SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wyper (No 2) |
Citation: | [2017] ACTSC 103 |
Hearing Date: | 24 February 2017 |
DecisionDate: | 2 May 2017 |
Before: | Refshauge J |
Decision: | 1. The conviction of Gavin Wyper, entered on 1 March 2017, for engaging in sexual intercourse with the victim without her consent and being reckless as to whether she was consenting be confirmed. 2. Gavin Wyper be sentenced to imprisonment for two years and six months to commence on 2 May 2017. 3. That sentence be served by intensive correction in the community in accordance with s 11 of the Crimes (Sentencing) Act 2005 (ACT). 4. The following additional condition be included, namely a community service condition that Gavin Wyper perform 100 hours of community service work within 12 months from 2 May 2017. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – engaging in sexual intercourse without consent and being reckless as to consent – family violence offence – guilty verdict following trial by jury – considerations of subjective circumstances – good character – lack of criminal record – general deterrence – Intensive Corrections Order made |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 11, 11(3), 78, 78(6) |
Cases Cited: | R v Bartlett (No 2) [2017] ACTSC 51 R v Ngerengere (No 3) [2016] ACTSC 299 |
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:
On 20 December 2016, Gavin Wyper was found guilty by a jury of engaging in sexual intercourse with AY without her consent and being reckless as to whether she was consenting.
On 1 March 2017, I convicted Mr Wyper of that offence but adjourned the sentencing until today in order that the Director-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.
Where a court finds that a sentence of full-time imprisonment is appropriate and, indeed, would often be the sentence imposed on an offender who committed the offence for which he or she is convicted, the Court may order as an alternative that the sentence of imprisonment be served by Intensive Correction Order where the Court considers that there is a justification for it.
I have described the sentencing option of an Intensive Correction Order in some detail in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]-[27]. I do not need to set out what I there said, but make the following brief comments.
An Intensive Correction Order is clearly more lenient than the serving of a sentence of imprisonment in full-time custody but it is, nevertheless, a sentence of imprisonment to be served in the community, though under such intensive conditions that the courts have made it clear that…
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- R v Wyper (No 2) [2017] ACTSC 103
- Case
- [2017] ACTSC 103
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CaseChat Overview and Summary
The primary legal issue the court had to address was the appropriate sentence for Wyper, who had pleaded guilty to the charge. The court had to consider the nature and circumstances of the offence, the subjective circumstances of the offender, his good character and lack of criminal record, and the need for general deterrence. The court also had to determine whether an Intensive Corrections Order was appropriate, given the circumstances of the case.
In its reasoning, the court acknowledged the gravity of the offence, which involved a serious breach of trust and autonomy. However, it also considered the subjective circumstances of Wyper, including his good character and lack of criminal record. The court found that an Intensive Corrections Order was appropriate, as it would allow Wyper to serve his sentence in the community while undergoing intensive supervision and rehabilitation. The court also imposed a condition of 100 hours of community service work within 12 months from the commencement of the sentence.
The court confirmed Wyper's conviction and sentenced him to imprisonment for two years and six months, to commence on 2 May 2017. The sentence was to be served by intensive correction in the community in accordance with section 11 of the Crimes (Sentencing) Act 2005 (ACT). Additionally, Wyper was required to perform 100 hours of community service work within 12 months from 2 May 2017. The court's decision reflected a balanced approach that took into account both the seriousness of the offence and the individual circumstances of the offender.
Orders
Orders of the court
1. The conviction of Gavin Wyper, entered on 1 March 2017, for engaging in sexual intercourse with the victim without her consent and being reckless as to whether she was consenting be confirmed.
2. Gavin Wyper be sentenced to imprisonment for two years and six months to commence on 2 May 2017.
3. That sentence be served by intensive correction in the community in accordance with s 11 of the Crimes (Sentencing) Act 2005 (ACT).
4. The following additional condition be included, namely a community service condition that Gavin Wyper perform 100 hours of community service work within 12 months from 2 May 2017.
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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