R v King

[2008] ACTCA 12

R v KENNY KING
[2008] ACTCA 12 (13 August 2008)

CRIMINAL LAW – appeal against sentence – respondent pleaded guilty to sexual intercourse without consent – scheduled offence trespass – whether sentence imposed was manifestly inadequate – whether sentencing judge erred – whether starting point for head sentence and non-parole period too low – appeal upheld

Crimes (Sentencing) Act 2005 (ACT), ss 7, 35

Crimes Act 1900 (ACT), ss 51, 52, 53

Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Griffiths v The Queen (1977) 137 CLR 293
R v Clarke [1996] 2 VR 520
R v Lappas (2003) 152 ACTR 7
R v Wright (1997) 93 A Crim R 48

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 4 - 2008
No. SCC 366 of 2007

Judges:        Higgins CJ, Gray and Besanko JJ
Court of Appeal of the Australian Capital Territory
Date:           13 August 2008

IN THE SUPREME COURT OF THE       )          No. ACTCA 4 - 2008
  )          No. SCC 366 of 2007
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:KENNY KING

Respondent

ORDER

Judges:  Higgins CJ, Gray and Besanko JJ
Date:  13 August 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The sentence imposed upon the respondent be set aside.

1. In lieu thereof, the sentence be four years’ imprisonment from 16 May 2007 with a non-parole period set at two years and six months from that date.

IN THE SUPREME COURT OF THE       )          No. ACTCA 4 - 2008
  )          No. SCC 366 of 2007
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:KENNY KING

Respondent

Judges:  Higgins CJ, Gray and Besanko JJ
Date:  13 August 2008
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. This is a Crown appeal against the inadequacy of a sentence imposed on the respondent on 4 March 2008.  He had pleaded guilty to a charge that he:

… on 16 February 2007, did engage in sexual intercourse with [name suppressed] without the consent of the said [V] and knowing that or was reckless as to whether the said [V] had not consented thereto.

1. The agreed Statement of Facts was as follows:

At about 10.20 pm on Friday 16 February 2007 the victim [V] was walking to her home in O’Connor from Civic where she had met some friends and her partner after work for drinks.  During that time she had consumed approximately 7 standard drinks.

As she walked home the prisoner approached her near the intersection of McCaughey Street and Macpherson Street and asked her for directions to the “Kangaroo Caravan Park”.  Ms [V] said she did not know where that was and the prisoner quickly walked away.

Ms [V]