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34
Court of Criminal Appeal 4 July 2016

Baines v R

[2016] NSWCCA 132

Sexual offences
CRIMINAL LAW MANIFEST EXCESS USE OF COMPARATIVE CASES APPEAL DISMISSED.

Citation: Baines v R [2016] NSWCCA 132
Court: Court of Criminal Appeal, New South Wales
Date: 4 July 2016
Judge(s): Basten JA at [1]; Rothman J at [33]; Fagan J at [58]

Background

The appellant was a masseur working at a gymnasium who was convicted by a jury in the District Court of 11 counts of indecent assault against seven women, each offence occurring in the course of providing professional massage services. He subsequently pleaded guilty to two further counts on a separate indictment. The offending spanned approximately four years.

On 9 April 2015, the sentencing judge imposed an aggregate sentence of five years imprisonment with a non-parole period of three years. The appellant sought leave to appeal against that sentence on three grounds: that the sentencing judge impermissibly took uncharged acts into account, failed to account for the capacity to prosecute the offences summarily, and imposed a sentence that was manifestly excessive.

  • Whether the sentencing judge erred by taking uncharged acts into account in assessing the objective seriousness of the offences
  • Whether the sentencing judge was required to mitigate the sentence because the offences were capable of being dealt with summarily rather than on indictment
  • Whether the aggregate sentence of five years was manifestly excessive having regard to the nature of the offending, the victim impact evidence, and the indicative sentences for each individual count

Decision

Ground 1: Uncharged acts. The Court rejected the argument that the sentencing judge had impermissibly relied on uncharged acts. The judge had done no more than assess the seriousness of the charged offences against their surrounding circumstances, including the established course of conduct across all 13 counts before the court. The Court confirmed that while it is wrong to increase a penalty on account of other misconduct not before the court, it is not an error to assess the gravity of a specific offence by reference to surrounding circumstances proved beyond reasonable doubt. Earlier statements in cases such as R v JCW to the effect that other offences should not be taken into account absent an admission were read in their proper factual context and did not establish a general principle foreclosing reliance on matters proved at trial.

Ground 2: Summary jurisdiction. The Court acknowledged that the availability of summary disposition can, in appropriate cases, operate as a factor in mitigation, but is not a rule of law and is not mandatory. The Court expressed some scepticism about how and why this factor should reduce a sentence, noting the tension with the established principle that prosecutorial choices about jurisdiction are not subject to review by sentencing courts. Ultimately, the Court declined to find error simply because the sentencing judge had not explicitly addressed the point.

Ground 3: Manifest excess. This ground required closer attention. While the Court found no specific error in the sentencing judge's reasoning on objective seriousness or victim impact, it found that the indicative sentences assigned to individual counts (broadly, fixed terms of two years each) were excessive in several instances. In particular, some counts involved less serious conduct, single occasions, or single complainants, and the indicative terms for those counts did not adequately reflect those distinctions. The Court granted leave to appeal and resentenced the appellant, substituting significantly reduced terms.

Orders Made

  • Leave to appeal granted
  • Original sentences imposed on 9 April 2015 quashed
  • The appellant resentenced as follows on the indictment:
  • Counts 1, 2, 4, 5, and 6: good behaviour bond of 3 years under s 9 of the Crimes (Sentencing Procedure) Act 1999, commencing 9 April 2015
  • Count 8: 1 month imprisonment, commencing 9 April 2015
  • Count 3: 1 month imprisonment, commencing 9 May 2015
  • Count 7: 2 months imprisonment, commencing 9 June 2015
  • Counts 9, 10, and 11: 2 months each, running consecutively
  • Count 12: 2 months imprisonment, commencing 9 February 2016
  • Count 13: 2 months imprisonment, commencing 9 February 2016 (concurrent with Count 12)
  • The appellant entitled to be released forthwith

Key Takeaways

  • A sentencing court does not impermissibly take uncharged acts into account merely by assessing the objective gravity of a charged offence by reference to the broader course of conduct proved beyond reasonable doubt at trial. The error lies in increasing penalty for misconduct not before the court, not in examining established surrounding circumstances.

  • The availability of summary prosecution for an offence charged on indictment may, in appropriate circumstances, be a mitigating factor, but the Court of Criminal Appeal indicated it does not operate as a binding rule of law and its practical significance will vary considerably from case to case.

  • Under the established principle affirmed in Magaming v The Queen, the decision about which court to prosecute in rests with the prosecuting authorities, not the courts, and a sentencing court is not positioned to review that choice as a presumptive fetter on its discretion.

  • Appellate courts are slow to disturb a sentencing judge's assessment of objective seriousness, particularly where the judge has had the benefit of hearing complainants and the offender give evidence. The absence of a trial transcript further limits the Court of Criminal Appeal's ability to reassess such findings.

  • Manifest excess may be established through an examination of indicative sentences for individual counts, even where the aggregate sentence is not obviously disproportionate on its face. Failure to differentiate between counts of varying seriousness within a course of offending can reveal error in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Procedure Act 1986 (NSW), s 260

Cases
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- R v JCW [2000] NSWCCA 209; 112 A Crim R 466
- R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
- Bonwick v R [2010] NSWCCA 177
- R v Palmer [2005] NSWCCA 349
- R v Crombie [1999] NSWCCA 297
- Mulato v Regina [2006] NSWCCA 282
- RP v R [2013] NSWCCA 192
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Einfeld v Regina [2010] NSWCCA 87; (2010) 200 A Crim R 1
- Lago v R [2015] NSWCCA 296
- Aktar v R [2015] NSWCCA 123
- R v MA [2001] NSWCCA 30
- Jalloh v R [2009] NSWCCA 295