KAF v R - [2009] NSWCCA 184

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
KAF v R [2009] NSWCCA 184

FILE NUMBER(S):
2007/8954

HEARING DATE(S):
22 June 2009

JUDGMENT DATE:
10 July 2009

PARTIES:
KAF (Applicant)
The Crown

JUDGMENT OF:
Spigelman CJ McClellan CJatCL Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/8954

LOWER COURT JUDICIAL OFFICER:
Hock DCJ

LOWER COURT DATE OF DECISION:
29 August 2008

COUNSEL:
A Francis (Applicant)
L Babb SC/M Rabsch (Crown)

SOLICITORS:
Legal Aid Commission for NSW (Applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - imposition of fixed term of imprisonment where standard non parole period exists - non parole period required to be set
CRIMINAL LAW - appeal against sentence - determination of objective seriousness - offence characterised as within mid range of objective seriousness - whether sentencing judge erred in not considering the putative mid range offence and contrasting with the present offence - appeal dismissed

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
KC v R [2009] NSWCCA 110
R v Duffy [1999] NSWCCA 321
R v Hibberd [2009] NSWCCA 20
R v Huynh [2005] NSWCCA 220
R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18
R v King [2009] NSWCCA 117
R v Way (2004) 60 NSWLR 168
SGJ v R; KU v R [2008] NSWCCA 258
Vu v R [2006] NSWCCA 188

TEXTS CITED:

DECISION:
1. Leave to appeal granted and the appeal upheld in part.
2. The sentence imposed in relation to count 1 quashed and in lieu thereof the applicant is sentenced to a non-parole period of 5 years to date from 19 August 2007 and expire on 18 August 2012 with a balance of term of 3 years to expire on 18 August 2015.
3. The appeal is otherwise dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/8954
SPIGELMAN CJ
McCLELLAN CJ at CL
JOHNSON J
FRIDAY, 10 JULY 2009

KAF v R

Judgment

SPIGELMAN CJ: I agree with McClellan CJ at CL.
McCLELLAN CJ at CL: The applicant pleaded guilty to two counts of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900 (“the Act”) the circumstances of aggravation being that the victim was under the age of 16 years. There were two matters on a Form 1, being offences of aggravated acts of indecency contrary to s 61O, of the Act which were taken into account in respect of the sentence for the second count.
The maximum penalty for the offences contrary to s 61J of the Act is a period of imprisonment for twenty years. There is a standard non-parole period which is a period of ten years imprisonment. The maximum penalty for an offence contrary to s 61O of the Act is imprisonment for five years.
For the first offence the applicant was sentenced to a fixed term of five years imprisonment to date from 19 August 2007 and expire on 18 August…

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 KAF v R

Details

AGLC: Kaf v The Queen [2009] NSWCCA 184
Case: [2009] NSWCCA 184
Decision Date: 10 July 2009

CaseChat Overview and Summary

The applicant, KAF, appealed against the sentence imposed by the sentencing judge, arguing that the judge erred in determining the objective seriousness of the offences by failing to consider a putative mid-range offence. The case involved serious sexual offences against the applicant’s daughter, DJ, who was 11 years old at the time. The applicant, KAF, was the victim’s natural father and had separated from her mother. The sentencing judge concluded that the offences involved very serious criminality, given the age of the victim and the applicant's position of authority. The offences had significant effects on the victim's psycho-sexual development, breaking the relationship of trust between father and daughter. The sentencing judge imposed a fixed term of imprisonment with a standard non-parole period, which the applicant contested.

The key legal issue before the court was whether the sentencing judge erred in not considering a putative mid-range offence when determining the objective seriousness of the present offences. The applicant argued that this oversight led to an inappropriate characterisation of the offences as falling within the mid-range of objective seriousness. The court had to assess whether the sentencing judge's failure to consider this putative mid-range offence constituted a significant error that warranted a departure from the standard non-parole period. The court also needed to determine if the sentencing judge’s overall assessment of the objective seriousness of the offences was correct and whether this influenced the imposition of the sentence.

The court found that the sentencing judge did not err in her consideration of the objective seriousness of the offences. The judge had adequately assessed the gravity of the crimes, taking into account the age of the victim, the applicant’s position of authority, and the significant impact on the victim's psycho-sexual development. The court held that the sentencing judge’s determination of the objective seriousness was correct and that there was no need to consider a putative mid-range offence in this context. The sentencing judge appropriately balanced the applicant’s criminal history and mitigating factors with the severity of the offences. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court confirmed the dismissal of the applicant's appeal. The fixed term of imprisonment and the standard non-parole period set by the sentencing judge remained in place. The court emphasised that the sentencing judge's overall assessment of the objective seriousness of the offences was sound and that the sentence imposed was appropriate given the circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

The application for leave to appeal seeks to raise one ground of appeal, being that the sentencing judge erred in her consideration of the standard non-parole period by failing to consider the putative mid-range offence when determining that the objective seriousness of these offences fell in the mid-range of objective seriousness.The facts The applicant makes no complaint about her Honour’s statement of the relevant facts. The applicant was the victim’s, (who is identified by the initials DJ), natural father. At the time of the offences he had separated from the victim’s mother. The victim was aged 11 years at the time of the offences. The first offence involved the victim rubbing lubricant on the applicant’s penis following which he penetrated her genitalia to some extent. The second offence occurred when the applicant and the victim were in bed together and, he being naked, had the victim rub his penis and then placed his fingers in her genitalia, which he penetrated “to some extent”. One of the matters on the Form 1 involved the applicant masturbating while his daughters were in the bed with him, the complainant being aware of the activity. The second matter on the Form 1 involved the victim masturbating the applicant. The sentencing judge described the offences as involving very serious criminality. Apart from the age of the child victim her Honour emphasised that the applicant, being the child’s father, was in a position of authority in relation to her. Her Honour concluded that the offences would have had a significant effect on the child’s psycho-sexual development and may cause problems for her for many years to come. The relationship of trust with her father was broken. Her Honour concluded that the offences occurred when the applicant was abusing alcohol and there was also a probability of a psychosis which resulted in him being disinhibited. Although not an excuse for his conduct her Honour concluded that these matters provided “in part some explanation” for his offending. The applicant was 56 years of age at the time of sentencing. Apart from some traffic matters he has a minor criminal history, comprising convictions for knowingly taking part in the supply of Indian hemp (in 1991), goods in custody (in 1993) and receiving (in 1995). He has previously served two short periods of imprisonment. The sentencing judge concluded that the applicant’s record entitled him to some leniency but this must be balanced with the fact that the present offences were committed over a six month period during which they went undetected. The applicant was born in New Zealand and moved to Australia in 1989. He told the psychiatrist who provided a report for the court that he had been sexually abused by a neighbour when he was aged between 8 and 12 years of age. Before he was taken into custody the applicant was self-employed as a bush furniture manufacturer. The applicant gave evidence before the sentencing judge who concluded that “he seemed to have some insight into the gravity of his conduct.” He told the sentencing judge that he intended to take part in the sex offender’s program within the prison system and seek counselling for his alcohol and drug problems. His prison counsellor reported that “he was making a genuine attempt to address his alcohol and other drug issues.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPIGELMAN CJ CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ, CLELLAN CJ

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