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District Court 20 November 2023

R v Baldwin-Davies

[2023] NSWDC 595

Sexual offences
CRIMINAL SENTENCE OBJECTIVE SERIOUSNESS SUBJECTIVE MATTERS

Citation: R v Baldwin-Davies [2023] NSWDC 595
Court: District Court of New South Wales
Date: 20 November 2023
Judge: King SC DCJ

Background

The offender, a 37-year-old man at the time of the offending, was sentenced in relation to ten sexual offences committed against a 14-year-old girl on the night of 2 to 3 January 2022. The victim was the daughter of a close friend of the offender's former domestic partner, and she regarded that partner as her aunt. The offending occurred in the offender's granny flat, which was located at the rear of the aunt's home at Lake Cathie.

The victim had been diagnosed with autism spectrum disorder (ASD) and significant intellectual limitations, assessed as slightly above the range of mild intellectual disability. She had also been diagnosed with ADHD and oppositional defiance disorder. A psychologist had identified that she required support in areas including protective behaviours and daily life skills. The offender was aware of her age, her behavioural difficulties, and her ASD diagnosis.

The offending occurred after a family function during which the victim consumed alcohol in the offender's presence. Once the aunt retired for the night, the offender engaged in a series of sexual acts with the victim, several of which he recorded on his mobile phone. He was arrested the following day and has remained in custody since 4 January 2022. He pleaded guilty on 23 March 2023 in the Port Macquarie Local Court.

  • The appropriate aggregate sentence for ten offences spanning three distinct categories of child sexual offending
  • The objective seriousness of the offending, including the victim's vulnerability, the breach of trust, and the sequential nature of the acts
  • The weight to be given to the offender's subjective circumstances in mitigation
  • The applicable discount for the utilitarian value of the guilty plea (25% across all counts)
  • Whether the Crimes (High Risk Offenders) Act 2006 required the offender to be warned about the possibility of an application to extend his non-parole period

Decision

The court characterised the offending as serious across all counts. The offences were described as "opportunistic and predatory," occurring in a continuous sequence over several hours in the home where the victim was a guest. The offender's conduct represented a significant breach of trust, given the quasi-familial relationship he had developed with the victim and her family over several years.

The victim's ASD diagnosis, intellectual limitations, and functional deficits across conceptual, social, and practical areas were treated as significant aggravating features. The court noted that the offender was aware of the victim's vulnerabilities at the time. The fact that some of the offending was recorded, and that the victim at various points attempted to resist or halt what was happening, informed the court's assessment of the gravity of the conduct.

The court applied a 25% discount to each offence in recognition of the utilitarian value of the guilty plea. Subjective matters were also taken into account in arriving at the final sentence, though the detail of those matters is not fully reproduced in the available text of the judgment.

The court then addressed, after the sentence was formally pronounced, whether the Crimes (High Risk Offenders) Act 2006 required notification to the offender that his non-parole period could be extended on application by authorities. Counsel for both parties confirmed that the serious sex offences fell within the scope of s 5 of that Act, and the court directed defence counsel to explain the implications to the offender.

Orders Made

  • Aggregate term of imprisonment of 12 years
  • Non-parole period of 7 years and 9 months, commencing 4 January 2022 and expiring 3 October 2029
  • Balance of term of 4 years and 3 months, commencing 4 October 2029 and expiring 3 January 2034
  • A 25% guilty plea discount applied to each offence

Key Takeaways

  • The District Court treated the victim's diagnosed ASD, intellectual limitations, and functional deficits as significant aggravating factors where the offender had prior knowledge of those vulnerabilities.
  • A continuous sequence of offences committed over several hours in a single night, described by the court as opportunistic and predatory, supported an assessment of elevated objective seriousness across all counts.
  • Breach of trust arising from a quasi-familial relationship formed over several years was a relevant consideration in sentencing for child sexual offences, even where the offender was not a formal family member.
  • Under s 5 of the Crimes (High Risk Offenders) Act 2006, offenders sentenced for serious sex offences against children must be informed that their non-parole period may be extended on application by authorities, a requirement confirmed during the sentencing proceedings after it was initially overlooked in the Crown's submissions.
  • A guilty plea entered at the Local Court stage, with agreed facts, attracted a 25% discount for utilitarian value across all ten counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(4), 66DB(a), 91G(2)(a)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- R v Gavel [2014] NSWCCA 56