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14
Court of Criminal Appeal 14 September 2022

Baker v R

[2022] NSWCCA 195

Also reported as (2022) 302 A Crim R 60
Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPEALS APPEAL AGAINST SENTENCE APPEALS

Citation: Baker v R [2022] NSWCCA 195
Court: Court of Criminal Appeal
Date: 14 September 2022
Judges: Brereton JA; Adamson J; N Adams J

Background

The applicant was convicted by a jury in the District Court of three counts of aggravated indecent assault and five counts of aggravated sexual intercourse without consent, with the aggravating circumstance in each count being that the victim had a cognitive impairment. The victim was 17 years and 7 months old at the time of the offending and had a mild intellectual disability, with a mental age assessed as equivalent to that of a young child. The offending took place late at night at a remote riverside location after the applicant offered the victim a lift and drove her there against her wishes.

The applicant was sentenced in the District Court to an aggregate term of 19 years' imprisonment with a non-parole period of 13 years and 4 months. A pre-existing bond was also revoked and he was resentenced on that matter, with the practical effect of accumulating a further four months onto the overall sentence.

The applicant sought leave to appeal against sentence on multiple grounds, contending that the sentencing judge had made errors in relation to his knowledge of the victim's disability, the relevance of the victim's age, whether a post-offence statement to the victim constituted a threat, and whether findings on rehabilitation and re-offending risk were adequately made.

  • Whether the sentencing judge's finding that the applicant had actual knowledge of the victim's cognitive impairment was open on the evidence.
  • Whether the victim's chronological age was properly treated as relevant to the objective seriousness of the offending.
  • Whether the applicant's direction to the victim not to tell anyone what had happened amounted to a "threat" capable of being treated as an aggravating factor.
  • Whether the sentencing judge erred in failing to make an express finding that the applicant had reasonable prospects of rehabilitation and was unlikely to re-offend.
  • Whether the aggregate sentence imposed was manifestly excessive.

Decision

Knowledge of victim's disability: All three judges agreed that the sentencing judge's finding of actual knowledge was open. The finding rested substantially on her Honour's direct observations of the victim during the proceedings, a position of advantage not available to the appellate court. The majority further noted that the distinction between actual knowledge and reckless indifference was, in any event, of no practical significance to the applicant's culpability: the jury's verdict carried at minimum the implication that he had adverted to the possibility of impairment and proceeded regardless.

Victim's age as aggravating factor: The Court unanimously rejected this ground. The relative age difference between the applicant and the victim was relevant to objective seriousness because it increased the victim's vulnerability, and that vulnerability was exploited by the applicant. The sentencing judge did not err in treating the age discrepancy as relevant to the gravity of the offending, consistent with the approach in Mohindra v R [2020] NSWCCA 340.

Whether the post-offence direction constituted a threat: The majority (Adamson J and N Adams J) held that the applicant's instruction to the victim not to tell her father, police, or anyone else what had happened amounted to a threat. Whether words constitute a threat depends on the words together with their surrounding circumstances. In the context of serious criminal conduct that had just been committed, the statement carried an implicit connotation of adverse consequences for non-compliance, even without spelling out those consequences expressly. Brereton JA dissented on this point, finding that the words amounted to no more than a request or direction and involved no connotation of punishment or loss.

Rehabilitation and re-offending risk: The majority held that prospects of rehabilitation and risk of re-offending are inter-related considerations, and there is no requirement that a sentencing judge address each in express terms provided the reasons as a whole demonstrate they were considered. Reading the sentencing judge's reasons as a whole, her Honour had assessed the applicant's prospects of rehabilitation as real rather than theoretical and had made appropriate allowance for that factor. Her Honour's conclusion that she was not satisfied the applicant was unlikely to re-offend was a factual finding open on all of the material, and was not rendered erroneous by the expert opinion that the applicant presented an "average/below average" re-offending risk. Brereton JA again dissented, finding that the sentencing judge had erred in withholding reliance on the psychiatric evidence and in failing to find at least reasonable prospects of rehabilitation.

Manifest excess: All three judges agreed that, having regard to the seriousness of the conduct, the significant aggravating factors, and the matters in mitigation (including the absence of a guilty plea, absence of remorse, and the consequent unavailability of various mitigating findings), the aggregate sentence was not manifestly excessive.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing judge's finding of actual knowledge of a victim's disability will be afforded significant weight on appeal where it is based substantially on the judge's own direct observation of the victim, a positional advantage the appellate court does not share.
  • Under Mohindra v R, the relative age difference between an offender and a victim is a proper consideration in assessing objective seriousness where that differential increases the victim's vulnerability and the offender exploits it.
  • A statement made in the immediate aftermath of sexual offending that directs a victim not to report what happened can constitute a "threat" as an aggravating factor, even without express articulation of consequences for non-compliance. The broader context in which words are spoken informs their legal character.
  • Prospects of rehabilitation and risk of re-offending are inter-related sentencing considerations. Provided the sentencing judge's reasons as a whole demonstrate these matters were considered, no error arises from a failure to address them in separate express terms.
  • In dismissing the appeal, the Court confirmed that an offender who maintains a false or contested version of events through trial, is found guilty, and demonstrates no remorse may lose access to the mitigating benefits that would otherwise flow from a plea of guilty, expressions of remorse, and favourable rehabilitation findings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(b), 12, 21A, 53A(2)(b)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Imbornone v R [2017] NSWCCA 144
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Keeley v R [2014] NSWCCA 139
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Meoli v R [2021] NSWCCA 213
- Mohindra v R [2020] NSWCCA 340
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pritchard v R [2022] NSWCCA 130
- R v Holdom [2018] NSWSC 1677
- R v M.A.K.; R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Shortland [2018] NSWCCA 34
- Simmons v R [2019] NSWCCA 20
- Stephens v R [2010] NSWCCA 93
- SW v R [2013] NSWCCA 103
- Tindall v R [2019] NSWCCA 136