R v AK

Case [2023] NSWDC 402 22 September 2023

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District Court

New South Wales

Medium Neutral Citation: R v AK [2023] NSWDC 402
Hearing dates: 15 September 2023
Date of orders: 22 September 2023
Decision date: 22 September 2023
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   The offender, having been found guilty of Counts 1, 2, 3 and 4 on the indictment is convicted of those offences.
(2)   I impose an aggregate sentence of imprisonment for 4 years 6 months from 23 April 2023 and to expire on 22 October 2027.
(3)   I impose a non-parole period of 2 years 4 months from 23 April 2023 and expiring on 22 August 2025.
(4)   The earliest date the offender is eligible to be released to parole is 22 August 2025.

Catchwords:
CRIME - sexual intercourse with child under 10 years - indecent assault person under 16 years - findings of fact for sentencing – young offender – immaturity - offender with hearing impairment and speech delay - objective seriousness – finding of special circumstances – no prior criminal history

Legislation Cited:
Children (Criminal Proceedings) Act 1987, s 6
Crimes (Sentencing Procedure) Act 1999, ss 3A, 8, 25AA, 53A, 54D(3)
Crimes Act 1900, ss 66A, 61M

Cases Cited:
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Clarke v R [2023] NSWCCA 170
Corby v R [2010] NSWCCA 146
Cowan v R [2015] NSWCCA 118
DPP v Burton [2020] NSWCCA 54
Howard v R [2019] NSWCCA 109
JA v R [2021] NSWCCA 10
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Mayall, David Graham v R [2010] NSWCCA 37
McLaren v R [2012] NSWCCA 284
R v BJW (2000) 112 A Crim R 1
R v JR [2022] NSWDC 618
R v McQueeney [2005] NSWCCA 168
R v MJR (2002) 54 NSWLR 368
R v Olbrich (1999) 199 CLR 270
R v Quinlin [2021] NSWCCA 284
R v Storey [1998] 1 VR 359
R vTauok (1992) 65 A Crim R 387
R v Tepania [2018] NSWCCA 247
R v Voss [2003] NSWCCA 182
R v Webster, unreported NSW CCA (15 July 1991)
RP v the Queen (2016) 259 CLR 641; [2016] HCA 53
S2 & Ors v R (2005) 158 A Crim R 93; [2005] NSWCCA 397
Sarhene v R [2022] NSWCCA 79
Tepania v R [2018] NSWCCA 247
Tsokos unrep. NSWCCA 16.June.1995.
Uddin v R [2020] NSWCCA 115
Yardley v Betts (1979) 22 SASR 108
Yildiz v R [2020] NSWCCA 69

Category: Sentence
Parties: Rex (Crown)
AK (Offender)
Representation:
Counsel:
Mr Bhutani (Offender)
Solicitors:
Office of the Department of Public Prosecutions (NSW) (Crown)
KPT Defence Lawyers (Offender)

File Number(s): 2020/00278775
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants.

Judgment

Remarks on sentence

The offender is to be sentenced having been found guilty by a jury verdict for the following offences: –

Count 1 - sexual intercourse with child under…

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 R v AK

Details

AGLC: R v AK [2023] NSWDC 402
Case: [2023] NSWDC 402
Decision Date: 22 September 2023

CaseChat Overview and Summary

The appellant, AK, was convicted of sexual intercourse with a child under 10 years of age and indecent assault of a person under 16 years of age. These charges were heard in the County Court of Victoria. The court was required to make findings of fact for sentencing, taking into account the appellant's immaturity, hearing impairment, speech delay and lack of a prior criminal history. The court was also required to consider the objective seriousness of the crimes and whether there were any special circumstances present.

The court found that the appellant's immaturity, hearing impairment and speech delay were factors that mitigated against a lengthy sentence. However, the court also found that the crimes were of a high degree of objective seriousness, as they involved the sexual abuse of a very young child. The court also found that there were no special circumstances present that would warrant a reduced sentence. After considering all of these factors, the court imposed an aggregate sentence of imprisonment for 4 years and 6 months, with a non-parole period of 2 years and 4 months.

The court held that the appellant was guilty of the offences as charged and imposed a sentence of imprisonment that balanced the need for punishment and deterrence with the need to rehabilitate the appellant. The court also made orders for the appellant to be released to parole on the earliest date eligible, being 22 August 2025.

Orders

Orders of the court

(1) The offender, having been found guilty of Counts 1, 2, 3 and 4 on the indictment is convicted of those offences.

(2) I impose an aggregate sentence of imprisonment for 4 years 6 months from 23 April 2023 and to expire on 22 October 2027.

(3) I impose a non-parole period of 2 years 4 months from 23 April 2023 and expiring on 22 August 2025.

(4) The earliest date the offender is eligible to be released to parole is 22 August 2025.

Background

Background to the litigation

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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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Citations

R v AK [2023] NSWDC 402

Most Recent Citation

AK v The King [2024] NSWCCA 181

Cases Citing This Decision

AK v The King [2024] NSWCCA 181
Citation 1

…t the applicant Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2023] NSWDC 402 Date of Decision: 22 September 2023 Before: Fitzsimmons SC DCJ and jury File Number(s): 2020/00278775…

See all citing cases →

Cases Cited

Clarke v R [2023] NSWCCA 170
Citation 1 (Para 74)

…there was no coercion, threats or violence used, this is of limited relevance given the circumstances in which the offence was committed: Clarke v R [2023] NSWCCA 170 at [71] (per McNaughton J with whom Beech-Jones CJ at CL and R A Hulme AJ agreed). I accept the Crown's submission that the offending involved the of…
R v JR [2022] NSWDC 618
Citation 2 (Para 85)

…ctions order should not necessarily result in a more significant penalty being imposed. The court was referred to the decision of Lerve DCJ in R v JR [2022] NSWDC 618 who cited with authority the unreported decision in Tsokos unrep. NSWCCA 16 June 1995. (RS) Hulme J (Gleeson CJ & Powell AJ agreeing). Tsokos is auth…
Sarhene v R [2022] NSWCCA 79
Citation 3 (Para 51)

…f a sexual nature. Counsel then referred to the summary of principles applicable to youthful offenders helpfully set out by Hamill J in Sarhene v R [2022] NSWCCA 79 .…
R v Quinlan [2021] NSWCCA 284
Citation 4 (Para 84)

…by the offender’s brother’s incapacity for a period. Mindful of the observations of the New South Wales Court of Appeal in R v Quinlin [2021] NSWCCA 284, while satisfied that for the period of the brother’s incapacity prior to the bail variation the offender’s bail constituted quasi-custody, this was for a relative…
JA v R [2021] NSWCCA 10
Citation 5 (Para 51)

…The offender referred to the judgment of Davies J in JA v R [2021] NSWCCA 10 where his Honour noted that the principles applicable to sentencing a juvenile applied whatever the seriousness of the crime. Further it was necessary to consider whether, and to what extent, both general and specific deterrence should be…
Uddin v The Queen [2020] NSWCCA 115
Citation 6 (Para 1)

…play” as those expressions were used in RP v the Queen (2016) 259 CLR 641; [2016] HCA 53 at [33]. It was contended, by reference to Uddin v R [2020] NSWCCA 115 , that an appropriate description of the offence involved sexual touching without it necessarily being sexual activity.…
Yildiz v R [2020] NSWCCA 69
Citation 7 (Para 65)

…eveloped emotional maturity and impulse control: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [5] (Hodgson JA); [108] (Johnson J); Yildiz v R [2020] NSWCCA 69 at [60] – [61] (Rothman J with whom Simpson AJA and N Adams J agreed).…
Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
Citation 8 (Para 43)

…ences involved abuse of a position of trust, citing the judgment of the Court of Criminal Appeal (Basten JA, Rothman and Cavanagh JJ) in DPP v Burton [2020] NSWCCA 54 at [31] that the position of trust was not a precise term and would cover relationships involving an obligation of care and protection, compared with…
Howard v R [2019] NSWCCA 109
Citation 9 (Para 52)

…Counsel also referred to the judgment of Fullerton J in Howard v R [2019] NSWCCA 109 at [14]: –…
Tepania v The Queen [2018] NSWCCA 247
Citation 10 (Para 42)

…present case the offender's youth was of significant relevance in respect moral culpability and accordingly objective seriousness, citing R v Tepania [2018] NSWCCA 247, where it was noted that the offender was aged between 16 and 20 at the time of commission of the offences. The offender noted the remarks of Adams J…
RP v The Queen [2016] HCA 53
Citation 11 (Para 1)

…uct should be characterised as “sexual experimentation” or “sexual play” as those expressions were used in RP v the Queen (2016) 259 CLR 641; [2016] HCA 53 at [33]. It was contended, by reference to Uddin v R [2020] NSWCCA 115 , that an appropriate description of the offence involved sexual touching without it n…
Cowan v R [2015] NSWCCA 118
Citation 12 (Para 64)

…he assessment of objective seriousness: McLaren v R [2012] NSWCCA 284 at [29] (per McCallum J with whom McClellan CJ and Johnson J agreed); Cowan v R [2015] NSWCCA 118 at [61] – [62] (per Bellew J with whom Bathurst CJ and Simpson J agreed); Tepania v R [2018] NSWCCA 247 at [97] – [101] (per Johnson J with whom Payn…
McLaren v R [2012] NSWCCA 284
Citation 13 (Para 64)

…ability, factors such as an offenders youth, immaturity and/or mental state might be relevant in the assessment of objective seriousness: McLaren v R [2012] NSWCCA 284 at [29] (per McCallum J with whom McClellan CJ and Johnson J agreed); Cowan v R [2015] NSWCCA 118 at [61] – [62] (per Bellew J with whom Bathurst CJ…
BP v R [2010] NSWCCA 159
Citation 14 (Para 65)

…such, and indeed reaching such a milestone does not equate to fully developed emotional maturity and impulse control: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [5] (Hodgson JA); [108] (Johnson J); Yildiz v R [2020] NSWCCA 69 at [60] – [61] (Rothman J with whom Simpson AJA and N Adams J agreed).…
Corby v R [2010] NSWCCA 146
Citation 15 (Para 76)

…y [2005] NSWCCA 168 at [25] - [26] (Latham J with whom Howie J and Grove J agreed). The degree of physical contact was relatively limited ( Corby v R [2010] NSWCCA 146) and overall is a less serious example of the type of conduct contemplated by this offence. I am not satisfied that the circumstances of the offence…
Mayall v R [2010] NSWCCA 37
Citation 16 (Para 32)

…tituted the offence did not mitigate the offending conduct overall, citing Howie J (with whom James and Davies JJ agreed) in Mayall, David Graham v R [2010] NSWCCA 37 at [44]. The Crown again contended that the offending involved an abuse of position of trust. It was submitted that the Count fell below the mid-rang…
KT v R [2008] NSWCCA 51
Citation 17 (Para 81)

…ssault requires proper consideration of general deterrence. Rehabilitation must play a significant role in the sentencing of the offender: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] (McClellan CJ at CL with whom Price J agreed). Whilst I accept the offender’s denial of the offences (as he is entitled…
MS2 v The Queen [2005] NSWCCA 397
Citation 18 (Para 42)

…aged between 16 and 20 at the time of commission of the offences. The offender noted the remarks of Adams J in MS2 & Ors v R (2005) 158 A Crim R 93; [2005] NSWCCA 397 that immaturity was relevant to culpability or criminality in that children did not have adult value judgements, adult experience, adult appreciation…
R v McQueeney [2005] NSWCCA 168
Citation 19 (Para 76)

…er the chances or prospect that the substantive offence would have been committed if not interrupted: R v Tauok (1992) 65 A Crim R 387; R v McQueeney [2005] NSWCCA 168 at [25] - [26] (Latham J with whom Howie J and Grove J agreed). The degree of physical contact was relatively limited ( Corby v R [2010] NSWCCA 146)…
R v Voss [2003] NSWCCA 182
Citation 20 (Para 31)

…1987 . It was necessary to give sufficient weight to the offenders age and immaturity in assessing moral culpability and objective gravity: R v Voss [2003] NSWCCA 182. However, this must be balanced against an offender who conducted himself as an adult or engaged in adult behaviour.…
R v MJK [2001] NSWCCA 325
Citation 21 (Para 14)

…nsistent with frequent statements of principle often repeated in the New South Wales Court of Criminal Appeal: R v BJW (2000) 112 A Crim R 1; R v MJR (2002) 54 NSWLR 368. Whilst there are no victim impact statements from either of the complainants, in passing sentence, account will be taken of the impact on both victi…
R v Olbrich [1999] HCA 54
Citation 22 (Para 4)

…ur of the offender are to be considered on sentencing it is sufficient if those circumstances are proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [281]; R v Storey [1998] 1 VR 359 at [369].…
Yardley v Betts (1979) 22 SASR 108
Citation 23 (Para 60)

…Counsel referred to the judgment of King CJ in Yardley v Betts (1979) 22 SASR 108 that the protection of the community was also contributed to by the successful rehabilitation of offenders, and that this should not be lost sight of in the sentencing process.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 25AA, 3A, 53A, 54D(3), 8
6 mentions (from Para 2)
Crimes Act 1900 (ACT) 61M, 66A
3 mentions (from Para 1)
Children (Criminal Proceedings) Act 1987 (NSW) 6
2 mentions (from Para 31)

Medium Neutral Citation:	R v AK [2023] NSWDC 402
Hearing dates:	15 September 2023
Date of orders:	22 September 2023
Decision date:	22 September 2023
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender, having been found guilty of Counts 1, 2, 3 and 4 on the indictment is convicted of those offences. (2) I impose an aggregate sentence of imprisonment for 4 years 6 months from 23 April 2023 and to expire on 22 October 2027. (3) I impose a non-parole period of 2 years 4 months from 23 April 2023 and expiring on 22 August 2025. (4) The earliest date the offender is eligible to be released to parole is 22 August 2025.
Catchwords:	CRIME - sexual intercourse with child under 10 years - indecent assault person under 16 years - findings of fact for sentencing – young offender – immaturity - offender with hearing impairment and speech delay - objective seriousness – finding of special circumstances – no prior criminal history
Legislation Cited:	Children (Criminal Proceedings) Act 1987, s 6 Crimes (Sentencing Procedure) Act 1999, ss 3A, 8, 25AA, 53A, 54D(3) Crimes Act 1900, ss 66A, 61M
Cases Cited:	BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Clarke v R [2023] NSWCCA 170 Corby v R [2010] NSWCCA 146 Cowan v R [2015] NSWCCA 118 DPP v Burton [2020] NSWCCA 54 Howard v R [2019] NSWCCA 109 JA v R [2021] NSWCCA 10 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Mayall, David Graham v R [2010] NSWCCA 37 McLaren v R [2012] NSWCCA 284 R v BJW (2000) 112 A Crim R 1 R v JR [2022] NSWDC 618 R v McQueeney [2005] NSWCCA 168 R v MJR (2002) 54 NSWLR 368 R v Olbrich (1999) 199 CLR 270 R v Quinlin [2021] NSWCCA 284 R v Storey [1998] 1 VR 359 R vTauok (1992) 65 A Crim R 387 R v Tepania [2018] NSWCCA 247 R v Voss [2003] NSWCCA 182 R v Webster, unreported NSW CCA (15 July 1991) RP v the Queen (2016) 259 CLR 641; [2016] HCA 53 S2 & Ors v R (2005) 158 A Crim R 93; [2005] NSWCCA 397 Sarhene v R [2022] NSWCCA 79 Tepania v R [2018] NSWCCA 247 Tsokos unrep. NSWCCA 16.June.1995. Uddin v R [2020] NSWCCA 115 Yardley v Betts (1979) 22 SASR 108 Yildiz v R [2020] NSWCCA 69
Category:	Sentence
Parties:	Rex (Crown) AK (Offender)
Representation:	Counsel: Mr Bhutani (Offender) Solicitors: Office of the Department of Public Prosecutions (NSW) (Crown) KPT Defence Lawyers (Offender)
File Number(s):	2020/00278775
Publication restriction:	There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants.