R v TK

Case [2024] NSWDC 451 23 September 2024

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District Court

New South Wales

Medium Neutral Citation: R v TK [2024] NSWDC 451
Hearing dates: 16 May 2024, 9 August 2024, 20 September 2024
Date of orders: 23 September 2024
Decision date: 23 September 2024
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   The offender, having pleaded guilty, is convicted of the offences.
(2)   I impose a total aggregate sentence of 6 years imprisonment to expire on 16 September 2030.
(3)   I impose a non-parole period of 3 years 7 months to expire on 16 April 2028.
(4)   The earliest date the offender is eligible to be released on parole is 16 April 2028.
(5)   The offender’s medical record, reports of Dr Le and Oliver Brecht, and these remarks on sentence are to be provided to corrective services. I recommend that the offender be immediately placed into protective custody.

Catchwords:
CRIME – indecently assault child under 16 - sexually touch child aged 10-16 - groom child under 14 for unlawful sexual activity – multiple victims over several years – guilty plea at trial – no remorse – consideration of offender’s ill health – custody more onerous

Legislation Cited:
Crime (Sentencing Procedure) Act 1999, ss 10, 10A, 21A(5A), 25AA(3), 25D(2)(c), 53A
Crimes Act 1900, ss 61M(2), 66DB(a), 66EB(3), 91H(2)

Cases Cited:
Baden v R [2020] NSWCCA 23; Giles-Adams v R; Preca v R [2023] NSWCCA 122
Corby v R [2010] NSWCCA 146
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
EG v R [2015] NSWCCA 21
Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539
Hall v R [2021] NSWCCA 220
LIU v R [2023] NSWCCA 30
LN v R [ 2020] NSWCCA 131
R v Burrell (2000) 114 A Crim R 207
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Smith (1987) 44 SASR 587

Category: Sentence
Parties: Rex
TK
Representation:
Counsel:
Mr R Thomas (Offender)
Solicitors:
Office of the Department of Public Prosecutions (NSW) (Crown)
Kim Bolas Criminal Law Specialist (Offender)

File Number(s): 2022/00032076
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the victims.

Judgment

The offender pleaded guilty to the following offence:-

Count 1 – Indecently assault child under 16 in accordance with s 61M(2) of the Crimes Act 1900 with a maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years.

Count 2 – Sexually touch child aged 10-16 in accordance with s 66DB(a) of the Crimes Act 1900 with a maximum penalty of 10 years imprisonment and no standard non-parole period.

Count 3 – Sexually touch child ages 10-16 in accordance with s 66DB(a) of the Crimes Act 1900 with a maximum penalty of 10 years imprisonment and no standard non-parole period.

Count 4 - Sexually touch child ages 10-16 in accordance with s 66DB(a) of the Crimes…

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 TK

Details

AGLC: R v TK [2024] NSWDC 451
Case: [2024] NSWDC 451
Decision Date: 23 September 2024

CaseChat Overview and Summary

The case of R v TK involved the offender who had pleaded guilty to multiple offences, including indecently assaulting a child under 16 and grooming a child under 14 for unlawful sexual activity. The victim in the indecent assault charge was aged between 10 and 16, and the grooming offence involved a child under 14. The offender had engaged in these activities over several years and had multiple victims. The matter was heard in the Supreme Court, where the offender faced sentencing following a guilty plea at trial. Despite the plea, the offender exhibited no remorse for their actions.

The primary legal issues before the court were the appropriate sentencing for the offences committed, the offender's ill health, and the necessity of imposing a sentence that would be more onerous due to the offender's health conditions. The court had to balance the severity of the crimes with the offender's health and consider whether the offender would face additional burdens in custody due to their medical conditions.

In delivering the sentence, the court acknowledged the serious nature of the offences, noting the offender's lack of remorse and the impact of their actions on the victims. The court imposed a total aggregate sentence of 6 years imprisonment, with a non-parole period of 3 years and 7 months. The court also specified that the earliest date for parole eligibility was 16 April 2028. The court recommended that the offender be placed in protective custody immediately and directed that the offender's medical records and relevant reports be provided to corrective services.

Orders

Orders of the court

(1) The offender, having pleaded guilty, is convicted of the offences.

(2) I impose a total aggregate sentence of 6 years imprisonment to expire on 16 September 2030.

(3) I impose a non-parole period of 3 years 7 months to expire on 16 April 2028.

(4) The earliest date the offender is eligible to be released on parole is 16 April 2028.

(5) The offender’s medical record, reports of Dr Le and Oliver Brecht, and these remarks on sentence are to be provided to corrective services. I recommend that the offender be immediately placed into protective custody.

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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Citations

R v TK [2024] NSWDC 451

Cases Citing This Decision

No citing cases yet.

Cases Cited

Giles-Adams v R; Preca v R [2023] NSWCCA 122
Citation 1 (Para 86)

…stice and is more likely an acceptance of the inevitable in the face of a strong Crown case: Baden v R [2020] NSWCCA 23; Giles-Adams v R; Preca v R [2023] NSWCCA 122.…
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
Citation 2 (Para 101)

…With respect to the Form 1 offences, as Beech-Jones CJ at CL observed in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [23]:…
Liu v R [2023] NSWCCA 30
Citation 3 (Para 95)

…As to the offenders age, in LIU v R [2023] NSWCCA 30 Campbell J (with whom Adamson JA and McNaughton J agreed) cited with approval the relevant applicable principles summarised by Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539 at [54]. By reference to those principles, I am not satisfied that mo…
Hall v R [2021] NSWCCA 220
Citation 4 (Para 112)

…ce, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total senten…
Baden v R [2020] NSWCCA 23
Citation 5 (Para 86)

…a willingness to facilitate the course of justice and is more likely an acceptance of the inevitable in the face of a strong Crown case: Baden v R [2020] NSWCCA 23; Giles-Adams v R; Preca v R [2023] NSWCCA 122.…
EG v R [2015] NSWCCA 21
Citation 6 (Para 81)

…deterrence and denunciation have a significant role to play in respect to sexual abuse perpetrated on children. As Hoeben CJ at CL observed in EG v R [2015] NSWCCA 21 at [42] (with whom Harrison J and RA Hulme J agreed):…
R v Gavel [2014] NSWCCA 56
Citation 7 (Para 79)

…The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]:…
R v CMB [2014] NSWCCA 5
Citation 8 (Para 92)

…“… that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baro…
SW v R [2013] NSWCCA 255
Citation 9 (Para 52)

…not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psyc…
Clarkson v The Queen [2011] VSCA 157
Citation 10

…th a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”…
Corby v R [2010] NSWCCA 146
Citation 11 (Para 71)

…reflecting a very significant age difference. This is an aggravating factor in assessing the objective seriousness of each of the offences: Corby v R [2010] NSWCCA 146 at [77].…
R v G [2008] UKHL 37
Citation 12 (Para 52)

…B [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual…
Gulyas v The State of Western Australia [2007] WASCA 263
Citation 13 (Para 95)

…bell J (with whom Adamson JA and McNaughton J agreed) cited with approval the relevant applicable principles summarised by Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539 at [54]. By reference to those principles, I am not satisfied that moral culpability is reduced by reason of the offender’s ad…
R v MAK [2006] NSWCCA 381
Citation 14 (Para 112)

…ential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 15 (Para 52)

…5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do…

Legislation Cited

Crime (Sentencing Procedure) Act 1999 (NSW) 10, 10A, 21A(5A), 25AA(3), 25D(2)(c), 53...
7 mentions (from Para 36)
Crimes Act 1900 (ACT) 61M(2), 66DB(a), 66EB(3), 91H(2)
5 mentions (from Para 1)

Medium Neutral Citation:	R v TK [2024] NSWDC 451
Hearing dates:	16 May 2024, 9 August 2024, 20 September 2024
Date of orders:	23 September 2024
Decision date:	23 September 2024
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender, having pleaded guilty, is convicted of the offences. (2) I impose a total aggregate sentence of 6 years imprisonment to expire on 16 September 2030. (3) I impose a non-parole period of 3 years 7 months to expire on 16 April 2028. (4) The earliest date the offender is eligible to be released on parole is 16 April 2028. (5) The offender’s medical record, reports of Dr Le and Oliver Brecht, and these remarks on sentence are to be provided to corrective services. I recommend that the offender be immediately placed into protective custody.
Catchwords:	CRIME – indecently assault child under 16 - sexually touch child aged 10-16 - groom child under 14 for unlawful sexual activity – multiple victims over several years – guilty plea at trial – no remorse – consideration of offender’s ill health – custody more onerous
Legislation Cited:	Crime (Sentencing Procedure) Act 1999, ss 10, 10A, 21A(5A), 25AA(3), 25D(2)(c), 53A Crimes Act 1900, ss 61M(2), 66DB(a), 66EB(3), 91H(2)
Cases Cited:	Baden v R [2020] NSWCCA 23; Giles-Adams v R; Preca v R [2023] NSWCCA 122 Corby v R [2010] NSWCCA 146 Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 EG v R [2015] NSWCCA 21 Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539 Hall v R [2021] NSWCCA 220 LIU v R [2023] NSWCCA 30 LN v R [ 2020] NSWCCA 131 R v Burrell (2000) 114 A Crim R 207 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Smith (1987) 44 SASR 587
Category:	Sentence
Parties:	Rex TK
Representation:	Counsel: Mr R Thomas (Offender) Solicitors: Office of the Department of Public Prosecutions (NSW) (Crown) Kim Bolas Criminal Law Specialist (Offender)
File Number(s):	2022/00032076
Publication restriction:	There is to be no publication of a name that identifies or is likely to lead to the identification of the victims.