the complainant said would cost $250. In dealing with the complainant Mr Livas called himself “Peter”.

Mr Livas kept that appointment. Sexual intercourse took place and he gave the complainant $200. When the complainant reminded him that the cost was $250 he stated that he had made a mistake and would go and get $50 and put it in her letterbox.

Several days later the complainant sent Mr Livas a text message which said “Hi peter. Hope you haven’t forgotten the $50. Xxx”. He sent a reply text message which said “No when can I meet you again”. A short time later Mr Livas made a further appointment with the complainant for sexual services, the appointment being for four hours on 21 October 2010. The complainant told him the cost of $800 plus the $50 he owed her, which he agreed to.

Mr Livas arrived at the complainant’s house. He went into the bedroom with the complainant and put a manila folder he was carrying…

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 Livas

Details

AGLC: R v Livas [2015] ACTSC 50
Case: [2015] ACTSC 50
Decision Date: 6 February 2015

CaseChat Overview and Summary

The appellant pleaded guilty to a charge of sexual intercourse without consent. The Crown alleged that the appellant had obtained consent through a fraudulent representation that an envelope given to the sex worker contained payment as agreed. However, the envelope only contained a folded paper bag. The Supreme Court of Western Australia heard the matter, with the appellant absent from the territory for two years before the trial. The plea of guilty was entered just five days before the listed trial, with a small plea of guilty discount available. The victim impact statement was considered, along with the appellant's relatively minor criminal history of traffic offences and dishonesty offences. The court also took into account the appellant's difficulty in maintaining interpersonal relationships, good history of employment, and supportive family. However, the appellant displayed limited remorse and insight.

The court was required to decide whether the appellant's early plea of guilty should have resulted in a more substantial sentence discount, and whether the sentence imposed was appropriate in light of the serious nature of the offence. The court also had to consider the factors relevant to sentencing, including the appellant's criminal history, the impact on the victim, and the appellant's personal circumstances.

In determining the appropriate sentence, the court noted that serious sexual offences must be taken seriously, and some full-time custody was necessary. The court found that the appellant's plea of guilty, entered just five days before the trial, did not warrant a substantial sentence discount. The court also considered the appellant's limited remorse and insight, and the fact that no force or violence was used. Ultimately, the court determined that a sentence of imprisonment was appropriate, with a non-parole period of three years and six months. The court also ordered the appellant to participate in a sex offender treatment program and to comply with other conditions.

Orders

Orders of the court

See [38] to [41] below.

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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