R v Wyper [2017] ACTSC 50

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.

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

Crimes Act 1900 (ACT), s 54(1)

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1)(m), 78

Cheung v The Queen [2001] HCA 67; 209 CLR 1

Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176

Ibbs v The Queen [1987] HCA 46; (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

Smith (1982) 7 A Crim R 437

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1. 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.

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

3. Now appearing for sentence before me is Gavin Wyper who was, on 20 December 2016, found guilty by a jury of a charge of engaging in sexual intercourse with AY without her consent and being reckless as to whether she was consenting.

4. That offence, contrary to s 54(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] HCA 46; (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 seriousness of the offending conduct.

5. In this case, the finding of guilt was made by a jury. It is, therefore, necessary for me to find the facts from the evidence given at the trial. The facts that I must find must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence, they must be found beyond reasonable doubt. Where, however, Mr Wyper relies on mitigatory facts, I need to find them on the balance of probabilities.

6. 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.

7. In this case, I explained the findings I proposed to make as follows. No submissions were made to the contrary.

8. Mr Wyper was, from about July 2014, in an intimate relationship with AY, whom he had met on an internet dating site.

9. Prior to this, he had been in another relationship and, it appears, the woman with whom he had had that relationship had not appreciated that it was over when Mr Wyper had commenced the relationship with AY.

10. During the relationship, AY had her own residence but often stayed at Mr Wyper's house in Monash.

11. In late December 2015, AY travelled to China to visit her family. While there, she received some messages from a woman purporting to be Mr Wyper's girlfriend, apparently the woman with whom he had earlier had a relationship.

12. When AY returned to Australia, she asked Mr Wyper about the messages and he said that he wanted to be in a relationship with her and she said that she forgave him. She asked for a key to his house and he said that was no problem. She also asked him not to change his mobile phone password so that she could check his phone if she felt it was necessary.

13. At the time, AY's daughter was in China and she moved into Mr Wyper's house from that time.

14. At about 8:30 am on Sunday 17 January 2016 AY got up and made breakfast. When Mr Wyper got up, he asked her to leave and move back to her home. She said she asked him why, asking for a reason, but he did not give her any. She asked whether they could talk and, she said, he just walked away. [In the trial the day was referred to as a Saturday but 17 January 2016, the day of the crime, was, in fact, a Sunday].

15. AY planned to telephone her daughter, but it was too early to do so because of the time difference, and she went into the bedroom. Mr Wyper asked her to leave again and she said she did not want to leave. He then said, "Do you want me to fuck you, to make you happy and then you will leave". She was very shocked.

16. At the time, she was on the bed and then she recalled Mr Wyper being on top of her, holding her down with his hand. She was unable to move because he was bigger than she was and he then pulled down her pants.

17. He parted her legs and then put his finger onto her vagina, but she said that she was very, very dry and very, very sore and asked him not to do that. He continued to put his finger into her vagina for a couple of minutes or so. It hurt her and she became very scared. She said, "It hurt, is sore, I want to leave I don't want any reason".

18. He then got off the bed and she got up and pulled up her pants and went into the bathroom.

19. She found that her bottom was wet, the bed was wet and her pants were wet. She thought that she may have urinated. She felt embarrassed, so she washed her face and, recalling the urine on the bed, thought that she should cover it or clean it up. She then felt that she had no reason to clean the bed because of the way Mr Wyper had treated her, so she put some water on the bed from a cup she got from the bathroom. She also put some mouthwash on the bed and she put some liquid on another bed because, she said, "I don't want his [sic] have good [sic] sleep".

20. She then proceeded to pack her things into a suitcase or two and a few bags. While she was doing that, she said Mr Wyper walked around, following her and watching her. Mr Wyper denied that he did so.

21. At one stage, he reached to the top of some furniture, beyond her reach, and took down a radio that he had given her so she could pack it.

22. She then left the house, got into her car and drove away. She parked in a quiet place and, because she felt scared of Mr Wyper, given his sudden change of demeanour, she drove a different way home. After stopping briefly, she travelled further and parked again. She looked at her phone and found a message from Mr Wyper in which he said he was going to call the police. He said that he could not find the TV remote which he suggested she had stolen. She said in evidence that she had put the TV remote in a drawer. She messaged back to tell him where the remote was.

23. She then drove past her house and saw a car and got worried, so she drove away to another quiet place where she telephoned a friend, but spoke to the husband of her friend, who suggested that she should call the police and apply for a protection order. She did not know what to do as she did not know what would happen if she called the police. She also telephoned her daughter but did not tell her very much about what had happened. She then went back to her home.

24. Later, she felt scared, so she called the police, making a triple zero call and the police came to see her. They had a conversation with her and then went to the hospital where AY underwent a medical examination. The examination showed some scratches and bruises, which, she said, had been made by Mr Wyper that morning.

25. On 12 February 2016, police searched Mr Wyper's house under the authority of a search warrant and later Mr Wyper was interviewed by police. He denied the allegations. Mr Wyper was then arrested and charged.

26. In fact, Mr Wyper had, on 17 January 2016, himself called police operations claiming that AY had damaged various items of his property before she had left. She denied that she had done so but was initially charged, however the prosecutor did not proceed.

27. As noted above (at [1]), this is a grave offence. Indeed, 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.

28. 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 acts of sexual intercourse. On the other hand, digital penetration does not have some of the aggravating features of penile/vaginal intercourse where, especially unprotected intercourse, brings a risk of pregnancy or disease.

29. On this occasion, the penetration was accompanied by soreness and pain experienced by AY. In addition, she had expressly told him not to penetrate her because of the likely pain it would cause. He proceeded nevertheless. The offence was of relatively short duration.

30. There was involved in the offence some violence, but not of a serious kind, although, of course, the offence itself is one regarded as an offence of violence.

31. As the victim and Mr Wyper were, at the time, in a domestic relationship, in which there is some vulnerability 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].

32. Thus, there were some aggravating features of the offence which must be recognised in the sentence to be imposed.

33. I had a helpful Pre-Sentence Report, various character references, and counsel's submissions, from which I make the following findings.

34. Mr Wyper was born in Sydney, New South Wales, about 56 years ago. He grew up with his parents and two brothers and appears to have had a happy, trauma-free childhood, during which it is said that he learnt to respect others and to do the right thing. His mother died in 2014, but he continues to have a supportive relationship with his father, a former NSW police detective, and his brothers.

35. Mr Wyper left home permanently when he was 25 living with friends until he married at age 27. He has two sons from his marriage, now aged 29 and 25 years, at least one of whom was present, supporting him at trial and on the sentencing proceedings.

36. The family moved to Canberra in 1993, but, in 2007, he and his wife separated and in 2010 they were divorced.

37. Since then, Mr Wyper has had two significant relationships. The first was with a woman in Sydney and he regularly commuted to maintain the relationship between 2011 and 2015. This appears to have been the woman who rang AY in China.

38. He commenced the other relationship, with AY, in 2012 but it did not "become romantic in nature" until the prior relationship had ended so far as Mr Wyper was concerned. He acknowledged that he may not have been explicitly clear to his

39. His relationship with AY continued until the current offences. I also note that even on Mr Wyper's explanation, the method by which he asked AY to leave was somewhat problematic. Unsurprisingly, his relationship with AY has ended as a result of these offences.

40. Mr Wyper completed Year 12 and, after a work place accident while working as a coalminer, proceeded to university from where he graduated with a Masters degree in Business. He has been employed as an Information Technology Consultant for over 30 years and, for the majority of that time, has been an independent consultant.

41. He has commenced a new role early this year and is enjoying the role. He has been actively engaged in the sector as a member of numerous employment related groups and forums.

42. Mr Wyper has no history of problematic alcohol use and does not appear to have used illicit drugs.

43. Following the end of his marriage, he experienced anxiety and sought counselling between 2007 and 2008.

44. He loves sport which he played when he was younger. As I have noted above (at [40]), he suffered a back injury when he was 21, which continues to cause some problems, but he is able to reduce the impact of the injury through yoga. He has also been prescribed medication for another condition.

45. Mr Wyper has no criminal record and appears not to have been in trouble with the law at all. That is a significant period of time. Of course, people of unblemished character do commit serious crimes, but the legislation (s 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT)) and sentencing principles require that this factor be taken into account.

46. Mr Wyper pleaded not guilty and continues to maintain his innocence. This, of course, deprives him of the mitigation that remorse justifies and denies him the statutory discount for a plea of guilty. Nevertheless, he has expressed a willingness to engage with appropriate sentencing interventions if directed by the Court.

47. In the opinion of the author of the Pre-Sentence Report, he presents with "strong protective factors". These include his consistent employment history, his family support and pro-social network. He has been assessed as at a low risk of general re-offending and also as a low risk of sexual re-offending.

48. I had in evidence eight character references for Mr Wyper. All knew of the conviction and the offences. A number had known him for many years. They were uniformly supportive and, indeed, glowing in their descriptions of Mr 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] ACTSC 56; (2010) 240 FLR 176 at 184; [44]- [47]. One of the references included is from his former wife.

49. He is described as a hard worker who is good at his job and is honest and trustworthy. He operates from consensus and is not competitive. He is a gentle man and spends a good deal of time seeking physical and spiritual growth.

50. Most emphasised was his devotion to his family. He is a loving, generous and caring father who is committed to the improvement and good character formation of his sons.

51. His referees have called him a decent man, responsible and with a high level of emotional intelligence. He is respectful and considerate of others, is kind and empathic.

52. He shows concern for others, especially those who are less fortunate or suffer some physical or social disability. A number of the referees emphasised the respect he shows for women.

53. In particular, the referees strongly assert that the behaviour of which he has been found guilty is out of character.

54. AY provided a Victim Impact Statement. As expected, it shows serious harms resulting from the offence. A significant feeling is of shame, humiliation and embarrassment. This was, perhaps, compounded by the fact that English was not her first language, which isolated her and increased her stress. She had some suicidal ideation.

55. The offence also impacted on her job; she found it hard to concentrate and she became withdrawn and seldom responded to social invitations.

56. She has become nervous when she sees a car similar to that driven by Mr Wyper. She looks for strange cars near her house, uses a stick to open her mail box and checks all her doors and windows before going to bed at night. She has changed jobs and is considering moving house.

57. She continues to have pain in her thigh which seems to have come from the violence in the offence. She has also suffered financially.

58. As foreshadowed in Ibbs v The Queen, the circumstances of the offence of engaging in sexual intercourse without consent vary widely. It is not easy to identify particularly comparable cases.

59. As noted above (at [32]), this offence had some aggravating features but Mr Wyper had some excellent subjective features.

60. A brief overview of decisions in this jurisdiction show that a sentence of imprisonment is inevitable, except under the most unusual circumstances. Where, as here, the offence has some aggravating features, I cannot see that, even with Mr Wyper's particular subjective circumstances, there would exist the necessary exceptional circumstances.

61. That, of course, does not mean that the term of imprisonment has to be served wholly or even partly in full-time detention. There have been cases where the imprisonment was served by periodic detention. See, for example, R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, 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.

62. That was a case of digital penetration while the victim was asleep or going to sleep; the facts are not entirely clear in the decision, a regrettably common occurrence which hampers the value of such decisions for the statutory purpose of assessing sentencing practice so that regard can be had to it as required.

63. The offence in that case was regarded as having no particular aggravating features and Mr Ballantyne had supportive subjective circumstances.

64. 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 digitally penetrated the victim, who was apparently awake but intoxicated. Mr Taylor was 51 years old with a relatively short criminal history for traffic offences, though including driving whilst disqualified and dangerous driving.

65. Mr Taylor had impressive references. A Victim Impact Statement showed serious effects on the victim from the offence. Mr Taylor was sentenced to two years imprisonment suspended with a Good Behaviour Order for two years and six months that included a community service condition to perform 300 hours of community service work.

66. This seems to me to be a less serious offence than that committed by Mr Wyper, though Mr Taylor's subjective circumstances were less compelling. Mr Taylor did, however, plead guilty but not until the first day of the trial.

67. In R v Buckley (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 30 August 2013), Mr Buckley, who was intoxicated, broke into the home of a woman he knew at 2:00 am in the morning, expecting her to be alone. She was asleep. He engaged in cunnilingus and digital penetration, commencing when she was asleep. He was 23 years old with no prior convictions. He was remorseful and was assessed as having good prospects of rehabilitation. Nield AJ imposed sentences of five years imprisonment in relation to each of the offences of sexual intercourse without consent, and a three year sentence for the offence of burglary. His Honour directed that the sentences be served concurrently and imposed a non parole period of two years and six months.

68. As Murrell CJ commented in R v Agresti [2016] ACTSC 9 at [37], this sentence was towards the upper range of sentences that have been imposed.

69. While Mr Buckley had promising subjective circumstances, the offences were more serious than that committed by Mr Wyper.

70. 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.

71. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act . Sexual offences almost always require a deterrent sentence. General deterrence must play a significant part in sentencing for such offences.

72. In the case of Mr Wyper, it does not seem to me that specific deterrence is a prominent factor; Mr Wyper seems to me to be unlikely to re-offend. Nevertheless, some element of punishment is necessary to ensure that Mr Wyper understands the seriousness of the offending.

73. It is important, in a case such as this, to recognise the harm done to the victim, but it is also important to recognise that it is unlikely that Mr Wyper will re-offend.

74. Mr Wyper's lack of criminal record is a significant matter and is significantly to his credit. There is, of course, no "first time offender" discount in sentencing law 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 shows a considerable period of

75. Mr Wyper, however, can call on more than just an absence of prior convictions, though at his age, that is not an insignificant 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 or, as described in Veen v The Queen (No 2) [1988] HCA 14; (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 A Crim R 437 at 442, call on the fact that he has "reached mature years and reached middle age without ever falling foul of the law". He is, as his Honour there said, "entitled to call in aid his good character and is entitled to have the court give it the greatest weight".

the impact of a prison sentence on a person of good character, and not of the criminal class, such as the applicant, is a very much more severe penalty than it is for a man of his age who has spent a good time of his life in gaol and, no doubt, he would do his term in prison much harder than others might.

77. Nevertheless, this is, of course, subject to the seriousness of the offence. His Honour in Smith at 442 explained that, for some offences, his Honour gave armed robbery as an example, the seriousness of the offence may overwhelm such considerations. I am also concerned that the lack of clarity in the termination of his prior relationship, which he acknowledged, gives a slightly worrying context to this offence, and that, to a small degree, moderates the perspectives that his referees gave to his attitude towards women.

78. Here, the seriousness of the offence is significant and, given the aggravating features and the need for general deterrence, certainly justifies a sentence of imprisonment.

79. Ordinarily, some part of that would be required to be served in full-time custody. In this case, Mr Wyper's subjective circumstances suggest that there may be room for some amelioration of that. I consider that, while he must be sentenced 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 make it clear that it has significant deterrent and punitive aspects.

80. In my view, the appropriate sentence would be one of two years and six months imprisonment but I will adjourn so that Mr Wyper can be assessed for suitability for an Intensive Correction Order.

1. I convict you 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 is to continue with the additional condition that you report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City by 4:00 pm today to make arrangements for an assessment as to your suitability for an Intensive Correction Order.

82. Mr Wyper, I will not explain to you, you are intelligent enough to understand, what I have already said about the circumstances of the offence. I accept that you have commenced an appeal and that is your right, but I am, of course, bound by the jury's verdict and have assessed the proceedings on that basis.

83. I have formed the view that while a sentence of imprisonment is appropriate, it can be served in the community with an Intensive Correction Order which is justified by your good character, having regard to your age and other circumstances.

84. There will be an intensive assessment for that order, over the next eight weeks, and you will need to undertake a number of interviews, undergo some tests and considerations and, no doubt, Corrective Services will require interviews with perhaps members of your family and others to assess the suitability of that. If, at the end of the period, you are assessed as suitable, then, ordinarily, unless something extraordinary happens, I will sentence you to imprisonment to be served in the community under an Intensive Correction Order. No doubt your counsel will explain to you more carefully what all that means but that is a general understanding.

85. You need now to sign a further bail variation, which will require you to attend at ACT Corrective Services. You have probably previously attended there for the purpose of the Pre-Sentence Report, but that is at Level 1, 249 London Circuit, Canberra City, by 4:00 pm today.

I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.