Legal Research
Cases
R v King (a pseudonym)

R v King (a pseudonym)

Case [2019] NSWDC 377 13 June 2019

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v King (a pseudonym) [2019] NSWDC 377
Hearing dates: 7 June 2019; 13 June 2019
Decision date: 13 June 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of ten years and four months with a non parole period of seven years and four months.

Catchwords: SENTENCING — Relevant factors on sentence — Sexual assault – indecent assault – father and young daughter - late guilty plea – objective seriousness – victim impact – offender’s mental illness – learning difficulties – deprived background considered – admissions are not assistance to authorities - need for support on release – guidance from standard non parole periods – difficulty in applying that guidance.
Legislation Cited: Children (Criminal Proceedings) Act 1987,
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Cases Cited: BT v R [2010] NSWCCA 267
Bugmy v The Queen (2013) 249 CLR 571
Clarkson v The Queen [2011] VSCA 157
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
R v Clinch (1994) A Crim R 301
R v Fernando (1992) 76 A Crim R 58
R v Gavel [2014] NSWCCA 56
R v GSH [2009] NSWCCA 214
R v KNL [2005] NSWCCA 260
R v MAK [2006] NSWCCA 381
R v NJK [2011] NSWCCA 151
R v Van Ryn [2016] NSWCCA 1
Tepania v R [2018] NSWCCA 247
Weininger v The Queen (2003) 212 CLR 629
Category: Sentence
Parties: George King (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Ms F Graham (for the offender)
Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (for the offender)
Ms A Hughes, Solicitor Advocate (for the Director of Public Prosecutions)

File Number(s): 2017/00237646
Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; s. 15A Children (Criminal Proceedings) Act 1987.

SENTENCE – EX TEMPORE REVISED

There should be no publication of anything that would identify the complainant given the family relationship between the offender and the complainant that would preclude any publication of the identity of the offender. It is likely that this judgment will be published and possibly reported in the press. When the press report this judgment, they are, I am sure, aware of the legal requirements on them. There is no formal non‑publication order. These matters operate by force of law, s 15A Children (Criminal Proceedings) Act 1987, s 47(8A) Crimes Act 1900, and Div 1 of the Criminal Procedure Act 1986. When this judgment is taken out, in any publication that will go beyond the Court and the parties, the offender will be referred to by a pseudonym as will the complainant and any other persons mentioned. These steps are to guard…

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 (a pseudonym)

Details

AGLC: R v King (a pseudonym) [2019] NSWDC 377
Case: [2019] NSWDC 377
Decision Date: 13 June 2019

CaseChat Overview and Summary

The case of R v King involves the sentencing of a man convicted of multiple counts of sexual and indecent assault against his young daughter. The case was heard in the High Court of Australia, where the primary concern was determining an appropriate aggregate sentence and a suitable non-parole period. The defendant pleaded guilty to the charges but did so late in the proceedings, which had implications for his sentence. The court was tasked with balancing several critical factors, including the objective seriousness of the offences, the impact on the victim, and the defendant's personal circumstances, which included a history of mental illness, learning difficulties, and a deprived background.

The legal issues before the court included how to appropriately weigh the objective seriousness of the offences against the personal mitigating factors presented by the defendant. The court also had to consider the standard non-parole periods set by previous case law, which provide a guideline for sentencing in similar cases, and how these guidelines could be adapted to the unique aspects of this case. Additionally, the court had to determine whether the late guilty plea should be seen as an aggravating or mitigating factor in sentencing.

The court, after thorough consideration, concluded that the objective seriousness of the offences was extremely high, given the nature of the assaults and the vulnerability of the victim. However, the court also recognised the mitigating factors, including the defendant's mental health issues, learning difficulties, and disadvantaged background. The late guilty plea was considered but not seen as a substantial mitigating factor. Ultimately, the court determined that the standard non-parole periods provided a useful starting point, but needed to be adjusted to reflect the specific circumstances of this case. The court set an aggregate sentence of ten years and four months, with a non-parole period of seven years and four months, recognising the need for support and rehabilitation for the defendant upon release.

The court ordered that the defendant serve an aggregate sentence of ten years and four months with a non-parole period of seven years and four months. This sentence reflects the court's careful balancing of the severity of the offences with the personal circumstances of the offender, aiming to achieve justice for the victim while also considering the defendant's need for support and rehabilitation.

Orders

Orders of the court

Aggregate sentence of ten years and four months with a non parole period of seven years and four months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v King (a pseudonym) [2019] NSWDC 377

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Tepania v The Queen
[2018] NSWCCA 247 Para 14

…es of the offences for sentence, which were or not taken into account, when considering the role of the standard non‑parole period: see Tepania v R [2018] NSWCCA 247 and s 54B(6) of the Crimes (Sentencing Procedure) Act 1999 . Although not strictly necessary, I do find the objective facts affecting the relative seri…
R v Van Ryn
[2016] NSWCCA 1 Para 1

…ange for an offence under s 1 (M2), constituted by the touching of the genitalia of a nine year old girl": GSH was cited with approval in R v Van Ryn [2016] NSWCCA 1.…
R v Gavel
[2014] NSWCCA 56 Para 10

…t children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v The Queen [2011] VSCA 157 ; R v Gavel [2014] NSWCCA 56.…
Bugmy v The Queen
[2013] HCA 37

…Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: BT v R [2010] NSWCCA 267 Bugmy v The Queen (2013) 249 CLR 571 Clarkson v The Queen [2011] VSCA 157 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166…
R v NJK
[2011] NSWCCA 151 Para 18

…. Courts must accordingly give effect to that standard non‑parole period as one guide to the exercise of the sentencing discretion: see R v NJK [2011] NSWCCA 151.…
Clarkson v The Queen
[2011] VSCA 157 Para 10

…bition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v The Queen [2011] VSCA 157 ; R v Gavel [2014] NSWCCA 56.…
BT v R
[2010] NSWCCA 267 Para 18

…e maximum sentence is ten years imprisonment. The standard non‑parole period is eight years. That ratio has been subject to criticism: see BT v R [2010] NSWCCA 267. But constant criticism has not caused Parliament to alter that ratio. Courts must accordingly give effect to that standard non‑parole period as one guid…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 27

…ckground he is less a vehicle for general deterrence, than those whose lives were not so blighted: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194. However, he was aware of the wrongness of his acts. He well knew what he was doing, and that what he was doing was terribly wrong. Although a custod…
GSH v R; R v GSH
[2009] NSWCCA 214 Para 1

…ssault, including the degree of physical contact involved. Here, this indecent assault involves skin on skin contact. As Latham J observed in R v GSH [2009] NSWCCA 214 "It is difficult to justify a finding below the midrange for an offence under s 1 (M2), constituted by the touching of the genitalia of a nine year o…
R v MAK
[2006] NSWCCA 381 Para 43

…It was recognised in R v MAK [2006] NSWCCA 381, citing R v Clinch (1994) A Crim R 301; that "The severity of a sentence is not simply the product of some linear relationship. A sentence's severity increases at a greater rate than the actual length of the sentence". To put it another way, a sentence of five years is…
R v KNL
[2005] NSWCCA 260 Para 4

…The age of the child relative to the range encompassed by the offence. The younger the child, the more serious the offence: R v KNL [2005] NSWCCA 260. Here, Leah was, for the first incident, 12 or 13; and the second, 14 or 15.…
Markarian v The Queen
[2005] HCA 25 Para 11

…of, and concern about, adult sexual abuse of children; and the Courts must reflect that concern in the sentences imposed: Markarian v The Queen (2005) 228 CLR 357. In assessing objective seriousness, important considerations, here, include:…
Weininger v The Queen
[2003] HCA 14 Para 13

…cted on children. To do so is part of the calculus of converting human behaviour, in all its forms, to units of punishment: see Weininger v The Queen (2003) 212 CLR 629. Each offence showed a callous disregard for the child's physical and mental wellbeing. Each offence showed no regard for her as a human being, let a…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 22

…case, which indicates the particular value of a guilty plea in matters where children and sexual assault victims have to give evidence: R v Thompson (2000) 49 NSWLR 383, at [3].…
Mill v The Queen
[1988] HCA 70 Para 20

…structure the sentences such that the overall sentence is just and appropriate to the totality of King's offending behaviour: see Mill v The Queen (1988) 166 CLR 59.…

Legislation cited in this decision · 6

Children (Criminal Proceedings) Act 1987 (NSW)
47(8A) 2 mentions (from Para 1)
Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 39)
Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 33)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 14)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v King (a pseudonym) [2019] NSWDC 377
Hearing dates:	7 June 2019; 13 June 2019
Decision date:	13 June 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of ten years and four months with a non parole period of seven years and four months.
Catchwords:	SENTENCING — Relevant factors on sentence — Sexual assault – indecent assault – father and young daughter - late guilty plea – objective seriousness – victim impact – offender’s mental illness – learning difficulties – deprived background considered – admissions are not assistance to authorities - need for support on release – guidance from standard non parole periods – difficulty in applying that guidance.
Legislation Cited:	Children (Criminal Proceedings) Act 1987, Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	BT v R [2010] NSWCCA 267 Bugmy v The Queen (2013) 249 CLR 571 Clarkson v The Queen [2011] VSCA 157 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v Clinch (1994) A Crim R 301 R v Fernando (1992) 76 A Crim R 58 R v Gavel [2014] NSWCCA 56 R v GSH [2009] NSWCCA 214 R v KNL [2005] NSWCCA 260 R v MAK [2006] NSWCCA 381 R v NJK [2011] NSWCCA 151 R v Van Ryn [2016] NSWCCA 1 Tepania v R [2018] NSWCCA 247 Weininger v The Queen (2003) 212 CLR 629
Category:	Sentence
Parties:	George King (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms F Graham (for the offender) Solicitors: Aboriginal Legal Service (NSW/ACT) Limited (for the offender) Ms A Hughes, Solicitor Advocate (for the Director of Public Prosecutions)
File Number(s):	2017/00237646
Publication restriction:	The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; s. 15A Children (Criminal Proceedings) Act 1987.