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6
Court of Criminal Appeal 10 March 2010

King v R

[2010] NSWCCA 33

Sexual offences
CRIMINAL LAW SENTENCE AGGRAVATED SEXUAL ASSAULT PARITY OF SENTENCING

Citation: King v R [2010] NSWCCA 33
Court: New South Wales Court of Criminal Appeal
Date: 10 March 2010
Judge(s): Grove J, Simpson J, RA Hulme J

Background

The applicant was convicted by a jury of aggravated sexual assault in company, contrary to s 61JA of the Crimes Act 1900, following an incident in November 2005 at a house in Redfern. The offence involved the forced oral sexual assault of a vulnerable young woman who had been deprived of her liberty. The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The applicant was sentenced in the District Court by Woods DCJ to 13 years imprisonment with a non-parole period of 8 years. He was tried jointly with a co-offender, Weatherall, who was found guilty of two counts of the same offence. A third participant, Qoro, was sentenced separately.

The applicant sought leave to appeal out of time, having been sentenced in September 2007 but filing his application in August 2009. He argued on two grounds: first, that the sentencing judge wrongly took into account substantial emotional harm to the victim as an aggravating factor; and second, that his sentence was too severe when compared with that imposed on Weatherall.

  • Whether the sentencing judge erred by treating the substantial emotional harm suffered by the victim as an aggravating factor when the offence under s 61JA already involved the element of deprivation of liberty.
  • Whether the applicant's sentence was disproportionate compared to the sentence imposed on co-offender Weatherall, raising a parity ground of appeal.

Decision

Ground 1: Substantial Harm

The Court found no error in the sentencing judge's consideration of the emotional harm suffered by the victim. The Court accepted that while double-counting an element already embedded in an offence as a separate aggravating factor would constitute error, that was not what occurred here. The harm experienced by the victim went beyond the bare elements of the offence and was a legitimate matter for the judge to weigh in the sentencing exercise.

Ground 2: Parity

The Court rejected the parity argument. Comparing the sentences across the three offenders, the Court noted that the applicant received 13 years with a non-parole period of 8 years; Qoro received 14 years with a non-parole period of 10 years for an objectively similar offence; and Weatherall received a total of 15 years with a non-parole period of 10 years for two offences. The Court found that the applicant's sentence was, if anything, more favourable than Qoro's. No legitimate sense of grievance arose.

On the comparison with Weatherall specifically, the Court observed that although Weatherall was a principal in the second degree with respect to the count that mirrored the applicant's conduct, he was also the ringleader who actively encouraged multiple men to participate. The sentencing judge was entitled to conclude that their relative criminality and circumstances justified equivalent sentences on the individual counts, with partial accumulation applied to Weatherall's second offence to reflect the additional criminality.

Extension of Time

The Court granted the extension of time and leave to appeal, accepting that much of the delay stemmed from factors outside the applicant's control, including the need to obtain transcripts. However, having found no merit in either ground, the Court dismissed the appeal.

Orders Made

  • Extension of time to appeal granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Considering the emotional harm caused to a victim as an aggravating factor does not constitute double-counting simply because the offence carries a circumstance of aggravation relating to deprivation of liberty; the two elements address distinct aspects of the offending.
  • A parity argument on sentence requires the applicant to demonstrate a justifiable sense of grievance; where the applicant's sentence is comparable to or more lenient than that of a co-offender with similar objective criminality, no such grievance arises.
  • In assessing parity between a principal offender and a principal in the second degree, courts are entitled to weigh the full scope of each party's role, including conduct such as orchestrating or encouraging others to participate in the offending.
  • Partial accumulation of sentences for multiple offences by the same co-offender reflects the totality principle and does not automatically create a disparity requiring adjustment for co-offenders sentenced for a single count.
  • Delay in filing an application for leave to appeal may be excused where a significant portion of that delay arose from circumstances beyond the applicant's control, such as awaiting the provision of trial transcripts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61JA
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4

Cases:
- Doolan v R [2006] NSWCCA 29
- Elyard v Regina [2006] NSWCCA 43
- Nowak v R [2008] NSWCCA 89; 183 A Crim R 526
- Pearce v The Queen (1998) CLR 610
- Qoro v R [2008] NSWCCA 220
- R v Cunningham [2006] NSWCCA 176
- R v Solomon [2005] NSWCCA 158; 153 A Crim R 32
- R v Swan [2006] NSWCCA 47
- R v Youkhana [2004] NSWCCA 412

Other:
- Dyer A and Donnelly H, Sentencing Trends and Issues No 39, Judicial Commission of New South Wales, February 2010