R v NJK

Case [2011] NSWCCA 151 28 June 2011

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Court of Criminal Appeal

New South Wales

Case Title: R v NJK

Medium Neutral Citation: [2011] NSWCCA 151

Hearing Date(s): 8 June 2011

Decision Date: 28 June 2011

Jurisdiction:

Before:
HODGSON JA at 1
HOEBEN J at 2
GROVE AJ at 61

Decision:
Crown appeal dismissed.

Catchwords:
CRIMINAL LAW - Crown appeal against sentence - aggravated indecent assault on child under the age of 10 years - plea of guilty - suspended sentence - whether sentencing judge had adequate regard to standard non-parole period as a guidepost - determination of objective seriousness of offence - benefit to victim if offender not given custodial sentence - whether sentence manifestly inadequate - unusual circumstances surrounding offence - appeal dismissed.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:
Hili v The Queen [2010] HCA 45; (2010) 85 ALJR
Mulato v Regina [2006] NSWCCA 282
R v Edwards (1996) 90 A Crim R 510
R v Osenkowski (1983) 30 SASR 212 at 212-213; (1982) 5 A Crim R 394 at 394
R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168
Regina v Zamagias [2002] NSWCCA 17

Texts Cited:

Category: Principal judgment

Parties:
Regina - Applicant
NJK - Respondent

Representation

- Counsel:
Counsel
J Pickering SC - Applicant Crown
Ms S Walsh - Respondent

- Solicitors:
Solicitors
S Kavanagh, Solicitors for Public Prosecutions - Applicant Crown
Viney Williams Lawyers - Respondent

File number(s): 2010/151251

Decision Under Appeal

- Court / Tribunal:

- Before: McLoughlin DCJ

- Date of Decision: 02 March 2011

- Citation:

- Court File Number(s) 2010/151251

Publication Restriction:
Yes

Judgment

HODGSON JA: I agree with Hoeben J.

HOEBEN J:

Offences and sentence
On 21 October 2010 the respondent pleaded guilty to the following offences:

(i) One count of aggravated indecent assault of a child under the age of 10 years contrary to s61M(2) of the Crimes Act 1900 which has a maximum penalty of imprisonment for 10 years with a standard non-parole period of 8 years.

(ii) One count of use child under the age of 14 for pornographic purposes contrary to s91G(1)(a) of the Crimes Act 1900 which carries a maximum penalty of imprisonment for 14 years.

The matter came before McLoughlin DCJ at the Port Macquarie District Court for sentencing on 2 March 2011. In respect of each offence his Honour imposed a sentence of imprisonment for 22 months and 15 days which pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 was wholly suspended.

The Director of Public Prosecutions has appealed from these sentences pursuant to s5B of the Criminal Appeal Act 1912 on the following grounds:

Ground 1 - His Honour failed to have adequate regard to the standard non-parole period as a guidepost for the aggravated indecent assault offence.

Ground 1B - His Honour was in error in finding that the offence of aggravated indecent assault was in the midway point between the bottom and the middle of the scale of objective serious.

Ground 2 - His Honour…

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 NJK

Details

AGLC: R v NJK [2011] NSWCCA 151
Case: [2011] NSWCCA 151
Decision Date: 28 June 2011

CaseChat Overview and Summary

The appellant, NJK, was convicted of committing an aggravated indecent assault on a child under the age of ten. NJK pleaded guilty and was sentenced by a magistrate to a suspended sentence. The Crown sought an appeal against the sentence, contending that it was manifestly inadequate and that the sentencing judge had not properly considered the standard non-parole period or the objective seriousness of the offence. The appeal was heard by the court which needed to determine whether the sentencing judge had adequately considered the relevant legal principles in determining the sentence.

The court considered whether the sentencing judge had erred in not imposing a custodial sentence by not giving adequate regard to the standard non-parole period. The court also examined whether the sentencing judge had erred in determining the objective seriousness of the offence and the benefit to the victim if the offender was not given a custodial sentence. The court determined that the sentencing judge had considered the standard non-parole period and the objective seriousness of the offence, and had given proper weight to the benefit to the victim if the offender was not given a custodial sentence. The court also found that there were unusual circumstances surrounding the offence, which the sentencing judge had taken into account.

The court dismissed the appeal, holding that the sentencing judge had not erred in imposing a suspended sentence. The court found that the sentence was not manifestly inadequate, and that the sentencing judge had given proper consideration to the relevant legal principles. The court noted that the offender had pleaded guilty, and that there were unusual circumstances surrounding the offence. The appeal was dismissed, and the original sentence stood.

Orders