R v Kayin (a pseudonym) - [2022] ACTSC 164

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kayin (a pseudonym)
Citation:	[2022] ACTSC 164
Hearing Date:	7 July 2022
DecisionDate:	7 July 2022
Before:	Norrish AJ
Decision:	See [90]
Catchwords:	CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Offence of assault occasioning actual bodily harm — Assault committed against daughter of offender — Where offender had extraordinary background circumstances — Whether to impose non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) — Good character — Extenuating circumstances — Mental disability at time of offending.
Legislation Cited:	Crimes (Sentencing Administration) Act 2005 (ACT), s 86 Crimes (Sentencing) Act 2005 (ACT), ss 5, 7, 10, 13, 17, 33, 34B
Cases Cited:	Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 Veen v The Queen (No 2) [1998] HCA 14; 164 CLR 465 ZL v Corey [2020] ACTSC 143 Murray v IA [2020] ACTSC 288 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Bennett v Daley [2021] ACTSC 159
Parties:	The Queen ( Crown) Imani Kayin (a pseudonym) ( Offender)
Representation:	Counsel E Priestly ( Crown) J Sabharwal ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Prudential Legal ( Offender)
File Numbers:	SCC 18 of 2022; SCC 19 of 2022

NORRISH AJ:

Imani Kayin appears today for sentence in relation to an offence of assault occasioning actual bodily harm committed on New Year’s Day 2021 when the offender assaulted her 15 year old daughter in circumstances I will outline shortly. The offence of assault occasioning actual bodily harm carries with it a maximum penalty of five years’ imprisonment.

I sentence the offender now shortly after the completion of the evidence and the submissions only on the basis that I shall not be sitting in Canberra for at least another month and a half and I do not believe the matter should be delayed longer than is necessary. It is to be borne in mind as a relevant matter in this sentencing exercise that the offender has been awaiting the finalisation of these court proceedings for a period of over 18 months although, to be fair, she has been on bail during that period of time.

It is to be noted as well that, of course, the victim has been awaiting the outcome of the matter for the same period of time. The offender has two other children, one older and one younger than the victim. She gave evidence today of their ages.

She lives with their father, her husband. She pleaded guilty before trial having been committed, as I understand it, to the Supreme Court in relation to a range of charges. There was case conferencing and she entered a plea to the particular charge with which I am now concerned which does involve, as the Crown pointed out to me, consideration of facts that were said, initially, to be relevant to other offending committed at the same time.

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 Kayin (a pseudonym)

Details

AGLC: R v Kayin (a pseudonym) [2022] ACTSC 164
Case: [2022] ACTSC 164
Decision Date: 7 July 2022

CaseChat Overview and Summary

The case of R v Kayin involved the defendant, Kayin, who was charged with assaulting his daughter, causing actual bodily harm. The matter was heard in the Magistrates Court of the Australian Capital Territory. The primary issue before the court was whether to impose a non-conviction order under section 17 of the Crimes (Sentencing) Act 2005 (ACT) for the offence committed against his daughter, considering his extraordinary background circumstances, good character, and the extenuating circumstances, including a mental disability present at the time of the offence.

The court was required to consider the principles of sentencing in light of the statutory framework provided by the Crimes (Sentencing) Act 2005 (ACT), specifically focusing on the possibility of a non-conviction order. The arguments centred on whether such an order would appropriately address the offender's background and mental health issues, while also ensuring the protection of the victim and the community. The court had to balance the need for rehabilitation and deterrence against the necessity to impose some form of accountability for the offence committed.

After a comprehensive examination of the offender's background, character, and the circumstances of the offence, the court determined that a non-conviction order would be the most appropriate sentence. The court found that the offender's good character, combined with his mental disability at the time of the offence, warranted consideration for a non-conviction order under section 17 of the Act. The court concluded that this approach would provide an opportunity for rehabilitation without the stigma of a criminal conviction, while also addressing the need for accountability and protection of the victim. The court therefore ordered that Kayin be subject to a non-conviction order, which included specific conditions aimed at ensuring his rehabilitation and the safety of the community.

Orders

Orders of the court

See [90]

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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