Ibbs v The Queen [1987] HCA 46

Ibbs v The Queen [1987] HCA 46

The Court of Criminal Appeal erred by adopting a sentencing principle that categories of sexual penetration under s. 324F were, divorced from the circumstances, neither more nor less heinous than one another. The seriousness of the conduct depended on the particular facts. Because the applicant was sentenced on the footing that liability arose only from continuing penetration after consent was withdrawn or after any mistake ceased to be honest and reasonable, the four-year sentence was manifestly excessive and amounted to a basis for granting special leave.

Jurisdiction
Australia
Procedural Posture
Criminal Application for Special Leave to Appeal and Appeal Against Sentence / High Court of Australia Appeal From the Court of Criminal Appeal of Western Australia Refusal of Leave to Appeal Against Sentence
Outcome
Application for special leave to appeal granted; appeal allowed; sentence reduced to six months' imprisonment commencing 22 April 1987.
Legal Topics
['sexual Penetration Without Consent' 'sexual Assault' 'consent' 'manifestly Excessive Sentence' 'special Leave to Appeal Against Sentence']
['criminal Law' 'sentencing'] ['sexual Penetration Without Consent' 'sexual Assault' 'consent' 'manifestly Excessive Sentence' 'special Leave to Appeal Against Sentence']

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Procedural Posture

Criminal Application for Special Leave to Appeal and Appeal Against Sentence / High Court of Australia Appeal From the Court of Criminal Appeal of Western Australia Refusal of Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether special leave should be granted in a sentencing matter because the Court of Criminal Appeal applied a sentencing principle amounting to a gross violation of the principles guiding sentencing discretion.' 'Whether, for sentencing under ss. 324D and 324F of the Criminal Code W.A., one category of sexual penetration should be treated as neither more nor less heinous than another when divorced from the circumstances.' 'Whether the four-year sentence was manifestly excessive where sentence proceeded on the basis that criminal responsibility arose from continuing penetration after consent was withdrawn or after any mistake ceased to be honest and reasonable.']

Ratio Decidendi

The Court of Criminal Appeal erred by adopting a sentencing principle that categories of sexual penetration under s. 324F were, divorced from the circumstances, neither more nor less heinous than one another. The seriousness of the conduct depended on the particular facts. Because the applicant was sentenced on the footing that liability arose only from continuing penetration after consent was withdrawn or after any mistake ceased to be honest and reasonable, the four-year sentence was manifestly excessive and amounted to a basis for granting special leave.

Court Disposition

Application for special leave to appeal granted; appeal allowed; sentence reduced to six months' imprisonment commencing 22 April 1987.

Orders

  • ['Application for special leave to appeal granted.' 'Appeal allowed.' 'The order of the Court of Criminal Appeal of Western Australia dated 16 July 1987 was set aside in so far as it refused leave to appeal against sentence.' 'Leave to appeal against sentence to the Court of Criminal Appeal was granted.' 'The appeal...