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Both the accused and the victim were under the influence of a considerable amount of alcohol

The offender’s failure to comply with parole conditions in the past convinced the court that imposing a long term of supervision would be futile.

In R v Robert Keith King [2007] NSWDC 306, King was sentenced for sexually penetrating a victim without her consent in violation of section 61I of the Crimes Act. The offence has a standard non-parole period of 7 years. King entered a guilty plea and, in exchange for that plea, the prosecution dismissed a second charge that alleged another violation of the same statute.

Since King entered a guilty plea, the court viewed the standard non-parole period as advisory in nature. It determined that the circumstances of King’s case justified a shorter non-parole period.

Facts surrounding the offence

The victim knew King but did not know him well. She accompanied King and some other people to Ballina where she consumed alcohol. Later, she fell asleep in the back of a vehicle. King was driving her home when the car ran out of petrol or broke down. The victim sat in a park while King tried to get assistance with the car.

The victim entered a public toilet in the park. King eventually followed her into the toilet and placed his fingers inside her vagina without her consent. They struggled and the victim hit her head. Both King and the victim were under the influence of a considerable amount of alcohol.

The victim entered a nearby service station and told the attendant that she had been raped. Police were summoned.

While King’s lawyer contended that King misinterpreted the situation by mistakenly believing that the victim would welcome his advances, the court rejected that argument. Given the struggle and the fact that King entered a place where the victim would expect to perform bodily functions without any intrusion, the court found no basis for concluding that King’s misunderstanding of the victim’s desires was reasonable or motivated by the victim’s actions.

Facts concerning the offender

King had a lengthy criminal record. Most of his offences involved acts of dishonesty, but they also included acts of obscene exposure and violent offences. He served a prison sentence for robbery and another for breaking and entering. After his release he committed a number of assaultive offences, primarily offences of domestic violence, for which he was again sentenced to custody.

King participated in treatment for substance abuse issues. On more than one occasion, however, his parole was revoked for reasons that at least partially involved his consumption of alcohol or drugs. He has not been cooperative with parole authorities or compliant with his parole conditions. His noncompliance includes his repeated failures to report to authorities when ordered to do so.

King has a supportive mother who did her best to shield him from people who influence him in negative ways. He left school after being suspended. He has little employment history but shows great potential as an artist, having won a prize from a gallery for one of his paintings.

The court’s sentencing decision

As the law requires, the court considered a victim impact statement. However, the court discounted the value of that statement since it was prepared by a social worker, not by the victim. The statement had the characteristics of “a piece of advocacy” rather than the victim’s honest reflection of the impact the crime had on her life.

A psychiatric report indicated that King has two serious personality disorders. The court accepted that as an aboriginal, King has long lived under circumstances of economic and social disadvantage.

The court believed that additional supervision would be of little benefit in light of King’s persistent noncompliance with terms of supervision imposed in the past. The court was unable to conclude that special circumstances existed that would justify an extended period of parole supervision. The court did find a special circumstance in the fact that King was serving another sentence while awaiting trial on this offence.

King did not plead guilty until the first day of trial but the court discounted his sentence by 15% because his guilty plea saved the victim from testifying. It was also unclear whether the agreement to accept his plea to a single count was available at an earlier stage of the case.

The court imposed a non-parole period of 4 years and 3 months. The balance of the sentence was 1 year and 7 months.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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