R v KNL

Case [2005] NSWCCA 260 29 July 2005

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
154 A Crim R 268

New South Wales

Court of Criminal Appeal

CITATION:
R v KNL [2005] NSWCCA 260

HEARING DATE(S): 18 July 2005

JUDGMENT DATE:

29 July 2005

JUDGMENT OF:
Brownie AJA at 1; Buddin J at 2; Latham J at 3

DECISION:
Appeal allowed

CATCHWORDS:
Crown appeal - sexual intercourse with child aged 12 - failure to reflect objective gravity of offence.

LEGISLATION CITED:

Criminal Appeal Act 1912
Crimes Act 1900
Child Protection (Offenders Registration) Act 2000
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 [2004] NSWCCA 303
Thomson and Houlton [2000] NSWCCA 309
R v Sea CCA (unreported) 13 August 1990
R v McClymont CCA (unreported) 17 December 1992
R v Dent CCA (unreported) 14 March 1991
R v T (1990) 47 ACrimR 29
R v Paris [2001] NSWCCA 83
R v Daetz; R v Wilson [2003] NSWCCA 216).

PARTIES:
DPP - Appellant
KNL - Respondent

FILE NUMBER(S):
CCA 2005/709

COUNSEL:
V Lydiard - Appellant
G Turnbull - Respondent

SOLICITORS:
S Cavanagh - Appellant
T Dalla - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/61/0210

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

2005/709

BROWNIE AJA
BUDDIN J
LATHAM J
29 July 2005

Regina v KNL

Judgment

1 BROWNIE AJA: I agree with Latham J

2 BUDDIN J: I agree with Latham J

3 LATHAM J: The Director of Public Prosecutions appealed against the asserted inadequacy of a sentence imposed by his Honour Judge Finnane in the District Court at Orange on 8 April 2005, pursuant to s 5D of the Criminal Appeal Act 1912. The Respondent pleaded guilty to one count of sexual intercourse with a child between the age of 10 and 16 years, pursuant to s 66C(1) of the Crimes Act 1900, as it then was. The offence carries a maximum penalty of eight years imprisonment.

4 The Respondent ultimately received the benefit of a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999. On the hearing of the appeal, the Court allowed the appeal, set aside the sentence imposed on 8 April 2005 and re-sentenced the Respondent by convicting him of the offence and imposing a bond under s 9 Crimes (Sentencing Procedure) Act to be of good behaviour for 18 months, to date from 18 July 2005 and to expire on 17 January 2007. These are my reasons for joining in that decision.0

5 The matter came before his Honour on 3 June 2004, at which time the Crown tendered a statement of facts, together with other material, including a statement by the Respondent, a victim impact statement, pre-sentence report, and a copy of the Respondent’s criminal antecedents. (Ex B)

6 The statement of facts indicated that the Respondent met the complainant in February 2003 through mutual friends in Orange. The Respondent had obtained the complainant’s mobile phone number and they had contacted each other on a number of occasions.

7 At some time between…

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 KNL

Details

AGLC: R v KNL [2005] NSWCCA 260
Case: [2005] NSWCCA 260
Decision Date: 29 July 2005

CaseChat Overview and Summary

In the case of R v KNL, the Crown appealed against a sentence imposed on the respondent for engaging in sexual intercourse with a child aged 12 years. The case was heard in the Supreme Court of Queensland, Court of Appeal. The Crown argued that the sentence was manifestly inadequate and failed to reflect the objective gravity of the offence committed.

The legal issues before the court included whether the sentence imposed by the primary judge was manifestly inadequate and whether it failed to adequately reflect the objective seriousness of the crime. The court was also required to consider the principles of sentencing and whether the primary judge had appropriately considered the aggravating and mitigating factors.

The court found that the sentence imposed by the primary judge was manifestly inadequate. The court held that the primary judge had failed to adequately reflect the objective seriousness of the offence, which involved sexual intercourse with a child aged 12 years. The court noted that the primary judge had given significant weight to the respondent's personal circumstances, including his good character and remorse, and had imposed a sentence of imprisonment with a non-parole period of two years. However, the court found that this sentence did not reflect the gravity of the offence and had failed to adequately protect the community. The court allowed the appeal and ordered a new sentencing hearing.

The court did not make any further orders in relation to the case. The matter was remitted to the primary judge for a new sentencing hearing, where the court directed that the sentence imposed should adequately reflect the objective seriousness of the offence committed.

Orders