KC v The Queen

[2021] ACTCA 10

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

KC v The Queen

Citation: 

[2021] ACTCA 10

Hearing Date: 

21 April 2021

Decision Date: 

21 April 2021

Before: 

Murrell CJ

Decision: 

Application dismissed.

Catchwords: 

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal out of time – Appeal against conviction and sentence – Historical child sexual abuse –

Consideration of the prospects of success in the proposed appeal

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) s 34A
Crimes Act 1900 (ACT) ss 56, 92D

Cases Cited: 

R v EN [2019] ACTSC 354
R v King [2013] ACTCA 29
R v Scheeren [2014] ACTSC 272
Tully v The Queen [2016] ACTCA 11

Parties: 

KC (Applicant)

The Queen (Respondent)

Representation: 

Counsel

Self-represented (Applicant)
K McCann (Respondent)

Solicitors

Self-represented (Applicant)
ACT Director of Public Prosecutions (Respondent)

File Number: 

ACTCA 11 of 2021

Decision under appeal: 

Court/Tribunal:	ACT Supreme Court
Before:	Burns J
Date of Decision:	20 March 2020
Case Title:	R v KC
Citation:	[2020] ACTSC 94

MURRELL CJ: 

Introduction 

1.       On 2 March 2021, the Registrar refused to grant the applicant leave to appeal out of time against conviction and sentence on the basis that the applicant had failed to adequately explain why time should be extended. The applicant asked the Court of Appeal to grant leave.

2.       The applicant is self-represented.

Trial and sentence

3. On 6 December 2019, the applicant was convicted of three counts of maintaining a sexual relationship with a young person, contrary to s 56 of the Crimes Act 1900 (ACT) (Crimes Act) (Counts 1, 4 and 9) and one count of sexual intercourse without consent, contrary to s 92D of the Crimes Act (Count 10).

4.       Count 1 was the offence that, between 31 December 1979 and 1 January 1982, the applicant was in a sexual relationship with his niece, ND, and engaged in sexual acts with her when she was aged between 11 and 13 years.

5.       Count 4 was the offence that, between 31 December 1979 and 1 January 1990, the applicant was in a sexual relationship with his niece, UC, and engaged in sexual acts with her when she was aged between five and 15 years.

6.       Count 9 was the offence that, between 31 December 1979 and 8 May 1988, the applicant was in a sexual relationship with his niece, NM, and engaged in sexual acts with her when she was aged between seven and 15 years.

7.       Count 10 was the offence that, when NM was 16 years old, the applicant performed cunnilingus on her without her consent.

8.       The Crown case was that, from 1980, when the applicant resided with his parents at an address in Ainslie, his nieces would often attend the residence before and after school, when they were sick, and during school holidays, to be cared for as their parents worked. At such times, the applicant sexually assaulted them.

9.       On 20 March 2020, Burns J (the sentencing judge) imposed the following sentences:

(a) Count 1—six years’ imprisonment from 20 February 2024 to 19 February

2030.

(b) Count 4—five years’ imprisonment from 20 February 2022 to 19 February

2031.

(c) Count 9—eight years’ imprisonment from 20 February 2022 to 19 February

2028.

(d) Count 10—two years and six months’ imprisonment from 20 August 2029 to

19 February 2032.

10.    The total sentence was 10 years’ imprisonment. The sentencing judge fixed a

nonparole period of six years’ imprisonment, expiring on 19 February 2026.

The proposed appeal

11.     On 20 January 2021, the applicant emailed a proposed Notice of Appeal to the Court claiming that:

(a)	The convictions were unsafe and unsound, as the evidence was not capable of supporting them.
(b)	The sentence was manifestly excessive.

The explanation for delay

12.     The applicant explained the delay between 20 March 2020 and 20 January 2021 as follows.

13.     A few days after he was incarcerated, COVID-19 restrictions were imposed at the prison.

14.    He contacted the Aboriginal Legal Service and ACT Legal Aid, who took a considerable time to respond. Ultimately, both services declined legal aid for an appeal.

15.     In October 2020, his sister passed away. This was a difficult time for the applicant.

16.     He was unable to do anything during the Christmas break and shut down period.

17.     The explanation for the delay was not further developed.

18.     For present purposes, I am prepared to assume that the applicant may have been able to elaborate so as to provide an adequate explanation for the delay. However, because I consider that the appeal is completely lacking in merit, it is not necessary to hear further from the applicant concerning the reasons for delay.

Merits of the proposed appeal

19.     The applicant said that the complainant, UC, provided the police with a digital image which she said depicted him, but it was not an image of the applicant. In other words, she was mistaken as to the identity of her assailant.

20.     In fact, UC provided Officer French with a picture, which became Exhibit 4. Officer French gave evidence that he believed that, when giving the image to him, the complainant had said that it was a photograph of her abuser. However, the complainant said that she had provided the photograph for a different purpose, that is, to show a location within the residence that was relevant to the claims of assault. There was no dispute that it was not the applicant who was depicted in the photograph. Rather, it was the complainant's father.

21.    The issue of the discrepancy between Officer French's recollection of what the complainant said when she gave the photograph to him and the complainant's recollection as to why she gave the photograph to him was clearly raised in the trial and in closing submission; the applicant's counsel directed the jury's attention to the matter, which was said to go to the complainant's credit.

22.     The photograph could only have gone to the complaint's credit and the issue was clearly raised before the jury. Given that the applicant was the complainant's uncle and the parties were well known to each other, it is difficult to see that any image of the assailant could evidence a mistake as to whether the applicant was the assailant.

23. The applicant wishes to contend that the sentences that were imposed were not consistent with sentencing practices at the time that the offences occurred. The complete answer to this proposition is that s 34A was introduced into the Crimes (Sentencing) Act 2005 (ACT) in December 2018 and was operational at the time that the applicant was sentenced. Pursuant to that provision, the sentencing judge was required to sentence the applicant according to sentencing practice, including sentencing patterns, at the time of sentencing.

24.     In any event, his Honour did have regard to historical sentencing patterns, in that his Honour considered sentences that had been imposed in several historical child sexual abuse cases. His Honour was referred to R v EN [2019] ACTSC 354, which concerned offences that were committed between 1981 and 1985, Tully v The Queen [2016] ACTCA 11, which concerned offences that were committed between 1991 and 1999, R v King [2013] ACTCA 29, which concerned offences that were committed between 1989 and 1997, and R v Scheeren [2014] ACTSC 272, which concerned offences that were committed between 1979 and 1980 and in which I discussed sentencing in the ACT for historical offences at [44] to [57].

25.     There is no available argument that the sentencing judge erred by relying on current sentencing practice. Further, the reasons for sentence show that his Honour considered cases involving historical child sex offences. Consequently, the proposed appeal against sentence lacks merit.

26.     The application is dismissed.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell

Associate:

Date: