THE QUEEN v IAN HAROLD KING [2013] ACTCA 29 (26 July 2013)
APPEAL AND NEW TRIAL – Crown appeal from sentence – multiple offences of acts of indecency or sexual intercourse with a young person – whether sentences individually and/or in aggregate are manifestly inadequate – the operation of the principle of totality – the limited utility of other cases to demonstrate inadequacy – inadequacy demonstrated by reference to prescribed maximum penalties – appeal upheld and respondent resentenced
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 28 - 2012 No. SCC 164A of 2009
Judges: Burns and Gilmour JJ and Nield AJ Court of Appeal of the Australian Capital Territory Date: 26 July 2013
IN THE SUPREME COURT OF THE) No. ACTCA 28 - 2012 ) No. SCC 164A of 2009 AUSTRALIAN CAPITAL TERRITORY ) )
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: THE QUEEN
Appellant
AND: IAN HAROLD KING
Respondent
ORDER
Judges: Burns and Gilmour JJ and Nield AJ Date: 26 July 2013 Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The respondent be resentenced as follows:
Count 1 - 30 months’ imprisonment commencing 3 July 2008 and expiring 2 January 2011;
Count 2 - 3 years 4 months’ imprisonment commencing 3 October 2008 and expiring 2 February 2012;
Count 3 - 20 months’ imprisonment commencing 3 September 2010 and expiring 2 May 2012;
Count 4 - 20 months’ imprisonment commencing 3 December 2010 and expiring 2 August 2012;
Count 5 - 9 months’ imprisonment commencing 3 February 2012 and expiring 2 November 2012;
Count 6 - 20 months’ imprisonment commencing 3 June 2011 and expiring 2 February 2013;
Count 7 - 30 months’ imprisonment commencing 3 December 2010 and expiring 2 June 2013;
Count 8 - 34 months’ imprisonment commencing 3 February 2011 and expiring 2 December 2013;
Count 9 - 30 months’ imprisonment…
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.
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Details
AGLC
R v King [2013] ACTCA 29
Case
[2013] ACTCA 29
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentences imposed on the respondent, King, for multiple offences of acts of indecency or sexual intercourse with a young person. The central issue on appeal was whether the sentences, both individually and in aggregate, were manifestly inadequate, particularly in light of the principle of totality.
The court was required to determine if the original sentences failed to adequately reflect the seriousness of the offences and the need for punishment and deterrence. This involved considering the operation of the principle of totality, which dictates that the aggregate sentence should not be excessive, but also that it should reflect the cumulative gravity of multiple offences. The court also considered the utility of comparing the sentences to those in other cases and the relevance of prescribed maximum penalties in assessing inadequacy.
The court found that the original sentences were indeed manifestly inadequate. It reasoned that the aggregate sentence did not sufficiently reflect the gravity and number of offences committed, nor did it adequately apply the principle of totality to achieve a just and proportionate outcome. The court noted that while comparisons with other cases can be of limited utility, the prescribed maximum penalties for the offences provided a benchmark for assessing the inadequacy of the sentences imposed.
Consequently, the appeal was upheld, and the respondent was resentenced. The court imposed new, significantly longer custodial terms for each of the 25 counts, with a non-parole period of 11 years and 10 months.
Orders
Orders of the court
1. The appeal be upheld.
2. The respondent be resentenced as follows:
Count 1 - 30 months’ imprisonment commencing 3 July 2008 and expiring 2 January 2011;
Count 2 - 3 years 4 months’ imprisonment commencing 3 October 2008 and expiring 2 February 2012;
Count 3 - 20 months’ imprisonment commencing 3 September 2010 and expiring 2 May 2012;
Count 4 - 20 months’ imprisonment commencing 3 December 2010 and expiring 2 August 2012;
Count 5 - 9 months’ imprisonment commencing 3 February 2012 and expiring 2 November 2012;
Count 6 - 20 months’ imprisonment commencing 3 June 2011 and expiring 2 February 2013;
Count 7 - 30 months’ imprisonment commencing 3 December 2010 and expiring 2 June 2013;
Count 8 - 34 months’ imprisonment commencing 3 February 2011 and expiring 2 December 2013;
Count 9 - 30 months’ imprisonment commencing 3 October 2011 and expiring 2 April 2014;
Count 10 - 20 months’ imprisonment commencing 3 December 2012 and expiring 2 August 2014;
Count 11 - 30 months’ imprisonment commencing 3 July 2014 and expiring 2 January 2017;
Count 12 - 34 months’ imprisonment commencing 3 September 2014 and expiring 2 July 2017;
Count 13 - 3 years 4 months’ imprisonment commencing 3 November 2014 and expiring 2 March 2018;
Count 14 - 30 months’ imprisonment commencing 3 January 2016 and expiring 2 July 2018;
Count 15 - 34 months’ imprisonment commencing 3 January 2016 and expiring 2 November 2018;
Count 16 - 3 years’ imprisonment commencing 3 May 2016 and expiring 2 May 2019;
Count 17 - 3 years 9 months’ imprisonment commencing 3 May 2016 and expiring 2 February 2020;
Count 18 - 3 years 9 months’ imprisonment commencing 3 November 2016 and expiring 2 August 2020;
Count 19 - 32 months’ imprisonment commencing 3 March 2018 and expiring 2 November 2020;
Count 20 - 3 years 6 months’ imprisonment commencing 3 November 2017 and expiring 2 May 2021;
Count 21 - 3 years 9 months’ imprisonment commencing 3 March 2018 and expiring 2 December 2021;
Count 22 - 4 years’ imprisonment commencing 3 January 2019 and expiring 2 January 2023;
Count 23 - 12 years’ imprisonment commencing 3 July 2014 and expiring 2 July 2026;
Count 24 - 4 years’ imprisonment commencing 3 January 2023 and expiring 2 January 2027;
Count 25 - 3 years 4 months’ imprisonment commencing 3 March 2024 and expiring 2 July 2027.
3. There be a non-parole period of 11 years 10 months commencing 3 July 2008 and expiring 2 May 2020.