R v Buda-Kaa

[2013] ACTCA 46

THE QUEEN v DANIEL LEWIS BUDA-KAA

[2013] ACTCA 46 (15 November 2013)

APPEAL – CRIMINAL LAW – appeal against sentence – whether head sentence on each count was manifestly inadequate – whether non-parole period manifestly inadequate – issue of concurrency – whether too much weight given to respondent’s mental illness – whether lack of violence was a mitigating factor – whether digital as opposed to penile penetration was a mitigating factor – sentencing judge correct to consider conduct of respondent and mental health of respondent in determining culpability – no error on part of sentencing judge that would justify intervention – sentences not manifestly inadequate – appeal dismissed.

Crimes (Sentencing) Act 2005 (ACT) s 33(1)(m)

Bui v Director of Public Prosecutions (2012) 244 CLR 638
R v Chatfield [2012] ACTCA 32

R v Buda-Kaa (Sentencing remarks, SCC 281 of 2011, 30 November 2012)
R v King [2008] ACTCA 12

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 59 - 2012
No. SCC 281 of 2011

Judges:         Penfold and North JJ and Nield AJ
Court of Appeal of the Australian Capital Territory

Date:            15 November 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 59 - 2012
  )          No. SCC 281 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:            THE QUEEN

Appellant

AND:          DANIEL LEWIS BUDA-KAA

Respondent

ORDER

Judges:  Penfold and North JJ and Nield AJ
Place:  Canberra
Date:  6 August 2013

THE COURT ORDERS THAT:

1. The appeal is dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 59 - 2012
  )          No. SCC 281 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:            THE QUEEN

Appellant

AND:          DANIEL LEWIS BUDA-KAA

Respondent

ORDER

Judges:  Penfold and North JJ and Nield AJ
Place:  Canberra
Date:  15 November 2013

REASONS FOR JUDGMENT

THE COURT:

1. On 24 July 2012 the respondent, Daniel Lewis Buda-Kaa, was found guilty by a jury of:

   (a)    on 3 May 2011, engaging the complainant, Ms JW, in sexual intercourse, that is, penetrating her vagina with a finger, without her consent and being reckless as to whether she was consenting to sexual intercourse;

   (b)   on 3 May 2011 committing an act of indecency upon the complainant, that is, touching her on her right breast, without her consent and being reckless as to whether she was consenting to the act; and

   (c)    on 3 May 2011 committing an act of indecency upon the complainant, that is, trying to touch her genitalia, without her consent and being reckless to whether she was consenting to the act.

2. On 30 November 2012 Burns J sentenced the respondent for the offences as follows:

   (a)    the offence of sexual intercourse without consent: imprisonment for 3 years from 24 April 2012 to 23 April 2015;

   (b)   the offence of…