R v Wyper

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.

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

Crimes (Sentencing) Act 2005 (ACT), ss 11, 11(3), 78, 78(6)

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

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

R v Wyper [2017] ACTSC 50

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 it remains both a punitive sentence and one with such features as are likely to achieve the purpose of general deterrence.

6. In addition, it serves purposes such as rehabilitation, re-integration into the community, or the opportunity to permit an offender to continue with the pro-social circumstances under which he or she lives in the community so as to reduce the risk of recidivism.

7. Sexual offending is, of course, a very serious matter which ordinarily warrants a term of imprisonment to be served in full-time custody because of the need to respect sentencing purposes such as general deterrence, punishment, the need to make the offender accountable for his or her actions, to denounce the conduct, and to recognise the harm done to the victim.

8. Nevertheless, there are other purposes of sentencing which justify other options. In this case, given Mr Wyper's subjective circumstances, including, especially, his good character, his age, and his lack of any criminal record or, indeed, any trouble with the law at all, and the general characterisation by his referees 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 Bartlett (No 2) [2017] ACTSC 51 at [6].

9. When the sentencing proceedings resumed today, I received a comprehensive and helpful Assessment Report of Mr Wyper's suitability for an Intensive Correction Order. It was based on six interviews and six telephone calls with Mr Wyper, interviews with one of his sons, an inspection of relevant records and premises, the administration of appropriate tests, and correspondence with various government agencies.

10. Mr Wyper was compliant with the assessment though he maintained his innocence of the offence and, indeed, had commenced an appeal against his conviction. Nevertheless, he indicated his willingness to engage with the Order if it were to be made.

11. He co-operated fully with the assessment. The relevant background information in the assessment is consistent with the subjective circumstances of Mr Wyper as I described them in R v Wyper at [34]-[53].

12. Mr Wyper, however, has been in a new relationship for about nine months. It is a positive and supportive relationship and his partner is aware of his conviction.

13. Mr Wyper has no history of problematic alcohol use and does not appear to have used illicit drugs. Drug testing during the period of assessment did not result in the identification of any drug or alcohol abuse or problematic use.

14. Mr Wyper was assessed as suitable for community service work which was one of the conditions available to be made under the Intensive Correction Order.

15. The Report assessed Mr Wyper as suitable for an Intensive Correction Order. The Report did note some concern at his attitude to the offence and lack of acknowledgement of his offending behaviour. That, however, is partly related to his plea and appeal and I do not consider that it is relevant to my determination of sentence. It will, of course, become relevant for the administration of the Order if the appeal is dismissed.

16. I have set out the seriousness of the offence in R v Wyper at [27]-[32], including noting that there were some aggravating features of the offence. I do not need to repeat what I there said, but I take my findings and comments into account.

17. I note that a victim impact statement was provided and I have summarised it in R v Wyper at [54]-[57]. Again, I do not need to repeat my summary but take it into account.

18. I have set out the matters of sentencing practice to which my attention was drawn in R v Wyper at [58]-[70]. Again, I take what I there said into account without the need for repetition.

19. It seems to me that the offence was sufficiently serious, given the circumstances under which it was committed and the relevant aggravating factors I have identified, that a sentence of imprisonment is appropriate.

20. Nevertheless, Mr Wyper's good character, including his lack of criminal record in the context of his age and subjective circumstances, justifies the moderation of the severity of sentence and makes the service of the sentence of imprisonment by Intensive Correction Order appropriate.

21. Under s 78(6) of the Crimes (Sentencing) Act a court may make, or decline to make, an Intensive Correction Order despite any recommendation with the Intensive Correction Assessment.

22. In this case, I have noted above (at [15]) that Mr Wyper was assessed as suitable to serve the sentence of imprisonment by an Intensive Correction Order.

23. As I pointed out in R v Bartlett (No 2) at [22], there needs to be some exceptional reason or significant change in circumstances to justify not making such an order where an offender is regarded as suitable.

24. The sentence that I proposed was set out in R v Wyper at [80], namely a sentence of two years and six months imprisonment.

25. Under s 11(3) of the Crimes (Sentencing) Act, I may only make an Intensive Correction Order for a sentence of imprisonment for more than two years but not more than four years if I consider it appropriate, having regard to the level of harm to the victim and the community caused by the offence, whether the offender poses a risk to other people or the community, and the offender's culpability for the offence, having regard to all the circumstances.

26. The level of harm to the victim was physically not substantial but the victim impact statement discloses a significant emotional and psychological impact but by no means at the more serious end of experiences with which, unfortunately, this Court has regularly been exposed.

27. While any attack of sexual violence is an attack on the community, the isolated circumstances of the offence do not, it seems to me, amount to a reason for not making an Intensive Correction Order either in itself or in combination with the other matters.

28. I do not consider that Mr Wyper poses a risk to any persons or to the community more generally. Mr Wyper's culpability for the offence was high and the fact that he has shown no remorse is somewhat worrying but, after anxious thought, I am satisfied that it, by itself or in combination with the other matters to which I have referred, does not make it inappropriate that an Intensive Correction Order be made.

29. Accordingly, I propose to make an Intensive Correction Order.

1. I confirm the conviction for engaging in sexual intercourse with the victim without her consent and being reckless as to whether she was consenting.

2. For that offence, I sentence you to imprisonment for two years and six months to commence today.

3. I order that the sentence be served by intensive correction in the community in accordance with s 11 of the Crimes (Sentencing) Act 2005 (ACT).

4. I include the following additional condition, namely a community service condition that you perform 100 hours of community service work within 12 months.

31. Mr Wyper, you no doubt have had it explained to you in careful detail by the officers of ACT Corrective Services what this order means and your counsel no doubt will add to that. Basically, I have said that the offence of which you have been convicted by the jury justifies a sentence of imprisonment of two years and six months. I do not require you, however, to spend any time in custody and I make an Intensive Correction Order that that sentence be served in the community under intensive supervision by ACT Corrective Services.

32. In the circumstances of the offending, I have said that the seriousness of the offence requires a further condition, namely that you complete 100 hours of community service work within 12 months. That work will be discussed with you by ACT Corrective Services and they will make appropriate arrangements

33. I need to explain to you that breaches of that order can result in the Sentence Administration Board making orders that will have the effect of detaining you in custody. If you breach the order then the Sentence Administration Board can make, I think, three day and seven day orders for such breaches. I do not have any expectation at all that that will be the case with you but you just need to understand that that is the situation. You have an appeal on foot, which is a matter for you entirely whether the Court of Appeal deals with that in your favour or not. I am obliged to proceed on the basis of the jury's verdict last December and my sentence is as I have indicated.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.