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26
Court of Criminal Appeal 29 July 2005

R v KNL

[2005] NSWCCA 260

Also reported as (2005) 154 A Crim R 268
Sexual offences
CROWN APPEAL SEXUAL INTERCOURSE WITH CHILD AGED 12

Citation: R v KNL [2005] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 29 July 2005
Judge(s): Brownie AJA, Buddin J, Latham J

Background

The respondent, a 19-year-old male, pleaded guilty in the District Court at Orange to one count of sexual intercourse with a child aged between 10 and 16 years, contrary to s 66C(1) of the Crimes Act 1900. The complainant was 12 years and 2 months old at the time of the offence. The respondent drove her to a friend's house, where he later had vaginal intercourse with her despite her repeated requests to stop.

The respondent's position throughout sentencing was that he genuinely believed the complainant was 16, based on statements she had made to him and his friends on earlier occasions. This belief was supported by unsworn statements from several of the respondent's friends. Despite these circumstances, the respondent's pre-sentence report noted that he minimised his responsibility, showed little empathy for the complainant, and tended to transfer blame to her.

At first instance, Judge Finnane in the District Court imposed no conviction and granted the respondent a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999. The Director of Public Prosecutions appealed, contending the sentence was manifestly inadequate and failed to reflect the objective gravity of the offence.

  • Whether the sentencing judge erred in granting a s 10 bond (no conviction) for an offence of sexual intercourse with a 12-year-old child
  • Whether the respondent's asserted belief in the complainant's age could reduce the objective gravity of the offence so as to justify no conviction being recorded
  • Whether the sentencing judge gave disproportionate weight to the consequences of conviction, including registration under the Child Protection (Offenders Registration) Act 2000, at the expense of punishment and general deterrence
  • Whether the requirements of s 10 of the Crimes (Sentencing Procedure) Act 1999 were properly observed

Decision

Latham J, with whom Brownie AJA and Buddin J agreed, allowed the appeal and found specific error in the sentencing exercise. The sentencing judge had failed to give adequate weight to the complainant's age in assessing the objective gravity of the offence. The offence involved a 12-year-old child, and that fact alone required substantial acknowledgment in the sentencing outcome, regardless of the respondent's favourable subjective circumstances.

On the question of the respondent's belief in the complainant's age, Latham J accepted that such a belief, if genuine, could operate as a mitigating factor. However, it could not operate to reduce the objective gravity of the offence to a level that justified the complete absence of a conviction. The court noted the respondent's limited remorse and lack of empathy for the complainant, as reflected in the pre-sentence report.

The court also rejected the proposition that registration obligations under the Child Protection (Offenders Registration) Act 2000 amounted to extra-curial punishment warranting mitigation. Latham J distinguished the registration requirement from cases involving physical, financial, or employment-related consequences, observing that the respondent was not engaged in, or likely to pursue, an occupation involving access to children. Any weight attributable to registration consequences was, at most, minimal.

Applying double jeopardy principles, the Court of Criminal Appeal re-sentenced the respondent. It held that the least sentence capable of reflecting the offence's objective gravity was the recording of a conviction, with a good behaviour bond imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Appeal allowed
  • Sentence imposed on 8 April 2005 set aside
  • Respondent convicted of the offence
  • Good behaviour bond imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999 for 18 months, commencing 18 July 2005 and expiring 17 January 2007

Key Takeaways

  • A sentence that entirely avoids recording a conviction for sexual intercourse with a 12-year-old child may constitute specific error by failing to reflect the objective gravity of the offence.
  • An offender's genuine but mistaken belief in the complainant's age can be a mitigating factor, but it does not reduce the objective gravity of the offence to a degree that eliminates the need for a conviction.
  • Where a sentencing court allows the collateral consequences of conviction to override the demands of punishment and general deterrence, that approach can itself constitute an error in the exercise of sentencing discretion.
  • Registration requirements under the Child Protection (Offenders Registration) Act 2000 do not, in ordinary circumstances, amount to extra-curial punishment justifying mitigation of penalty; the Court of Criminal Appeal distinguished such requirements from physical, financial, or employment penalties recognised in earlier authorities.
  • In re-sentencing following a successful Crown appeal, the principle of double jeopardy continues to apply, and the appellate court will impose the least sentence that adequately addresses the objective seriousness of the offence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 [2004] NSWCCA 303
- Thomson and Houlton [2000] NSWCCA 309
- R v Sea CCA (unreported, 13 August 1990)
- R v McClymont CCA (unreported, 17 December 1992)
- R v Dent CCA (unreported, 14 March 1991)
- R v T (1990) 47 A Crim R 29
- R v Paris [2001] NSWCCA 83
- R v Daetz; R v Wilson [2003] NSWCCA 216