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Court of Criminal Appeal 27 May 1999

REGINA v BAUGH

[1999] NSWCCA 131

Assault & violence
CRIMINAL LAW SENTENCING CROWN APPEAL ASSAULT OCCASIONING ACTUAL BODILY HARM APPROPRIATE SENTENCE EXPRESSION OF REMORSE

Citation: Regina v Baugh [1999] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 27 May 1999
Judge(s): Spigelman CJ, Greg James J, Smart AJ

Background

The respondent, an 18-year-old, was involved in an incident at Sydenham Railway Station in October 1996. He and two companions approached a musician leaving a community club event and asked him for cigarettes. After the man refused and words were exchanged, the respondent followed him and delivered a single punch of considerable force. The victim fell, struck his head on the concrete floor, suffered a fractured skull and brain injury, and later died.

At trial before Hosking DCJ in the District Court, the respondent was acquitted of manslaughter but convicted of assault occasioning actual bodily harm. The respondent had maintained a claim of self-defence throughout, which the jury rejected. He had already served one year and two days in maximum security custody on remand before the sentence hearing.

Rather than imposing a custodial sentence, the trial judge deferred sentencing on the condition that the respondent enter into a three-year good behaviour recognisance with conditions requiring supervision, anger management, and substance abuse counselling. The Crown appealed that outcome as manifestly inadequate.

  • Whether the deferred sentence, effectively amounting to one year's imprisonment already served plus a risk of further penalty, was manifestly inadequate for the offence of assault occasioning actual bodily harm in the circumstances.
  • Whether the respondent's persistence in a false claim of self-defence was inconsistent with genuine remorse, and how that bore on sentencing.
  • What sentence was appropriate at the appellate stage, given the respondent had been at liberty for approximately six months between the original sentence and the appeal.

Decision

The Court of Criminal Appeal found the original sentence was manifestly inadequate. Spigelman CJ noted that the trial judge had himself considered a sentence of approximately two years' penal servitude would not have been inappropriate, yet ultimately imposed an outcome that left the effective penalty at one year's imprisonment already served, with only the threat of further penalty remaining. Given that the respondent had actively sought out the altercation, administered the blow, and caused very substantial injury involving a fractured skull and brain damage, the Court held the result fell well short of what the offence warranted.

On the question of remorse, the Court rejected the characterisation of the respondent as genuinely remorseful. The respondent had maintained a false assertion of self-defence throughout the trial, and the Court held that persistence was wholly inconsistent with any genuine expression of remorse, regardless of the fact that the Crown had indicated it would not accept a plea to a lesser charge.

In determining the re-sentence, the Court acknowledged the constraints applicable to Crown appeals, including the principle of double jeopardy (meaning an appellate court should impose the least sentence that should have been imposed at first instance, rather than a heavier one). It also noted that returning the respondent to full-time custody after six months at liberty would itself constitute a significant additional burden. For those reasons, the Court concluded that periodic detention, rather than full-time imprisonment, was the appropriate remedy at the appellate stage, even though it would not have been considered appropriate at first instance.

Orders Made

  • Appeal allowed.
  • Original sentence quashed.
  • Respondent sentenced to a term of two years to be served by way of Periodic Detention, commencing Friday 4 June 1999.

Key Takeaways

  • A deferred sentence with a good behaviour recognisance may be manifestly inadequate where the objective seriousness of the assault, including the degree of injury caused and the aggravating conduct of the offender in instigating the confrontation, is significant.
  • Persistent assertion of a false defence at trial is wholly inconsistent with a subsequent claim of remorse at sentencing, and the Court of Criminal Appeal confirmed this remains the case even where the prosecution declined to accept a plea to a lesser charge.
  • On Crown appeals, appellate courts apply the principle that they should impose the least sentence that should have been imposed at first instance, rather than a heavier one, and must also account for any double jeopardy element.
  • Changed circumstances between sentencing and the appeal hearing, such as a period of liberty already served, are relevant to the form of sentence the appellate court ultimately imposes.
  • Periodic Detention was treated as an appropriate appellate remedy in these specific circumstances, while Spigelman CJ expressly noted it would not have been appropriate as the original sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)

Cases:
- The Queen v De Simoni (1981) 147 CLR 383 (principle that an offender cannot be sentenced for an offence of which they were not convicted)