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32
Court of Criminal Appeal 23 April 2009

R v Ronald KING

[2009] NSWCCA 117

Sexual offences
CRIMINAL LAW CROWN APPEAL RESPONDENT DIGITALLY PENETRATED 4 YEAR OLD GIRL SUSPENDED SENTENCE IMPOSED WHETHER MANIFESTLY INADEQUATE

Citation: R v Ronald KING [2009] NSWCCA 117
Court: New South Wales Court of Criminal Appeal
Date: 23 April 2009
Judge(s): McClellan CJ at CL, Grove J, Howie J

Background

The respondent pleaded guilty to an offence of sexual intercourse with a child under 10 years, contrary to s 66A of the Crimes Act 1900. The offence involved the digital penetration of a 4-year-old girl who was asleep at her grandmother's home. The respondent had entered the premises without permission during the night.

The respondent also asked the sentencing court to take into account three further offences on a Form 1: an act of indecency (masturbating over the child), stealing from a dwelling, and attempting to take a motor vehicle. The maximum penalty for the principal offence is 25 years imprisonment, with a standard non-parole period of 15 years.

The District Court sentenced the respondent to 2 years imprisonment, immediately suspended upon his entering into a 2-year good behaviour bond. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the suspended sentence was manifestly inadequate for an offence of sexual intercourse with a child under 10 years
  • Whether the sentencing judge erred in applying an "Ellis discount" (a reduction available where an offender's admissions to police materially assist the investigation) in the circumstances of this case
  • Whether the sentencing judge erred in suspending the sentence
  • Whether the sentencing judge gave sufficient weight to the denunciatory purpose of sentencing
  • Whether there were discretionary reasons to dismiss the Crown appeal despite any identified errors
  • What the appropriate sentence was on resentencing, taking into account matters on the Form 1, extra-curial punishment experienced by the respondent, and the fact this was a Crown appeal

Decision

Senior counsel for the respondent conceded two substantial errors at the outset. First, the sentencing judge wrongly applied an "Ellis discount" of 25 per cent. The Ellis discount arises where an offender's admissions to police go beyond what is required to establish the charge and meaningfully assist the investigation. The Court found the circumstances here did not warrant that reduction. Second, counsel conceded the judge erred in suspending the sentence. The Court held that these concessions alone established the sentence was manifestly inadequate.

The Court emphasised the denunciatory function of sentencing, drawn from s 3A(f) of the Crimes (Sentencing Procedure) Act 1999. Citing R v MacDonald, the Court reaffirmed that a sentence must express society's condemnation of the offending. The suspended sentence fell "far short" of doing so, which the Court identified as the most serious error in the sentencing exercise.

On resentencing, the Court noted that the sentence which ought to have been imposed, after a 25 per cent plea discount and without the Ellis reduction, would have been approximately 9 years, with a non-parole period of around 6 years and 9 months. However, the Court exercised its discretion to impose a significantly reduced sentence. It took into account the respondent's disappointment at having a more lenient sentence quashed, a degree of extra-curial punishment he suffered (including fear of vigilante reprisals flowing from public attention on the case), and the fact this was a Crown appeal. The Court also found special circumstances warranting an extended parole period, given this was a Crown appeal and represented a final opportunity to assist the respondent's rehabilitation.

Orders Made

  • The appeal is allowed.
  • The sentence imposed in the District Court is quashed.
  • Taking into account the matters on the Form 1, the respondent is sentenced to a term of imprisonment comprising a non-parole period of 4 years 6 months and a balance of term of 2 years 6 months, dating from 28 November 2007, with eligibility for release to parole on 27 May 2012.

Key Takeaways

  • A sentence for a serious sexual offence against a young child must give meaningful effect to the denunciatory purpose of punishment under s 3A(f) of the Crimes (Sentencing Procedure) Act 1999; a suspended sentence was found wholly inadequate to achieve this.
  • An "Ellis discount" is not automatic upon an offender making admissions to police. The discount applies where those admissions go beyond what was necessary to establish the charge and provide material assistance to the investigation.
  • Where two substantial sentencing errors are conceded by the respondent's own counsel, that will ordinarily be sufficient to establish that a sentence is manifestly inadequate and to justify intervention by the Court of Criminal Appeal.
  • On a Crown appeal, the Court of Criminal Appeal retains a discretion to impose a sentence lower than what would otherwise have been appropriate at first instance, taking into account factors such as extra-curial punishment, the respondent's disappointment at having an unexpected lenient sentence quashed, and the nature of the appeal.
  • Form 1 matters carry genuine sentencing weight; the Court expressly noted that the matters taken into account on the Form 1 informed the sentence ultimately imposed on resentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(f), 21A(3)(g)
- Crimes Act 1900 (NSW), s 66A

Cases
- R v MacDonald (NSWCCA, unreported, 12 December 1995)
- MLP v R [2006] NSWCCA 271; 164 A Crim R 93
- Mencarious v R [2008] NSWCCA 237
- R v Johnson [2004] NSWCCA 140
- R v Hibbert [2009] NSWCCA 20
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v MJR (2002) 54 NSWLR 368
- R v Borkowski [2009] NSWCCA 102
- R v Ellis (1986) 6 NSWLR 603
- S v R [2008] NSWCCA 186
- R v Zamagias [2002] NSWCCA 17