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R v Okwechime

R v Okwechime

Case [2022] ACTSC 233 30 August 2022

Jurisdiction

Sexual Intercourse Without Consent

Unlawful Choking

Sentence

Totality Principle

Comparative Sentencing

Non-Parole Period

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Okwechime
Citation:	[2022] ACTSC 233
Hearing Date:	23 August 2022
DecisionDate:	30 August 2022
Before:	Norrish AJ
Decision:	(a) In respect of each of the offences for which the offender was found guilty, that is Counts 2, 4 and 5, the offender is convicted. (b) In respect of Count 2, sexual intercourse without consent, the offender is sentenced to 2 years and 6 months' imprisonment to commence on 21 June 2022, expiring on 20 December 2024. (c) In respect of Count 5, act endangering health (choke), the offender is sentenced to 1 year and 3 months' imprisonment, commencing on 21 June 2023, expiring on 20 September 2024. (d) In respect of Count 4, sexual intercourse without consent, the offender is sentenced to 4 years' imprisonment to commence on 21 September 2023, expiring on 20 September 2027. (e) The total sentence is 5 years and 3 months' imprisonment, commencing on 21 June 2022 and expiring on 20 September 2027. (f) I fix a non-parole period of 3 years' imprisonment commencing on 21 June 2022 and expiring on 20 June 2025. (g) I find the offender not guilty of the transfer charge of common assault.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –transferred offence- assault –verdict of not guilty- Judgment and Punishment – Sentence – sexual intercourse without consent – unlawful choking –– where substantial criminal history of a different character to subject offending – where no evidence of contrition-totality-purposes of sentencing-offences committed whilst on conditional liberty- comparative sentencing- purposes of sentencing-inconsistent verdicts
Legislation Cited:	Crimes Act 1900 (ACT) ss 28, 54 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 47, 49, 52, 53 Supreme Court Act 1933 (ACT) s 68E
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Culbert v The Queen [2021] NSWCCA 38 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Pearce v The Queen [1998] [1998] HCA 57; 198 CLR 610 R v Booth (No 2) [2021] ACTSC 255 R v Cowling [2019] ACTSC 138 R v Finau [2020] ACTSC 193 R v Holder & Anor (1983) 3 NSWLR 245 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Palmer [2017] ACTSC 357 R v Payne [2021] ACTSC 221 R v Stevens (No 3) [2017] ACTSC 297 R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 R vVunilagi [2020] ACTSC 303 R v Wheeler [2000] NSWCCA 34 RO v R [2013] NSWCCA 162 RP v R [2013] NSWCCA 192; 234 A Crim R 272
Parties:	The Queen ( Crown) Chidi Chike Okwechime ( Offender)
Representation:	Counsel S Saikal-Skea and K Marson ( Crown) S Whybrow ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Hugo Law Group ( Offender)
File Numbers:	SCC 231…

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 Okwechime

Details

AGLC: R v Okwechime [2022] ACTSC 233
Case: [2022] ACTSC 233
Decision Date: 30 August 2022

CaseChat Overview and Summary

The appellant, Okwechime, was charged with and subsequently found guilty of multiple offences, including sexual intercourse without consent and unlawful choking, while on conditional liberty. The appellant was acquitted of a charge of common assault. The matter was heard in the Supreme Court of Queensland. The appellant challenged the conviction and sentence on various grounds, including the imposition of a sentence whilst on conditional liberty, the totality principle, the purposes of sentencing, and inconsistent verdicts.

The court considered whether the appellant's criminal history, which was substantially different in nature from the current offences, should be considered in the sentencing process. The court also assessed whether the lack of contrition from the appellant warranted a harsher sentence. Additionally, the court examined the totality principle in sentencing, considering the cumulative effect of the offences committed while the appellant was on conditional liberty. The court also evaluated the purposes of sentencing, including deterrence, rehabilitation, and denunciation, in light of the appellant's extensive criminal history. Finally, the court examined the inconsistency in the verdicts and whether it impacted the overall sentencing.

The Supreme Court of Queensland dismissed the appeal, upholding the conviction and sentence. The court held that the appellant's criminal history, although different in nature, should be considered in the sentencing process, but did not warrant a lesser sentence due to the lack of contrition. The court also found that the totality principle did not require a reduction in the sentence for the offences committed while on conditional liberty. In relation to the purposes of sentencing, the court concluded that a custodial sentence was necessary to achieve deterrence and denunciation. The court also found that the inconsistent verdicts did not impact the overall sentencing. The final orders of the court included convictions on Counts 2, 4, and 5, with specific sentences for each offence and a total sentence of 5 years and 3 months' imprisonment, commencing on 21 June 2022 and expiring on 20 September 2027, with a non-parole period of 3 years.

Orders

Orders of the court

(a) In respect of each of the offences for which the offender was found guilty, that is Counts 2, 4 and 5, the offender is convicted.

(b) In respect of Count 2, sexual intercourse without consent, the offender is sentenced to 2 years and 6 months' imprisonment to commence on 21 June 2022, expiring on 20 December 2024.

(c) In respect of Count 5, act endangering health (choke), the offender is sentenced to 1 year and 3 months' imprisonment, commencing on 21 June 2023, expiring on 20 September 2024.

(d) In respect of Count 4, sexual intercourse without consent, the offender is sentenced to 4 years' imprisonment to commence on 21 September 2023, expiring on 20 September 2027.

(e) The total sentence is 5 years and 3 months' imprisonment, commencing on 21 June 2022 and expiring on 20 September 2027.

(f) I fix a non-parole period of 3 years' imprisonment commencing on 21 June 2022 and expiring on 20 June 2025.

(g) I find the offender not guilty of the transfer charge of common assault.

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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Citations

AGLC Citation

R v Okwechime [2022] ACTSC 233

Most Recent Citation

Director of Public Prosecutions v Earle [2023] ACTSC 93

Cases citing this decision · 5 of 5 shown

Director of Public Prosecutions v Matas
[2024] ACTSC 234

…25; 279 A Crim R 232 R v Miller [2015] VSC 180 R v NO (No 2) [2018] ACTSC 37 R v NX [2019] ACTSC 131 R v Ogochukwu [2004] NSWCCA 473 R v Okwechime [2022] ACTSC 233 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Palmer [2017] ACTSC 357 R v Park [2017] ACTSC 26 R v Pham [2015] HCA 39; 256 CLR 550 R v Pickering-Wilson [20…
Director of Public Prosecutions v Hartas
[2024] ACTSC 21

…Kilic [2016] HCA 48; 259 CLR 256 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Palmer [2017] ACTSC 357 R v Pham (2015) 256 CLR 550 R v Okwechime [2022] ACTSC 233 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v Way (2004) 60 NSWLR 168 R v Van Duren [2017] ACTSC 132 R v Van Rysewyk [2008]…
DPP v Rue
[2023] ACTSC 270

…; 167 A Crim R 159 R v Miller [2019] ACTCA 25 R v MT [2014] ACTSC 162 R v Naing [2023] ACTSC 210 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Okwechime [2022] ACTSC 233 R v Palmer [2017] ACTSC 357 R v Pham [2015] HCA 39; 256 CLR 550 R v Snowden [2022] ACTSC 186 R v Taylor [2015] ACTSC 43 R v Stevens (No 3) [2016] ACT…
Okwechime v The Queen
[2023] ACTCA 25 Para 1

…ed charge of common assault which had been transferred from the Magistrates Court pursuant to Pt 8 of the Supreme Court Act 1933 (ACT): R v Okwechime [2022] ACTSC 233 at [8]‑[24].…
Director of Public Prosecutions v Earle
[2023] ACTSC 93 Para 1

…The same may be said of the last decision relied upon by the prosecutor, being the sentencing decision in R v Okwicheme [2022] ACTSC 233. Leaving aside the fact that the sentence imposed in that case is currently under appeal, the circumstances are too different to provide any useful guidance.…

View all 5 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Booth (No 2)
[2021] ACTSC 255 Para 1

…In passing, I had my attention drawn to the decision of Mossop J in R v Booth (No 2) [2021] ACTSC 255, currently the subject of appeal. The subject of the appeal is the appropriateness of determining transferred offences in circumstances contrary to the effect of a verdict of acquittal. His Honour's judgment and th…
R v Payne
[2021] ACTSC 221 Para 1

…e for sentencing purposes. They are R v Cowling [2019] ACTSC 138 per Loukas-Karlsson J (particularly at [6], [7], and [19]) ( Cowling ) and R v Payne [2021] ACTSC 221 per Mossop J (particularly at [13], [14], [49], and [59]) ( Payne ).…
Culbert v R
[2021] NSWCCA 38 Para 1

…ssions made by the Crown that some particular circumstance of aggravation may be determined from the detail of the statements ( Culbert v The Queen [2021] NSWCCA 38 at [120]).…
R v Vunilagi
[2020] ACTSC 303 Para 1

…arison. I have already pointed out some distinctions between Finau and the current case. He also submitted that the sentences imposed in R v Vunilagi [2020] ACTSC 303 ( Vunilagi ), that is after trial by judge alone, for acts of sexual intercourse, indicated a total sentence greater than that required here. This wa…
R v Finau (No 2)
[2020] ACTSC 193 Para 1

…rence to a schedule of cases it provided which I read (some of the cases I have taken the liberty of reading in full), that the decision of R v Finau [2020] ACTSC 193 ( Finau ) was 'similar' insofar as it set out a sentence for penile/vaginal penetration with accompanying surrounding circumstances such as lack of p…
R v Holder
[2019] SASCFC 73 Para 1

…y at [45] (in the judgment of the majority), Mill v The Queen [1988] HCA 70; 166 CLR 59 ( Mill ), and a New South Wales judgment of R v Holder & Anor (1983) 3 NSWLR 245 ( Holder ). This I do.…
R v Cowling
[2019] ACTSC 138 Para 1

…e Crown referred the Court to two judgments relating to choking offences that may provide some guidance for sentencing purposes. They are R v Cowling [2019] ACTSC 138 per Loukas-Karlsson J (particularly at [6], [7], and [19]) ( Cowling ) and R v Payne [2021] ACTSC 221 per Mossop J (particularly at [13], [14], [49],…
R v Palmer
[2017] ACTSC 357 Para 1

…In the context of the consideration of the maximum penalties the Crown relied upon the analysis of Mossop J in R v Palmer [2017] ACTSC 357 concerning factors that may inform the objective seriousness of an offence of sexual intercourse without consent. These matters appear at [22] of the judgment and include a rang…
R v Tuala
[2015] NSWCCA 8 Para 1

…their tender in the proceedings and the defence may put arguments as to why particular parts of particular statements may not be accepted ( R v Tuala [2015] NSWCCA 8; 248 A Crim R 502, particularly at [77]–[78] ( Tuala ). There were no specific submissions made by the Crown that some particular circumstance of agg…
Bugmy v The Queen
[2013] HCA 37 Para 1

…background circumstances or upbringing that suggests disadvantage or dysfunction as was discussed, for example, in the decision of Bugmy v The Queen [2013] HCA 37; 249 CLR 571, particularly at [39]–[44]. Thus, there has nothing been put that lesser weight should be given to general or personal deterrence by way…
RP v R
[2013] NSWCCA 192 Para 1

…ere the harm asserted goes beyond that which might reasonably be expected having regard to the evidence consistent with the jury's verdict ( RP v R [2013] NSWCCA 192; 234 A Crim R 272).…
RO v R
[2013] NSWCCA 162 Para 1

…tablished by appropriate evidence, particularly having regard to evidence suggesting that a psychological damage claim may be multifactorial ( RO v R [2013] NSWCCA 162, [90]–[92]) and where the evidence particularly also is not open for a qualitative or quantitative assessment.…
Cahyadi v R
[2007] NSWCCA 1 Para 1

…he offences will reflect the criminality of both in which case the sentences should be concurrent or at least partly concurrent ( Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41, particularly at [27]).…
R v MAK
[2006] NSWCCA 381 Para 1

…same set of circumstances. I must avoid any suggestion that there is a discount for multiple offending: R v Wheeler [2000] NSWCCA 34 at [36]: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [19]. Where offences are not separate and distinct but part of a single episode of criminality with common features, it is more…
Markarian v The Queen
[2005] HCA 25 Para 1

…t to make given the many different competing circumstances both objective and subjective that are to be taken into account (see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51]). It was submitted by Mr Whybrow that looking at the various judgments, that the pattern of sentencing without regard to discoun…
R v Wheeler
[2000] NSWCCA 34 Para 1

…offences even arising out of the same set of circumstances. I must avoid any suggestion that there is a discount for multiple offending: R v Wheeler [2000] NSWCCA 34 at [36]: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [19]. Where offences are not separate and distinct but part of a single episode of criminalit…
Pearce v The Queen
[1998] HCA 57 Para 1

…t to the totality of criminality. By that, I take it he was reminding me to have regard to the principles set out in cases such as Pearce v The Queen [1998] HCA 57; 198 CLR 610, particularly at [45] (in the judgment of the majority), Mill v The Queen [1988] HCA 70; 166 CLR 59 ( Mill ), and a New South Wales judg…
Mill v The Queen
[1988] HCA 70 Para 1

…ples set out in cases such as Pearce v The Queen [1998] HCA 57; 198 CLR 610, particularly at [45] (in the judgment of the majority), Mill v The Queen [1988] HCA 70; 166 CLR 59 ( Mill ), and a New South Wales judgment of R v Holder & Anor (1983) 3 NSWLR 245 ( Holder ). This I do.…

Legislation cited in this decision · 3

Crimes (Sentencing) Act 2005 (ACT)
33, 47, 49, 52, 53, 7 6 mentions
Crimes Act 1900 (ACT)
28, 54 3 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
68E 2 mentions (from Para 1)