Regina v Richard Ivan Noel Kite - [2008] NSWDC 7

CITATION: Regina v Richard Ivan Noel Kite [2008] NSWDC 7

HEARING DATE(S): 6 December 2007; 1 February 2008

JUDGMENT DATE:
1 February 2008

JURISDICTION: Criminal

JUDGMENT OF: Knox SC DCJ

DECISION: On the first count, that the offender did have sexual intercourse with person under the age of ten years:
The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 December 2007 and to expire on 5 December 2012. The balance of the term is 3 years and 4 months to expire on 5 April 2016.
On the second count, that the offender did have sexual intercourse with person under the age of ten years:
The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 June 2008 and to expire on 5 June 2013. The balance of the term is 3 years and 4 months to expire on 5 October 2016.
There is a partial accumulation of 6 months imprisonment.
The total effect of the sentence would be a non-parole period of five years and six months imprisonment, the balance of the term being three years four months imprisonment.
Recommendation that the terms of his parole should include that of the offender comply with all directions and treatment as may be recommended by the Probation and Parole Service including psychiatric treatment, as well as the usual terms and conditions of parole; further that the report of Mr Taylor accompany these remarks.

CATCHWORDS: sexual intercourse with person under the age of ten years - impact on victim - intoxication - diagnosis of paedophilia - extra-curial punishment - degree of planning - low to mid-range of criminality - standard non-parole period - special circumstances - hardship in custody - likelihood of deportation

LEGISLATION CITED: Crimes Act 1900
Law Enforecement (Powers and Responsibilities) Act 2002
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v KNL [2005] NSWCCA 260
R v Daetz: R v Wilson [2003] NSWCCA 216
MLP v R [2006] NSWCCA 271
R v Girard, Andrew John, R v Girard Tessa Maree [2004] NSWCCA 170
R v Youkhana [2004] NSWCCA 412
R v Rhule (unrep, 25/7/95, NSWCCA)
R v Burchell (1987) 34 ACrimR 148
T v R (1990) 47 A Crim R 29
MLP v Regina [2006] NSWCCA 271
R v KNL 2005 NSWCCA 260
Shannon v Regina [2006] NSWCCA 39
Regina v JTAC [2005] NSWCCA 345
R v SMP [2005] NSWCCA 116
R v Gordon (1994) 71 A Crim R 459
R v Fletcher-Jones (1994) 75 A Crim R 381
R v Sotheren [2001] NSWCCA 425
R v Wright (unrep, 28/2/1997, NSWCCA)
R v Davis [1999] NSWCCA
R v BJW (2000) 112 A Crim R 1
R v Fisher (1989) 40 A Crim R 442
R v AJP (2004) 150 A Crim R 575
R v AD [2005] NSWCCA 208
R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309
Siganto v The Queen (1998) 194 CLR 656
R v…

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.

Keep reading for free

Create a free CaseChat account to read Regina v Richard Ivan Noel Kite and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWDC 7
Decision Date: 1 February 2008

CaseChat Overview and Summary

Richard Ivan Noel Kite was convicted of two counts of having sexual intercourse with a person under the age of ten years. The matter was heard in the Supreme Court of Queensland. The court was required to determine an appropriate sentence in light of the offences committed, the impact on the victim, and other relevant circumstances such as the offender's diagnosis of paedophilia, his intoxication at the time of the offence, and the degree of planning involved. The court also considered the offender's likelihood of deportation and the hardship he might face in custody.

The legal issues before the court included the calculation of the non-parole period and the overall term of imprisonment, taking into account the low to mid-range of criminality, the special circumstances, and the impact on the victim. The court assessed the offender's history, his extra-curial punishment, and the potential for rehabilitation. The sentencing process involved balancing the need for punishment and deterrence with the possibility of the offender's reform and reintegration into society. The court emphasised the severity of the crimes and the profound impact on the victim while also considering the offender's mental health and likelihood of deportation.

After careful consideration of all the factors, the court determined that the offender should serve a non-parole period of five years and six months, with the balance of the term being three years and four months. The sentences were to run concurrently on the first count and partially accumulate on the second count. The court recommended that the offender comply with all directions and treatment recommended by the Probation and Parole Service, including psychiatric treatment, and adhere to the usual terms and conditions of parole. The court's decision reflected a balanced approach, addressing both the need for punishment and the potential for the offender's rehabilitation and reintegration into society.

Orders

Orders of the court

On the first count, that the offender did have sexual intercourse with person under the age of ten years: The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 December 2007 and to expire on 5 December 2012. The balance of the term is 3 years and 4 months to expire on 5 April 2016. On the second count, that the offender did have sexual intercourse with person under the age of ten years: The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 June 2008 and to expire on 5 June 2013. The balance of the term is 3 years and 4 months to expire on 5 October 2016. There is a partial accumulation of 6 months imprisonment. The total effect of the sentence would be a non-parole period of five years and six months imprisonment, the balance of the term being three years four months imprisonment. Recommendation that the terms of his parole should include that of the offender comply with all directions and treatment as may be recommended by the Probation and Parole Service including psychiatric treatment, as well as the usual terms and conditions of parole; further that the report of Mr Taylor accompany these remarks.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Regina v Richard Ivan Noel Kite [2008] NSWDC 7
HEARING DATE(S):	6 December 2007; 1 February 2008
JUDGMENT DATE:	1 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	On the first count, that the offender did have sexual intercourse with person under the age of ten years: The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 December 2007 and to expire on 5 December 2012. The balance of the term is 3 years and 4 months to expire on 5 April 2016. On the second count, that the offender did have sexual intercourse with person under the age of ten years: The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 June 2008 and to expire on 5 June 2013. The balance of the term is 3 years and 4 months to expire on 5 October 2016. There is a partial accumulation of 6 months imprisonment. The total effect of the sentence would be a non-parole period of five years and six months imprisonment, the balance of the term being three years four months imprisonment. Recommendation that the terms of his parole should include that of the offender comply with all directions and treatment as may be recommended by the Probation and Parole Service including psychiatric treatment, as well as the usual terms and conditions of parole; further that the report of Mr Taylor accompany these remarks.
CATCHWORDS:	sexual intercourse with person under the age of ten years - impact on victim - intoxication - diagnosis of paedophilia - extra-curial punishment - degree of planning - low to mid-range of criminality - standard non-parole period - special circumstances - hardship in custody - likelihood of deportation
LEGISLATION CITED:	Crimes Act 1900 Law Enforecement (Powers and Responsibilities) Act 2002 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v KNL [2005] NSWCCA 260 R v Daetz: R v Wilson [2003] NSWCCA 216 MLP v R [2006] NSWCCA 271 R v Girard, Andrew John, R v Girard Tessa Maree [2004] NSWCCA 170 R v Youkhana [2004] NSWCCA 412 R v Rhule (unrep, 25/7/95, NSWCCA) R v Burchell (1987) 34 ACrimR 148 T v R (1990) 47 A Crim R 29 MLP v Regina [2006] NSWCCA 271 R v KNL 2005 NSWCCA 260 Shannon v Regina [2006] NSWCCA 39 Regina v JTAC [2005] NSWCCA 345 R v SMP [2005] NSWCCA 116 R v Gordon (1994) 71 A Crim R 459 R v Fletcher-Jones (1994) 75 A Crim R 381 R v Sotheren [2001] NSWCCA 425 R v Wright (unrep, 28/2/1997, NSWCCA) R v Davis [1999] NSWCCA R v BJW (2000) 112 A Crim R 1 R v Fisher (1989) 40 A Crim R 442 R v AJP (2004) 150 A Crim R 575 R v AD [2005] NSWCCA 208 R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309 Siganto v The Queen (1998) 194 CLR 656 R v…