MK v R [2024] NSWCCA 127

MK v R [2024] NSWCCA 127

The applicant's proposed approach to sentencing under s 66EA was contrary to the text, intent and purpose of the provision and the mischief it addressed. It was not correct that s 66EA(4) and (5) were irrelevant to sentencing, because the sentencing judge's findings had to be consistent with the jury's verdicts under that provision. The sentencing judge accepted the complainants' evidence beyond reasonable doubt, including their estimates of frequency, and made evidence-based findings about the nature, frequency and seriousness of the unlawful sexual acts. No factual error or failure properly to determine the facts was established. Because the manifest excess ground depended on the...

Jurisdiction
Australia
Judgment Date
17 July 2024
Procedural Posture
Application for Leave to Appeal Against Sentence in Criminal Proceedings / Court of Criminal Appeal; Appeal From District Court Sentence Imposed After Jury Trial
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['persistent Sexual Abuse of a Child' 'fact Finding on Sentence' 'objective Seriousness' 'manifest Excess' 'section 66 EA Crimes Act 1900 (nsw)']
['criminal Law' 'sentencing' 'criminal Appeals'] ['persistent Sexual Abuse of a Child' 'fact Finding on Sentence' 'objective Seriousness' 'manifest Excess' 'section 66 EA Crimes Act 1900 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal Against Sentence in Criminal Proceedings / Court of Criminal Appeal; Appeal From District Court Sentence Imposed After Jury Trial

Legal Issues

  1. 1 ["Whether the sentencing judge failed to properly determine the facts of the applicant's offending by sentencing on the basis of the estimated frequency of offending." 'Whether sentencing under the current s 66EA of the Crimes Act 1900 (NSW) required identification of specific occasions of unlawful sexual acts.' 'Whether the aggregate sentence was manifestly excessive.']

Ratio Decidendi

The applicant's proposed approach to sentencing under s 66EA was contrary to the text, intent and purpose of the provision and the mischief it addressed. It was not correct that s 66EA(4) and (5) were irrelevant to sentencing, because the sentencing judge's findings had to be consistent with the jury's verdicts under that provision. The sentencing judge accepted the complainants' evidence beyond reasonable doubt, including their estimates of frequency, and made evidence-based findings about the nature, frequency and seriousness of the unlawful sexual acts. No factual error or failure properly to determine the facts was established. Because the manifest excess ground depended on the...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']