King v R

Case [2010] NSWCCA 33 10 March 2010

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New South Wales
Court of Criminal Appeal

CITATION: King v R [2010] NSWCCA 33
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 February 2010

JUDGMENT DATE:
10 March 2010

JUDGMENT OF: Grove J at 1; Simpson J at 2; RA Hulme J at 3

DECISION: Extension of time and leave to appeal granted but appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence - aggravated sexual assault - whether error in taking into account aggravating factor that offence caused substantial harm - parity of sentencing

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

CATEGORY: Principal judgment

CASES CITED: Doolan v R [2006] NSWCCA 29
Elyard v Regina [2006] NSWCCA 43
Nowak v R [2008] NSWCCA 89; 183 A Crim R 526
Pearce v The Queen (1998) CLR 610
Qoro v R [2008] NSWCCA 220
R v Cunningham [2006] NSWCCA 176
R v Solomon [2005] NSWCCA 158; 153 A Crim R 32
R v Swan [2006] NSWCCA 47
R v Youkhana [2004] NSWCCA 412

TEXTS CITED: Sentencing Trends & Issues No 39, A Dyer and H Donnelly, Judicial Commission of New South Wales, February 2010

PARTIES: Raymond Noel KING (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/15112

COUNSEL: Mr M Dennis (Applicant)
Ms J Girdham (Respondent)

SOLICITORS: Galloways Solicitors
Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/1030

LOWER COURT JUDICIAL OFFICER: Woods DCJ

LOWER COURT DATE OF DECISION: 20 September 2007

2007/15112

GROVE J
SIMPSON J
R A HULME J
10 March 2010

Raymond Noel KING v Regina

Judgment

1 GROVE J:

I agree with R A Hulme J.

2 SIMPSON J: I agree with R A Hulme J.

3 R A HULME J: The applicant was sentenced in the Sydney District Court to imprisonment for 13 years with a non-parole period of 8 years for an offence of aggravated sexual assault in company. The circumstance of aggravation was that the victim was deprived of her liberty before the commission of the offence. The applicant had been found guilty of the offence by a jury on 25 June 2007. The sentence was specified to commence on 9 May 2007 in order to take into account a period of pre sentence custody.

4 The offence is one against s 61JA of the Crimes Act 1900 which prescribes a maximum penalty of imprisonment for life. A standard non-parole period of 15 years is also prescribed: see Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999.

5 The applicant requires an extension of time in which to apply for leave to appeal. The proposed grounds of appeal contend that the sentencing judge erroneously took into account as an aggravating factor that the victim suffered substantial emotional harm and that the sentence is too severe relative to that which was imposed upon one of two co-offenders.

Facts

6 The applicant was tried jointly with Edward Weatherall who faced two counts…

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 King v R

Details

AGLC: King v R [2010] NSWCCA 33
Case: [2010] NSWCCA 33
Decision Date: 10 March 2010

CaseChat Overview and Summary

In the case of King v R, the appellant, who was convicted of aggravated sexual assault, appealed against the severity of his sentence. The High Court of Australia was tasked with determining whether the trial judge erred in taking into account an aggravating factor, namely that the offence caused substantial harm, when assessing the appropriate sentence for the crime. The appellant contended that the consideration of this factor was a mistake of law, which necessitated a reconsideration of the sentence. The central issue before the court was whether the trial judge's inclusion of the substantial harm caused by the offence as an aggravating factor constituted a legal error that warranted a new sentencing hearing.

The High Court examined the principles of sentencing in the context of aggravated sexual assault, focusing on the statutory framework and the case law that established the permissible considerations for a sentencing judge. The court considered the distinction between facts that are elements of the offence and those that are aggravating factors, and whether the trial judge's consideration of the harm caused by the offence went beyond permissible sentencing considerations. Ultimately, the court found that the trial judge's assessment of the harm caused by the offence did not constitute a legal error that would require a new sentencing hearing. The court held that the trial judge had appropriately exercised their discretion by considering the harm as an aggravating factor, which was within the bounds of permissible sentencing considerations.

In light of the court's reasoning, the appeal was dismissed, and the original sentence was upheld. The High Court emphasised the importance of maintaining consistency in sentencing for similar offences, while also recognising the need for individualised sentencing that reflects the specific circumstances of each case. The court's decision underscored the principle of parity in sentencing, which ensures that similar offences are treated similarly unless there are compelling reasons to depart from the norm. The final orders of the court were that the appeal be dismissed, and the original sentence imposed by the trial judge be upheld.

Orders