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
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 COURTJUDICIAL 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…
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
AGLC
Kite v R [2009] NSWCCA 12
Case
[2009] NSWCCA 12
Decision Date
CaseChat Overview and Summary
The defendant, Kite, appealed against his conviction and sentence for sexual assault, arguing that the sentencing judge erred in the discount for his plea of guilty and in applying the principles of remorse and rehabilitation under s21A of the Sentencing Act. The appeal was heard in the High Court of Australia. The appeal hinged on the appropriate weight to be given to the defendant's early guilty plea and his character, particularly in relation to the discount for a plea of guilty and the factors to be considered under s21A.
The court considered whether the sentencing judge had erred in the discount for the defendant's early guilty plea and in applying the principles of remorse and rehabilitation. The court held that the sentencing judge had correctly assessed the discount for the plea of guilty, taking into account the defendant's early admission of guilt and the circumstances of the offence. The court also held that the sentencing judge had appropriately considered the defendant's character, including his remorse and prospects of rehabilitation, under s21A. The court found that the sentencing judge had not erred in the sentence imposed.
Accordingly, the appeal was dismissed. The conviction and sentence of the defendant were upheld.