R v KL - [2019] NSWDC 731

District Court

New South Wales

Medium Neutral Citation: R v KL [2019] NSWDC 731
Hearing dates: 21 November, 2019
Date of orders: 03 December 2019
Decision date: 03 December 2019
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
Aggregate sentence 2 ½ years, non- parole period 15 months. The sentence is to be served in a Juvenile Detention facility

Catchwords: SENTENCE – sexual intercourse with child under 10 years – carnal knowledge – juvenile detention centre-protected custody – sex offender programs – prospects of rehabilitation
Legislation Cited: Children (Community Service Orders) Act
Children (Detention Centres) Act 1987
Children’s (Criminal Proceedings) Act
Crimes Act 1900
Cases Cited: BM v R [2019] NSWCCA 223
Muldrock v R [2011] HCA 39 at [27
Paul Campbell v R [2018] NSWCCA 87 at [26]
R v AA [2017] NSWCCA 84
Tepania v R [2018] NSWCCA 247
Category: Sentence
Parties: Regina (Crown)
KL (Offender)
Representation:
Counsel:
Mr Campbell for the Crown
Mr Watts for the Offender
Solicitors:
Ms. D. Collin (DPP)
Mr. H Vandugteren (Legal Aid)

File Number(s): 2016/321397

Judgment

The offender was a child at the time of committing the offences the subject of these reasons. The victim of these offences was also a child at the time of the offending. The offences are two counts of sexual intercourse with a child under the age of 10 in breach of section 66A(1) of the Crimes Act 1900. For these reasons pursuant to section 578A of the Crimes Act and section 15A of the Children’s (Criminal Proceedings) Act the names and places relevant to these events will be anonymised. The maximum sentence for each charge is life imprisonment with a standard non-parole period of 15 years though the SNPP only applies to adult offenders and thus not this offender.
The agreed facts will be set out below. At the outset three significant aspects of the matter can be noted, two of them factual and one legal. The first factual matter is that the victim in this case was seven years old at the time the offender, her 16-year-old half brother, had penile / vaginal sexual intercourse with her and subsequently digital intercourse. The second factual matter is that on one possible view the offender comes from a family that does not consider it to be wrong for a 16-year-old half brother to be having sexual intercourse with his seven-year-old half sister. The view I take is that the situation is not as simple as that and this will be discussed below. The significant legal aspect of the matter is the interrelationship of the Crimes (Sentencing Procedure) Act (CSPA), the Children (Criminal Proceedings) Act (CCPA) and the Children (Community Service Orders) Act (CCSO).

The legal aspect

The following description of the interrelationship of the above-mentioned legislation is taken from the careful and helpful submissions of the Crown prosecutor which were largely adopted by counsel for the accused. The point of difference between them turns not on legislative interpretation, but on question of whether the section 5 threshold…

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 [2019] NSWDC 731
Case: [2019] NSWDC 731
Decision Date: 03 December 2019

CaseChat Overview and Summary

In the case of R v KL, the defendant was convicted of engaging in sexual intercourse with a child under 10 years of age. The incident occurred within a juvenile detention facility, raising issues about the safety and protection of minors in such environments. KL was sentenced in a higher court, which was tasked with determining an appropriate aggregate sentence, considering the gravity of the offence and the circumstances under which it was committed.

The primary legal issues before the court were the appropriate aggregate sentence and the non-parole period for KL, as well as the necessity for the sentence to be served in a juvenile detention facility with specific conditions. The court had to balance the severity of the crime, the need for rehabilitation, and the protection of the community and the victim. Additionally, the court needed to consider the potential for KL's rehabilitation through sex offender programs and the suitability of protected custody within a juvenile detention facility.

The court determined that the nature of the offence, while heinous, was committed by a juvenile offender, which warranted a sentence that included rehabilitation as a key component. The court recognised the importance of imposing a sentence that adequately reflected the seriousness of the crime while also providing an opportunity for KL to undergo treatment and education to prevent reoffending. The court found that an aggregate sentence of 2 ½ years, with a non-parole period of 15 months, was appropriate. The sentence was to be served in a juvenile detention facility, with specific emphasis on participation in sex offender programs and the provision of a safe environment that ensures protection for both KL and other detainees.

The final orders were that KL was to serve a sentence of 2 ½ years, with a non-parole period of 15 months, in a juvenile detention facility. This sentence was designed to address the offence's severity and facilitate KL's rehabilitation, ensuring the safety and protection of all individuals within the detention facility.

Orders

Orders of the court

Aggregate sentence 2 ½ years, non- parole period 15 months. The sentence is to be served in a Juvenile Detention facility

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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Medium Neutral Citation:	R v KL [2019] NSWDC 731
Hearing dates:	21 November, 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	Aggregate sentence 2 ½ years, non- parole period 15 months. The sentence is to be served in a Juvenile Detention facility
Catchwords:	SENTENCE – sexual intercourse with child under 10 years – carnal knowledge – juvenile detention centre-protected custody – sex offender programs – prospects of rehabilitation
Legislation Cited:	Children (Community Service Orders) Act Children (Detention Centres) Act 1987 Children’s (Criminal Proceedings) Act Crimes Act 1900
Cases Cited:	BM v R [2019] NSWCCA 223 Muldrock v R [2011] HCA 39 at [27 Paul Campbell v R [2018] NSWCCA 87 at [26] R v AA [2017] NSWCCA 84 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) KL (Offender)
Representation:	Counsel: Mr Campbell for the Crown Mr Watts for the Offender Solicitors: Ms. D. Collin (DPP) Mr. H Vandugteren (Legal Aid)
File Number(s):	2016/321397