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NK v The King

NK v The King

Case [2025] NSWCCA 73 26 May 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: NK v R [2025] NSWCCA 73
Hearing dates: 2 May 2025
Date of orders: 26 May 2025
Decision date: 26 May 2025
Before: Ball JA at [1];
Fagan J at [2];
Yehia J at [15]
Decision:
(1)   Grant leave to appeal.
(2)   Appeal allowed.
(3)   Quash the sentence imposed in the District Court on 8 December 2023.
(4)   In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 13 years commencing on 25 May 2021 and expiring on 24 May 2034. Fix a non-parole period of 8 years and 9 months. The first date upon which the applicant is eligible for release on parole is 24 February 2030.

Catchwords:
CRIME – Appeals – appeal against sentence – child sexual offences – where child was under the applicant’s authority at a care home – domestic violence offences – whether sentencing judge erred in application of Bugmy principles – whether sentencing judge erred in failing to take into account the applicant’s own history of child sexual abuse – correct approach to application of Bugmy principles – childhood deprivation – moral culpability – purposes of sentencing – giving “full weight” to background of deprivation – appeal allowed – applicant re-sentenced

Legislation Cited:
Crimes Act 1900 (NSW), ss 33B(1), 59(1), 61I, 66C(4)
Crimes (Domestic and Personal Violence) Act2007 (NSW), s 12(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2B)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DR v R (2022) 300 A Crim R 116; [2022] NSWCCA 151
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Dungay v R [2023] NSWCCA 209
Harris v R [2021] NSWCCA 322
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackson v R [2023] NSWCCA 121
Kennedy v R [2022] NSWCCA 215
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Marrah v The Queen [2014] VSCA 119
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v AGR (Court of Criminal Appeal, 24 July 1998, unrep)
RG v R [2025] NSWCCA 36

Category: Principal judgment
Parties: NK (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Brock and S McGee (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00147804, 2022/226565
Publication restriction: Statutory non-publication orders apply in relation to any matter likely to identify the complainants in accordance with s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). A suppression and non-publication order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies in relation to the identity of the applicant.
Decision under appeal

Court or tribunal:

District Court of New South…

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 NK v The King

Details

AGLC: NK v The King [2025] NSWCCA 73
Case: [2025] NSWCCA 73
Decision Date: 26 May 2025

CaseChat Overview and Summary

The case of NK v The King involved an appeal against the sentence imposed on the applicant, who had been convicted of child sexual offences and domestic violence. The applicant had been placed under the authority of a care home at the time of the offences, and the sentencing judge was required to consider a range of factors in determining the appropriate sentence. The applicant argued that the sentencing judge had erred in applying the principles set out in Bugmy v The Queen, and had failed to take into account the applicant's own history of child sexual abuse.

The court was required to consider whether the sentencing judge had erred in applying the Bugmy principles, and whether the judge had failed to take into account the applicant's background of childhood deprivation and abuse. The court also had to consider the purposes of sentencing, and whether the sentencing judge had given "full weight" to the applicant's background of deprivation. The applicant argued that the sentencing judge had not properly considered the impact of the applicant's background on their offending behaviour, and that the sentence imposed was therefore inappropriate.

The court found that the sentencing judge had erred in applying the Bugmy principles, and had not given sufficient weight to the applicant's background of deprivation and abuse. The court held that the sentencing judge should have considered the impact of the applicant's background on their offending behaviour, and should have imposed a sentence that reflected the applicant's moral culpability and the purposes of sentencing. The court allowed the appeal and re-sentenced the applicant, taking into account the applicant's background of childhood deprivation and abuse.

The court ordered that the applicant be re-sentenced, taking into account the principles set out in Bugmy v The Queen and the purposes of sentencing. The court emphasised the importance of giving "full weight" to the background of deprivation and abuse when determining an appropriate sentence for an offender with a troubled past. The court also noted that the sentence imposed should reflect the offender's moral culpability, and should be tailored to the individual circumstances of the case.

Orders