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District Court 7 September 2020

R v Baker

[2020] NSWDC 615

Sexual offences

Citation: R v Baker [2020] NSWDC 615
Court: District Court of New South Wales
Date: 7 September 2020
Judge(s): Bennett SC DCJ

Background

The offender was a psychologist practising in the Coffs Harbour and Nambucca Heads areas. Between 2015 and 2017, he committed a series of sexual offences against multiple victims, including adult patients, teenage patients, and young children. The offences spanned indecent assaults, acts of indecency, grooming conduct, and the exposure of children to pornographic material.

The matter was listed as a special fixture for trial. After plea negotiations, the offender was arraigned on 12 November 2019 and pleaded guilty to all 13 counts in the indictment. He was convicted on each count at that point. Additional offences were placed before the court on Forms 1 to be taken into account on sentencing.

The offender had a prior criminal history. Psychiatric evidence about his background and mental health was tendered at sentence, including a report from Dr Pulley, though the court ultimately declined to accept the opinions expressed in that report for reasons explained below.

  • What was the appropriate sentence for each of the 13 counts, accounting for the relevant standard non-parole periods, aggravating and mitigating factors, and the discount for early guilty pleas?
  • How should the sentences be structured under an aggregate sentencing regime, and was there a basis for finding special circumstances to vary the statutory ratio between the non-parole period and the head sentence?
  • To what extent, if any, did the offender's traumatic childhood, mental health history, and subjective circumstances reduce his moral culpability?
  • Whether the expert psychiatric evidence should be accepted, and what weight should be given to it in sentencing?

Decision

The District Court found the offending to be serious across all counts. Key aggravating features included the abuse of the offender's position of trust and authority as a psychologist over adult and child patients, the age and vulnerability of child victims (some as young as nine), the presence of multiple victims, the grooming of children through the use of pornographic material, and the offender's prior criminal record. Victim impact material was also before the court.

In relation to the psychiatric evidence, Bennett SC DCJ declined to accept the opinions of Dr Pulley. The court found that the doctor's opinions rested entirely on the offender's own representations, and that those representations, when closely examined, did not adequately explain the offender's conduct or its relationship to his reported childhood trauma. The court acknowledged the offender's difficult background, including childhood physical and sexual abuse, but did not find that it substantially reduced his culpability in the circumstances.

The court accepted that the offender did not enter the psychology profession specifically to access victims. It also found that the guilty pleas entitled the offender to a discount, though the precise discount varied across counts. The overall discount applied was modest, reflecting the utilitarian value of the pleas rather than any strong evidence of remorse.

The court found special circumstances existed, warranting a departure from the standard ratio between the non-parole period and the balance of the sentence, given the number of offences, the length of the aggregate sentence, and the need for supervision and rehabilitation upon release. The court imposed an aggregate sentence.

Orders Made

No orders were made in this decision.

The following aggregate sentence was pronounced:

  • Non-parole period: 12 years, commencing 17 December 2017, expiring 16 December 2029
  • Head sentence: 18 years, with eligibility for parole expiring 16 December 2035

Key Takeaways

  • A psychologist who sexually offends against patients and children in a clinical context attracts the statutory aggravating factor of abuse of a position of trust or authority, which the District Court treated as a significant feature elevating the seriousness of the conduct.

  • Where psychiatric evidence is based substantially on the offender's own account, and those representations do not withstand scrutiny on cross-examination, a sentencing court may decline to accept the expert's opinions even where a traumatic personal history is not itself in doubt.

  • Under the aggregate sentencing regime in the Crimes (Sentencing Procedure) Act 1999, a court may find special circumstances to reduce the proportional non-parole period below the statutory default where the aggregate sentence is lengthy and the prospects of rehabilitation on supervised release are a relevant consideration.

  • Grooming offences under s 66EB of the Crimes Act 1900, involving the deliberate exposure of young children to pornographic material to facilitate further offending, were treated by the court as serious, particularly where victims were aged nine years.

  • A guilty plea discount was applied to each count, but the utilitarian value of those pleas was assessed separately and modestly, reflecting the circumstances in which the pleas were entered rather than a uniform approach across all offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 61O(1A), 61O(2), 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Bugmy v The Queen [2013] HCA 37
- Butters v R [2010] NSWCCA 1
- Imbornone v The Queen [2017] NSWCCA 144
- Lam v R [2015] NSWCCA 143
- Markarian v R [2005] HCA 25
- Muldrock v The Queen (2011) HCA 39
- Munda v The State of Western Australia [2013] HCA 38
- Munroe v R [2006] NSWCCA 350
- Pfitzner v R [2010] NSWCCA 314
- R v Borkowski [2009] NSWCCA 102
- R v Elfar [2003] NSWCCA 358
- R v Engert (1995) 84 A Crim R 67
- R v Harrison [2001] NSWCCA 79
- R v McGourty [2002] NSWCCA 335
- R v Palu [2002] NSWCCA 381
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247
- Van Zwam v R [2017] NSWCCA 127
- Veen v The Queen (No 2) (1988) HCA 14