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R v Wyper

R v Wyper

Case [2017] ACTSC 50 1 March 2017

Jurisdiction

Sentencing

Intensive Corrections Order

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Wyper
Citation:	[2017] ACTSC 50
Hearing Date:	24 February 2017
DecisionDate:	1 March 2017
Before:	Refshauge J
Decision:	1. Gavin Wyper be convicted of engaging in sexual intercourse with the victim without her consent and being reckless as to whether she consented or not. 2. The sentencing be adjourned to 2 May 2017 at 9:30 am for the Director-General to assess Gavin Wyper’s suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order. 3. Bail be continued with the additional condition that Gavin Wyper report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City by 4:00 pm 1 March 2017 to make arrangements for an assessment as to his suitability for an Intensive Correction Order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing following jury trial – engaging in sexual intercourse without consent and being reckless as to whether the victim was consenting – family violence offence – victim and offender in an intimate relationship – offender’s antecedents considered – general deterrence – Intensive Corrections Order assessment ordered
Legislation Cited:	Crimes Act 1900 (ACT), s 54(1) Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1)(m), 78
Cases Cited:	Cheung v The Queen [2001] HCA 67; 209 CLR 1 Goundar v Goddard (2010) 240 FLR 176 Ibbs v The Queen (1987) 163 CLR 447 Nona v The Queen; R v Nona [2015] ACTCA 34 Roberts v Smorhun [2013] ACTSC 218 R v Agresti [2016] ACTSC 9 R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014) R v BNS (No 2) [2016] ACTSC 145 R v Boudelah (1991) 28 FCR 175 R v Buckley (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 30 August 2013) R v Goold (No 2) [2016] ACTSC 228 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Ngerengere (No 3) [2016] ACTSC 299 R v PM [2009] ACTSC 24 R v SV [2016] ACTSC 211 R v Taylor [2015] ACTSC 43 Ryan v The Queen (2001) 206 CLR 267 Smith (1982) 7 A Crim R 437 Veen v The Queen (No 2) (1988) 164 CLR 465
Parties:	The Queen (Crown) Gavin Wyper (Defendant)
Representation:	Counsel Ms S McMurray (Crown) Mr J Lawton (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Defendant)
File Number:	SCC 109 of 2016

REFSHAUGE J:

Any personal violence is a significant crime but, of course, more serious when it involves sexual violence which constitutes a grave invasion of the bodily integrity of the victim. It is also serious when the offence occurs within the context of a domestic relationship.

The courts are aware that victims suffer serious consequences long after a crime of such violence has been committed.

Now appearing for sentence before me is Gavin Wyper who was, on 20 December 2016, found guilty by a jury of a charge…

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 Wyper

Details

AGLC: R v Wyper [2017] ACTSC 50
Case: [2017] ACTSC 50
Decision Date: 1 March 2017

CaseChat Overview and Summary

In the case of R v Wyper, the defendant Gavin Wyper was convicted following a jury trial of engaging in sexual intercourse with the victim without her consent and being reckless as to whether she was consenting. The matter was heard in a court of criminal jurisdiction. The dispute centred on the defendant's actions and the extent to which he could be held responsible for the non-consensual act, given his relationship with the victim.

The primary legal issues that the court had to decide involved the interpretation and application of the relevant criminal statutes concerning non-consensual sexual acts. The court also had to consider the defendant's antecedents and whether an Intensive Corrections Order would be appropriate in this case. Furthermore, the court needed to balance the principles of general deterrence with the potential rehabilitative benefits of an Intensive Corrections Order.

The court found that the evidence supported the jury's verdict of guilty on both counts. It also considered the defendant's history and the potential for rehabilitation through an Intensive Corrections Order. The court determined that the sentencing should be adjourned to allow for an assessment of the defendant's suitability for such an order, in accordance with section 78 of the Crimes (Sentencing) Act 2005 (ACT). The court ordered that the Director-General assess the defendant’s suitability and adjourned the sentencing to a later date. Additionally, the court continued the defendant's bail with conditions that he report to ACT Corrective Services for the assessment.

Orders

Orders of the court

1. Gavin Wyper be convicted of engaging in sexual intercourse with the victim without her consent and being reckless as to whether she consented or not.

2. The sentencing be adjourned to 2 May 2017 at 9:30 am for the Director-General to assess Gavin Wyper’s suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order.

3. Bail be continued with the additional condition that Gavin Wyper report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City by 4:00 pm 1 March 2017 to make arrangements for an assessment as to his suitability for an Intensive Correction Order.

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

R v Wyper [2017] ACTSC 50

Most Recent Citation

R v Bartlett (No 2) [2017] ACTSC 51

Cases Citing This Decision

R v Um (No 2) [2021] ACTSC 115
Citation 1 (Para 1)

…In respect of sentencing practice I was directed, by the Crown, to a number of cases. The Crown suggested that R v Wyper [2017] ACTSC 50 and R v NO (No 2) [2018] ACTSC 37 were perhaps more comparable than the others. The Crown did however point out some distinguishing features in these cases and recognised that ev…
R v NX (No 2) [2019] ACTSC 131
Citation 2

…R v KD [2019] ACTSC 62 R v NO (No 2) [2018] ACTSC 37 R v Stanley [2015] ACTSC 322 R v Wyper [2017] ACTSC 50 R v Wyper (No 2) [2017] ACTSC 103…
Wyper v The Queen; R v Wyper [2017] ACTCA 59
Citation 3 (Para 1)

…In his reasons for sentence of 1 March 2017 ( R v Wyper [2017] ACTSC 50 ( Wyper )), the trial judge noted the following matters (among others):…
R v Palmer [2017] ACTSC 357
Citation 4 (Para 1)

…pain but nothing other than transient physical injury. It has, as commonly occurs with such conduct, an ongoing psychological consequences: R v Wyper [2017] ACTSC 50 at [2]. The impact upon the victim is described above. The offender ignored her repeated protests before and during the sexual assault. After he had…
Stafrace v Carter [2017] ACTSC 371
Citation 5 (Para 1)

…consider this to be an error. Judges of this Court have routinely described such a circumstance as being a circumstance of aggravation: see R v Wyper [2017] ACTSC 50 at [31]-[32] and The Queen v Stanley [2015] ACTSC 322 at [66]. It is important to recognise however that the description of an offence of a family vi…
R v Wyper (No 2) [2017] ACTSC 103
Citation 6 (Para 1)

…ector-General might assess Mr Wyper for suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order: R v Wyper [2017] ACTSC 50.…
R v Bartlett (No 2) [2017] ACTSC 51
Citation 7 (Para 1)

…eferees that the conduct was “out of character”, he is entitled to rely on these matters to justify a moderation of the sentence. See R v Wyper [2017] ACTSC 50 at [75]-[76]).…

See all citing cases →

Cases Cited

R v Ngerengere (No 3) [2016] ACTSC 299
Citation 1 (Para 1)

…entenced to imprisonment, it could be served by an Intensive Correction Order. I have described that option in some detail in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]-[27]. I do not need to repeat or summarise what I there said save to acknowledge that, while it is a sentence of some leniency, the authorities…
R v Goold (No 2) [2016] ACTSC 228
Citation 2 (Para 1)

…I was also asked to consider the decisions of this Court in R v SV [2016] ACTSC 211 and R v Goold (No 2) [2016] ACTSC 228. They are helpful, but in both cases exhibit features that render them more serious than the offence of which Mr Wyper has been convicted.…
R v SV [2016] ACTSC 211
Citation 3 (Para 1)

…I was also asked to consider the decisions of this Court in R v SV [2016] ACTSC 211 and R v Goold (No 2) [2016] ACTSC 228. They are helpful, but in both cases exhibit features that render them more serious than the offence of which Mr Wyper has been convicted.…
R v BNS (No 2) [2016] ACTSC 145
Citation 4 (Para 1)

…na [2015] ACTCA 34 at [87], digital penetration is still an invasion of the privacy and dignity of the victim. There is, as I noted in R v BNS (No 2) [2016] ACTSC 145 at [32], no “hierarchy” of acts of sexual intercourse. On the other hand, digital penetration does not have some of the aggravating features of penil…
R v Harrington [2016] ACTCA 10
Citation 5 (Para 1)

…w but the Court is required to take into account an offender’s antecedents which include any past criminal history and record: R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at 234; [113]-[115]. Nevertheless, it is appropriate to extend leniency to a person without a criminal record, particularly as Mr Wyper’s age s…
Nona v The Queen; R v Nona [2015] ACTCA 34
Citation 6 (Para 1)

…In this case, the sexual intercourse was constituted by digital penetration. As pointed out in Nona v The Queen; R v Nona [2015] ACTCA 34 at [87], digital penetration is still an invasion of the privacy and dignity of the victim. There is, as I noted in R v BNS (No 2) [2016] ACTSC 145 at [32], no “hierarchy” of ac…
R v Taylor [2015] ACTSC 43
Citation 7 (Para 1)

…In R v Taylor [2015] ACTSC 43, Mr Taylor made continued advances to the victim over one evening at a party both had attended. After the guests had left the party, Mr Taylor and the victim remained and when the residents had gone to bed, Mr Taylor and the victim were left in the lounge room. Mr Taylor then digitall…
Roberts v Smorhun [2013] ACTSC 218
Citation 8 (Para 1)

…of the parties to the relationship, it is properly to be characterised as a family violence offence, which renders it more serious: Roberts v Smorhun [2013] ACTSC 218 at [133]-[135].…
Goundar v Goddard [2010] ACTSC 56
Citation 9 (Para 1)

…Wyper. I have no doubt that, apart from this offence, he has very substantial positive good character as I described the factor in Goundar v Goddard (2010) 240 FLR 176 at 184; [44]-[47]. One of the references included is from his former wife.…
R v PM [2009] ACTSC 24
Citation 10 (Para 1)

…ory, Murrell CJ, 1 April 2014). In that case, Mr Ballantyne was 19 years old, which is, of course, a very relevant circumstance as outlined in R v PM [2009] ACTSC 24.…
Cheung v The Queen [2001] HCA 67
Citation 11 (Para 1)

…These principles have been set out and explained in Cheung v The Queen [2001] HCA 67; 209 CLR 1 at 12-14; [13]-[16]. I shall approach my task in this way.…
Ryan v The Queen [2001] HCA 21
Citation 12 (Para 1)

…ificant matter of mitigation of sentence. He has the positive good character which would lead him to be, as described by McHugh J in Ryan v The Queen (2001) 206 CLR 267 at 277; [30], “morally good” and so less deserving of punishment. It shows, also, that, as described by his referees, the offence is out of character…
R v Boudelah [1991] FCA 144
Citation 13 (Para 1)

…deed, the courts have made it clear that sexual offences are abhorrent to the community and should be treated by the courts accordingly: R v Boudelah (1991) 28 FCR 175 at 186.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 14 (Para 1)

…ng of punishment. It shows, also, that, as described by his referees, the offence is out of character or, as described in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, an “uncharacteristic aberration” and, thus, that he is less likely to re-offend. He can, therefore, as articulated by Starke J in Smith (1982) 7…
Ibbs v the Queen [1987] HCA 46
Citation 15 (Para 1)

…of the Crimes Act 1900 (ACT) attracts a maximum penalty of imprisonment for 12 years. While it is, as the High Court pointed out in Ibbs v The Queen (1987) 163 CLR 447 at 451-2, a serious offence judged by the maximum statutory penalty, the precise circumstances of the offence are important to be able to assess the…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 33(1)(m), 7, 78
4 mentions (from Para 1)
Crimes Act 1900 (ACT) 54(1)
2 mentions (from Para 1)