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District Court 2 December 2022

R v Kay

[2022] NSWDC 673

Sexual offencesDomestic & family violence

Citation: R v Kay [2022] NSWDC 673
Court: District Court of New South Wales
Date: 2 December 2022
Judge: Wass SC DCJ

Background

The Director of Public Prosecutions appealed to the District Court against sentences imposed by a Local Court Magistrate on 5 May 2022. The respondent had been convicted of two offences: sexually touching another person without consent (under s 61KC(a) of the Crimes Act 1900 (NSW)) and stalking or intimidating with intent to cause fear of physical harm (under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

The Local Court imposed wholly concurrent sentences totalling two years' imprisonment with a non-parole period of 12 months. The touching offence attracted the maximum sentence available to the Local Court (two years), while the stalking offence received a fixed term of only one month.

The Crown argued that the overall sentence was manifestly inadequate, that the Magistrate had erred in assessing the objective seriousness of the stalking offence, that concurrent sentences failed to reflect the full criminality involved, and that the ratio between the non-parole period and the head sentence was unduly generous given the respondent's rehabilitation prospects.

  • Whether the Magistrate's assessment of the stalking offence as being towards the lower end of objective seriousness was open on the evidence
  • Whether wholly concurrent sentences adequately reflected the purposes of sentencing, including community protection and specific deterrence
  • Whether the one-month fixed term for the stalking offence was manifestly inadequate
  • Whether the 50% ratio between the non-parole period and the head sentence (reflecting a finding of special circumstances) was justified given the respondent's rehabilitation prospects
  • Whether the District Court's residual discretion to dismiss the Crown appeal, notwithstanding error, should be exercised

Decision

Wass SC DCJ found that the Local Court sentence was infected by error sufficient to warrant intervention. The Magistrate's characterisation of the stalking offence as being at the lower end of objective seriousness was not open on the evidence. The Magistrate had reasoned, in part, that the victim was unaware of the respondent for "the vast bulk" of the following and that the stalking was "marginal" in its intent to cause fear. The District Court found this reasoning flawed, particularly given the nature of the conduct and its connection to the subsequent sexual touching.

The court also found error in the imposition of a wholly concurrent sentence for the stalking offence. Given that the two offences involved distinct criminality, full concurrency failed to adequately reflect the need for community protection and specific deterrence.

On the question of special circumstances, the court accepted that a finding of special circumstances was open, noting the respondent's age, the onerous conditions in which he was serving his sentence (including adverse COVID-19 conditions), and the need for supervised parole to assist with any rehabilitation. However, the court found the Magistrate's 50% ratio between the non-parole period and the head sentence was excessive. The District Court determined a ratio of 66% was appropriate on re-sentence.

Having found material error in both the assessment of objective seriousness and the concurrent sentencing approach, the court allowed the appeal and re-sentenced the respondent. The court applied principles of restraint consistent with authorities including Dinsdale v The Queen and Markarian v The Queen, noting that Crown appeals should remain rare and exceptional and must not unduly circumscribe sentencing discretion.

Orders Made

  • The appeal is allowed
  • The convictions are confirmed
  • The Local Court sentence is quashed
  • For the stalking offence: 12 months' imprisonment
  • For the sexual touching offence: 2 years' imprisonment
  • An aggregate sentence of 2 years and 6 months is imposed, with a non-parole period of 1 year and 8 months
  • The sentence dates from 7 January 2022 and expires on 6 July 2024
  • The respondent is eligible for release to parole on 6 September 2023

Key Takeaways

  • The District Court confirmed that a Magistrate's characterisation of objective seriousness must be supportable on the evidence; reasoning that the victim's unawareness of the stalking rendered it less serious was not open where the stalking was directly connected to a subsequent sexual assault.
  • Wholly concurrent sentences across offences involving distinct criminality may constitute error where they fail to adequately address sentencing purposes such as community protection and specific deterrence.
  • A finding of special circumstances warranting a departure from the standard non-parole period ratio remains open even where rehabilitation prospects are poor, provided other factors (such as onerous custodial conditions or the need for community supervision) justify it. However, the extent of the departure must remain proportionate.
  • Crown appeals against sentence carry a high threshold: the court must be satisfied of material error and that the sentence is so disproportionate as to justify intervention, with residual discretion to decline to interfere even where error is found.
  • Where error is established on a Crown appeal, the re-sentence is generally pitched toward the lower end of the appropriate range, consistent with restraint principles affirmed in Dinsdale and Markarian.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2020 (NSW), ss 23(1), 27
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1)
- Crimes Act 1900 (NSW), s 61KC(a)
- Criminal Appeal Act 1912 (NSW), ss 5D, 44

Cases
- CMB v Attorney-General (NSW) [2015] HCA 9
- Dinsdale v The Queen (2000) 202 CLR 321
- DK v Director of Public Prosecutions [2021] NSWCCA 134
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hay v DPP [2020] NSWCCA 75
- Markarian v The Queen [2005] HCA 25
- R v Hernando [2002] NSWCCA 489
- R v Liberti (1991) 55 A Crim R 120
- Collier v R [2012] NSWCCA 313
- Various further NSW Court of Criminal Appeal authorities cited in the judgment