KAF v R [2009] NSWCCA 184

KAF v R [2009] NSWCCA 184

The sentencing judge did not err in finding the offences to be in the mid-range of objective seriousness, because she identified the critical factors of the victim's age and the applicant's authority as her father, while also acknowledging limited penetration and absence of physical injury; elaborate comparison with a putative mid-range offence was not required. The only error was the technical error of imposing a fixed term for count 1 despite the applicable standard non-parole period, requiring the Court to quash that sentence and impose a non-parole period and balance of term.

Jurisdiction
Australia
Judgment Date
10 July 2009
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal to the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted and appeal upheld in part; appeal otherwise dismissed.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'standard Non Parole Period' 'objective Seriousness' 'fixed Term of Imprisonment' 'form 1 Offences']
['criminal Law' 'sentencing'] ['aggravated Sexual Intercourse Without Consent' 'standard Non Parole Period' 'objective Seriousness' 'fixed Term of Imprisonment' 'form 1 Offences']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal to the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by imposing a fixed term of imprisonment for count 1 where a standard non-parole period applied and s 45(1) of the Crimes (Sentencing Procedure) Act 1999 required a non-parole period to be set.' 'Whether the sentencing judge erred in assessing the offences as falling within the mid-range of objective seriousness by failing to consider and contrast a putative mid-range offence.' 'Whether digital penetration in count 2 meant the offence must fall below the mid-range of objective seriousness.']

Ratio Decidendi

The sentencing judge did not err in finding the offences to be in the mid-range of objective seriousness, because she identified the critical factors of the victim's age and the applicant's authority as her father, while also acknowledging limited penetration and absence of physical injury; elaborate comparison with a putative mid-range offence was not required. The only error was the technical error of imposing a fixed term for count 1 despite the applicable standard non-parole period, requiring the Court to quash that sentence and impose a non-parole period and balance of term.

Court Disposition

Leave to appeal granted and appeal upheld in part; appeal otherwise dismissed.

Orders

  • ['Leave to appeal granted and the appeal upheld in part.' 'The sentence imposed in relation to count 1 quashed and in lieu thereof the applicant is sentenced to a non-parole period of 5 years to date from 19 August 2007 and expire on 18 August 2012 with a balance of term of 3 years to expire on 18 August 2015.' 'The...