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[2015] ACTCA 54
Court of Appeal (ACT)
2015-08-13
Murrell CJ, Perry J & Walmsley AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Akis Emmanouel Livas v The Queen
Citation: [2015] ACTCA 54
Hearing Date(s): 13 August 2015
Decision Date: 13 August 2015
Before: Murrell CJ, Perry J & Walmsley AJ
Decision: Appeal dismissed
Catchwords: CRIMINAL LAW – Appeal – particular offences – sexual intercourse without consent – consent vitiated through fraudulent representation – sentence – whether sentencing judge erred in imposing a period of immediate full-time imprisonment – objective seriousness of offence
Legislation Cited: Crimes Act 1900 (ACT) ss 54(1), 67(1)(g)
Cases Cited: Ibbs v The Queen (1987) 163 CLR 447
Parties: Akis Emmanouel Livas (Appellant) The Queen (Respondent)
Representation: Counsel Mr S Gill (Appellant) Mr S Drumgold (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s): ACTCA 10 of 2015
Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Penfold J Date of Decision: 6 February 2015 Case Title: R v Livas Citation: [2015] ACTSC 50 Court File Number(s): SCC 62 of 2014
THE COURT: Background
This is an appeal against sentence. On 6 February 2015 the appellant pleaded guilty to one count of sexual intercourse without consent, the apparent consent having been obtained by fraud. Section 54(1) of the Crimes Act 1900 (ACT) creates the offence of having sexual intercourse without consent, being reckless as to whether that other person consents.
Section 67 of the Crimes Act provides a non-exhaustive list of circumstances in which consent is negated. Section 67(1)(g) of the Crimes Act provides that consent of a person to sexual intercourse with another person is negated if that consent is caused by a fraudulent misrepresentation of any fact made by the other person.
There are other grounds identified by s 67 for vitiating consent, and they include the infliction of violence and threats of violence.
The penalty for the offence is 12 years imprisonment. The appellant was sentenced to a term of imprisonment of 25 months. An order was made by the sentencing judge that the sentence be suspended after the appellant had served eight months of full-time custody, provided he give an undertaking to comply with the conditions of a 24-month Good Behaviour Order.
The Appeal
(a) taken an immediately served custodial period as a starting point because the offence was rape; (b) failed to consider periodic detention as an alternative to the full-time component of the sentence of imprisonment, and (c) not treated the fact that consent was fraudulently obtained as reducing the objective seriousness of the offence.
The Offence
At the time of the offence, the complainant worked as a sex worker from her home in a Canberra suburb. In October 2010, the appellant made an appointment to spend an hour with her. The agreed fee was $250. When he attended, he gave her $200, claiming to have been mistaken about how much he thought she was charging him. He promised to pay her the remaining $50 by leaving it in her letter box.
Several days later, not having received the money due to her, the complainant sent him a text saying, "Hi, Peter. Hope you haven't forgotten the $50" and then three crosses. He replied saying, "No. When can I meet you again?” Soon after, he made an appointment to spend four hours with her on 21 October 2010. When he made the appointment, she told him the cost would be $800 and that he must pay her the $50 he still owed. He agreed to her terms.
On 21 October he arrived at the complainant's home. He accompanied her to her bedroom. He placed a sealed white envelope on the top of the bedroom dresser. He told her it contained the money. The complainant went to check, but he said, "no, no, no, don't open it now, it’s - you have to trust me on this, it's part of my fantasy that it's all about the romance, and I need you to trust me." So the complainant did not open the envelope.
A little later, she again went to open the envelope, but the appellant said, "No, no, no, you have to trust me on this... I wouldn't rip you off because it's really important we know each other for a long time.” So again she resisted from checking. The complainant then had intercourse with the appellant. She continued to worry about whether the money was in fact in the envelope. She eventually managed to open it and found it did not contain any money but contained a piece of folded paper to make the envelope appear to be bulky.
She picked up the telephone to call help, but the appellant grabbed the telephone from her. She then left the bed. She had begun to shake and weep. She accused the appellant of betraying her trust. He said to her, "I'm sorry. I always intended to pay you. I was going to get the money out of the bank. The money goes in at 1 pm today." The complainant then told him security would be coming. He then left.
The complainant then called a security guard. When he arrived at her home, the security guard observed her to be in a state of distress. She telephoned the sex workers outreach program and told a staff member what had occurred. The appellant had taken some written material with him to the complainant's home and when she realised she had been deceived, she managed to hide the material from the appellant. By reference to that material, she then learned his name.
The next day she reported the offence to police. The police arrested the appellant several days later. When spoken to, he admitted having had sexual intercourse with the complainant. He also admitted he had put a folded paper bag in the sealed envelope to make it appear that it contained money. He told police that he had had no money at the time, but had intended to pay her. He said he did not know whether she would have consented to intercourse had she known the envelope contained no money.
After he was charged, the appellant promptly indicated he would plead guilty. He was committed for sentence to the Supreme Court. At that stage he was unrepresented. After he was committed for sentence, the appellant obtained legal advice. He subsequently reversed his plea. The matter was returned to the Magistrates Court as a defended matter. There was a challenge to the charge; it was not successful. He was again committed for trial. His trial was set down for 24 November 2014. On 19 November 2014 he again indicated he would plead guilty.
The Sentencing Proceedings
Mr Gill, who appeared for the appellant, argued first, that the sentencing judge had not addressed the effect the nature of the vitiation of consent had had on the seriousness of the offence or the assessment of the appellant's culpability. He argued that the form of vitiation required a direct assessment so as to assess the level of heinousness. The nature of the vitiation was the most important factor to consider in making that assessment. Mr Gill submitted that the issue had received scant, if any, consideration in the context of its impact on the offence's heinousness. He submitted that the sentencing judge had fallen into error of the type identified in Ibbs v The Queen (1987) 163 CLR 447 at 451, where the High Court deprecated an apparent practice of sentencing judges to treat each kind of unlawful sexual penetration as neither more nor less heinous than another.
Secondly, Mr Gill submitted that statutory provisions which extend vitiation of consent to consent obtained by fraud allowed for the use of common law rationale for a graduated assessment of heinousness of the form of vitiation. In other words, the subject matter of the deception is highly relevant to seriousness. For example, cases where offenders impersonate partners of the victims are more serious than this offence where the complainant was not deceived as to the nature of the act, the identity of the person, his motivation or the character of their relationship, he argued.
Finally, Mr Gill argued that, rather than starting from an examination of all the facts, the sentencing judge had started with the proposition that a sentence of imprisonment had been inevitable. The question of imprisonment, he submitted, could not operate as a starting point because of the class of offence, but could only be arrived at after a consideration of all sentencing factors.
In our view the appeal should be dismissed. Her Honour gave ex tempore reasons. In such a case it may more readily be assumed that a judge appealed from has taken account of all arguments.
The appellant was, according to the transcript of the argument, ably represented by very experienced counsel.
In the course of argument, counsel then appearing for the appellant argued that her Honour ought to consider a non-custodial sentence. He correctly conceded that there was a need for general deterrence, and he said, "In general terms for this offence, people go to prison." That was a proper concession for counsel to make. Her Honour challenged the appellant's counsel on his submission that the case did not require immediate custody. He responded appropriately that this was not a case of someone forcing themselves on someone else, and he submitted that there had been no violence in the commission of the offence. In other words, the appellant's counsel ably put to her Honour reasons why she should regard this offence as less heinous than other forms of sexual intercourse without consent.
At paragraph [36] of the reasons for sentence her Honour discounted the sentence for the late plea, and then she said the following, being the particular words to which Mr Gill took particular exception: I note Mr Livas's lack of offending in the last four years and his employment and other positive factors in his life. It is unfortunate to have to sentence a person in those circumstances to imprisonment, but rape is a serious offence and this rape, although not the worst kind of rape, must be taken seriously.
Her Honour remarked that the offence was clearly premeditated and that the appellant had abused the trust the complainant had placed in him and she was vulnerable. At the same time her Honour observed that no force or violence had been used.
There was evidence before her Honour that the appellant had numerous matters on his record. Most were traffic offences. One was a minor drug offence and a large number consisted of make off without payment offences.
At the time he was sentenced, he had not been convicted of any offence for about four years but two of those years had been spent away from the ACT after the appellant had ceased to comply with bail conditions. It is apparent that her Honour took into account his record and evidence that he had employment. She remarked elsewhere in her reasons, however, that he lacked remorse and she noted that the offence had occurred while he was on conditional liberty.
Her Honour also took account of general deterrence. When her Honour's remarks, which we have quoted above, are seen in context, it is clear that she took account of all objective and subjective matters and in particular, when dealing with objective gravity, the gradations of this serious offence, paying special attention to the way the appellant had fraudulently acted to obtain consent.
Her Honour was correct to describe the offence as a serious one. In our view, a period of full-time custody was inevitable and the period he was ordered to serve was modest. In this regard we read her Honour's remarks at paragraph [36] as saying merely that despite the appellant's favourable subjective circumstances, the objective circumstances required the imposition of full-time custody.
We reject the submission by counsel for the appellant that the passage which we have set out, should be read as though her Honour considered that she had no alternative but to impose a period of full-time custody on the appellant for this offence.
Orders
In our view, no error is demonstrated and the appeal should be dismissed
We would confirm the sentence of 25 months' imprisonment. That will be suspended after eight months upon the appellant entering into a Good Behaviour Order for a period of 24 months. The sentence of 25 months imprisonment will date from 18 May 2015, and the sentence will be suspended from 17 January 2016 upon the appellant entering into the Good Behaviour Order, which will be subject to the conditions indicated by the sentencing judge.
I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Associate:
Date: 10 February 2016
Livas
The Queen [2015] ACTCA 54
(1987) 163 CLR 447