R v CJK

[2009] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 422 of 2006

THE QUEEN

v.

CJK

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JUDGES:	Warren, CJ, Vincent and Neave JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2008
DATE OF JUDGMENT:	27 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 58

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CRIMINAL LAW – Sentence – Indecent act with child under age of 16 – Sexual penetration of a child under age of 16 – Assault – Threat to kill – Rape – Representative counts – Distinction between representative counts and single counts – Whether representative count an ‘aggravating feature’ for the purposes of sentencing – Meaning of ‘aggravating feature’.    

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Victoria Legal Aid
For the Respondent	Mrs C M Quinn	Ms A Cannon, Solicitor for Public Prosecutions

WARREN CJ:

1. On 23 November 2006, the appellant, CJK, pleaded guilty to the following charges:

   ·two counts of an indecent act with a child under 16 (counts 1 and 11);

   ·three counts of common assault (counts 2, 9 and 10);

   ·one count of making a threat to kill (count 3);

   ·three counts of sexual penetration of a child under 16 (counts 4, 5 and 6);

   ·one count of rape (count 7); and

   ·one count of reckless conduct endangering persons (count 8). 

2. With the exception of counts 8 and 11, all counts were representative.  On 15 December 2006, the appellant was sentenced to a total effective sentence of 15 years and 9 months’ imprisonment, with a non-parole period of 12 years.

1. The offences occurred against four children. The principal complainant, CL, was between 11 and 17 years of age during the appellant’s offending conduct. CL is the daughter of one ‘S’ and her first husband. NM was between 11 and 14 years of age during the offending conduct against him. He is the son of S and her second de facto husband. AC and EC are the son and daughter of S and the appellant. AC was about 7 years old and EC was about 5 years old at the time of the offending.

1. S and the appellant were married from 1991 to 1995. In that period, AC and EC were born. Following the breakdown of the marriage, the four children lived with the appellant pursuant to a Family Court order. Each of the children alleged the appellant assaulted them during the period of 18 December 1995 to 9 August 2003.

The offending conduct

1. Between 1 January 1996 and 1 February 1997, the appellant massaged CL’s inner thighs and around her vagina. This conduct constitutes count 1 and is representative of many occasions that CL remembers when the same kind of thing happened.

1. Between 25 January 1998 and 1 May 1998, CL went with the appellant to the doctor. In the presence of the appellant, the doctor asked CL if she was sexually active and, for reasons unclear, sent her to a pregnancy clinic, which she did not attend. On returning home, the appellant beat CL because he assumed…