AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 3 October 2014

Khanchitanon v R

[2014] NSWCCA 204

Sexual offences
CRIMINAL LAW SEXUAL INTERCOURSE WITHOUT CONSENT APPLICANT WAS VICTIM'S EMPLOYER LEAVE REFUSED

Citation: Khanchitanon v R [2014] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 3 October 2014
Judge(s): Hoeben CJ at CL, Fullerton J, Adamson J (judgment delivered by Adamson J)

Background

The applicant was the owner of a Thai restaurant in Crow's Nest, Sydney. In late March and early April 2012, he committed two offences against a newly arrived international student who had just started working for him. On her first day of work, he indecently assaulted her. Two days later, while alone with her in the restaurant after closing, he forced her into a washing-up room and digitally penetrated her vagina despite her repeated verbal and physical resistance.

Following conviction after trial in the District Court, the applicant was sentenced to a fixed term of four months for the indecent assault and a total term of four years with a non-parole period of two years and six months for the sexual assault without consent. The sentencing judge found special circumstances, adjusting the ratio of the non-parole period to the total term from 75 per cent to 62.5 per cent. The sentencing judge assessed the objective seriousness of the second offence as towards the lower end, but not at the lowest end, of the scale of seriousness.

The applicant sought leave to appeal on a single ground: that the sentence imposed for the second count was manifestly excessive.

  • Whether the sentence for sexual intercourse without consent was manifestly excessive, having regard to the standard for establishing manifest excess (that the sentence was unreasonable or plainly unjust)
  • Whether the sentencing judge erred in treating the applicant's position as the victim's employer as an aggravating factor
  • Whether the finding that the applicant "completely disregarded" the victim's protestations was internally inconsistent with the finding that the offending ultimately ceased
  • Whether the sentencing judge erred in treating the prospect of deportation as relevant to the sentencing exercise

Decision

The Court of Criminal Appeal dismissed the application for leave, finding no error that made the sentence manifestly excessive.

On the employer-employee relationship as an aggravating factor, the Court rejected the argument that the victim's decision to continue reporting for work somehow diminished the applicant's abuse of his position of authority. The applicant was the victim's employer, she needed the work, and she was a new arrival to Australia. The sentencing judge was correct to treat this as an aggravating circumstance under s 21A of the Crimes (Sentencing Procedure) Act 1999.

The Court also rejected the submission that the sentencing judge's remarks were internally inconsistent. A careful reader could theoretically perceive tension between the finding that the applicant "completely disregarded" the victim's protestations and the acknowledgment that he ultimately stopped. However, the Court held that such pedantic analysis is inappropriate, particularly for remarks delivered orally and ex tempore immediately after the sentence hearing. Sentencing remarks of that kind are entitled to be read fairly, as a whole, and in context.

The Court found that the sentencing judge had erred in treating the prospect of deportation as extra-curial punishment relevant to sentencing, noting this was inconsistent with established authority. However, that error operated in the applicant's favour and therefore did not support a finding of manifest excess.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • In dismissing the application, the Court of Criminal Appeal confirmed that manifest excess requires more than identifying a potential inconsistency in the sentencing judge's language; the sentence itself must be unreasonable or plainly unjust.
  • An employer's abuse of authority over a vulnerable employee remains an aggravating factor regardless of whether the victim continued to attend work after the offending. The victim's practical need to keep working does not reduce the weight of that aggravating circumstance.
  • Oral, ex tempore remarks on sentence are to be read fairly and as a whole. A pedantic search for internal inconsistencies in such remarks is inappropriate and was expressly discouraged by the Court.
  • The actual or potential deportation of an offender is irrelevant to the sentencing exercise. Treating deportation as a form of extra-curial punishment warranting a discount in sentence constitutes an error of principle, as previously established in R v Pham [2005] NSWCCA 94.
  • Where a sentencing error is identified but that error operated in the applicant's favour rather than to his detriment, it will not support a successful appeal against sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I (sexual intercourse without consent), 61L (indecent assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)

Cases
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- R v Pham [2005] NSWCCA 94
- Kaminic v R [2014] NSWCCA 116