R v King [2008] ACTCA 12 (13 August 2008)

Last Updated: 15 October 2008

R v KENNY KING

[2008] ACTCA 12 (13 August 2008)

CRIMINAL LAW – appeal against sentence – respondent pleaded guilty to sexual intercourse without consent – scheduled offence trespass – whether sentence imposed was manifestly inadequate – whether sentencing judge erred – whether starting point for head sentence and non-parole period too low – appeal upheld

Crimes (Sentencing) Act 2005 (ACT), ss 7, 35

Crimes Act 1900 (ACT), ss 51, 52, 53

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

R v Clarke [1996] VICSC 30; [1996] 2 VR 520

R v Lappas [2003] ACTCA 21; (2003) 152 ACTR 7

R v Wright (1997) 93 A Crim R 48

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 4 - 2008

No. SCC 366 of 2007

Judges: Higgins CJ, Gray and Besanko JJ

Court of Appeal of the Australian Capital Territory

Date: 13 August 2008

IN THE SUPREME COURT OF THE ) No. ACTCA 4 - 2008

) No. SCC 366 of 2007

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Appellant

AND: KENNY KING

Respondent

ORDER

Judges: Higgins CJ, Gray and Besanko JJ

Date: 13 August 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The sentence imposed upon the respondent be set aside.

3. In lieu thereof, the sentence be four years’ imprisonment from 16 May 2007 with a non-parole period set at two years and six months from that date.

IN THE SUPREME COURT OF THE ) No. ACTCA 4 - 2008

) No. SCC 366 of 2007

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Appellant

AND: KENNY KING

Respondent

Judges: Higgins CJ, Gray and Besanko JJ

Date: 13 August 2008

Place: Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. This is a Crown appeal against the inadequacy of a sentence imposed on the respondent on 4 March 2008. He had pleaded guilty to a charge that he:

... on 16 February 2007, did engage in sexual intercourse with [name suppressed] without the consent of the said [V] and knowing that or was reckless as to whether the said [V] had not consented thereto.

2. The agreed Statement of Facts was as follows:

At about 10.20 pm on Friday 16 February 2007 the victim [V] was walking to her home in O’Connor from Civic where she had met some friends and her partner after work for drinks. During that time she had consumed approximately 7 standard drinks.
As she walked home the prisoner approached her near the intersection of McCaughey Street and Macpherson Street and asked her for directions to the “Kangaroo Caravan Park”. Ms [V] said she did not know where that was and the prisoner quickly walked away.
Ms [V] then continued along Macpherson Street and entered her townhouse complex at the intersection of Moorhouse Street and Macpherson Street. She entered the unit and closed the door but left the door unlocked as she was not sure whether her partner had his keys on him.
Ms [V] then had a shower and went to bed. She did not wear any clothing to bed. She felt unwell from the alcohol she had consumed and threw up into a pot she had placed beside her bed. She fell asleep.
Scheduled Offence – Trespass:
The prisoner followed Ms [V] backed [sic] to her townhouse. Sometime after Ms [V] fell asleep the prisoner entered her apartment through the unlocked front door.
Sexual Intercourse without consent CC2007/4766:
The prisoner entered Ms [V]’s bedroom and removed his pants and underwear. He climbed into her bed and put his erect penis into her vagina and began thrusting it in and out of her vagina. Ms [V] was awoken by the defendant’s actions. She initially thought it was her partner having intercourse with her as the room was dark. The prisoner held his face away from hers initially but then brought it closer to hers and said “Flip over and go on top”.
He put his hands on her hips and rolled her over to his right so that Ms [V] was on top of him facing him. His penis remained inside her as he did so.
Once on top of the prisoner Ms [V] has placed her hands down on the prisoner’s chest and felt a large amount of chest hair. She immediately realised that the prisoner was not her partner and got off him.
She screamed “Who the hell are you, get out of here!” She then said “You have to get out of here, you have to leave, who are you, what’s your name?”
The prisoner replied “Kenny”.
She yelled “You’ve ruined my life”.
Ms [V] went to the hallway and turned the light on. She watched the prisoner get dressed and then leave the premises. Ms [V] locked the door behind him. She had a shower and then walked to ‘All Bar Nun’, a short distance away at O’Connor shops, where she spoke to the doorman and asked if he had seen the prisoner, and gave a description of him. The doorman replied that he had not seen anyone matching that description. She returned to her flat and contacted police.
Subsequent forensic examination of Ms [V]’s bed sheets located spermatozoa that matched the DNA profile of the prisoner.
The prisoner was arrested and interviewed by police on 16 May 2007 after he handed himself in to City Police station. He participated in a taped record of interview. He was charged and remanded in custody and has remained in custody since 16 May 2007.

3. The respondent had an appalling criminal history covering numerous instances of burglary and assaults. In 1993 he had been gaoled for a similar offence to the present. In 2004 he was convicted of indecent treatment of children under 12 years and given a suspended sentence.

4. The pre-sentence report revealed that the respondent had a tragic early history including, between the ages of 8 and 12, being sexually and physically abused by his father and stepmother.

5. He left home at age 12, was homeless, engaging in criminal and anti-social activities with other youths. He is functionally illiterate and estranged from his two children (now 9 and 13 years of age) and their mothers. He has been incarcerated for much of the time since he left home. He has a consistent history of alcohol abuse and claimed to have consumed four two litre bottles of port before he committed this offence. His extensive history of alcohol abuse led the pre-sentence reporter to suspect a degree of brain damage. The pre-sentence report further identified a need to address therapeutic interventions both for sex offending and alcohol consumption to avoid recidivism.

6. Justice Penfold noted that the sexual intercourse, being non-consensual, was necessarily a serious assault, involving ‘an unacceptable invasion of another person’s body’.

7. Her Honour also noted that the respondent took advantage of the victim whilst the latter was sleeping. His offence was not further aggravated by the use of force or threats. He did desist forthwith once the victim realised it was not her partner engaging in sexual intercourse with her. He entered a guilty plea after the charge was amended to allege recklessness as to consent rather than knowledge of the lack of it.

8. As already noted, the respondent had a significant criminal history dating back to 1988 when he was a juvenile. Her Honour particularly noted that in 1993, when aged 19 years, the respondent was sentenced to two years’ imprisonment with an additional term of 12 months for a similar offence. The victim impact statement was taken into account. Her Honour noted that whilst the impact on Ms [V] was ‘substantial’ it was not ‘of the most serious nature’. She accepted that the respondent had demonstrated remorse.

9. The respondent’s personal circumstances her Honour found to be ‘extraordinarily sad’. She was persuaded that the possible cognitive deficit from which the respondent suffered made him an inappropriate vehicle for general deterrence but she accepted that particular deterrence was appropriate.

10. Her Honour sentenced the respondent ‘to imprisonment for 2 years and 10 months, with a non-parole period of 20 months’. But for the plea, her Honour observed, the sentence would have been three and a half years with a non-parole period of two years. This would represent a discount of approximately 19% on account of the guilty plea (see s 35 Crimes (Sentencing) Act 2005 (ACT)).

11. As Mr Chilcott, acting Director of Public Prosecutions, put it on appeal, the real complaint as to the sentence imposed, relied not on any specific error, but rather that the head sentence and non-parole period were too low before being discounted for the plea of guilty.

12. In his submission the sentence failed, as a result, sufficiently to meet the purposes stated in s 7 of the Crimes (Sentencing) Act 2005 (ACT).

13. Mr Thomas, for the respondent, acknowledged that her Honour had down played general deterrence by reference to a suspected cognitive deficit but submitted that there had been no challenge to that assumption by the Crown. In any event, her Honour did not disregard that consideration. He emphasised that many of the comparable sentences referred to by the appellant were imposed, not only against higher maxima, but in cases where there was knowledge of the lack of consent of the victim rather than recklessness as to it.

14. Even so, he conceded that the sentence could be viewed as ‘at the lower end of the scale’ but not ‘manifestly inadequate’.

15. In my view, whilst no specific error was identified, the offence was so serious that a starting point should have been five years not three and a half years, even after taking account of the personal circumstances of the respondent, including his possible cognitive deficit. It should also be recalled that the offence itself did not, in contrast with ss 51, 52 and 53 of the Crimes Act 1900 (ACT) include any element of violence or threats of violence. The maximum available penalty must be considered in that light. It is therefore not appropriate to regard the offence as being overly mitigated by the absence of such a factor.

16. That the respondent desisted when challenged was a mitigating factor. His prior criminal history was not.

17. His plea of guilty and the downgrading of the offence leading to it were factors tending to place the offence at a lower end of the scale than otherwise.

18. I would set aside the sentence imposed substituting a head sentence of four years from 16 May 2007 with a non-parole period, similarly proportionately reduced, of two years six months from that date.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 13 August 2008

IN THE SUPREME COURT OF THE ) No. ACTCA 4 - 2008

) No. SCC 366 of 2007

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Appellant

AND: KENNY KING

Respondent

Judges: Higgins CJ, Gray and Besanko JJ

Date: 13 August 2008

Place: Canberra

REASONS FOR JUDGMENT

GRAY J:

19. I agree that the appeal should be allowed and the respondent be resentenced in the terms proposed by Higgins CJ for the reasons given by Higgins CJ and Besanko J.

I certify that the preceding paragraph numbered nineteen (19) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 13 August 2008

IN THE SUPREME COURT OF THE ) No. ACTCA 4 - 2008

) No. SCC 366 of 2007

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Appellant

AND: KENNY KING

Respondent

Judges: Higgins CJ, Gray and Besanko JJ

Date: 13 August 2008

Place: Canberra

REASONS FOR JUDGMENT

BESANKO J:

20. The facts of this appeal are set out in the reasons for judgment of Higgins CJ. I agree with his Honour that the appeal should be allowed and with the sentence his Honour proposes.

21. The principles relevant to a Crown appeal against sentence are well-known and need not be re-stated: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310 per Barwick CJ; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324-326 [3]- [6] per Gleeson CJ and Hayne J; at 339-341 [57]-[62] per Kirby J; R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522 per Charles JA (with whom Winneke P and Hayne JA agreed); R v Lappas [2003] ACTCA 21; (2003) 152 ACTR 7 at 24-25 [119]- [124] per Cooper and Weinberg JJ.

22. I agree with Higgins CJ that the sentence imposed by the sentencing judge was manifestly inadequate and that in all the circumstances the appeal should be allowed irrespective of whether there was a specific error by the sentencing judge. In other words, the case is of a type identified by Gleeson CJ and Hayne J (at 325 [5]) and Kirby J (at 340 [59]) in Dinsdale. The factors relevant to the sentencing of the respondent are set out in the reasons for judgment of Higgins CJ. Having regard to those factors and the fact that the maximum penalty for the offence is 12 years’ imprisonment, a sentence of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 3 months before the allowance for the plea of guilty, is manifestly inadequate. However, in addition, I think there was a specific error by the sentencing judge and that it is proper to infer that the error has led to the imposition of a sentence which is manifestly inadequate.

23. There are a number of authorities dealing with the significance in the sentencing process of the fact that the defendant has an intellectual disability or a mental disorder or abnormality. The issue in this case is the significance of one of those possible conditions to considerations of general deterrence. There is no doubt that in the case of the offence of which the respondent was convicted, considerations of general deterrence would ordinarily be given substantial weight.

24. The authorities establish that if a defendant suffers from a significant mental illness or retardation, relatively little weight may be given to considerations of general deterrence. That follows from the view that in such circumstances the offender is not an appropriate medium for making an example to others. A mental disorder or abnormality which is less than a significant mental disorder or abnormality may also be relevant in reducing the significance of considerations of general deterrence. In such a case, and perhaps in the first type of case, “the moderation need not be great” if the offender acted with knowledge of what he was doing and with knowledge of the gravity of his actions: R v Wright (1997) 93 A Crim R 48 at 50-51 per Hunt CJ at CL (with whom Gleeson CJ and Hidden J agreed).

25. In this case the sentencing judge said:

Mr Edmonds raised the possibility that Mr King suffered a significant cognitive deficit as detracting from the relevance of general deterrence in this case and referred me to cases to the effect that ‘it is not appropriate to make an example of a person with a mental illness or a cognitive deficit and to hold them up to the community, in terms of the sentence that’s imposed’. I agree with Mr Edmonds that general deterrence need not be a significant issue in this sentencing decision. On the other hand, it appears from the Pre-Sentence Report that Mr King is able to understand what he has done, and therefore should be able to understand the sentence passed on him as a message that the offending behaviour is not acceptable and must not be repeated.

26. On the question of whether the respondent had a significant cognitive deficit, the sentencing judge had before her the following information:

(1) There was a pre-sentence report which referred to the respondent’s lack of even a basic education, and his history of alcohol abuse and in which the author said:

Mr King presented as having a significant cognitive deficit however this does not appear to have been formally assessed. This opinion is based on the offender’s poor memory, tangential verbal responses, lack of education and prolonged abuse of alcohol.

Later in the report, the author states that it is “plausible” that the offender’s extensive history of alcohol abuse had caused a degree of brain damage.

At the same time, the author stated that the respondent had no contact with Mental Health Services (“MHS”) apart from mental health induction into Belconnen Remand Centre. The respondent said that MHS had raised no concerns about the respondent’s mental wellbeing and he was currently not on any prescribed medication. The author had confirmed that information at the Remand Centre.

I note also that when discussing the respondent’s level of remorse the author of the pre-sentence report expressed the view that it appeared minimal and that the respondent had said: “[i]t’s not as though I tore all her clothes off, grabbed her, held her mouth”.

(2) A submission at the sentencing hearing by counsel for the respondent to the effect that there was some evidence, although not expert evidence, from which the sentencing judge could be satisfied that “the defendant does indeed suffer from cognitive deficit” and it would follow from that that “less emphasis” would need to be put on general deterrence. Presumably the evidence counsel was referring to was that contained in the pre-sentence report. Counsel for the appellant said that he acknowledged the “mitigating factors” in relation to the respondent including the fact that he had a possible cognitive deficiency.

27. In my opinion, the evidence before the sentencing judge did not establish that the respondent suffered from a significant mental illness or retardation. In those circumstances, the sentencing judge erred in concluding that general deterrence was not “a significant issue in this sentencing decision”. Put another way, the evidence before the sentencing judge probably established that the respondent had a low level of intellectual functioning, but it did not establish that he had a significant mental illness or retardation. There was no evidence that he acted without knowledge of what he was doing and, to some extent at least, of the gravity of his actions. I have read the submissions made to the sentencing judge by counsel and although it was certainly put by counsel for the respondent that the respondent had consumed a significant amount of alcohol on the day of the offence, it was not put that he acted without any knowledge of what he was doing or without at least some understanding of the gravity of his actions. In those circumstances the sentencing judge’s moderation of the considerations of general deterrence was far greater than what was called for by the circumstances of the case and led her to impose a sentence which was manifestly inadequate.

28. Before concluding, I should record the fact that the Court was referred to a number of cases which were said to be broadly comparable. Those cases involved decisions of this Court and of the superior Courts of New South Wales and Victoria. I will not discuss each of the cases to which the Court was referred. It is sufficient for me to say that I found reference to the cases of assistance in providing the context in which the adequacy of this sentence must be considered and that they support the conclusion that the sentence imposed by the sentencing judge was manifestly inadequate.

I certify that the preceding paragraphs numbered twenty (20) to twenty-eight (28) are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Date: 13 August 2008

Counsel for the Appellant: Mr M Chilcott

Solicitor for the Appellant: Director of Public Prosecutions for the ACT

Counsel for the Respondent: Mr R Thomas with Mr T Crispin

Solicitor for the Respondent: Paul Edmonds & Associates

Date of hearing: 27 June 2008

Date of judgment: 13 August 2008

Authorities Cited4

Referred to (4)