AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 13 February 2009

Kite v Regina

[2009] NSWCCA 12

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT DISCOUNT FOR PLEA OF GUILTY REMORSE AND REHABILITATION UNDER S21A CHARACTER

Citation: Kite v Regina [2009] NSWCCA 12
Court: New South Wales Court of Criminal Appeal
Date: 13 February 2009
Judge(s): Grove J, Blanch J, Kirby J

Background

The applicant pleaded guilty in the Local Court to two offences of sexual intercourse with a person under the age of ten years, contrary to s 66A of the Crimes Act 1900. Each offence carried a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years. The offences involved the serious sexual assault of a six-year-old girl at a family New Year's Eve gathering.

The District Court sentenced the applicant to eight years and four months on each count, with a non-parole period of five years per count, resulting in a combined non-parole period of five years and six months. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive.

The challenge was confined to two specific errors said to have been made by the sentencing judge: a failure to give any benefit for the applicant's remorse, and an erroneous conclusion that the applicant's rehabilitation prospects were poor.

  • Whether the sentencing judge erred by failing to treat the applicant's genuine remorse as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in finding that the applicant had poor rehabilitation prospects, contrary to the evidence before him
  • Whether the applicant's otherwise limited prior criminal record was given adequate weight as a character consideration

Decision

The Court of Criminal Appeal found that the sentencing judge had accepted, in his own remarks, that the applicant's remorse was genuine. Despite that acceptance, the judge did not treat remorse as a separate mitigating factor beyond absorbing it into the discount for the guilty plea. The Court held this was an error: under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, genuine remorse is a statutory mitigating factor that requires independent recognition in the sentencing exercise.

On rehabilitation, the Court found that the sentencing judge's conclusion was not supported by the evidence. A psychologist's report before the District Court indicated a genuine motivation to change and an intention to engage in treatment. The Court held that the evidence was sufficient to support a finding of good rehabilitation prospects, and that s 21A(3)(h), which identifies prospects of rehabilitation as a mitigating factor, required that finding to be reflected in the sentence.

The Court also noted some ambiguity in the sentencing remarks concerning the weight given to the applicant's limited prior convictions. Citing the High Court's observation in Ryan v The Queen (2001) 206 CLR 267, the Court confirmed that an offender is entitled to some leniency for otherwise good character, and that this needed to be considered in re-sentencing.

The Court acknowledged the significant difficulty in re-sentencing, given the need to balance the applicant's subjective features against offences of serious objective gravity. The standard non-parole period of 15 years was noted as a parliamentary signal of the seriousness with which the law treats this category of offending, and the Court confirmed that general deterrence must be prominently reflected in such sentences.

Orders Made

  • Leave to appeal granted
  • Appeal against severity of sentence allowed
  • Sentence on the first count quashed; replaced with a non-parole period of 4 years and 6 months from 6 December 2007 and a balance of term of 3 years
  • Sentence on the second count quashed; replaced with a non-parole period of 4 years and 6 months from 6 June 2008 and a balance of term of 3 years

Key Takeaways

  • Genuine remorse, once accepted by a sentencing judge, must be treated as a distinct mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. It cannot simply be subsumed within the discount afforded for a guilty plea.
  • Where psychological evidence before a sentencing court demonstrates genuine motivation to engage in treatment, a finding of poor rehabilitation prospects is not sustainable and may constitute a sentencing error.
  • Under s 21A(3)(h), good rehabilitation prospects are a statutory mitigating factor, and the sentencing court is required to give them weight in fixing the sentence.
  • A sentencing court must give some leniency for an offender's otherwise good character, even in cases involving very serious offending, as confirmed by the High Court in Ryan v The Queen.
  • In dismissing any suggestion that post-sentence custodial conduct improved the applicant's position beyond what had already been available at sentencing, the Court of Criminal Appeal confirmed it would assess rehabilitation prospects by reference to the material that was before the original sentencing judge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(h), 21A(3)(i)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9

Cases:
- Ryan v The Queen (2001) 206 CLR 267
- R v Gallagher (1991) 23 NSWLR 220
- R v Saleib [2005] NSWCCA 85
- R v MAK and R v MSK (2006) 167 A Crim R 159