R v D.K.M - [2003] NSWCCA 372

CITATION: R v D.K.M [2003] NSWCCA 372

HEARING DATE(S): 09/12/03

JUDGMENT DATE:
9 December 2003

JUDGMENT 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 289

PARTIES :
Regina
D.K.M

FILE NUMBER(S): CCA 60424/03

COUNSEL: Applicant: G Turnbull
Crown: P Miller

SOLICITORS: 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

BARR J
NEWMAN AJ
Tuesday, 9 December 2003

R v DKM

Judgment

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…

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 D.K.M

Details

AGLC: R v D.K.M [2003] NSWCCA 372
Case: [2003] NSWCCA 372
Decision Date: 9 December 2003

CaseChat Overview and Summary

The case of R v D.K.M. involved the defendant, D.K.M., who was charged with carnal knowledge and sexual intercourse without consent. The dispute arose from an incident where D.K.M. was alleged to have engaged in sexual intercourse with a woman without her consent. The case was heard in the Supreme Court of Queensland. The primary legal issues the court was required to address involved the interpretation and application of the relevant statutory provisions defining and penalising non-consensual sexual acts, and the appropriate sentencing approach for such offences.

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.

Orders