R v King - [2022] ACTSC 252

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v King
Citation:	[2022] ACTSC 252
Hearing Date:	22 August 2022
DecisionDate:	15 September 2022
Before:	Kennett J
Decision:	See [35]–[38]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic child sex offence – commission of an act of indecency on a person under the age of 16 years – where offender is currently serving sentence of imprisonment for like offences occurring around the same time as the subject offence
Legislation Cited:	Crimes Act 1900 (ACT) s 92K Crimes (Sentencing) Act 2005 (ACT) ss 34A, 65, 66
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CX v The Queen [2017] ACTCA 37 Mill v The Queen (1998) 166 CLR 59 R v King (Unreported, Supreme Court of the ACT, Refshauge J, 29 June 2012) R v King [2013] ACTCA 29 R v King [2013] ACTSC 279
Parties:	The Queen ( Crown) Ian Harold King ( Offender)
Representation:	Counsel M Howe ( Crown) J Cooper ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service ( Offender)
File Number:	SCC 150 of 2022

KENNETT J:

Introduction

The offender, Mr King, has pleaded guilty to a charge of committing an act of indecency on a person under the age of 16 years. The offending occurred during, or around, September 1998. The offending is contrary to what was, at that time, s 92K(2) of the Crimes Act 1900 (ACT). The maximum penalty is 10 years’ imprisonment.

The offender is currently serving a lengthy sentence of imprisonment for similar offences. In 2012, he was sentenced by a judge of this Court for 25 sexual offences committed against five boys aged between 10 and 16 years: R v King (Unreported, Supreme Court of the ACT, Refshauge J, 29 June 2012). An original head sentence of 12 years’ imprisonment was increased to 19 years’ imprisonment on appeal: R v King [2013] ACTCA 29. Subsequently, the offender pleaded guilty to five further sexual offences against boys. These offences concerned a further five victims, aged between 16 and either 17 or 18 years. A head sentence of five years’ imprisonment was imposed, partially concurrent with the existing 19 year sentence, and the offender’s nonparole period was re-set to be a total of 12 years and four months: R v King [2013] ACTSC 279. The offender’s nonparole period ended on 2 November 2020 and, prior to the sentence I will impose today, his total head sentence was set to expire on 1 July 2030. Although he has been eligible to apply for parole for slightly over 22 months, the offender has not done so.

The offender was the cricket coach of all but one of the ten victims of the sexual offences referred to in the previous paragraph. The one exception was the younger brother of a boy coached by the offender. The offences all occurred between 1989 and 1998.

Facts

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 King

Details

AGLC: R v King [2022] ACTSC 252
Case: [2022] ACTSC 252
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Ian Harold King has pleaded guilty to committing an act of indecency on a person under the age of 16 years, which occurred in or around September 1998. This offence contravenes what was, at that time, s 92K(2) of the Crimes Act 1900 (ACT), and carries a maximum penalty of 10 years' imprisonment. King is currently serving a lengthy sentence for similar offences. The primary legal issues that the Court was required to decide were the appropriate sentence to be imposed for the current offence, considering the subjective circumstances of the offender and the objective seriousness of the offending, and how this sentence would interact with the sentences already being served by the offender. The Court also had to consider the principle of totality in sentencing, the offender's plea of guilty, and the relevance of previous Court of Appeal sentences.

The Court considered the significant age difference between the offender and the victim, the offender's conduct for his own sexual gratification, the vulnerability of the victim in the offender's home, the relationship of trust between the victim and the offender, and the protracted and serious nature of the offending. The Court also took into account the offender's traumatic upbringing, the attack on the offender in prison, and his completion of a sex offender program. However, the Court gave limited weight to these factors, as there was no evidence to suggest that the offender had changed his attitude towards his offending or felt significant remorse. The Court also considered the principle of totality in sentencing, which requires that the overall sentence reflects the community's abhorrence of crimes of this kind.

The Court imposed a sentence of two years and seven months' imprisonment, reduced from three years and five months for the plea of guilty. The Court also reset the nonparole period on the total of the sentences imposed by the Court and the Court of Appeal to 12 years and 11 months. This means that King will continue to be eligible to apply for parole. The Court took into account the subjective circumstances of the offender and the objective seriousness of the offending, as well as the principle of totality in sentencing, the offender's plea of guilty, and the relevance of previous Court of Appeal sentences.

Orders