DKJ v The Queen - [2020] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DKJ v THE QUEEN
[2020] SASCFC 23
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Justice Lovell, The Honourable Justice Doyle and The Honourable Justice Hughes)
15 April 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant is his granddaughter. The appellant was sentenced to 12 years imprisonment, reduced by 30% for his early guilty plea, resulting in a head sentence of eight years, four months and 25 days with a non-parole period of five years.
The appellant appeals his sentence on the basis that it is manifestly excessive. The respondent concedes that the sentence is manifestly excessive.
Held (per curiam), allowing the appeal:
1. The sentence is manifestly excessive.
2. The sentence imposed by the District Court judge is set aside and the appellant resentenced.
Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v D (1997) 69 SASR 413, considered.

DKJ v THE QUEEN
[2020] SASCFC 23
Court of Criminal Appeal: Lovell, Doyle and Hughes JJ

THE COURT: The appellant pleaded guilty in the Magistrates Court to one count of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The offence carries a maximum penalty of life imprisonment. The offending involved two incidents of non-penetrative contact with the complainant. The appellant had no relevant prior convictions, cooperated with the police and demonstrated remorse. The appellant was sentenced by a District Court judge who adopted a notional starting point of 12 years imprisonment, reduced by 30% for the guilty plea, leading to a head sentence of eight years, four months and 25 days. The judge imposed a non-parole period of five years.
The appellant appeals the sentence on the ground that the sentence imposed is manifestly excessive. Kelly J granted permission to appeal on this ground on 28 January 2020. The appeal is conceded by the prosecution. For the reasons that follow we allow the appeal and resentence the appellant.
Between January 2014 and March 2016, the appellant engaged in two unlawful sexual acts, committed approximately one month apart, against his eight-year-old granddaughter. The complainant and her brother lived with the appellant and his wife pursuant to a kinship carer arrangement.
The first unlawful sexual act occurred shortly after the appellant assumed care of the children. After the complainant wet her bed, the appellant washed and redressed her and she joined the appellant and his wife in their bed. The complainant fell asleep but again wet the bed. After undressing the complainant a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DKJ v The Queen

Details

AGLC: DKJ v The Queen [2020] SASCFC 23
Case: [2020] SASCFC 23
Decision Date: 15 April 2020

CaseChat Overview and Summary

The case of *DKJ v The Queen* concerned an appeal against conviction and sentence. The appellant, DKJ, had been convicted of maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appeal was heard by Lovell, Doyle and Hughes JJ.

The primary legal issues before the Court were whether the conviction was unsafe or unsatisfactory, and whether the sentence imposed was manifestly excessive.

The Court considered the evidence presented at trial, including the victim's testimony and corroborating evidence. It applied the principles of appellate review for convictions, focusing on whether there was a reasonable doubt as to the appellant's guilt. In relation to sentence, the Court assessed the severity of the offences, the appellant's culpability, and the impact on the victim, weighing these factors against sentencing principles such as deterrence and rehabilitation. The Court ultimately found no error in the conviction. However, it determined that the sentence imposed was excessive, having regard to the specific circumstances of the offending and the appellant's personal factors.

The Court allowed the appeal against sentence, quashing the original sentence and imposing a lesser term of imprisonment. The conviction was affirmed.

Orders