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Court of Criminal Appeal 16 May 2006

REGINA v BAKER

[2006] NSWCCA 135

Sexual offencesAssault & violence
SENTENCE APPEAL DELAY OF 10 YEARS IN PROSECUTION

Citation: REGINA v BAKER [2006] NSWCCA 135
Court: NSW Court of Criminal Appeal
Date: 16 May 2006
Judge(s): Simpson J, Adams J, Hoeben J

Background

The applicant was convicted by a jury of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900, arising from an offence committed on 8 April 1994. The offence involved violent rape, during which the applicant grabbed the victim by the throat, struck her in the face and eye, and caused her actual bodily harm. It was the infliction of that bodily harm that constituted the aggravating element of the charge.

Nearly a decade passed between the offence and the applicant's trial. After being charged and granted bail in 1995, the applicant absconded and failed to appear at court. A bench warrant issued for his arrest was not executed until January 2004. He was tried, convicted, and sentenced in 2004.

At sentencing before Ainslie-Wallace DCJ in the District Court, the applicant was 67 years old. He received a sentence of six years and six months' imprisonment with a non-parole period of four years, meaning he would be 71 years old before becoming eligible for release. He applied to the Court of Criminal Appeal for leave to appeal against the severity of that sentence.

  • Whether the applicant's age and health at the time of sentencing warranted a reduction in the sentence imposed.
  • Whether the approximately ten-year delay between the offence and sentencing justified an adjustment to the sentence, on the basis it was heavier than would have been imposed closer to the time of the offence.
  • Whether the sentence fell within the range of sentences that would have been appropriate at the time the offence was committed in 1994.

Decision

The Court accepted that, as a general principle, a sentence should reflect the sentencing patterns current at the date of the offence if those patterns had since moved adversely to offenders. Adams J reviewed relevant case law, including Wayne John Pratt (NSWCCA, 26 July 1996), and concluded that the sentence imposed was well within the range applicable for this type of offence both in 1994 and in 2004.

On the question of the applicant's age, the Court found it difficult to make any significant allowance in circumstances where the applicant's advanced age at sentencing was entirely a product of his own conduct in absconding. The delay that caused him to be sentenced as a 67-year-old was, in substance, self-inflicted.

Adams J acknowledged some sympathy with the applicant's personal circumstances, including his elderly mother and his request to be released in time for Christmas. However, those matters did not reveal any error in the exercise of the sentencing judge's discretion, and granting the reduction sought would have produced a sentence manifestly more lenient than the gravity of the offence warranted.

No error, explicit or implicit, was identified in the sentencing judge's reasons. Leave to appeal was granted, but the appeal was dismissed. Simpson J and Hoeben J both agreed with Adams J.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Where a delay in prosecution is caused by the offender absconding, the courts have recognised that the offender cannot rely on that self-caused delay as a basis for reducing the sentence imposed at the later date.
  • A sentencing court should, as a general matter, apply sentencing patterns current at the time of the offence where those patterns have since moved against offenders. However, this principle provides no windfall where the delay itself was created by the offender.
  • Advanced age and poor health are factors that may be relevant to sentence, but their weight is significantly diminished when the offender's own conduct is the reason for their age or health being more acute at the time of sentencing.
  • No error was established in the District Court's exercise of sentencing discretion. The non-parole period of approximately 60% of the head sentence was not found to indicate any departure from the standard ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that personal circumstances, including family considerations raised by an unrepresented applicant, will not justify intervention absent an identifiable error in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)

Cases:
- Wayne John Pratt (unreported, NSWCCA, 26 July 1996)