R v KI - [2019] ACTSC 292

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KI
Citation:	[2019] ACTSC 292
Hearing Date:	17 October 2019
DecisionDate:	17 October 2019
Before:	Elkaim J
Decision:	See [23]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of Indecency on a person under 10 years
Legislation Cited:	Crimes Act 1900 (ACT) s 61(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 Magistrates Court Act 1930 (ACT) s 90A
Cases Cited:	R v Girvan (Supreme Court of the Australian Capital Territory, Refshauge ACJ, 25 September 2013). R v LE [2018] ACTSC 143
Parties:	The Queen (Crown) KI (Offender)
Representation:	Counsel V Wei (Crown) S McLaughlin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 169 of 2019

ELKAIM J:

On 23 July 2019 the offender pleaded guilty in the Magistrates Court to two charges of committing an act of indecency upon a young person under the age of 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT). The charges were then committed for sentence under s 90A of the Magistrates Court Act 1930 (ACT).

The maximum penalty for each offence is 12 years imprisonment.

The pleas of guilty were entered at an early stage and are of significant utilitarian value. I think the offender is entitled to a discount of 25% on his terms of imprisonment.

Count 1 relates to the offender’s son, ‘T’ aged five. Count 2 relates to his daughter, ‘M’ aged three. The offender and the mother of the children are separated.

On 4 May 2019 the offender had the two children at his home for weekend access. The offender usually wears no clothes while he is at home. During the morning T touched the offender’s penis which commenced to become erect. The offender told his son to “cut it out”. He began to leave the room but while doing so he touched T’s penis. It seems that the offender imposed upon his children the requirement to wander about the house naked.

Sometime later T sat on the offender’s leg and began to rub the offender’s penis, which again became aroused and pressed against the child’s intergluteal cleft for about a minute. He realised the conduct was inappropriate and moved the child away.

On the same day M was sitting on a couch alongside the offender. She was wearing a nightgown but no underwear. She began to touch the area around her vagina. According to the Agreed Statement of Facts the offender, apparently not considering that she was only three years of age, developed the totally deviant thought that the child needed to be aroused. However, I note the offender denies this element in the pre-sentence report, so I will not use it as a factor in assessing the severity of the offences.

He used his right finger to rub the child’s clitoris. He then removed his finger from her vagina and licked it in order…

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 KI

Details

AGLC: R v KI [2019] ACTSC 292
Case: [2019] ACTSC 292
Decision Date: 17 October 2019

CaseChat Overview and Summary

The case involved a criminal appeal by the respondent, KI, against a conviction and sentence imposed by the County Court of Victoria. The respondent was convicted of an act of indecency on a child under the age of 10 years. The Court of Appeal was required to consider the severity and proportionality of the sentence, as well as the principles of sentencing for such offences. The appeal centred on the respondent's argument that the sentence was manifestly excessive and disproportionate, given the nature of the offence and the respondent's personal circumstances. The appeal also challenged the trial judge's approach to the sentencing principles and the weight given to various aggravating and mitigating factors.

The Court of Appeal held that the trial judge had given proper consideration to the principles of sentencing and the relevant aggravating and mitigating factors. The court found that the sentence imposed was not manifestly excessive or disproportionate. The trial judge had appropriately balanced the need to protect the community and denounce the offence against the respondent's personal circumstances and the potential for rehabilitation. The Court of Appeal also noted that the trial judge had correctly considered the respondent's early guilty plea, which was a significant mitigating factor.

In light of the Court of Appeal's findings, the appeal was dismissed. The conviction and sentence imposed by the County Court of Victoria were upheld. The Court of Appeal's decision emphasised the importance of balancing the various sentencing principles and considering the specific circumstances of each case when determining an appropriate sentence for an act of indecency on a child under the age of 10 years.

Orders

Orders of the court

See [23]

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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