SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Queen v DK |
Citation: | [2016] ACTCA 7 |
Hearing Date: | 18 February 2015 |
DecisionDate: | 1 April 2016 |
Before: | Refshauge, Penfold and Perry JJ |
Decision: | The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – sentences for five acts of indecency – whether sentences were manifestly inadequate – whether specific error established – discretion of appellate court to impose different sentence where specific error demonstrated – need to consider preservation of rehabilitation already achieved – correct pleading of appeal grounds – significance of voluntary disclosures – factors relevant to consideration of whether to suspend a sentence of imprisonment. |
Legislation Cited: | Crimes Act 1900 (ACT), s 61(2) Crimes (Sentencing) Act 2005 (ACT), ss 10(2), 11, 12, 12(3), 29, 33(1)(za), 36(4), 37 |
Cases Cited: | AB v The Queen (1999) 198 CLR 111 Bugmy v The Queen (2013) 249 CLR 571 |
Parties: | The Queen (Appellant) DK (Respondent) |
Representation: | Counsel Mr J White SC (Appellant) Mr R Livingston (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | ACTCA 33 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 30 June 2014 Case Title: R v DK Citation: [2014] ACTSC 173 |
THE COURT:
Introduction
This is a Crown appeal against sentences imposed on DK for five acts of indecency on a person under 16 years. The offences are created by s 61(2) of the Crimes Act 1900 (ACT), which sets a maximum penalty including imprisonment for 10 years. The offences were committed against DK’s two step-children during the period 1 January to 12 February 2013.
The facts
In 2010 DK married a woman with two children, a boy and a girl. The children spent alternate weeks with their father, and with their mother in the house she shared with DK. In early 2013, DK’s step-son was 13 years old and his step-daughter was 10 years old.
Each incident giving rise to a charge involved DK going into the child’s bedroom at a point when he expected the child to be sound asleep, kneeling down beside the bed, putting his hands inside the child’s clothing and fondling the child’s genitals. There were two acts involving his step-daughter; in each case DK rubbed the outer labia of her vagina, but there was no vaginal penetration. In the three incidents involving his step-son, he put…
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- AGLC
- R v DK [2016] ACTCA 7
- Case
- [2016] ACTCA 7
- Decision Date
CaseChat Overview and Summary
The central legal issue before the appellate court was whether the sentencing judge had erred in law, thereby demonstrating a specific error in the exercise of discretion, such that the appellate court was justified in interfering with the sentences imposed. This required the court to consider whether the sentences were so inadequate as to be unreasonable or unjust. The court also had to consider the significance of voluntary disclosures made by the respondent and the importance of preserving any rehabilitation already achieved by the respondent, as well as the factors relevant to suspending a sentence of imprisonment.
The Court of Appeal found that no specific error had been established in the sentencing judge's exercise of discretion. The judges considered the relevant sentencing principles, including the need to punish, deter, and rehabilitate, and gave due weight to the mitigating factors presented, such as the respondent's voluntary disclosures and the progress made in rehabilitation. The Court concluded that the sentences imposed, while perhaps lenient, did not fall outside the bounds of a reasonable exercise of discretion.
Consequently, the appeal was dismissed.
Orders
Orders of the court
The appeal is dismissed.
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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