R v Kevin Thomas Risby - [2008] NSWDC 300

CITATION: R v Kevin Thomas Risby [2008] NSWDC 300

HEARING DATE(S): 7 October 2008

JUDGMENT DATE:
12 December 2008

JURISDICTION: Criminal

JUDGMENT OF: Hulme SC DCJ

CATCHWORDS: CRIMINAL LAW - Sentence - Incite female under the age of 16 to commit an act of indecency - Carnal knowledge of a step-daughter under the age of 17 - Indecent assault - Sexual intercourse without consent upon a person under the age of 16 - multiple offences over extended period against 2 victims - breach of trust - relevance of uncharged acts - ill health - delay - applying past sentence practices - relevance of harm to victims where being a child is an element of offence

LEGISLATION CITED: Crimes Act 1900
Parole of Prisoners Act 1966
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Regina v MJR (2002) NSWLR 368
Bradbury v Regina [2008] NSWCCA 93
AJB v Regina [2007] NSWCCA 51, (2007) 169 A Crim R 32
Power v The Queen (1973) 131 CLR 623
R v Moon (2000) 117 A Crim R 497
Ibbs v The Queen (1987) 163 CLR 447

TEXTS CITED: Ross W Carter, "Australian Sentencing Digest", (1985) The Law Book Company Limited

PARTIES: R v Kevin Thomas Risby

FILE NUMBER(S): 07/61/0119

COUNSEL: Mr D Wilson (Crown)
Mr W Walsh (Offender)

SENTENCE

1 HIS HONOUR: On 4 August 2008 the offender, Kevin Thomas RISBY, was arraigned upon an indictment alleging he committed 15 child sexual assault offences. He pleaded not guilty to each allegation. Pre-trial legal issues were determined on that day and a jury was empanelled the following day. On 14 August 2008 the jury returned with verdicts of guilty on all counts.

2 There are two offences of inciting a female under the age of 16 to commit an act of indecency with him (s.76A Crimes Act 1900 – maximum penalty 2 years), seven offences of carnal knowledge of a step-daughter under the age of 17 (s.73 Crimes Act – 14 years), five offences of indecently assaulting a female under the age of 16 (s.76 Crimes Act – 6 years) and one offence of sexual intercourse without consent upon a person under the age of 16 (s.61D(1) Crimes Act – 10 years).

FACTS

3 The facts of the offences, of which I am satisfied beyond reasonable doubt, are as follows.

4 The offences were committed between the beginning of 1980 and the end of 1982. The offender was the step-father of the two complainants KG and SK.

5 KG was born in November 1967. SK was born in January 1970. They had an older brother, DR, who was adopted, and a younger brother, SR. Their mother, MW, was married to a man in 1964 but divorced him in 1973 when she found he was having an affair with her best friend. She met the offender later in 1973 and they were married in May 1974, whereupon he moved in to live with the family at their home in Lithgow. The children came to regard…

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 Kevin Thomas Risby

Details

AGLC: R v Kevin Thomas Risby [2008] NSWDC 300
Case: [2008] NSWDC 300
Decision Date: 12 December 2008

CaseChat Overview and Summary

In the Supreme Court of Queensland, the accused, Kevin Thomas Risby, faced multiple charges of indecency and sexual assault against two victims, a step-daughter under the age of 17 and another person under the age of 16. The court was tasked with determining an appropriate sentence for these multiple offences, which spanned over an extended period and involved significant breaches of trust. The case also considered the relevance of uncharged acts and the accused's ill health and the delay in bringing the charges to court.

The primary legal issues before the court included the assessment of harm caused to the victims, the relevance of the accused's uncharged acts, the impact of his ill health, and the consideration of past sentencing practices. The court needed to weigh these factors to determine a just and appropriate sentence. Additionally, the court had to consider the element of the victims' ages in relation to the specific offences, as being a child under the age of 16 was a critical component of several charges.

The court held that despite the accused's ill health, the significant harm caused to the victims and the breach of trust warranted a substantial custodial sentence. The uncharged acts, though not directly punishable, provided context for the accused's character and the pattern of behaviour. The delay in bringing the charges was noted but did not significantly impact the sentence. Ultimately, the court determined that a sentence reflecting the gravity of the offences and the harm caused was necessary. The accused was sentenced to a term of imprisonment with a non-parole period, ensuring that the sentence aligned with past practices and the nature of the crimes committed.

The final orders included a custodial sentence with a specified non-parole period, reflecting the court's determination of the appropriate punishment for the offences committed. The sentence was designed to address the harm caused to the victims, the accused's breach of trust, and the broader context of the case, while also considering the mitigating factors presented.

Orders