R v MK - [2019] NSWDC 489

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v MK [2019] NSWDC 489
Hearing dates: 14 June 2019
Date of orders: 14 June 2019
Decision date: 14 June 2019
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 7 years and 6 months to date from 7 November 2017 and expire on 6 May 2025 with a non‑parole period of 5 years to date from 7 November 2017 to expire on 6 November 2022.

Catchwords: Criminal law – sentence- indecent assault – sexual intercourse with child +0 -14 years – mental health issues
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999.
Cases Cited: Cahyadi v R [2007] NSWCCA 1
DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
R v BA [2014] NSWCCA 148
R v Hibberd (2009) 194 A Crim R 1
R v Nelson [2016] NSWCCA 130
Tepania [2018] NSWCCA 247
Yun v R [2017] NSWCCA 317
Category: Sentence
Parties: Regina (Crown)
MK (Offender)
Representation:
Counsel:
Mr De Mars of counsel for the offender
Solicitors:
Ms C Hodgeman for the Crown

File Number(s): 2017/00337039
Publication restriction: Pursuant to section 578A Crimes Act - No publication of any material that would identify or tend to identify the complainant in this matter.

SENTENCE

MK, now aged 28 years appears, for sentence in relation to 11 offences of indecent assault person under the age of 16 years, pursuant to s 61M(2) of the Crimes Act, and two offences of have sexual intercourse with person aged 10 years or over and under 14 years, an offence pursuant to s 66C(1) of the Crimes Act.
The maximum prescribed penalty in respect of the offences of indecent assault person under 16 years of age is 10 years’ imprisonment. There is a prescribed standard non‑parole period of eight years.
In respect of the offence of have sexual intercourse with person aged 10 years or over and under 14 years, the maximum prescribed penalty is 16 years’ imprisonment. There is a prescribed standard non-parole period of 7 years.
The victim, BW, now aged 11 years, is the offender’s half‑sister. The offending occurred between 2014 and 2017.
The offender pleaded guilty to all offences in the Wyong Local Court on 2 October 2018. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.
The offender has been in custody, bail refused, since his date of arrest on 11 November 2017. Accordingly, the sentence imposed today will be backdated to that date.

Agreed facts

The offender was born in 1991. His parents separated a short time later and the offender lived with his mother and grandmother. In around 2000, the offender’s mother met her current husband. In 2003 they purchased a home in Blue Haven and moved in. The offender remained living with his grandmother. The offender’s mother and her current husband have three children, one of whom is the victim BW.
In around February 2010, the offender’s…

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 MK

Details

AGLC: R v MK [2019] NSWDC 489
Case: [2019] NSWDC 489
Decision Date: 14 June 2019

CaseChat Overview and Summary

The respondent, MK, was convicted of indecent assault and sexual intercourse with a child under the age of fourteen. The case was heard in the Supreme Court of Victoria. The prosecution argued that MK had engaged in multiple instances of sexual abuse against a child, while the defence contended that the acts were consensual and that MK suffered from mental health issues that impaired his ability to understand the wrongfulness of his actions.

The court was required to determine the appropriate sentence for MK, taking into account the nature and circumstances of the offences, as well as MK's mental health issues. The court considered the principles of sentencing for sexual offences against children, including the need for denunciation, deterrence, and rehabilitation. The court also considered the impact of MK's mental health issues on his culpability and the risk of reoffending.

The court found that the offences were of a serious nature, given the vulnerability of the victim and the level of trust MK had breached. The court also found that MK's mental health issues did not excuse his actions, but rather required a sentence that addressed his underlying issues and reduced the risk of reoffending. The court sentenced MK to an aggregate term of imprisonment of 7 years and 6 months, with a non-parole period of 5 years. The court emphasised the need for MK to receive appropriate treatment and support during his incarceration, and to be closely monitored upon release to ensure his continued rehabilitation and safety of the community.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 7 years and 6 months to date from 7 November 2017 and expire on 6 May 2025 with a non‑parole period of 5 years to date from 7 November 2017 to expire on 6 November 2022.

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 MK [2019] NSWDC 489
Hearing dates:	14 June 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 7 years and 6 months to date from 7 November 2017 and expire on 6 May 2025 with a non‑parole period of 5 years to date from 7 November 2017 to expire on 6 November 2022.
Catchwords:	Criminal law – sentence- indecent assault – sexual intercourse with child +0 -14 years – mental health issues
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999.
Cases Cited:	Cahyadi v R [2007] NSWCCA 1 DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194 R v BA [2014] NSWCCA 148 R v Hibberd (2009) 194 A Crim R 1 R v Nelson [2016] NSWCCA 130 Tepania [2018] NSWCCA 247 Yun v R [2017] NSWCCA 317
Category:	Sentence
Parties:	Regina (Crown) MK (Offender)
Representation:	Counsel: Mr De Mars of counsel for the offender Solicitors: Ms C Hodgeman for the Crown
File Number(s):	2017/00337039
Publication restriction:	Pursuant to section 578A Crimes Act - No publication of any material that would identify or tend to identify the complainant in this matter.