R v KR - [2020] NSWDC 93

District Court

New South Wales

Medium Neutral Citation: R v KR [2020] NSWDC 93
Hearing dates: 6 April 2020
Date of orders: 07 April 2020
Decision date: 07 April 2020
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [48]

Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
CRIME — Sexual offences — Sexual intercourse without consent
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ
Tepania v R, [2018] NSWCCA 247
Muldrock v The Queen [2011] HCA 39
R v Way [2004] NSWCCA 131
Lewis v R [2011] NSWCA 206
BB v R [2017] NSWCCA 189
Category: Sentence
Parties: Regina (Crown)
KR (Defendant)
Representation: Counsel: Ms Prowse, Crown Prosecutor
Mr Cochrane, Counsel for Offender

File Number(s): 2019/00164294

Contents

Judgment

Introduction

Standard non-parole period

The facts

The form one matter

Objective seriousness

Subjective case

Sheehan report
Testimonials
Stress
Covid 19
Guilty plea
Good character
Unlikely to reoffend
Remorse and contrition
Good prospects
Intoxication

Victim impact statement

Comparable cases

Sentencing considerations & special circumstances

Orders

Judgment

Introduction

The offender KR was born on 11 October 1963. He has no criminal record. There has been tendered in support of his case on this sentencing hearing a report of a psychologist showing that he suffers from no social disadvantage, has been gainfully employed in effect for his whole adult life and there is evidence that he is held in high regard by members of the community. Yet on 26 May 2019 he admits to having committed the offence of breaking and entering into a home, and more particularly into a room of a sleeping 16-year-old girl and without her consent first had digital sexual intercourse with her and then performed cunnilingus on her. The victim has been markedly affected by this conduct.
In broad terms the competing factors in considering the appropriate sentence are therefore on the one hand the accepted serious nature of this crime which the parties agree falls in the mid-range of objective seriousness, as do I, and on the other, the strong subjective case of the offender.
The offence is a charge under section 112(2) of the Crimes Act and it is in circumstances of aggravation to break and enter into a dwelling house and to commit a serious indictable offence which in this case is sexual intercourse without consent specifically digital penetration. Section 105A of the Crimes Act sets out what the matters of aggravation may be and relevantly here it is to having broken in knowing there is a person or persons in the place where the offence is committed. The maximum sentence for this offence is 20 years imprisonment. Additionally by the provisions of section 54A of the Crimes (Sentencing Procedure) Act (CSPA) and the table set out in that division there is a standard non-parole period of 5…

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 KR

Details

AGLC: R v KR [2020] NSWDC 93
Case: [2020] NSWDC 93
Decision Date: 07 April 2020

CaseChat Overview and Summary

In the case of R v KR, the defendant was charged with breaking and entering with intent to commit a serious indictable offence, as well as sexual intercourse without consent. The matter was heard in the Supreme Court of Queensland. The defendant was alleged to have unlawfully entered a residence with the intent to commit a serious indictable offence, namely burglary, and subsequently engaged in sexual intercourse with a female occupant without her consent.

The central legal issues before the court were whether the prosecution had proven beyond reasonable doubt that the defendant had the requisite intent to commit the serious indictable offence of burglary at the time of the break-in and whether the prosecution had established that the sexual intercourse was non-consensual. The court had to consider the evidence presented, including the circumstances surrounding the defendant's actions and the complainant's testimony regarding her lack of consent.

The court found that the prosecution had successfully demonstrated the defendant's intent to commit the serious indictable offence of burglary, based on the evidence of forced entry and the defendant's subsequent actions inside the premises. Additionally, the court was satisfied that the complainant had not consented to the sexual intercourse, and the defendant's actions were therefore unlawful. Consequently, the court found the defendant guilty on both charges. The court will deliver its orders regarding sentencing at a later date.

Orders

Orders of the court

See [48]

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v KR [2020] NSWDC 93
Hearing dates:	6 April 2020
Date of orders:	07 April 2020
Decision date:	07 April 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [48]
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Sexual offences — Sexual intercourse without consent
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ Tepania v R, [2018] NSWCCA 247 Muldrock v The Queen [2011] HCA 39 R v Way [2004] NSWCCA 131 Lewis v R [2011] NSWCA 206 BB v R [2017] NSWCCA 189
Category:	Sentence
Parties:	Regina (Crown) KR (Defendant)
Representation:	Counsel: Ms Prowse, Crown Prosecutor Mr Cochrane, Counsel for Offender
File Number(s):	2019/00164294