R v TK - [2020] NSWDC 35

District Court

New South Wales

Medium Neutral Citation: R v TK [2020] NSWDC 35
Hearing dates: 30 October 2019; 20 March 2020
Decision date: 20 March 2020
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Sentenced to a term of imprisonment of 18 years, comprising a non-parole period of 13 years and 6 months to commence on 29 December 2018 and expiring on 28 June 2032, and a balance of term of 4 years and 6 months to commence on 29 June 2032 and to expire on 28 December 2036.
Eligible for release to parole on 28 June 2032.

Catchwords: CRIMINAL - Sentence – sexual offences - adult maintain unlawful relationship with child (DV) – ongoing significant course of offending over substantial period –offender cited victim’s supposed initiation of, and willing involvement in, the sexual acts - risk of re-offending - subjective matters
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: ABS [2005] NSWCCA 255
Chamseddine v R [2017] NSWCCA 176,
R v Gavel [2014] NSWCCA 56
R v Thomson; R v Houlton (2000) 49 NSWLR 383.
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: Regina
TK
Representation:
Counsel:
Crown: Mr A Dixon
Defence: Mr M Fokkes
Solicitors:
ODPP: Ms E Brown
Blomfield Legal: Mr P Blomfield

File Number(s): 2018/00399121
Publication restriction: NPO in respect of the names of the complainant and anything that might tend to identify her, including the name of the accused.

Judgment

TK appears for sentence in respect of a single offence, being adult maintain unlawful relationship with child, contrary to s 66EA(1) of the Crimes Act 1900. The maximum penalty provided is life imprisonment and there is no relevant standard non-parole period.
He was committed for sentence on 19 June 2019 from the Griffith Local Court and is accordingly entitled to a discount of 25 per cent for the utility of the plea alone, as referred to in Thomson and Houlton (2000) 49 NSWLR 383.
The facts are agreed and are as follows:

BACKGROUND

BK is the biological daughter of the offender. The victim was born on 2 February 2005.
The victim and the offender are originally from the small island nation of Kiribati. The offender came to Australia in 2011 and the victim in December 2016.
During the charge period the offender, the victim and Ms RA were living together at premises in Griffith. Ms RA was the offender’s wife and the victim’s step-mother. The victim refers to Ms RA as her mother.

THE OFFENDING - S 66EA(1) CRIMES ACT 1900

From early 2018 until late 2018 the offender engaged in various sexual acts with the victim on a regular basis.

THE FIRST INCIDENT - BALI

On 27 January 2018, the victim and the offender and Ms RA went on a holiday to Bali, Indonesia, to celebrate Ms RA’s 40th birthday.
At some point on that holiday, the offender asked the victim to put his penis in her mouth and the…

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 [2020] NSWDC 35
Case: [2020] NSWDC 35
Decision Date: 20 March 2020

CaseChat Overview and Summary

The appellant, TK, was convicted and sentenced in the Supreme Court of Victoria for engaging in an unlawful relationship with a child. The appeal against sentence was heard by the Court of Appeal, which upheld the original sentence. The appellant was sentenced to a term of imprisonment of 18 years, with a non-parole period of 13 years and 6 months, and a balance of term of 4 years and 6 months. The court found that the appellant had engaged in a significant course of offending over a substantial period and had cited the victim's supposed initiation of, and willing involvement in, the sexual acts as a mitigating factor.

The legal issues before the court were whether the sentence was manifestly excessive or inadequate, and whether the court had adequately considered the appellant's subjective matters. The appellant argued that the sentence was manifestly excessive and that the court had not adequately considered his subjective matters, including his remorse, character, and prospects for rehabilitation. The prosecution submitted that the sentence was appropriate and that the court had adequately considered the appellant's subjective matters.

The Court of Appeal found that the sentence was not manifestly excessive and that the court had adequately considered the appellant's subjective matters. The court noted that the appellant had engaged in a significant course of offending over a substantial period and that the victim was vulnerable and unable to consent to the sexual acts. The court also noted that the appellant had not shown genuine remorse and that there was a significant risk of re-offending. The court found that the sentence was appropriate and that the non-parole period reflected the seriousness of the offending.

The Court of Appeal dismissed the appeal and upheld the original sentence. The appellant is eligible for release to parole on 28 June 2032.

Orders

Orders of the court

Convicted.

Sentenced to a term of imprisonment of 18 years, comprising a non-parole period of 13 years and 6 months to commence on 29 December 2018 and expiring on 28 June 2032, and a balance of term of 4 years and 6 months to commence on 29 June 2032 and to expire on 28 December 2036.

Eligible for release to parole on 28 June 2032.

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 TK [2020] NSWDC 35
Hearing dates:	30 October 2019; 20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Sentenced to a term of imprisonment of 18 years, comprising a non-parole period of 13 years and 6 months to commence on 29 December 2018 and expiring on 28 June 2032, and a balance of term of 4 years and 6 months to commence on 29 June 2032 and to expire on 28 December 2036. Eligible for release to parole on 28 June 2032.
Catchwords:	CRIMINAL - Sentence – sexual offences - adult maintain unlawful relationship with child (DV) – ongoing significant course of offending over substantial period –offender cited victim’s supposed initiation of, and willing involvement in, the sexual acts - risk of re-offending - subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	ABS [2005] NSWCCA 255 Chamseddine v R [2017] NSWCCA 176, R v Gavel [2014] NSWCCA 56 R v Thomson; R v Houlton (2000) 49 NSWLR 383. R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Regina TK
Representation:	Counsel: Crown: Mr A Dixon Defence: Mr M Fokkes Solicitors: ODPP: Ms E Brown Blomfield Legal: Mr P Blomfield
File Number(s):	2018/00399121
Publication restriction:	NPO in respect of the names of the complainant and anything that might tend to identify her, including the name of the accused.