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)
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
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
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
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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.
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- AGLC
- R v KL [2020] NSWDC 409
- Case
- [2020] NSWDC 409
- Decision Date
CaseChat Overview and Summary
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
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Evidence Before The Court
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Decision
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