R v Kay - [1996] QCA 192

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 122 of 1996

Brisbane

[R. v. Kay]

THE QUEEN
v.

STEPHEN KAY
(Applicant)

Davies JA
Demack J

Williams J

Judgment delivered 18/06/96

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED. APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS: CRIMINAL - SENTENCING - MULTIPLE OFFENCES
Indecent dealing - whether the final sentence imposed should reflect the criminality of the accused over a period of time - the consequence of separate sentences as opposed to one overall sentence.

Counsel: Ms K McGinness for the applicant.

Mr MJ Byrne QC for the respondent.

Solicitors: Legal Aid Office for the applicant.

Queensland Director of Public Prosecutions for the respondent.

Hearing Date: 6 June 1996
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 122 of 1996

Brisbane

Before Davies JA

Demack J
Williams J

[R. v. Kay]

THE QUEEN

v.

STEPHEN KAY
(Applicant)

JUDGMENT OF THE COURT

Judgment delivered the 18th day of June 1996

The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 15 March 1996 after he pleaded guilty to two counts of indecently dealing with a child under 12 years, and three counts of indecent treatment of a child under 12 years with a circumstance of aggravation.
           The issues raised by the application are rather complex, and cannot be resolved merely by considering the facts of the five counts then before the sentencing judge. The issues can more readily be highlighted if the full history of relevant matters is set out.
           Prior to 27 February 1995 the applicant had no criminal convictions. He was born on 14 April 1940 and was thus aged 52 in 1992 when the relevant events began, and aged 56 when sentenced. For many years he was state credit manager of a large company and held various positions in an accounting capacity before he qualified as a school teacher. He has been a school teacher for a number of years. During the relevant period he had been active in the Church of Jesus Christ of the Latter Day Saints, and also had been active for many years in the scouting movement.
           At a scout camp, where he acted in the role of scout leader, between September and October 1992 he touched a boy on the genitals on two separate occasions. More precise details of the incident are not revealed in the record, though the Court of Appeal decision relating thereto indicates the boy's penis was handled.
           At a scout camp on or about 13 April 1993, again when the applicant was acting in the capacity of scout leader, a further offence was committed. A boy under 16 awoke to find his pants pulled down and the applicant on top of him rubbing his penis against his anus. The applicant also touched the boy on the testicles during that incident.
           In June 1993 the applicant kissed a boy under the age of 16 years. There apparently…

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 Kay

Details

AGLC: R v Kay [1996] QCA 192
Case: [1996] QCA 192
Decision Date: 18 June 1996

CaseChat Overview and Summary

The case of R v Kay involved the applicant, Stephen Kay, who sought leave to appeal against the sentence imposed on him following his guilty pleas to multiple charges of indecent dealing and indecent treatment of children under the age of 12. The Supreme Court of Queensland's Court of Appeal was tasked with deciding whether the sentence, which was cumulative with previous sentences, was appropriate given the nature and extent of the crimes committed. The court had to determine if the sentence adequately reflected the cumulative criminality of Kay’s actions over time and if the imposition of separate sentences for each set of charges was justified.

The legal issues before the court centred on the appropriateness of sentencing in cases involving multiple offences committed over time, particularly when the offences were of a serious nature and involved vulnerable victims. The court had to consider whether the cumulative sentence imposed adequately addressed the overall criminality and required a deterrent effect, while also ensuring that the sentence was proportionate and not manifestly excessive. The court also had to evaluate whether the sentence appropriately reflected the principles of justice and general deterrence, particularly given Kay's position of trust as a teacher and scout leader.

The Court of Appeal held that the sentence imposed by the District Court was not manifestly excessive. The court noted that the sentencing judge had considered the applicant's position of trust and the persistent nature of the offences. Each sentence was imposed in light of the criminality revealed at the time, and the cumulative effect of the sentences adequately reflected the overall criminality of Kay’s conduct. The court emphasised that the sentencing process should be regarded as unique to this case and not as a precedent for other similar situations. The appeal was dismissed, and the application for leave to appeal was refused.

The final orders of the court were that the application for leave to appeal against the sentence was refused, and the appeal against the sentence was dismissed.

Orders