Kite v R

[2009] NSWCCA 12

New South Wales
Court of Criminal Appeal

CITATION:	Kite v Regina [2009] NSWCCA 12
HEARING DATE(S):	5 February, 2009
JUDGMENT DATE:	13 February 2009
JUDGMENT OF:	Grove J at 1; Blanch J at 2; Kirby J at 23
DECISION:	Leave to appeal granted. Appeal against severity of sentence allowed. Quash sentence imposed on the first count. Instead impose sentence of non-parole period of 4 years and 6 months from 6 December, 2007 with a balance of term of 3 years. Quash sentence imposed on the second count. Instead impose sentence of 4 years and 6 months from 6 June, 2008 with a balance of term of 3 years.
CATCHWORDS:	Criminal Law - sexual assault - discount for plea of guilty - remorse and rehabilitation under s21A - character
LEGISLATION CITED:	Crimes Act 1900, s66A Law Enforcement (Powers and Responsibilities) Act 2002, Part 9 Crimes (Sentencing Procedure) Act 1999, s21A(3)(i), s21A(3)(h)
CATEGORY:	Principal judgment
CASES CITED:	R v Gallagher (1991) 23 NSWLR 220 R v Saleib [2005] NSWCCA 85 R v MAK and R v MSK (2006) 167 A Crim R 159 Ryan v The Queen (2001) 206 CLR 267
PARTIES:	Richard Ivan Noel Kite (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/15042
COUNSEL:	G Bashir (Applicant) J Girdham (Respondent)
SOLICITORS:	S O'Connor, Legal Aid Commission S Kavanagh, Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0536
LOWER COURT JUDICIAL OFFICER:	Knox SC DCJ
LOWER COURT DATE OF DECISION:	1 February, 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Richard Ivan Noel Kite

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/15042

GROVE J

BLANCH J

KIRBY J

13 February, 2009

Richard Ivan Noel KITE v Regina

NON-PUBLICATION ORDER RE COMPLAINANT

1 GROVE J: I agree with Blanch J.

2 BLANCH J: The applicant seeks leave to appeal against sentences imposed on him at the District Court in Sydney on 1 February, 2008. He entered pleas of guilty in the Local Court to two offences of sexual intercourse with a person under the age of ten years contrary to s66A Crimes Act, 1900. The maximum penalty provided for each offence is 25 years imprisonment with a standard non-parole period of 15 years. He was sentenced on each offence to eight years and four months with a non-parole period of five years. The first sentence consisted of a non-parole period of five years to date from 6 December, 2007 with a balance of term of three years and four months. On the second count the sentence was the same but to date from 6 June, 2008. Accordingly, the total sentence was one of eight years and ten months consisting of a non-parole period of five years and six months with a balance of term of three years and four months.

3 The matter proceeded by way of an agreed statement of facts which was as follows:

“The complainant in this matter, NG, was born on 11 May 2000 and was 6 years old at the relevant time.

On 31 December 1006 the offender, Richard KITE, was at 7 Mill Hill, Port Macquarie for a family New Years Eve celebration. The house belonged to Peter Jackson who is the father of the offender’s defacto partner, Katherine Jackson. Also present at the party that evening were Pam McArdle – the complainant’s grandmother and partner of Peter Jackson; Darren McArdle – the complainant’s father; Krystel Boyd – the defacto of Darren McArdle; Suzanne McArdle – the complainant’s aunty; and Kerry Scott – Suzanne McArdle’s defacto.

A number of children were also present, including the complainant, Darren McArdle’s son, Suzanne’s three children and her niece and the offender’s 4 year old step-daughter and 4 month old son.

The offender had not met the complainant previously. She arrived at the house at about 6pm that night.

In the early part of the evening, the offender and the children were playing in the backyard swimming pool. The complainant was wearing only her underwear and the offender was wrestling and playing in the pool with her.

Throughout the course of the night, most adults were drinking and occupied the front lounge room of the house. Towards the rear of the house, a number of children, including the complainant, were sleeping and playing around at various times on lounges in the sunroom.

Between 10pm and midnight, all adults within the house were seated in the front lounge room, playing card games.

Prior to midnight the card game came to a halt and the adults commenced playing pool in the garage until well after midnight. The offender left the pool game on numerous occasions and went into the sun room where some of the children were sleeping on lounges.

On one occasion the offender stated that he was going to refill his drink and was gone for a period of over five minutes – despite the fact that he still had a full glass. On a number of occasions, Kerry SCOTT, who had become suspicious of the offender, followed him into the room and found him leaning over the back of a couch that the complainant and the offender’s step-daughter were lying on.

On one of these occasions, the offender was leaning over the couch where the girls were lying. SCOTT noticed that both children had their tops pulled up at least halfway along their stomachs, exposing their navels. The offender was touching and tickling his step daughter on the stomach, whilst they were asleep. When the offender noticed SCOTT, he stated ‘they are so cute and innocent whilst they’re lying there, so peaceful sleeping’. SCOTT asked the offender to return to their pool game.

Sometime after midnight, the offender went back into the sunroom where the complainant was sleeping on the couch. Other children were asleep on the other couch in the room. The offender sat on one end of the couch, moved the complainant’s legs as he sat beside her and pulled her skirt up to her waist.

The offender proceeded to perform cunnilingus on the complainant by pushing her legs apart with one hand, pulling her underpants to one side, placing his tongue on her vagina, licking her and then inserting his tongue inside the complainant’s vagina. The offender’s tongue went ‘right into the bottom’ (Q169, page 18 of transcript of interview with complainant) of the complainant’s vagina. This went on for what the complainant describes as a ‘long time’ (Q195, page 21 of transcript).(Sequence One)

The accused then inserted his finger into the complainant’s vagina and ‘pushed really hard down’ (Q203, page 21-22 of transcript). The offender inserted his finger ‘deep down…..the whole way down’ (Q212-213, page 22 of transcript) to a depth demonstrated by the complainant to be between 3-4cms. The offender pushed ‘more than once…..maybe nine times’ (Q225, page 24 of transcript). The complainant believed that the offender was trying to spread his spit further around her vagina (Sequence Two). The offender eventually ceased and left the room.

Upon returning home the following day, the complainant disclosed that the accused had ‘licked my fanny’ to her mother after being asked about her night. The police were subsequently contacted and shortly after the incident Detectives from Port Macquarie Child Protection Team interviewed the complainant who made full and clear disclosures regarding the assaults.

The complainant was taken for a Sexual Assault Investigation Kit (SAIK) at Port Macquarie Base Hospital where some abrasions to her vagina, consistent with the assaults, were noted.

By prior arrangement at 4pm on 20 February 2007 the offender attended Chatswood Police Station. The offender was arrested, cautioned and taken to the Custody Officer where he was informed of his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).

The offender was offered the opportunity of an interview but declined upon legal advice. He agreed to provide a voluntary DNA sample. He was then charged.”

4 The sentencing judge gave a careful and thorough consideration to all the relevant sentencing principles in what was a difficult sentencing exercise. His judgment is criticised only in respect of two matters. The first criticism made is that the judge failed to give to the applicant any benefit for his remorse and the second criticism is that his Honour wrongly concluded he had little confidence in the offender’s rehabilitation prospects.

5 As to the matter of remorse, on 6 December, 2007 when standing the matter over to consider the sentence his Honour said to the applicant’s legal representative:

“Assume I was to say he would get this 25 per cent discount for the early plea, good utilitarian value, it’s meant that the victim and her family haven’t had to give evidence, the standard matters, it’s the saving to the criminal justice system.”

6 Later on at page 2 of that transcript he said:

“To take it more than 25 per cent, given as I say, I see real benefits to the victim’s family, the criminal justice system and the court system and it’s also of itself an acknowledgement of his remorse, which I accept is genuine. All I’m saying is, any more than 25 per cent, you let me know why you say that.”

7 In the course of his remarks on sentence he said:

“I identify the discount applicable to the utilitarian (sic) of the plea and for the remorse expressed as being 25 per cent.”

At the conclusion of his remarks on sentence, he was asked to clarify whether the 25% discount was for both the utilitarian value and for remorse and his Honour made it clear that the 25% discount was for both the utilitarian value and remorse.

8 This was a case where the prosecution case consisted of the complaint made by the complainant the next morning to her mother. There was an abrasion which gave support to her version and there was some observation of the applicant in the room next to the child on the night. It was a case where there would be difficulties for the prosecution at trial because of the age of the complainant. The applicant entered pleas of guilty at the earliest opportunity and by doing that there was significant utilitarian value and a significant avoidance of any further problems for the complainant who was saved from the prospect of having to give evidence in circumstances where the evidence indicated the complainant was upset when asked to think about the incident. It does appear to me that it is a case where a discount of 25% for the utilitarian value of the plea was justified and that appears to have been the sentencing judge’s first assessment of the matter.

9 The sentencing judge did accept in his remarks on sentence that the applicant was remorseful. He had the opportunity of hearing from the applicant in evidence and he accepted that his remorse was genuine. Similar remorse was expressed to the psychologist W. John Taylor who said:

“… from comments made by him it is apparent that he has an awareness of the damaging effects of his behaviour on the victim. He also expressed responsibility for his offences.”

10 He also expressed his feelings of guilt and shame about his behaviour to the Probation Officer who recorded it in the pre-sentence report. In my view it would have been appropriate to give to the applicant some benefit in the overall sentencing process for the fact that he understood how serious his conduct was and that he was remorseful for it. It is not appropriate to express that as a percentage or to engage in a mathematical exercise but it is a factor to be taken into account in arriving at an appropriate sentence, see R v Gallagher (1991) 23 NSWLR 220 and R v Saleib [2005] NSWCCA 85.

11 Remorse has always been a factor taken into account in mitigation. How that is done is now regulated by s21A(3)(i) of the Crimes (Sentencing Procedure) Act, 1999, which states that it has to be regarded as a mitigating factor:

“… but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).”

Those provisos were clearly met in this case not only from the evidence of the applicant but also from the report of Mr Taylor and the pre-sentence report.

12 In R v MAK and R v MSK (2006) 167 A Crim R 159 the Court made it plain that since the introduction of s21A the preferable course is not to quantify a discount for remorse and it has been pointed that the simplest way to proceed in sentencing is to arrive at a discount for the utilitarian value of the plea of guilty whether in specific terms or not and then proceed to review what Gleeson CJ in R v Gallagher (supra at 228) called the “complex of inter-related considerations” which could in appropriate cases include remorse. Because s21A makes specific provision for remorse to be considered as a separate mitigating factor, to include it as a factor contributing to the percentage discount for the plea of guilty can give rise to a perception of double counting.

13 As to the prospects of rehabilitation, the evidence before the sentencing judge was that the applicant had a minor criminal history and had never been sentenced to imprisonment. He had two driving convictions in New Zealand in 1990 for which he was fined and drug convictions in 1992 and 1998 in New Zealand for which he was also fined. He had been in a number of de facto relationships, the last one was over a period of four years and the Probation report in November, 2007 indicated there was a son who at that time was aged 14 months. He left that relationship following his arrest. The Probation Service interviewed his last partner who said she was “’shocked’ by his involvement in the offences before Court” and she added that “there had never been any indication of inappropriate behaviour towards the children in their family life.”

14 In the Taylor psychological report it was noted that he was currently in the position of being an assistant manager and had had that employment for seven years. That report went on to say:

“He is assessed as having a low to moderate risk of general recidivism. His risk of sexual recidivism is considered to be low- moderate. These opinions are based on actuarial analyses and clinical judgement.”

15 The report went on to note that he had sought treatment after the offences for his problem with alcohol and he had also attended five or six sessions with a psychiatrist.

16 Bearing in mind all of those factors, I do not believe that a negative view of the applicant’s prospects for rehabilitation is justified, particularly when the applicant was so frank in acknowledging how serious his behaviour was. I believe he has good prospects of rehabilitation and both the common law and s21A(3)(h) of the Crimes (Sentencing Procedure) Act, 1999 require that this be treated as a mitigating factor.

17 In those circumstances there should be some amelioration of the penalties which have been imposed both to reflect his remorse and his prospects of rehabilitation.

18 Because new sentences are to be imposed, it is necessary to consider the material which has been tendered relating to the applicant’s conduct in gaol. That material confirms that the applicant is a model prisoner and that he has sought to engage in a treatment programme. I don’t believe that places him in any better position than when he was before the sentencing judge because I would have concluded from the material produced at his sentencing that he would seek treatment and would be a model prisoner. That is why I believe he has good prospects of rehabilitation.

19 It is also somewhat unclear from the sentencing judge’s remarks as to what effect he gave to the limited nature of the applicant’s prior convictions. He said:

“I do not think that the charges permit these factors to warrant extending any significant degree of leniency to the offender in this regard.”

In Ryan v The Queen (2001) 206 CLR 267 the High Court noted that a person being sentenced was entitled to “some leniency for his otherwise good character.” See per McHugh J at page 278. That needs to be considered in the context of re-sentencing.

20 The difficulty in re-sentencing in this Court is the same difficulty as faced by the sentencing judge and that is to balance the subjective features relating to the appellant against the undoubtedly serious nature of the offences. The offences are ones which involve a standard non-parole period of 15 years which must be seen as an indicator of how serious the law regards the offences. They are clearly offences where a strong element of general deterrence should be reflected in the sentences.

21 The proportion of the total sentence reflected in the parole period should also be adjusted to provide for an appropriate period of supervision of the applicant once he is released from custody.

22 I would:

1. grant leave to appeal.
2. allow the appeal.
3. quash the sentence imposed on the first count and instead impose a sentence of a non-parole period of four years and six months from 6 December, 2007 with a balance of term of three years. On the second count I would quash the sentences imposed and instead impose a sentence of four years and six months from 6 June, 2008 and a balance of term of three years.

23 KIRBY J: I agree with Blanch J.