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23
Court of Criminal Appeal 21 February 2020

Baden v R

[2020] NSWCCA 23

Sexual offences
CRIMINAL LAW SENTENCING

Citation: Baden v R [2020] NSWCCA 23
Court: Court of Criminal Appeal, New South Wales
Date: 21 February 2020
Judges: Bell P (with Walton J and Johnson J agreeing)

Background

The applicant pleaded guilty to four Commonwealth offences under the Criminal Code 1995 (Cth): two counts of procuring a child to engage in sexual activity outside Australia, one count of persistent sexual abuse of a child outside Australia, and one count of engaging in sexual activity with a child. He also pleaded guilty to two State offences of possessing child abuse material under the Crimes Act 1900 (NSW).

The offending involved two female children living in the Philippines with their mother, who was later sentenced to 20 years' imprisonment in the Philippines for trafficking. The elder child was aged between 6 and 11 years across the relevant period; the younger was aged between 2 and 7 years. The offending involved online grooming over several years, webcam sexual activity, and payments totalling over $26,000 to the children's mother.

The applicant was sentenced to an aggregate term of 11 years and 4 months' imprisonment, with a non-parole period of 7 years and 4 months. He sought leave to appeal that sentence on four grounds.

  • Whether the sentencing judge failed to take into account the utilitarian value of the early guilty pleas in relation to the Commonwealth offences, contrary to the principles in Xiao v R (2018) 96 NSWLR 1
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences
  • Whether the sentencing judge erred in assessing the applicant's subjective circumstances, including his prospects of rehabilitation and re-offending
  • Whether the sentence was manifestly excessive or otherwise unreasonable or plainly unjust

Decision

Guilty plea discount: The Court found no error in the sentencing judge's treatment of the guilty pleas. Her Honour applied a 10% discount for the utilitarian value of the pleas, which Bell P noted was consistent with discounts applied where pleas are entered on the first day of trial. The Court held this adequately satisfied the requirement to account for utilitarian value under the principles confirmed in Xiao v R.

Objective seriousness: The Court rejected the argument that the sentencing judge misassessed the gravity of the offending. Bell P noted the circumstances of the offending, the maximum penalties available, the scarcity of directly comparable sentences, and the inherently imprecise nature of the sentencing exercise. No error was made out.

Subjective circumstances: The Court found no relevant error in the judge's assessment of rehabilitation prospects. The sentencing judge was not bound to accept the more optimistic psychological report from the applicant's expert. Bell P found the judge's rejection of that report was amply justified, pointing to the applicant's false statements, including a claim to police that the online exchanges were initiated by the children's mother, and a misrepresentation to the psychologist about the age range of his attraction. These matters indicated an absence of genuine recognition of guilt or acceptance of the seriousness of his conduct.

Manifest excess: The Court gave this ground short shrift. The written submissions simply reproduced language from earlier cases without explaining why the sentence was disproportionate. Bell P described the submissions as adding nothing to the case, and the ground was rejected on the same basis as the three preceding grounds.

Orders Made

  • Leave to appeal the sentence refused.

Key Takeaways

  • A 10% sentencing discount for the utilitarian value of a guilty plea is consistent with established practice where the plea is entered on the first day of trial, and a sentencing judge who applies that discount satisfies the obligation recognised in Xiao v R.
  • No error in assessing objective seriousness is established merely because comparable sentences are few; the Court acknowledged the necessarily inexact nature of the sentencing task, particularly for serious Commonwealth child sexual offences with limited sentencing precedent.
  • Where an applicant makes false statements to both investigators and a psychological expert that are inconsistent with any genuine acceptance of responsibility, a sentencing judge is entitled to discount optimistic rehabilitation evidence and to find that prospects of rehabilitation are poor.
  • A ground of appeal alleging manifest excess must be supported by substantive submissions explaining why the sentence is disproportionate to the offending. Bare references to the language of earlier cases, without that analytical work, carry no weight.
  • In refusing leave, the Court of Criminal Appeal confirmed that all four proposed grounds failed, leaving intact the aggregate sentence of 11 years and 4 months with a non-parole period of 7 years and 4 months.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 272.8, 272.9, 272.11, 272.14
- Crimes Act 1900 (NSW), s 91H(2)
- Republic Act 9208, s 10(a) (Philippines)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Cameron v R (2002) 209 CLR 339; [2002] HCA 6
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
- Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57
- Diaz v R [2019] NSWCCA 216
- R v MAK and MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v WC [2008] NSWCCA 268
- Everett v R (1994) 181 CLR 295; [1994] HCA 49
- Tyler v R (2007) 173 A Crim R 458; [2007] NSWCCA 247
- Lee v R [2012] NSWCCA 123
- Obiekwe v R [2018] NSWCCA 55
- R v Saleh (2015) 257 A Crim R 212; [2015] NSWCCA 299
- Danial v R [2008] NSWCCA 15