King v Regina - [2008] NSWCCA 316

Reported Decision: 191 A Crim R 552

New South Wales

Court of Criminal Appeal

CITATION: KING v REGINA [2008] NSWCCA 316

HEARING DATE(S): 14/07/08

JUDGMENT DATE:
17 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Fullerton J at 19

DECISION: Leave to appeal granted, appeal dismissed

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - sexual intercourse without consent - digital penetration - plea of guilty - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Ibbs v The Queen (1987) 163 CLR 447
R v Way [2004] NSWCCA 131, 60 NSWLR 168

PARTIES: Robert Keith Matthew KING (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 2007/4050

COUNSEL: C Smith (applicant)
L Lamprati SC (respondent)

SOLICITORS: S O'Connor (LAC)
S Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0134

LOWER COURT JUDICIAL OFFICER: Norrish DCJ

LOWER COURT DATE OF DECISION: 08/08/07

2007/4050

McCLELLAN CJ at CL
HIDDEN J
FULLERTON J
17 December 2008

Robert Keith Matthew KING v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hidden J.

2 HIDDEN J: The applicant, Robert Keith Matthew King, appeared for trial at the Lismore District Court upon an indictment alleging two counts of sexual intercourse without consent, said to have been committed against the same victim on the same occasion. He pleaded guilty to the first count, and that plea was accepted in discharge of the indictment. The offence, under s61I of the Crimes Act, carries a maximum sentence of 14 years imprisonment and a standard non-parole period of 7 years. He was sentenced to imprisonment for 5 years and 10 months, comprising a non-parole period of 4 years and 3 months and a balance of term of 1 year and 7 months. He seeks leave to appeal against that sentence.

Facts

3 An agreed statement of facts disclosed that in the morning of 1 September 2005 the victim, a 30-year-old woman, met the applicant at a house at Goonellabah, near Lismore. She had met him before, although she did not know him well. After a short time, the two of them and several other people travelled to a house in Ballina. There, the group consumed alcohol for some hours.

4 In the early afternoon, the applicant drove the victim back towards Lismore. However, the car broke down, apparently having run out of petrol, while they were still in Ballina. The applicant went to a nearby service station and obtained five dollars worth of petrol. He returned to the car, but was unable to start it. The two of them went back to the service station. The victim sat in an adjoining park, where the offender joined her, and they remained there until about 4.30 pm.

5 The victim walked to a nearby public toilet and entered one of the cubicles in the female section. While she was using the toilet, the applicant came into the cubicle. He inserted his fingers into…

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.

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Details

Case: [2008] NSWCCA 316
Decision Date: 17 December 2008

CaseChat Overview and Summary

The case involved the defendant, King, who was convicted of sexual intercourse without consent involving digital penetration. He applied for leave to appeal against the sentence imposed by the court. The case was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed on King was manifestly excessive, given the nature of the offence and the plea of guilty entered by King. The court needed to assess whether the punishment was disproportionately severe in relation to the crime committed.

The High Court considered the principles governing the assessment of sentence severity, particularly in cases involving sexual offences. The court examined the circumstances of the offence, including the nature and extent of the penetration, the vulnerability of the victim, and the defendant's criminal history. The court also took into account the plea of guilty, which often results in a more lenient sentence. After a thorough analysis, the court determined that the sentence imposed on King was not manifestly excessive. The court found that the sentence reflected the seriousness of the offence and was within the range of appropriate punishments for such crimes.

Consequently, the High Court dismissed King's application for leave to appeal against his sentence. The court upheld the original sentencing decision, confirming that the punishment was proportionate and justified under the circumstances. The court's decision underscored the importance of considering the totality of the circumstances in each case when assessing the appropriateness of a sentence. No further orders were made by the court beyond the dismissal of the appeal.

Orders