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R v Katon

R v Katon

Case [2008] NSWCCA 228 2 October 2008

Sentencing

Breach of Trust

Unconscionable Conduct

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: R v Katon [2008] NSWCCA 228
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 August 2008

JUDGMENT DATE:
2 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 47; Hoeben J at 48

DECISION: 1.Appeal upheld.
2.Quash the sentences imposed on 4 April 2008 in the District Court and impose the following sentences:
Count 1: Imprisonment for a fixed term of 1 year commencing 2 March 2007 and expiring 1 March 2008.
Count 2: Imprisonment for a fixed term of 2 years commencing 2 March 2007 and expiring 1 March 2009.
Count 3: Imprisonment with a non-parole period of 2 years commencing 2 June 2007 and expiring on 1 June 2009 with a balance of term of 1 year, 4 months and 2 weeks expiring 15 October 2010.
Count 4: Imprisonment with a non-parole period of 18 months commencing 2 August 2008 and expiring 1 February 2010 with a balance of term of 9 months expiring on 1 November 2010.
Count 5: Imprisonment with a non-parole period of 18 months commencing on 2 October 2008 and expiring 1 April 2010 with a balance of term of 9 months expiring on 1 January 2011.
Count 6: Imprisonment for a fixed term of 1 year commencing on 2 July 2009 and expiring on 1 July 2010.
Count 7: Imprisonment for a fixed term of 1 year commencing on 2 November 2009 and expiring on 1 November 2010.
Count 8: Imprisonment for a fixed term of 18 months commencing on 2 January 2010 and expiring on 1 July 2011.
Count 9: Taking into account Form 1 matters: imprisonment with a non-parole period of 2 years commencing 2 March 2010 and expiring on 1 March 2012 with a balance of term of 2 years expiring on 1 March 2014.
The overall sentence will be a total non-parole period of five years commencing 2 March 2007 and expiring on 1 March 2012, with a balance of term of 2 years expiring on 1 March 2014.

CATCHWORDS: CRIMINAL LAW – Sentencing – Crown appeal – Manifest inadequacy of sentences – Sexual intercourse with child under 16 – Acts of indecency with child under 16 – Possession of child pornography – Using child for pornographic purposes – Sentences imposed to be served concurrently and partially concurrently – Whether structuring of sentences failed to reflect number and seriousness of offences – Whether total effective sentence reflected totality of criminality involved in offences

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen (1998) 194 CLR 160
R v AJP [2004] NSWCCA 434
R v Cotter [2003] NSWCCA 273
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v KM [2004] NSWCCA 65
R v Knight (2005) 155 A Crim R 252
R v Wall [2002] NSWCCA 42

PARTIES: The Crown (Appellant)
James Rodney Katon (Respondent)

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 Katon

Details

AGLC: R v Katon [2008] NSWCCA 228
Case: [2008] NSWCCA 228
Decision Date: 2 October 2008

CaseChat Overview and Summary

In the case of R v Katon, the respondent was convicted of multiple offences, including sexual intercourse and acts of indecency with a child under 16, as well as possession of child pornography and using a child for pornographic purposes. The respondent was sentenced in the County Court of Victoria to a total effective sentence of six years imprisonment, with each sentence to be served concurrently or partially concurrently. The Crown appealed against the sentences imposed, contending that they were manifestly inadequate. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.
The primary legal issue before the court was whether the structure of the sentences failed to reflect the number and seriousness of the offences, and whether the total effective sentence adequately reflected the totality of the criminality involved. The Crown argued that the sentences were manifestly inadequate and did not reflect the seriousness of the offences, particularly given the vulnerable nature of the victim and the exploitative conduct of the respondent. The respondent, on the other hand, submitted that the sentences imposed were appropriate and reflected the totality of the criminality involved.
The court found that the sentences imposed were manifestly inadequate and failed to reflect the number and seriousness of the offences committed by the respondent. The court noted that the respondent's offending involved a significant breach of trust and exploitation of a child, and that the sentences imposed did not adequately reflect the totality of the criminality involved. The court further found that the sentences imposed did not provide sufficient deterrence or denunciation, and that a longer sentence was necessary to adequately reflect the seriousness of the offences. The appeal was therefore allowed, and the matter was remitted to the County Court for re-sentencing.

The final orders made by the Court of Appeal were that the appeal be allowed, the sentences imposed by the County Court be set aside, and the matter be remitted to the County Court for re-sentencing. The court emphasised the importance of ensuring that sentences imposed reflect the seriousness of the offences committed, particularly in cases involving vulnerable victims and exploitative conduct. The court also highlighted the need for sentences to provide adequate deterrence and denunciation, and to reflect the totality of the criminality involved in the offending.

Orders