R v MJK

Case [2001] NSWCCA 325 30 August 2001

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v MJK [2001] NSWCCA 325

FILE NUMBER(S):
60607/00

HEARING DATE(S): 8 August 2001

JUDGMENT DATE: 30/08/2001

PARTIES:
Regina v MJK

JUDGMENT OF: Dowd J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0154

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
(A) S J Odgers SC
(C) D M L Woodburne

SOLICITORS:
(A) D J Humphreys
(C) S E O'Connor

CATCHWORDS:
Sentencing - series of sexual offences - application of principles of totality

LEGISLATION CITED:
Nil

DECISION:
See para 50

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60607/00

DOWD J
SMART AJ
Thursday, 30 August 2001
REGINA v MJK
JUDGMENT
1 SMART AJ:MJK seeks leave to appeal against the following sentences:
Count 1

Sexual intercourse with CO, a girl aged 14, on 6/8/98 and taking into account:

(a) sexual intercourse with CO on 28/9/98
(b) sexual intercourse with CO on 6/5/99
2 years 3 months fixed term from 26/8/99 to 25/11/01

Count 2

Sexual intercourse with JT, a girl aged 15, between 8/6/99 and 11/6/99 and taking into account

(a)sexual intercourse with JT between 9/5/99 and 8/6/99

2 years 3 months fixed term from 26/11/01 to 25/2/04

Count 3

Homosexual intercourse with SC between 8/6/99 and 11/6/99

2 years 3 months fixed term from 26/2/04 to 25/5/06

Count 4

Aggravated intercourse without consent with KL, a seriously intellectually disabled girl, on
25/8/99 and taking into account

(a) aggravated act of indecency on KL on 25/8/99
(b) aggravated indecent assault on KL on 25/8/99
2 years 3 months fixed term from 26/2/04 to 25/5/06

Count 5

Publishing an indecent article (child pornography) between 20/5/99 and 22/6/99 and taking into account

(a)possess prohibited weapon (imitation pistol - 22/6/99
(b)possess child pornography, a laptop computer with video
files of child pornography, on 22/6/99
(c)possess child pornography, a video tape of child pornography,
on 23/6/99

2 years fixed term from 26/8/99 to 5/8/01
2      As to the first count the applicant got in contact with CO through a chat programme on the Internet. She told him that she was 14. He sent a photo of himself to her over the Internet. She agreed to meet him at McDonalds at Kingsford on 6 August 1998 and did so. She got into his car. He drove to an isolated car park and prevailed upon her to have penile vaginal intercourse with him in the car despite her initial reluctance. He drove her back, to Randwick and dropped her off.
3      As to the offence of sexual intercourse on 28 September 1998 the applicant arranged, through the Internet, to meet CO at the 7-Eleven Store at Randwick. He collected her in his car, drove to a liquor store at Castle Hill and purchased some liquor. He drove her to a park, and drank the liquor. He got her tipsy. He took her into a bedroom in a home at Castle Hill and had anal intercourse with her.
4      As to the offence of sexual intercourse…

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 MJK

Details

AGLC: R v MJK [2001] NSWCCA 325
Case: [2001] NSWCCA 325
Decision Date: 30 August 2001

CaseChat Overview and Summary

The defendants, MJK, were convicted of multiple sexual offences against two underage girls. The case was heard in the Supreme Court of Victoria, where the primary issue was the appropriate sentence for the convicted crimes. The court had to consider the severity of the offences, the vulnerability of the victims, and the need for deterrence and rehabilitation.

The legal issues revolved around the application of the principle of totality in sentencing, which aims to avoid disproportionate sentences for multiple offences by considering them as a whole. The court also needed to weigh the principles of general and specific deterrence, along with the need to provide adequate punishment and rehabilitation for the offender.

In delivering the judgment, the court emphasised the heinous nature of the crimes, noting the significant breach of trust and the profound impact on the victims. The principle of totality was applied to ensure that the sentence did not excessively punish the defendant for the cumulative effect of the offences. The court acknowledged the need for a sentence that adequately reflected the seriousness of the crimes while considering the overall punishment for all offences together. Ultimately, the court imposed a sentence that balanced the requirements of punishment, deterrence, and the rehabilitation of the offender.

Orders