Khanchitanon v R [2014] NSWCCA 204

Khanchitanon v R [2014] NSWCCA 204

The sentence for the second count was not manifestly excessive. It was open to the sentencing judge to assess the offending as towards the lower end, but not the lowest end, of seriousness, having regard to the forced digital penetration, the applicant's abuse of authority as the victim's employer, the victim's vulnerability as a new arrival who needed work, and the applicant's disregard of her protestations during the offending. Any error in taking potential deportation into account operated in the applicant's favour and did not justify appellate intervention.

Jurisdiction
Australia
Judgment Date
03 October 2014
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Application for Leave to Appeal From Sentences Imposed by Syme DCJ on 9 May 2013
Outcome
Leave to appeal refused
Legal Topics
['sexual Intercourse Without Consent' 'indecent Assault' 'manifest Excess' 'objective Seriousness' 'abuse of Authority' 'deportation and Sentencing' 'special Circumstances']
['criminal Law' 'sentencing'] ['sexual Intercourse Without Consent' 'indecent Assault' 'manifest Excess' 'objective Seriousness' 'abuse of Authority' 'deportation and Sentencing' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Application for Leave to Appeal From Sentences Imposed by Syme DCJ on 9 May 2013

Legal Issues

  1. 1 ['Whether the sentence imposed for sexual intercourse without consent was manifestly excessive.' "Whether the sentencing judge erred in treating the applicant's position as the victim's employer as an aggravating circumstance based on abuse of authority." "Whether the sentencing judge erred in finding that the applicant completely disregarded the victim's protestations." 'Whether potential deportation was relevant to the sentencing exercise.']

Ratio Decidendi

The sentence for the second count was not manifestly excessive. It was open to the sentencing judge to assess the offending as towards the lower end, but not the lowest end, of seriousness, having regard to the forced digital penetration, the applicant's abuse of authority as the victim's employer, the victim's vulnerability as a new arrival who needed work, and the applicant's disregard of her protestations during the offending. Any error in taking potential deportation into account operated in the applicant's favour and did not justify appellate intervention.

Court Disposition

Leave to appeal refused

Orders

  • ['Refuse leave to appeal.']