The Criminal Law NSW Noticeboard is your one-stop-shop for criminal law news as it occurs. With rapid updating by District Court Judge, Martin Blackmore, the Noticeboard keeps you apprised of all of the latest legislative and case developments related to the practice of criminal law in NSW. For a more detailed look into these and other criminal law matters, Criminal Law NSW, the authority on criminal law in NSW for almost 100 years, is available for subscription online, in looseleaf or on ProView eSub.

March 2017

Cases

• The meaning of “the worst category” with regard to characterising the seriousness of an offence during sentence proceedings – R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 and
• The meaning of doli incapax and how the doctrine is to be applied – RP v The Queen (2016) 91 ALJR 248; [2016] HCA 53

CASES

Updated 6 March 2017

The meaning of “the worst category” with regard to characterising the seriousness of an offence during sentence proceedings

Criminal law – Sentencing – Intentionally causing serious injury – Where respondent and victim in domestic relationship – Where victim 12 weeks pregnant with respondent’s child – Where respondent caused serious injury to victim by dousing her with petrol and setting her alight – Where instant offence at upper end of range of seriousness for offence of intentionally causing serious injury – Whether Court of Appeal erred in use of expression “worst category” of offence – Whether Court of Appeal erred in consideration of current sentencing practices – Whether sentence imposed by sentencing judge manifestly excessive

R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 – 7 December 2016 High Court of Australia Bell, Gageler, Keane, Nettle, Gordon JJ

Facts: The Crown appealed the judgment of the Victorian Court of Appeal which had significantly reduced the sentence of the respondent who doused a victim with petrol and set her alight. As a result, the victim was very seriously injured and has been left with very significant scarring to large areas of her body. The victim was pregnant at the time of the assault and as a result, the pregnancy was terminated.

In sentencing the offender, the County Court judge said that it was hard to recall a more serious example of intentionally causing serious injury. The judge noted the age of the offender being 22 and his relatively minor but not insignificant prior criminal history which did not include previous offences of violence. He was serving a community correction order at the time of the offence which aggravated the seriousness of the offending. The judge also noted that it was difficult to assess the offender’s propsects of rehabilitation. The offender was sentenced to a total term of 18 years imprisonment with a non-parole period of 15 years.

The offender appealed to the Court of Appeal (Vic). That court noted that the offending was truly horrific and that the “intentional setting on fire of any person with ensuing and entirely predictable life-threatening burns to a large part of the body” places the case within the worst category of this offence. Despite that characterisation, the Court of Appeal upheld the appeal and re-sentenced the offender to a total sentence of 10 years and 10 months with a non-parole period of 7 years and 6 months.

The Crown appealed to the High Court.

Worst category of offence

The High Court’s judgment was unanimous. The Court found that, in this case, it was necessary to say something about the Court of Appeal’s use of the expression “the worst category of this offence”. The Court said at [18]:

What is meant by an offence falling within the “worst category” of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence.

In making the assessment of worst case, the sentencing court takes into account both the nature of the crime and the circumstances of the offender. Once it is recognised that the case falls into the worst category, it does not matter that it is possible to conceive of even worse instances of the offence; so even though worse cases could be imagined, a case falling into the worst category still warrants imposition of the maximum penalty. The Court further noted that it “is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being ‘within the worst category’. It is a practice which should be avoided.” (emphasis added)

Further, the Court also noted that whilst lawyers might understand the meaning of the phrase “worst category of offence”, laypersons are unlikely to be familiar with the term and could misunderstand its meaning. So as to avoid that possibility, the Court noted that sentencing courts should avoid the phrase “worst category of offence” and instead merely “state in full whether the offence is or is not so grave as to warrant the maximum penalty” for the offence.

The Court of Appeal had, in fact found, that the case was not within the worst category for this offence and consequently, that Court should have avoided using that term in its judgment.

Held: Appeal upheld. The appeal by the respondent to the Court of Appeal should be dismissed. The sentence imposed in the County Court confirmed.

The meaning of doli incapax and how the doctrine is to be applied

Criminal law – Criminal liability and capacity – Doli incapax – Where appellant convicted of two counts of sexual intercourse with child under 10 years – Where appellant approximately 11 years and six months at time of offending – Where appellant found to be of very low intelligence – Whether presumption of doli incapax rebutted

RP v The Queen (2016) 91 ALJR 248; [2016] HCA 53 – 21 December 2016 High Court of Australia Kiefel, Bell, Gageler, Keane, Gordon JJ

Facts: The complainant was around the age of 7 when he was first allegedly sexually assaulted by the appellant, his older brother. At that time, the appellant was found to be around the age of 11 years and 6 months. Other offences allegedly occurred when the complainant and the accused were older. The sole issue at the criminal trial of the appellant was whether the appellant was doli incapax.

Doli incapax

At law, there is a presumption that a child under the age of 14 years is doli incapax. An accused child who is doli incapax is one who is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks to capacity for mens rea. The presumption of doli incapax at common law is rebuttable when the child is over the age of 7 but under the age of 14. Thus, the Crown can produce evidence to satisfy the court that the child is in fact doli incapax.

In NSW, there is a further statute that must be considered. Section 5 of the Children (Criminal Proceedings) Act 1987 provides for a conclusive presumption that a child under the age of 10 cannot be guilty of an offence. This section operates completely independently of the common law presumption of doli incapax.

To prove capax, the Crown must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew that it was morally wrong to engage in the alleged conduct. This directs attention being paid to the child’s education and the environment in which the child was raised. The presumption of doli incapax cannot be rebutted merely by creating an inference from the doing of the act or acts alleged to make out the offences. In as much as the contrary might be suggested in the Victorian decision of R v ALH (2003) 6 VR 276; [2003] VSCA 129 at [86], that decision is wrongly decided.

Held: The Court found that the age of the child in this case, together with his intellectual development which included that evidence that he had an extremely low IQ were given insufficient weight by the primary court. The plurality noted at [35] that “[w]hile the evidence of the appellant's intellectual limitations does not preclude a finding that the presumption had been rebutted, it does point to the need for clear evidence that, despite those limitations, he possessed the requisite understanding”. Further, the Court noted that no evidence was lead as to the child’s performance at school. Some of the language and actions of the accused child used during the alleged offence raised real questions as to whether the child had had access to inappropriate sexually explicit material and or had been subject to sexual assault himself. Despite this possibility being flagged at the trial, the Crown did not call the child’s father or other persons responsible for the child’s care to give an account of the environment in which he was raised.

Result: The Court found unanimously that the Crown had not discharged its onus to rebut the presumption of doli incapax. The appeal was allowed and verdicts of acquittal were entered.

Comment

In these two cases, the High Court has provided guidance with respect to two important areas of the law.

In relation to the law of sentencing, the Court noted that it is generally unhelpful to use the phrase “worst category of offence” when delivering a sentencing judgment. The phrase is likely to be misunderstood by laypersons. It is preferable for the court to simply point to the reasons why the maximum penalty is either an appropriate sentence in the circumstances of the particular offence or why it is not.

Doli incapax is an often misunderstood presumption of incapacity that the High Court has clarified by its judgment in RP. What the judgment highlights is the need for evidence of the child’s development including evidence relating to his or her education, level of intellectual development and the environment in which the child was raised in order to rebut the presumption of doli incapax. Whilst evidence of the acts carried out by the accused child will provide some evidence to rebut the presumption, such evidence alone will be insufficient to rebut the presumption beyond reasonable doubt.

Some content sourced from FirstPoint powered by Australian Digest.

We hope you enjoy your Criminal Law NSW Bulletin in this new format. We are always striving to improve our products to meet your needs. If you have any feedback on how we may provide further enhancements, please post a comment below or contact us on crimlawnsw.direct@thomsonreuters.com.