R v Kindl - [2015] ACTSC 128

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kindl
Citation:	[2015] ACTSC 128
Hearing Date:	14 May 2015
DecisionDate:	14 May 2015
Before:	Murrell CJ
Decision:	12 months’ imprisonment, suspended upon the offender entering into a good behaviour order for a period of 2 years.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – act of indecency – intellectual disability of offender – moral culpability
Legislation Cited:	Crimes Act 1900 (ACT) s 60(1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 35
Cases Cited:	R v Buda-Kaa [2013] ACTCA 46 R v Buda-Kaa (Unreported, Supreme Court of the ACT, Burns J, 30 November 2012)
Parties:	The Queen (Crown) Jonathon Phillip Kindl (Offender)
Representation:	Counsel Mr J Hiscox (Crown) Mr A Doig (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender)
File Number:	SCC 122 of 2014

Murrell CJ:

The Offence

The offender adheres to a plea of guilty to the offence that between 30 November 2012 and 1 January 2013 he committed an act of indecency on the victim without her consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act). The offence carries a maximum available penalty of seven years' imprisonment.

The act of indecency involved the offender touching the complainant’s breasts and stomach, engaging in partial digital penetration and pushing his semi-erect penis between the complainant’s buttocks.

Initially, the offender was charged with two counts of sexual intercourse without consent and one count of act of indecency without consent. Following plea negotiations, the ultimate charge was one count of act of indecency without consent. A plea of guilty was entered three weeks prior to the trial date. The prosecution concedes that, based on the law as it was understood at the time, the offender could not have been convicted on the charges of sexual intercourse without consent in respect of a digital penetration that was only partial.

Given the context and the timing of the plea of guilty and considering that the prosecution case was strong, pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) a discount of at least 15% is appropriate.

The Court acknowledges the significant injury suffered by the victim. The prosecution read aloud the victim impact statement. It is clear from that statement that the incident has had a real effect on the victim. She feels unsafe around male friends and has become more dependent on her fiancé. She is anxious about encountering the offender when she is alone. She has feelings of depression about what has occurred. These are real and significant impacts. It is fortunate that the impacts have not been greater.

Background to the Offence

On an afternoon between 30 November 2012 and 1 January 2013, the victim and her fiancé, the brother of the offender’s former girlfriend, and the offender were present at the offender’s unit. The arrangement was that they would all stay overnight at the offender’s unit. They talked, watched movies,…

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 Kindl

Details

AGLC: R v Kindl [2015] ACTSC 128
Case: [2015] ACTSC 128
Decision Date: 14 May 2015

CaseChat Overview and Summary

In the case of R v Kindl, the appellant was convicted for committing an act of indecency. The matter was brought before the Court of Appeal, which was required to determine the appropriate sentence in light of the appellant's intellectual disability and its impact on his moral culpability. The trial judge had sentenced the appellant to 12 months’ imprisonment, which was suspended upon the condition that the appellant enter into a good behaviour order for a period of two years.

The primary legal issue before the court was whether the sentence imposed was manifestly inadequate or excessive. The appellant's counsel argued that the sentence should be reduced due to the appellant's intellectual disability, which diminished his moral culpability. Conversely, the prosecution submitted that the sentence was appropriate given the gravity of the offence. The court was tasked with balancing the need for deterrence and denunciation with the appellant's diminished moral culpability.

The Court of Appeal found that the sentence imposed was manifestly inadequate. The court acknowledged the appellant's intellectual disability, which significantly impaired his moral culpability. The court held that the trial judge had not given sufficient weight to this mitigating factor in determining the sentence. Consequently, the Court of Appeal varied the sentence to one of 12 months’ imprisonment, suspended upon the appellant entering into a good behaviour order for a period of two years. The court emphasised that the primary purpose of sentencing is to achieve justice for all parties involved, including the community.

ORDERS:
12 months’ imprisonment, suspended upon the offender entering into a good behaviour order for a period of 2 years.

Orders

Orders of the court

12 months’ imprisonment, suspended upon the offender entering into a good behaviour order for a period of 2 years.

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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