R v KA - [2024] NSWDC 610

District Court

New South Wales

Medium Neutral Citation: R v KA [2024] NSWDC 610
Hearing dates: 21 June 2024
Date of orders: 26 July 2024
Decision date: 26 July 2024
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
1. Offender is convicted.
2. For Count 10, offender is sentenced to 3 years imprisonment with a NPP of 18 months.
3. For Count 11 and 12, offender is sentenced to 6 months fixed term imprisonment.

Catchwords:
CRIME – sentence – after trial – Count 10 – sexual intercourse with child between 10 and 16 – contrary to s66C Crimes Act – maximum penalty 8 years imprisonment – Count 11 and 12 – indecent assault – s61E(1) Crimes Act – maximum penalty 4 years imprisonment
OFFENCES – historical child sexual assault offences – between 1989 and 1992 – victim aged between 14 and 16 – offender aged between 19 and 20 – cousins – offender stayed overnight at victim’s family home – Count 10 – offender removed victim’s pyjamas and laid on top of her – penile vaginal intercourse – victim in pain and bleeding – Count 11 and 12 – offender entered victim’s room while asleep – lifted blanket and touched her genital region and breast area – offender arrested 8 February 2022
OBJECTIVE SERIOUSNESS – Count 10 – occurred in victim’s home – unprotected sex – some force – brazen – middle range – Count 11 and 12 – opportunistic and brief – lower range – lengthy and detailed VIS
SUBJECTIVE CASE – offender now 54 – no criminal record at the time – committed offences since – successful rehabilitation following imprisonment – secure childhood – difficulty at school – went “off the rails” – drug and alcohol use – bankrupt in 2008 – now carer for aging parents – persistent depressive disorder
SENTENCE – general deterrence – no discount – delay – youth at time of offending.

Legislation Cited:
Crimes Act 1900 (NSW): ss 61E(1), 66C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A

Cases Cited:
R v Gavel [2014] NSWCCA 56

Category: Sentence
Parties: Rex (Crown)
KA (Offender)
Representation:
Counsel:
C Dodds (Crown)
B Robinson (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s): 2022/00037241
Publication restriction: There is to be no publication of any details that might identify or tend to identify the victim or the offender.

JUDGMENT

This is the sentence judgment in the matter of KA who is before the Court for sentence after trial. He faced trial before a jury between 8 and 27 March 2024 on 12 counts in an indictment dated 6 March 2024.
He was found not guilty on counts 1, 6, 7 and 8 and discharged on those counts. He was found guilty on counts 10, 11 and 12 and they are the subject matter of the sentences now before me. The jury was unable to reach either unanimous or majority verdicts in relation to the remaining counts and was discharged. The Director of Public…

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 KA

Details

AGLC: R v KA [2024] NSWDC 610
Case: [2024] NSWDC 610
Decision Date: 26 July 2024

CaseChat Overview and Summary

The case of R v KA involved the conviction and sentencing of the respondent, KA, for multiple offences of child sexual assault that occurred between 1989 and 1992. The victim was aged between 14 and 16 at the time of the offences, while KA was between 19 and 20 years old. KA, who was the victim's cousin, stayed overnight at the victim's family home where the offences took place. KA was convicted on Count 10 for engaging in sexual intercourse with the victim, contrary to section 66C of the Crimes Act, and on Counts 11 and 12 for indecent assault, pursuant to section 61E(1) of the same Act.

The court was tasked with determining the appropriate sentences for each of the counts, considering the nature and circumstances of the offences, the objective seriousness of the crimes, and the subjective circumstances of the offender. The court needed to weigh the severity of the offences, which involved unprotected sexual intercourse and indecent assault, against the offender's personal background, including his age at the time of the offences, his lack of a prior criminal record, and his subsequent rehabilitation and personal circumstances.

The court found that Count 10, involving sexual intercourse, was brazen and occurred in the victim's home, warranting a middle-range sentence within the maximum penalty of eight years imprisonment. For Counts 11 and 12, the court deemed the offences opportunistic and brief, assigning them to the lower range within the maximum penalty of four years imprisonment. The court also considered the offender's background, including his successful rehabilitation, secure childhood, and current role as a carer for his aging parents, though it noted his drug and alcohol use and financial difficulties in the past. Despite these mitigating factors, the court decided not to apply a discount for the delay in prosecution or for the offender's youth at the time of the offending.

The court sentenced KA to three years imprisonment with a non-parole period of 18 months for Count 10, and six months fixed term imprisonment for Counts 11 and 12. The court ordered that KA be convicted on all counts and imposed the aforementioned sentences.

Orders

Orders of the court

1. Offender is convicted.

2. For Count 10, offender is sentenced to 3 years imprisonment with a NPP of 18 months.

3. For Count 11 and 12, offender is sentenced to 6 months fixed term imprisonment.

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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Medium Neutral Citation:	R v KA [2024] NSWDC 610
Hearing dates:	21 June 2024
Date of orders:	26 July 2024
Decision date:	26 July 2024
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	1. Offender is convicted. 2. For Count 10, offender is sentenced to 3 years imprisonment with a NPP of 18 months. 3. For Count 11 and 12, offender is sentenced to 6 months fixed term imprisonment.
Catchwords:	CRIME – sentence – after trial – Count 10 – sexual intercourse with child between 10 and 16 – contrary to s66C Crimes Act – maximum penalty 8 years imprisonment – Count 11 and 12 – indecent assault – s61E(1) Crimes Act – maximum penalty 4 years imprisonment OFFENCES – historical child sexual assault offences – between 1989 and 1992 – victim aged between 14 and 16 – offender aged between 19 and 20 – cousins – offender stayed overnight at victim’s family home – Count 10 – offender removed victim’s pyjamas and laid on top of her – penile vaginal intercourse – victim in pain and bleeding – Count 11 and 12 – offender entered victim’s room while asleep – lifted blanket and touched her genital region and breast area – offender arrested 8 February 2022 OBJECTIVE SERIOUSNESS – Count 10 – occurred in victim’s home – unprotected sex – some force – brazen – middle range – Count 11 and 12 – opportunistic and brief – lower range – lengthy and detailed VIS SUBJECTIVE CASE – offender now 54 – no criminal record at the time – committed offences since – successful rehabilitation following imprisonment – secure childhood – difficulty at school – went “off the rails” – drug and alcohol use – bankrupt in 2008 – now carer for aging parents – persistent depressive disorder SENTENCE – general deterrence – no discount – delay – youth at time of offending.
Legislation Cited:	Crimes Act 1900 (NSW): ss 61E(1), 66C(1) Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A
Cases Cited:	R v Gavel [2014] NSWCCA 56
Category:	Sentence
Parties:	Rex (Crown) KA (Offender)
Representation:	Counsel: C Dodds (Crown) B Robinson (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Offender)
File Number(s):	2022/00037241
Publication restriction:	There is to be no publication of any details that might identify or tend to identify the victim or the offender.