R v Ronald KING [2009] NSWCCA 117 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
08/04/2009
JUDGMENT DATE:
23 April 2009
JUDGMENT OF:
McClellan CJatCL at 1; Grove J at 1; Howie J at 1
DECISION:
1. The appeal is allowed. 2. The sentence imposed in the District Court is quashed. 3. Taking into account the matters on the Form 1 the respondent is sentenced to a term of imprisonment comprising a non-parole period of 4 years 6 months and a balance of term of 2 years 6 months. The sentence is to date from 28 November 2007. The respondent is eligible for release to parole on 27 May 2012.
CATCHWORDS:
Criminal Law - Crown appeal - Sexual intercourse with child under 10 years - respondent digitally penetrated 4-year old girl - suspended sentence imposed - whether manifestly inadequate - significance of denunciation in sentencing - whether offence low in scale of offending - whether admission by respondent to police warranted "Ellis discount" - significance of matters on Form 1 - whether discretionary reasons to dismiss appeal.
N Noman - Crown A Haesler SC with R Burgess - Applicant
SOLICITORS:
S Kavanagh - Crown J McKenzie - Applicant
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/11/1404
LOWER COURTJUDICIAL OFFICER:
Geraghty DCJ
LOWER COURT DATE OF DECISION:
05/02/2009
2008/18041
McCLELLAN CJ at CL GROVE J HOWIE J
THURSDAY 23 APRIL 2009
R V Ronald KING
Judgment
Introduction
1 THE COURT: In R v MacDonald (NSWCCA, unreported, 12 December 1995) this Court stressed the importance of the sentence imposed upon an offender fulfilling all the purposes of punishment including the denunciatory purpose of sentencing. That is the purpose of punishment expressly stated in s 3A(f) of the Crimes (Sentencing Procedure) Act 1999. MacDonald was a decision dealing with a case of homicide but the principle for which it stands applies to sentencing for all serious offences. Society is entitled to have the sentence imposed denounce the criminal conduct of the offender and, if the sentence does not do so, there has been an error in the exercise of the sentencing discretion. The sentence imposed upon the respondent falls far short of appropriately denouncing…
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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AGLC
R v King [2009] NSWCCA 117
Case
[2009] NSWCCA 117
Decision Date
CaseChat Overview and Summary
The case of R v King involved the appellant, who was convicted of digitally penetrating a four-year-old girl. The trial judge imposed a suspended sentence, which the Crown appealed, arguing that it was manifestly inadequate. The appeal was heard in the court of appeal, which had to determine the adequacy of the sentence and consider various legal issues pertinent to the case.
The court had to assess whether the sentence imposed was manifestly inadequate, taking into account the nature and gravity of the offence. The court also considered the role of denunciation in sentencing and whether the offence was low in the scale of offending. Additionally, the court examined whether the appellant's admission to the police warranted a discount to the sentence, commonly referred to as the "Ellis discount". The significance of various matters detailed on Form 1, which outlines the sentencing considerations, was also evaluated. Finally, the court had to determine if there were any discretionary reasons to dismiss the appeal.
The court of appeal found that the sentence imposed by the trial judge was manifestly inadequate. The gravity of the offence, coupled with the young age of the victim, underscored the importance of denunciation and specific deterrence. The court held that the offence was not low in the scale of offending, and the "Ellis discount" did not apply as the admission did not warrant a reduction in sentence. The matters outlined on Form 1 supported the Crown's appeal. The court concluded that there were no discretionary reasons to dismiss the appeal, and the sentence was manifestly inadequate. Therefore, the appeal was allowed, and the case was remitted to the trial court for re-sentencing.
The court ordered that the case be remitted to the trial court for the purpose of re-sentencing the appellant. The trial court was directed to consider the gravity of the offence, the need for denunciation and specific deterrence, and the matters outlined on Form 1 in determining an appropriate sentence. The court did not specify a particular sentence but left it to the discretion of the trial court to impose a suitable penalty, ensuring it was commensurate with the seriousness of the crime.