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 her vagina as she was trying to adjust her jeans and underwear. She was protesting, there was a struggle and she fell to the floor, hitting the back of her head as she did so.

6 The applicant left the toilet, as did the victim. She went to the service station, in a distressed state, and reported the sexual assault to the service manager. The police were called, and the applicant was arrested. At the time of the offence, both he and the victim had consumed a considerable quantity of alcohol.

Subjective case

7 The applicant was 33 years old at the time of the offence, and is now 36. He has a bad criminal record, comprising a number of offences of dishonesty and some of violence. There are no previous offences of a sexual nature, except for a very early entry for carnal knowledge, dealt with in the Children’s Court, which the sentencing judge saw as of no consequence. His record for violence is of concern, his Honour describing it as “consistent” and noting that it included offences against women. He had served previous terms of imprisonment, and on a number of occasions had been in breach of parole.

8 He is an Aboriginal man, and his Honour saw him as affected by the social disadvantage from which so many of his people suffer and which engendered his “continuous drug and alcohol abuse…”. He did not complete his schooling, despite a promising start, and had had little employment. Nevertheless, he retained the support of his mother who, his Honour found, had “an abiding affection and love for him”. He has a son from a relationship which had been marred by his violence and his periods in custody. However, at the time of sentence he and his partner had been reconciled, and she also offered him her support.

9 He had developed skill as an artist and, indeed, had received an award for his work. His Honour saw in this “abilities and potentials which, executed appropriately, could assist him to avoid offending in the future”. That said, his Honour was guarded about his prosects of rehabilitation. He did not see him as beyond reform, but saw his ability to rehabilitate himself as “very much dependent upon his attitude, not anything I or the Probation and Parole Service will do”.

The Application

10 The only ground of the application is that the sentence is manifestly excessive. His Honour arrived at the sentence of 5 years and 10 months after allowing a discount of one sixth for the applicant’s plea of guilty. His starting point, then, must have been 7 years.

11 The applicant was represented in this court by Mr Smith of counsel, who had not appeared in the District Court. His primary submission was that the sentence is more than was warranted by the objective seriousness of the offence. He argued that it was towards the bottom of the range of objective seriousness of offences of its kind.

12 He noted that s61I of the Crimes Act is concerned with a variety of forms of sexual penetration and that the type of penetration is relevant to the objective gravity of a particular offence: Ibbs v The Queen (1987) 163 CLR 447. In the present case the sexual assault was digital penetration and, although there was a struggle and the victim hit her head in a fall, the offence was not aggravated by threats or gratuitous violence. Nor was it planned. Indeed, his Honour characterised it as “opportunistic”.

13 Mr Smith acknowledged that the form of penetration, while relevant to the objective gravity of an offence, is not necessarily determinative of it and that all the circumstances of the offence must be taken into account in assessing it. That is of particular significance here and, in my view, it is a matter to which his Honour gave appropriate weight. He referred to Ibbs, but went on to observe that this was “not a simple case of digital penetration…”.

14 The circumstances were particularly unpleasant, and might fairly be described as sordid. His Honour observed that the applicant had violated the victim’s privacy by forcing his way into the toilet and that he had exhibited “a considerable amount of belligerence…” While he accepted that he had not deliberately pushed her to the ground, he saw the struggle as a reflection of “the resistance that the victim put up” to his “unwanted advances”.

15 There was a victim impact statement prepared by a counsellor, which his Honour found unsatisfactory in some respects. Nevertheless, he inferred that the offence had caused her substantial emotional harm. He did not expressly determine where he placed the offence in the range of objective gravity, but he rejected a submission by counsel then appearing for the applicant that it was “at the low end” of that range.

16 Mr Smith took us to Judicial Commission sentencing statistics for offences under s61I in respect of cases to which the standard non-parole period applied. The number of cases is substantial and, certainly, the sentence and non-parole period in the present case sit towards the upper end of the scale disclosed by those figures. However, on a number of occasions this Court, while accepting that sentencing statistics have their place, has commented upon the limited use of raw figures of this kind.

17 It was for his Honour to determine the appropriate sentence, in the light of the maximum sentence prescribed and guided by the standard non-parole period in the manner explained in R v Way [2004] NSWCCA 131, 60 NSWLR 168. His assessment of the objective gravity of the offence was, with respect, clearly open, and the applicant could derive no comfort from his antecedents. The sentence is severe, but it cannot be said to be outside the bounds of the legitimate exercise of discretion.

18 I would grant leave to appeal but dismiss the appeal.

19 FULLERTON J: I agree with Hidden J.

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