Khanchitanon v R - [2014] NSWCCA 204

Court of Criminal Appeal

New South Wales

Case Title: Khanchitanon v R

Medium Neutral Citation: [2014] NSWCCA 204

Hearing Date(s): 19 September 2014

Decision Date: 03 October 2014

Before: Hoeben CJ at CL at [1]
Fullerton J at [2]
Adamson J at [3]

Decision:
Refuse leave to appeal

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - sexual intercourse without consent - applicant was victim's employer - fact that victim continued to report to work did not ameliorate the applicant's abuse of authority - pedantry particularly inappropriate when remarks on sentence delivered orally and ex tempore - actual or potential deportation irrelevant to the sentencing exercise but error was in applicant's favour - leave refused

Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited: Dinsdale v R [2000] HCA 54; 202 CLR 321
Hili v The Queen [2010] HCA 45; 242 CLR 520
Kaminic v R [2014] NSWCCA 116
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Pham [2005] NSWCCA 94

Category: Principal judgment

Parties: Peeradej Khanchitanon (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
M Crawford-Fish (Applicant)
N Adams (Crown)

- Solicitors: Solicitors:
John B Hajje & Associates (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

File Number(s): 2012/105657

Decision Under Appeal

- Before: Syme DCJ

- Date of Decision: 09 May 2013

- Court File Number(s): 2012/105657

Publication Restriction: Nil

JUDGMENT

HOEBEN CJ at CL: I agree with Adamson J.
FULLERTON J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against the sentences imposed by Syme DCJ on 9 May 2013, following his conviction after trial, as follows:

Count no. Section of Crimes Act 1900 Offence
Maximum Penalty/

Standard Non-Parole period
Sentence

1 S 61L Indecent assault on JJ on 31 March 2012 5 years Fixed term of 4 months to date from 9 May 2013 and to expire on 8 September 2013

2 S 61I Sexual intercourse without consent against JJ on 2 April 2012
14 years /

7 years
Total term of 4 years to date from 9 May 2013 with a non-parole period of 2 years and 6 months

Her Honour found special circumstances and adjusted the ratio of the non-parole period to the total term from 75% to 62.5%.
The sole ground of appeal is that the sentence for the second count was manifestly excessive.

Facts

Count 1: indecent assault on 31 March 2012

The victim arrived in Australia on 24 March 2012 on a student visa. Within a few days of her arrival, she obtained employment with the applicant and his wife at their Thai restaurant at Crow's Nest. The applicant's wife was pregnant with their first child. On 30 March 2012, the victim's first day at work, the applicant was overly friendly towards her and made inappropriate sexual comments. The next day, towards the end of her shift, the victim was alone with the applicant…

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 Khanchitanon v R

Details

AGLC: Khanchitanon v R [2014] NSWCCA 204
Case: [2014] NSWCCA 204
Decision Date: 03 October 2014

CaseChat Overview and Summary

The applicant in this case was convicted of sexual intercourse without the consent of the victim. The victim was the applicant's employee. The applicant applied for leave to appeal against the sentence imposed by the court. The High Court was asked to determine whether the lower court had erred in its assessment of the sentence. The applicant argued that the fact that the victim continued to report to work did not ameliorate the applicant's abuse of authority. The applicant also argued that the sentencing judge had made a mistake in considering the possibility of deportation when determining the appropriate sentence.

The legal issues that the court had to decide were whether the lower court had erred in its assessment of the sentence and whether the applicant's abuse of authority was ameliorated by the fact that the victim continued to report to work. The court also had to consider whether the sentencing judge's consideration of the possibility of deportation was relevant to the sentencing exercise. The court found that the sentencing judge had not erred in his assessment of the sentence. The court found that the fact that the victim continued to report to work did not ameliorate the applicant's abuse of authority. The court found that the sentencing judge's consideration of the possibility of deportation was irrelevant to the sentencing exercise, but that the error was in the applicant's favour.

The court refused the applicant leave to appeal against the sentence. The court found that the sentencing judge had not erred in his assessment of the sentence. The court found that the fact that the victim continued to report to work did not ameliorate the applicant's abuse of authority. The court found that the sentencing judge's consideration of the possibility of deportation was irrelevant to the sentencing exercise, but that the error was in the applicant's favour. The court found that the remarks made by the sentencing judge were pedantic and that the error did not amount to a miscarriage of justice. The court found that the sentence imposed was appropriate and that there was no need for the applicant to appeal against the sentence.

Orders