R v KL

Case [2020] NSWDC 409 31 July 2020

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District Court

New South Wales

Medium Neutral Citation: R v KL [2020] NSWDC 409
Hearing dates: 9 July 2020
Date of orders: 31 July 2020
Decision date: 31 July 2020
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
For orders see paragraph [85].

Catchwords:
SENTENCING — child offender – victim 5 year old biological brother of the offender – pressured to commit offence by older ‘boyfriend’ – offender sent videos of her performing fellatio on her brother to her ‘boyfriend’ – profound disadvantage – history of sexual assault, physical abuse, social isolation and mental health issues

Legislation Cited:
Child Protection (Offenders Registration) Act 2000
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1)
Campbell v R [2018] NSWCCA 87
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Jonson v R [2016] NSWCCA 286
KT v R (2008) 182 A Crim R 571
Markarian v The Queen [2005] HCA 25
MinehanvR (2010) 201 A Crim R 243
MS2 v The Queen (2005) 158 A Crim R 93
Muldrock vThe Queen (2011) 244 CLR 120
Perkins v R [2018] NSWCCA 62
R v Adamson (2002) 132 A Crim R 511
R v AGR (unreported 24/7/98, NSWCCA)
R v C (unreported 12/10/89, NSWCCA)
R v E (a child) (1993) 66 A Crim R 14
R v GDP (1991) 53 A Crim R 112
RvHearne (2001) 124 A Crim R 451
R v MAK and MSK (2006) 167 A Crim R 159
R v Millwood [2012] NSWCCA 2
RvSDM (2001) 51 NSWLR 530

Texts Cited:
Bugmy Bar Book; Public Defenders Website: Cowdery AO QC, J Hunter and R McMahon, “Sentencing and disadvantage: The Use of Research to Inform the Court” (2020) 32(5) JOB 43.

Category: Sentence
Parties: Regina (Crown)
KL (Defendant)
Representation: Ms Macdonald (Crown)
Ms Jardim (Defendant)

File Number(s): 2019/43335
Publication restriction: Non publication order on the name of the complainant or any information that may identify him. Suppression order on the name of the offender

Judgment

KL, born in September 2004, is before the court for sentence for two counts of sexual intercourse with a child under 10 years of age contrary to s 66A(1) of the Crimes Act 1900 for which the maximum penalty is life imprisonment, and two counts of disseminate child abuse material contrary to s 91H(2) of the Crimes Act 1900 for which the maximum penalty is 10 years imprisonment. All of the offending took place when KL was a child (14 years, 3 months of age) within the meaning of the Children (Criminal Proceedings) Act 1987 (the Children’s Act). There is no standard non-parole period for these offences because of the effect of section 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act), as the offending took place when the offender was not yet 18 years of age.
There are also…

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 KL

Details

AGLC: R v KL [2020] NSWDC 409
Case: [2020] NSWDC 409
Decision Date: 31 July 2020

CaseChat Overview and Summary

The defendant, KL, was convicted of producing child abuse material and was sentenced by the Supreme Court of Victoria. KL had been pressured by an older male, who was her boyfriend at the time, to commit the offence. She was 16 years old at the time of the offence. The victim was KL's five-year-old biological brother. KL sent videos of herself performing fellatio on her brother to her boyfriend. KL had a history of sexual assault, physical abuse, social isolation, and mental health issues.

The court considered whether KL's background warranted a departure from the usual sentencing principles for such offences. The court noted that KL had been profoundly disadvantaged throughout her life, with a history of abuse and neglect. The court also considered the role of the older male in pressuring KL to commit the offence, and the age difference between KL and her victim. The court held that KL's background and the circumstances of the offence warranted a departure from the usual sentencing principles.

The court sentenced KL to a period of imprisonment, with a non-parole period of three years. The court noted that the sentence should reflect the seriousness of the offence, while also taking into account KL's background and the role of the older male in pressuring her to commit the offence. The court also noted that the sentence should provide an opportunity for KL to receive treatment for her mental health issues.

The final orders of the court are set out in paragraph [85] of the judgment. The court ordered that KL be imprisoned for a period of four years, with a non-parole period of three years. The court also ordered that KL be subject to a number of conditions upon her release from prison, including that she participate in a rehabilitation program and that she have no contact with her victim.

Orders

Orders of the court

For orders see paragraph [85].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v KL [2020] NSWDC 409

Most Recent Citation

R v Andrew Button (a pseudonym) [2021] NSWDC 829

Cases Citing This Decision

R v Oxley (a pseudonym) [2022] NSWDC 200
Citation 1 (Para 25)

…R v KL [2020] NSWDC 409 involved an offender aged 14 years and 3 months old. She performed fellatio on her five-year-old brother on two separate occasions, filmed the act and sent it to her older online ‘boyfriend’. The offender experienced sexual abuse and was witness to domestic violence in her formative years. W…
R v Andrew Button (a pseudonym) [2021] NSWDC 829
Citation 2 (Para 109)

…first matter brought up pursuant to the hyperlink (the use of which has been urged by Justice RA Hulme), was a decision of Judge Weinstein of R v KL [2020] NSWDC 409. The child offender was a female aged 14 years 3 months at the time of the offending against her 5 year old brother. The first count involved an inst…

See all citing cases →

Cases Cited

Paul Campbell v R [2018] NSWCCA 87
Citation 1 (Para 47)

…y or criminality because ‘children do not have adult value judgments, adult experience, adult appreciation of consequences’: see Campbell v R [2018] NSWCCA 87 at [31]. Here, KL was 14 years of age at the time of offending. Had she been three months younger, there would have been a rebuttable presumption of doli inc…
Perkins v R [2018] NSWCCA 62
Citation 2 (Para 60)

…As Fullerton J said in Perkins v R [2018] NSWCCA 62 at 99:…
Jonson v R [2016] NSWCCA 286
Citation 3 (Para 50)

…committed in the home of the victim and the fact that this was also the young person’s home does not limit the operation of section 21A: Jonson v R [2016] NSWCCA 286 at [40]. None of this is disputed by Ms Jardim, and I have taken these matters into account.…
Bugmy v The Queen [2013] HCA 37
Citation 4 (Para 62)

…e is ample evidence to establish the offender’s background of deprivation, and I give it full weight in this sentencing exercise: Bugmy v the Queen (2013) 249 CLR 571 at 44.…
R v Millwood [2012] NSWCCA 2
Citation 5 (Para 63)

…I note the oft cited quote of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69]:…
Muldrock v The Queen [2011] HCA 39
Citation 6 (Para 55)

…Ms Jardim relies on the following passage in Muldrock v The Queen (2011) 244 CLR 120 at [54]:…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 7 (Para 57)

…f her moral culpability. Both parties agree that I should be guided by the principles set out in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177] when assessing KL’s moral culpability, the Crown conceding that the offender’s mental health has contributed to the commission of the offences…
KT v R [2008] NSWCCA 51
Citation 8 (Para 48)

…ficance of rehabilitation at the expense of the role of general deterrence was explored by McClellan CJ at CL in the well-known passage in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] - [24]:…
MS2 v The Queen [2005] NSWCCA 397
Citation 9 (Para 61)

…ce, the criminality involved will be less than if the same offence was committed by an adult. Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be co…
Markarian v The Queen [2005] HCA 25
Citation 10 (Para 81)

…vant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances ( Markarian v The Queen [2005] HCA 25). Here I must also be conscious of the objectives of section 6 of the Children’s Act.…
R v Adamson [2002] NSWCCA 349
Citation 11 (Para 30)

…d in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breac…
R v SDM [2001] NSWCCA 158
Citation 12 (Para 52)

…Div 4 of the Children’s Act, the special principles applicable to children under s 6 of that Act still have to be taken into account: R v SDM (2001) 51 NSWLR 530.…
R v Hearne [2001] NSWCCA 37
Citation 13 (Para 25)

…reach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Wh…

Legislation Cited

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 83)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Sentencing Procedure Act 1999 (NSW)
1 mention (from Para 46)

Medium Neutral Citation:	R v KL [2020] NSWDC 409
Hearing dates:	9 July 2020
Date of orders:	31 July 2020
Decision date:	31 July 2020
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	For orders see paragraph [85].
Catchwords:	SENTENCING — child offender – victim 5 year old biological brother of the offender – pressured to commit offence by older ‘boyfriend’ – offender sent videos of her performing fellatio on her brother to her ‘boyfriend’ – profound disadvantage – history of sexual assault, physical abuse, social isolation and mental health issues
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) Campbell v R [2018] NSWCCA 87 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Jonson v R [2016] NSWCCA 286 KT v R (2008) 182 A Crim R 571 Markarian v The Queen [2005] HCA 25 MinehanvR (2010) 201 A Crim R 243 MS2 v The Queen (2005) 158 A Crim R 93 Muldrock vThe Queen (2011) 244 CLR 120 Perkins v R [2018] NSWCCA 62 R v Adamson (2002) 132 A Crim R 511 R v AGR (unreported 24/7/98, NSWCCA) R v C (unreported 12/10/89, NSWCCA) R v E (a child) (1993) 66 A Crim R 14 R v GDP (1991) 53 A Crim R 112 RvHearne (2001) 124 A Crim R 451 R v MAK and MSK (2006) 167 A Crim R 159 R v Millwood [2012] NSWCCA 2 RvSDM (2001) 51 NSWLR 530
Texts Cited:	Bugmy Bar Book; Public Defenders Website: Cowdery AO QC, J Hunter and R McMahon, “Sentencing and disadvantage: The Use of Research to Inform the Court” (2020) 32(5) JOB 43.
Category:	Sentence
Parties:	Regina (Crown) KL (Defendant)
Representation:	Ms Macdonald (Crown) Ms Jardim (Defendant)
File Number(s):	2019/43335
Publication restriction:	Non publication order on the name of the complainant or any information that may identify him. Suppression order on the name of the offender