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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
Judge(s): Brereton JA at [1]; Adamson J at [57]; N Adams J at [79]

Background

The applicant was convicted by a jury of three counts of aggravated indecent assault and five counts of aggravated sexual intercourse without consent, each aggravated by the victim having a cognitive impairment. The victim was 17 years and 7 months old at the time of the offending. The offences occurred over a period of 20 to 30 minutes at a remote location near the Menangle River Reserve, after the applicant picked the victim up while she was walking alone at night and drove her there.

The sentencing judge imposed an aggregate sentence of 19 years imprisonment with a non-parole period of 13 years and 4 months. The applicant sought leave to appeal against sentence on six grounds, including that the sentencing judge erred in finding actual knowledge of the victim's disability, in treating her age and an instruction not to tell anyone as aggravating factors, and in her treatment of rehabilitation prospects and the risk of reoffending.

The Court was constituted by three judges, whose separate reasons produced a split outcome on several grounds, ultimately resulting in leave to appeal being granted but the appeal being dismissed.

Legal Issues

  • Whether the sentencing judge's finding that the applicant actually knew the victim had a cognitive impairment was open on the evidence
  • Whether the victim's age (17 years and 7 months) was properly treated as an aggravating factor going to objective seriousness
  • Whether the applicant's instruction to the victim not to tell her father or police what happened constituted a "threat" capable of aggravating the sentence
  • Whether the sentencing judge erred by failing to make an express finding on prospects of rehabilitation, and whether the finding that the applicant was not unlikely to reoffend was open
  • Whether the aggregate sentence of 19 years was manifestly excessive

Decision

Ground 1: Actual knowledge of the victim's cognitive impairment

Brereton JA (with whom N Adams J agreed) found the sentencing judge's finding of actual knowledge was open. The finding was largely based on the sentencing judge's own observations of the victim at trial, an advantage the Court of Appeal did not share. No impermissible conflation of expert evidence with the applicant's state of mind was identified. Even had actual knowledge not been established, the distinction carried no significance for culpability, given the jury's verdict at minimum established reckless indifference (at [19]-[20]).

Ground 2: Victim's age as an aggravating factor

The applicant argued that age is not ordinarily an aggravating factor in non-consensual intercourse between strangers. The Court rejected this. While prior authority established that an age difference between two young adults was immaterial, that principle does not extend to a case where there is a significant gap between a mature adult and a teenager. The victim's relative youth increased her vulnerability, which the applicant exploited, making the age differential relevant to objective seriousness (at [23]-[24]).

Ground 3: Whether the instruction not to tell anyone constituted a threat

This ground divided the Court. Brereton JA held it did not. After the offences, the applicant told the victim not to tell her father, the police, or anyone what had happened. There was no express or implied suggestion of adverse consequences for non-compliance, no "or else," and no indication they would ever meet again. A bare direction to keep something secret amounts only to a request or direction, not a threat (at [27]-[30]). Brereton JA found the sentencing judge erred on this point.

Adamson J and N Adams J reached the opposite conclusion. Both held that whether words constitute a threat depends on the surrounding context, not just the words used. Delivered immediately after a criminal sexual assault, against an isolated and vulnerable victim, the instruction not to tell anyone in authority carried an implicit warning of adverse consequences (at [60]-[61]). A threat need not spell out its consequences to be recognised as one.

Ground 4: Prospects of rehabilitation and risk of reoffending

Brereton JA found the sentencing judge erred by failing to find the applicant had at least reasonable prospects of rehabilitation. His Honour noted the psychiatrist Dr Furst's opinion on rehabilitation risk was not substantially dependent on the applicant's untested self-reporting, that the offending represented a single course of conduct, that the custodial history was uneventful, and that character witnesses described the behaviour as out of character. The applicant's maintenance of innocence, while a complicating factor, is not inconsistent with good prospects of rehabilitation (at [42]).

Adamson J and N Adams J disagreed. Both found that the sentencing judge's reasons, read as a whole, demonstrated she had in fact considered rehabilitation prospects and assessed them as real. The finding of special circumstances, which extended the parole period specifically to allow therapeutic treatment, reflected a genuine engagement with the applicant's rehabilitative needs. The inter-related nature of rehabilitation and reoffending risk means there is no strict requirement that each receive a discrete express finding, provided the reasons as a whole show both were considered (at [72]-[73]; [111]-[115]).

Ground 5: Manifest excess

All three judges addressed this ground, though with different procedural starting points. The majority (Adamson J and N Adams J) considered it directly because they found no other error. Brereton JA, having identified error, considered it unnecessary to resolve but noted he was unpersuaded the sentence was manifestly excessive in any event (at [43]). Adamson J and N Adams J, reviewing comparable cases and the objective gravity of the offending, were not satisfied the aggregate sentence of 19 years was unreasonable or plainly unjust (at [77]; [126]).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A statement made by an offender to a victim after a sexual assault, directing them not to tell police or family what occurred, may constitute a "threat" capable of aggravating sentence even without express consequences attached, provided the surrounding context implies adverse consequences for non-compliance. Adamson J and N Adams J held this to be the majority position in this case (at [60]-[61]).

  • The relative age between an offender and a victim is capable of aggravating the objective seriousness of a sexual offence where the age differential increases the victim's vulnerability, which is then exploited. The Court of Criminal Appeal confirmed that existing authority limiting the relevance of age gaps applies only where both parties were young adults of comparable age (at [23]-[24]).

  • Prospects of rehabilitation and risk of reoffending are inter-related sentencing factors that need not each receive an express, discrete finding, provided the sentencing judge's reasons as a whole demonstrate genuine engagement with both considerations (at [72]-[73]).

  • A forensic psychiatrist's opinion on reoffending risk does not bind the sentencing judge to a specific finding. Where the actuarial tool places the offender at "average to below average" risk, that finding is not inconsistent with a court being unable to positively conclude on the balance of probabilities that the offender is unlikely to reoffend (at [109]-[110]).

  • In sentencing for multiple sexual offences arising from a single continuous encounter, a very high degree of concurrency in individual sentences is appropriate, though some accumulation remains necessary to reflect the distinct criminality of each act (at [54]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss s 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