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KM v The King

KM v The King

Case [2023] NSWCCA 10 10 February 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: KM v R [2023] NSWCCA 10
Hearing dates: 17 October 2022
Decision date: 10 February 2023
Before: Meagher JA at [1];
Button J at [2];
Wilson J at [92]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – penetrative child sexual assault – sentence after trial – [REDACTED] – whether assessment of objective seriousness was incorrect – impracticality of plotting precisely objective seriousness along spectrum – whether error was made in failure to find special circumstances – discussion of role of sentencing statutes in finding or not finding special circumstances – whether aggregate sentence was manifestly excessive – discussion of current sentencing patterns for repeated offences of penetrative child sexual assault – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 66A, 66C
Crimes (Administration of Sentences) Act 1999 (NSW), s 3
Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 214A

Cases Cited:
AM v The Queen (2012) 225 A Crim R 481; [2012] NSWCCA 203
Collier v R [2012] NSWCCA 213
Jinnette v R [2012] NSWCCA 217
MD v R [2015] NSWCCA 37
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 224 CLR 120; [2011] HCA 39
R vAJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
RvHibberd (2009) 194 A Crim R 1; [2009] NSWCCA 20
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Sefian v R [2018] NSWCCA 194

Category: Principal judgment
Parties: KM (Applicant)
Rex (Respondent)
Representation:
Counsel:
H Maarraoui (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Karim Nicol Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/61533
Publication restriction: In first instance, judgment to be provided to parties only
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

28 May 2021

Before:

King SC DCJ

File Number(s):

2020/61533

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, KM, was convicted at trial of one count of sexual intercourse with a child under the age of 10, and two counts of sexual intercourse with a child over the age of 10 but under the age of 14. The offences are contrary to s 66A(1) and 66C(2) of the Crimes Act 1900 (NSW).

The applicant relied on three proposed grounds of appeal against sentence: first, that the sentencing judge’s assessment of the offences as being just below the mid-range of objective seriousness was incorrect; second, that his Honour erred in failing to find special circumstances; and third, that the sentence imposed was manifestly excessive.

The Court held, in granting leave to appeal but dismissing the appeal against sentence (per Button J, Meagher JA and Wilson J agreeing):

As to ground one

The sentencing judge did not err in his assessment of the objective seriousness of the offending.
The sentencing judge clearly adopted the position of…

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 KM v The King

Details

AGLC: KM v The King [2023] NSWCCA 10
Case: [2023] NSWCCA 10
Decision Date: 10 February 2023

CaseChat Overview and Summary

The matter of KM v The King was before the court where the appellant challenged the severity of his sentence following his conviction for penetrative child sexual assault. The appellant argued that the trial judge had erred in various aspects of the sentencing process, including the assessment of the objective seriousness of the crimes and the failure to find special circumstances. The appeal was heard in the High Court of Australia, which has jurisdiction to hear appeals in criminal matters under the Australian Constitution.

The legal issues before the court were whether the trial judge had erred in the assessment of the objective seriousness of the crimes and whether there were special circumstances that warranted a different sentence. The court was also required to consider if the aggregate sentence was manifestly excessive. The appellant argued that the trial judge had not properly considered the factors that should have led to a finding of special circumstances. The court needed to balance these arguments against the need to ensure that the sentence reflected the gravity of the crimes committed.

In its judgment, the court considered the principles of sentencing in relation to the crimes of penetrative child sexual assault. It found that the trial judge had not erred in the assessment of objective seriousness, noting the inherent difficulties in precisely plotting the seriousness of such crimes along a spectrum. The court also held that while the appellant's arguments regarding special circumstances had some merit, they were not of such a degree to warrant a finding of special circumstances. The court further examined the aggregate sentence and determined that it was not manifestly excessive when compared to current sentencing patterns for similar offences. Ultimately, the appeal was dismissed.

The court's final orders were to dismiss the appeal and to affirm the sentence imposed by the trial judge. The High Court held that the trial judge had appropriately exercised his discretion in sentencing the appellant, and that the appeal did not succeed in demonstrating any error of law that warranted a reduction in sentence.

Orders