McKay and R - [2001] NTCCA 3

McKay and R [2001] NTCCA 3
PARTIES:PHILLIP CLIVE McKAY

AND
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA12 OF 2000 (9815766)
DELIVERED:  20 June 2001
HEARING DATES:  11 May 2001, 14 June 2001
JUDGMENT OF:  MILDREN, BAILEY & RILEY JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:J Tippett and R Coates
Respondent:  R Wild, QC
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:    A
Judgment ID Number:
Number of pages:  26

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McKay and R [2001] NTCCA 3

No. CA12 of 2000 (9815766)
BETWEEN:

PHILLIP CLIVE McKAY

Appellant

AND:

THE QUEEN

Respondent

CORAM: MILDREN, BAILEY & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 20 June 2001)
The Court

The applicant was originally charged with two counts of sexual intercourse without consent (s192(3) of the Criminal Code), one count of attempting to render incapable by means calculated to suffocate and with intent to commit a crime, namely sexual intercourse without consent (s175 of the Criminal Code), one count of deprivation of liberty (s196(1) of the Criminal Code) and one count of aggravated assault (s188(2)(a)(b) and (m) of the Criminal Code). All charges involved the same victim and arose out of circumstances which occurred at a house at 10 Wilmot Street, The Narrows on 11 June 1999. At the suggestion of the Trial Judge, who thought that the indictment was overloaded, the Crown withdrew the deprivation of liberty and aggravated assault counts and the trial proceeded on the remaining counts. The applicant was convicted of the two counts of sexual intercourse without consent, but acquitted of the attempt to render incapable count. He was sentenced by his Honour to an aggregate sentence of fourteen years' imprisonment and a non-parole period of ten years was fixed. The sentence and non-parole period were backdated to take into account time held on remand.
An application was lodged by the applicant for leave to appeal against conviction as well as sentence, but the application for leave to appeal against conviction has now been formally abandoned. Leave is required to appeal against sentence because s410 of the Criminal Code does not provide for an appeal against sentence as of right. By consent of the Crown, the application for leave and the appeal were heard together.
Grounds of Appeal
The grounds of appeal, as amended, are as follows:
1.   that the learned Sentencing Judge erred in imposing an aggregate sentence;
2.   that the learned Sentencing Judge erred in imposing a sentence that was manifestly excessive in the circumstances of the offences and the applicant;
3.   that the learned Sentencing Judge erred in the application of the principles of general deterrence to the sentences imposed on the applicant;
4.   that the learned Sentencing Judge erred in law by taking into account in sentencing an offence of which the applicant was not charged and…

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 McKay and R

Details

AGLC: McKay and R [2001] NTCCA 3
Case: [2001] NTCCA 3
Decision Date: 20 June 2001

CaseChat Overview and Summary

The appeal concerned the sentencing of the applicant, McKay, by a Sentencing Judge in the Northern Territory. The applicant was convicted of two counts of rape against Ms D, an outreach worker assisting him with accommodation. The dispute on appeal centred on the severity and legality of the aggregate sentence imposed by the Sentencing Judge.

The grounds of appeal raised several legal issues for determination by the Court of Appeal. These included whether the Sentencing Judge erred in imposing an aggregate sentence, whether the sentence was manifestly excessive, whether the principles of general deterrence were incorrectly applied, whether the Sentencing Judge unlawfully took into account offences for which the applicant was not charged or acquitted, and whether the sentence infringed the totality principle.

The Court of Appeal considered the facts of the offending, which involved the applicant luring Ms D into a bedroom and, despite her resistance and distress, committing two separate acts of sexual intercourse without consent. The Sentencing Judge had found the offences to be of high seriousness, noting the applicant's use of superior physical strength and a pillow, and the significant ongoing harm suffered by the victim. The Court acknowledged the Sentencing Judge's finding that the applicant lacked remorse and that his mental state did not provide a mitigating factor. The Court also noted that the Sentencing Judge had considered the totality principle and had indicated that the case was a very bad example of its type, though not in the worst category. The Court ultimately dismissed the appeal, finding no error in the Sentencing Judge's approach to sentencing.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal, as amended, are as follows:1. that the learned Sentencing Judge erred in imposing an aggregate sentence;2. that the learned Sentencing Judge erred in imposing a sentence that was manifestly excessive in the circumstances of the offences and the applicant;3. that the learned Sentencing Judge erred in the application of the principles of general deterrence to the sentences imposed on the applicant;4. that the learned Sentencing Judge erred in law by taking into account in sentencing an offence of which the applicant was not charged and a further offence of which the applicant was acquitted at trial;5. that the learned Sentencing Judge erred in imposing a sentence that infringed the totality principle of sentencing.The facts The basic facts and conclusions as found by the learned Sentencing Judge were as follows:Ms D, the victim in this matter and then aged about 28, was employed as an Outreach worker by the Northern Territory Association for Mental Health. It was her job to assist people with psychiatric disabilities, including by seeking out and providing accommodation for them. The applicant had been referred to the service and accommodation was arranged at 10 Wilmot Street, The Narrows.Ms D assisted the applicant in that regard and had helped him on other occasions. She called in to see him at that house in the course of her duties on that day. He was there alone and invited her to have a cup of tea, after which she went to another place in the house to check on the belongings of one of the other occupants who was intending to move out.Acting on a pretence, the applicant enticed Ms D into a bedroom, shut the door and barred her exit so that she could not escape. He said something about sex. She demanded to be let out. He approached her and pushed her backwards onto a bed. Despite her screaming and physical resistance, he penetrated her vagina with his penis, having lubricated it with spittle.When she thought he had stopped, she attempted to get up but he struck her down and she lost consciousness. When she regained her senses, she was in extreme pain and he was raping her with his penis in her anus. She screamed. He then placed a pillow over her head and continued the act of sexual intercourse.She ceased her resistance hoping he would remove the pillow which was causing her difficulty in breathing. When he eventually got off, she was able to get away. How long this all took is not known.She drove her car a short distance from the house where, after some time, she was located by colleagues and police in a most distressed condition. The disarrangement of her clothing which the applicant had caused during the attack upon her, was still evident. She immediately complained that he had raped her.The evidence from a medical examination was capable of corroborating her evidence in a number of respects.The applicant was unrepresented at trial, having refused an offer of legal representation. He cross-examined Ms D and it appears to have been directed at suggesting that she had, in some way, encouraged him to have sex with her and she consented. He suggested to the doctor who gave evidence that the injuries to Ms D that had been observed by the doctor were self-inflicted.As was his right, the applicant declined to answer any questions from police, but he gave evidence to the effect that he had been encouraged by Ms D, that he had nicely invited her to his room; that she willingly accepted his invitation; that she consented to each of the acts of sexual intercourse. He then alleged that she had set him up.The sexual attacks upon Ms D fall into the upper category of seriousness for this type of crime. The applicant took advantage of a woman much slighter than himself who was trying to assist him. She gave him not the slightest encouragement to think that she was in any way interested in him, other than as a client and it was her job to assist.The applicant took absolutely no heed of her resistance and distress and set about brutishly assaulting her in a most degrading and humiliating manner. As her resistance continued, he struck her across the face and attempted to quieten her down by placing a pillow over her head.The applicant totally lacked any remorse for what he did. Psychological and psychiatric reports were obtained, but they revealed nothing in the applicant's mental state at the time of the commission of the offences which could properly be regarded as inhibiting rational judgment about the consequences of the applicant's conduct. No causal connection was shown between his mental condition and his criminal behaviour.The victim had suffered significant and ongoing harm as a result, including physical pain, ill effects as the result of necessary medication, weight loss, psychological trauma, difficulties in resuming work and emotional upheaval.Although the applicant's behaviour was opportunistic, he had given some consideration as to how he might go about effecting his purpose in that he had concocted a reason to induce Ms D into a bedroom and then shut the door behind her.The sexual assaults were not of long duration and whilst it was not possible to say how long all this took, his Honour found that there were two separate and distinct acts of sexual intercourse without consent. Although no weapon was used, the applicant had used his superior physical strength, his hand or fist, as well as the pillow.His Honour indicated that he regarded this as having been a very bad case of its type, although certainly not in the worst category.The application to re-open the sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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