CITATION: R v D.K.M [2003] NSWCCA 372 HEARING DATE(S): 09/12/03 JUDGMENT DATE:
9 December 2003JUDGMENT OF: Barr J at 1; Newman AJ at 26 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: Criminal law - sentencing - carnal knowledge - sexual intercourse without consent LEGISLATION CITED: Crimes (Sentencing Procedure) Act s44 CASES CITED: R v Simpson (2001) 53 NSWLR 704
R v LWP [2003] NSWCCA 215
R v Lyndon [2003] NSWCCA 152
R v Reicher [2003] NSWCCA 300
R v Astill (No 2) (1992) 64 A Crim R 289PARTIES :
Regina
D.K.MFILE NUMBER(S): CCA 60424/03 COUNSEL: Applicant: G Turnbull
Crown: P MillerSOLICITORS: Applicant: D Humphreys
Crown: S E O'Connor
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 01/31/0026 LOWER COURT
JUDICIAL OFFICER :Coolahan DCJ
60424/03
Tuesday, 9 December 2003BARR J
NEWMAN AJ
1 BARR J: The applicant, to whom I shall refer as DKM, seeks leave to appeal against sentences imposed in the District Court. The applicant has a daughter, whom I shall simply call the complainant. She was born on 7 August 1967. Early in 2000 the applicant was charged with having committed a number of sexual offences against the complainant. By an arrangement made in the Local Court the applicant pleaded guilty to three of them. The prosecution offered no evidence on the remaining ones, which were dismissed, and the applicant was committed to the District Court for sentence.
2 The offences were as follows:
1. Between 1 October and 30 December 1979 carnally knowing the complainant, who was then above the age of ten years and under the age of seventeen years, namely twelve years, and who was his daughter.
2. Carnally knowing the complainant between 7 August and 30 October 1982 when she was fifteen years old; and
3. Between 7 August and 30 September 1984 having sexual intercourse with the complainant without her consent, knowing that she was not consenting.
3 The maximum sentences for the first two counts were eight years’ imprisonment respectively and for the third count seven years’ imprisonment.
4 On 2 May 2001 Coolahan DCJ sentenced the applicant on each count to imprisonment for four years and six months with a non-parole period of three years. The sentence on the first count was fixed to commence on 14 April 2001, the second on 14 April 2003 and the third on 14 April 2004. This partial accumulation of the sentences produced an effective head sentence of seven years and six months and an effective non-parole period of six years. The whole of the parole period for the first count and two- thirds of that for the second count were subsumed by the non-parole periods of the succeeding sentences.
5 There is a single ground of appeal, namely that his Honour found that special circumstances existed justifying an adjustment of the statutory ratio between parole and non-parole periods, yet failed to put that finding into effect. The components of the resulting sentences were…
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- AGLC
- R v D.K.M [2003] NSWCCA 372
- Case
- [2003] NSWCCA 372
- Decision Date
CaseChat Overview and Summary
The court considered the statutory definitions of carnal knowledge and sexual intercourse without consent, as well as the principles of sentencing for sexual offences. It was necessary to determine whether the prosecution had established the elements of the offence beyond reasonable doubt and, if so, to determine an appropriate sentence. The court examined the evidence presented, including the testimony of the victim and any relevant background information about D.K.M. The court also took into account the principles of proportionality and deterrence in its sentencing decision.
The court found that the prosecution had successfully proven the elements of the offence and sentenced D.K.M. accordingly. It found that the gravity of the offence warranted a custodial sentence and, after considering the mitigating and aggravating factors, determined an appropriate term of imprisonment. The court emphasised the importance of preventing sexual offences and ensuring that offenders are held accountable for their actions. The sentence imposed reflected the seriousness of the offence and aimed to deter D.K.M. and others from engaging in similar conduct.
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