A repeat sex offender who broke into a woman's O'Connor home and raped her while she slept has had his jail sentence increased on appeal.
In March, ACT Supreme Court Justice Hilary Penfold sentenced homeless man Kenny King, 33, to a minimum of 20 months' jail for the rape of the 34-year-old woman in February last year.
It was the judge's first sentence since her appointment to the bench in February. Justice Penfold set a maximum of two years and 10 months.
Because King had already spent 10 months in custody, he would have been eligible for parole in January.
Justice Penfold discounted King's sentence after considering his troubled upbringing and plea of guilty.
The ACT Court of Appeal unanimously upheld the ACT Director of Public Prosecutions' appeal yesterday, on the grounds the sentence was manifestly inadequate.
The sentence was increased to four years' jail, with two years and six months non-parole, which means King will spend at least another eight months behind bars.
Acting Director of Public Prosecutions Michael Chilcott argued at the appeal that the head sentence and non-parole period were too low before being discounted for the plea of guilty. The judges accepted this.
Chief Justice Terence Higgins, Justice Malcolm Gray and visiting Federal Court judge Justice Anthony Besanko unanimously held the sentence was not reflective of the seriousness of the offence.
''Whilst no specific error was identified, the offence was so serious that a starting point should have been five years not 312 years, even after taking account of the personal circumstances of the respondent, including his possible cognitive deficit,'' the judges said, referring to King's suspected brain damage caused by severe alcoholism.
King broke into the woman's house on the night of February 16, 2007, and began having sex with her. Because it was dark, the woman mistook King for her partner, and allowed him to continue.
When she realised the mistake she screamed at him to stop, which he did. At the sentence, Justice Penfold took into account that King had not used threats or violence, and had stopped when asked.
The Court of Appeal accepted that this reduced the seriousness of the offence. Also, although King had initially been charged with engaging in sexual intercourse without consent, he pleaded guilty to the lesser offence of being recklessly indifferent as to whether there was consent.
''That the respondent desisted when challenged was a mitigating factor,'' the judges said.
''His plea of guilty and the downgrading of the offence leading to it were factors tending to place the offence at a lower end of the scale than otherwise.''
In 1993, King was jailed for three years for a sexual assault committed in Lismore, northern NSW, when he was 19. He also had a lengthy criminal history and previous prison sentences for assaults, thefts and traffic-related offences.
During sentencing proceedings the court was told King had lived in ''unsettled and abusive'' households since his mother died when he was three, and he had left home aged 12.
He had never gone to school and drank to ''extreme intoxication'' most days, sometimes up to 100 drinks a day.
Justice Penfold described King's childhood as extraordinarily sad and said imposing a term of imprisonment was not easy.
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