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Court of Criminal Appeal 2 December 2024

Baldwin-Davies v R

[2024] NSWCCA 220

Sexual offences
CRIME APPEAL AGAINST SENTENCE AGGREGATE SENTENCE SEXUAL OFFENDING WITH MINOR PRODUCING CHILD ABUSE MATERIAL FINDINGS AS TO OBJECTIVE SERIOUSNESS

Citation: Baldwin-Davies v R [2024] NSWCCA 220
Court: Court of Criminal Appeal
Date: 02 December 2024
Judge(s): Mitchelmore JA; Basten AJA; Wright J

Background

The applicant pleaded guilty in the Local Court to ten offences arising from sexual conduct with a 14-year-old girl over approximately one hour on a single night in January 2022. The offences included five counts of aggravated sexual intercourse with a child, two counts of intentionally sexually touching a child, and three counts of using a child for the production of child abuse material. The victim had been diagnosed with autism spectrum disorder (Level 1) and was known to the applicant to have cognitive impairment.

The applicant was sentenced in the District Court to an aggregate sentence of 12 years imprisonment with a non-parole period of 7 years and 9 months. A 25% discount was applied to the indicative individual sentences to reflect the applicant's early guilty pleas.

The applicant sought leave to appeal on three grounds: that the sentencing judge failed to assess the objective seriousness of each offence, that the aggregate sentence was manifestly excessive, and that the sentencing judge failed to give adequate reasons for findings on objective seriousness.

Legal Issues

  • Whether the sentencing judge failed to assess the objective seriousness of each offence individually, as required when imposing an aggregate sentence
  • Whether the sentencing judge's statement that the seriousness of each offence would be "evident from the indicative sentences" constituted impermissible backward reasoning
  • Whether the aggregate sentence of 12 years was manifestly excessive by reference to comparable cases

Decision

Ground 1 and Ground 3 (Objective Seriousness and Adequacy of Reasons):

Wright J, with Mitchelmore JA agreeing, held that the sentencing judge did assess the objective seriousness of each offence as part of the process of determining the indicative sentences (at [111]-[112]). The different indicative sentences across the ten offences, combined with the sentencing judge's discussion of the relevant factors, demonstrated that individual assessments had been made (at [112]).

The statement that the degree of variation in seriousness between offences would be "evident from the indicative sentences" did not amount to backward reasoning (at [112]-[116]). Wright J characterised it as a recognition that little utility existed in placing each offence on a notional scale from least to most serious, which is not a required exercise (at [116]). For the sexual touching offences, the different indicative sentences of 18 months and 4 years plainly reflected the different nature of the conduct involved (at [113]). For the sexual intercourse offences, the sentencing judge expressly found sequences 7 and 9 objectively less serious than sequences 8, 10 and 12, with reasoning based on the nature of the intercourse and risks of disease and pregnancy (at [114]). The same indicative sentence for the three video-recording offences was justified because the fact of recording and its potential future availability outweighed duration as the determinative consideration (at [115]). Grounds 1 and 3 were dismissed (at [121]-[122]).

Ground 2 (Manifest Excess):

Basten AJA, with Mitchelmore JA and Wright J agreeing, found that the aggregate sentence was manifestly excessive (at [40]). A comparative analysis of the case pool revealed that the indicative sentences for the section 66C(4) offences of 5 to 6 years (after a 25% discount) were double or more than double those indicated in comparable cases (at [39]). No comparable case supported a starting point of approximately 16 years for a relatively confined number of offences committed on one occasion (at [38]). Cases relied upon by the respondent, including those involving more serious charges carrying a maximum of 20 years rather than 12 years, produced lower aggregate sentences and supported the conclusion that the sentence was outside an appropriate range (at [20]-[21]).

In resentencing, Basten AJA reduced the indicative sentences for the section 66C(4) offences from 5 years to 3 years and from 6 years to 4 years, and reduced the indicative sentences for the three child abuse material offences from 3 years to 18 months (at [48]). The applicant's largely unblemished record as a 37-year-old Indigenous man facing his first custodial sentence distinguished him from many comparators, favouring a lower sentence (at [46]). The finding of special circumstances and the ratio of 65% between the non-parole period and the total term were maintained (at [49]). An aggregate sentence of 9 years and 6 months with a non-parole period of 6 years and 4 months was substituted (at [49]).

Orders Made

  • Leave to appeal against the aggregate sentence imposed in the District Court on 20 November 2023 was granted
  • The appeal was allowed and the aggregate sentence was set aside
  • The applicant was resentenced to an aggregate sentence with a non-parole period of 6 years and 4 months, commencing 4 January 2022 and expiring 3 May 2028
  • The balance of term of 3 years and 2 months will expire on 3 July 2031
  • The applicant is eligible for release on parole from 3 May 2028

Key Takeaways

  • A sentencing judge imposing an aggregate sentence is not required to place each offence on a notional scale from least to most serious. Assessments of objective seriousness may be demonstrated through the differentiated indicative sentences and accompanying reasoning, without a formulaic ranking exercise (at [111]-[116]).

  • Identical indicative sentences for multiple offences do not of themselves establish an error in assessing objective seriousness, particularly where the offences arise from the same section of the Crimes Act, occur against the same victim in a single sustained course of conduct, and involve factors that balance against each other (at [119]-[120]).

  • Higher aggregate sentences are generally appropriate where sexual offending involves multiple acts over an extended period of time because lower levels of concurrency will be implicit in the aggregate term. Where offending is confined to a single occasion, the aggregate sentence should reflect that limitation by reference to the comparative case pool (at [33]-[34], [38]-[40]).

  • In assessing manifest excess, the Court of Criminal Appeal compared indicative sentences for section 66C(4) offences, which carry a maximum of 12 years, against those in cases involving the more serious charge under section 61J(1), which carries a maximum of 20 years. The fact that the applicant's indicative sentences equalled or exceeded those in more serious comparator cases supported the conclusion of excess (at [19]-[21], [39]-[40]).

  • Subjective factors, including an applicant's largely unblemished record and status as an Indigenous person facing a first custodial sentence, remain relevant to the resentencing exercise and may distinguish the case from harsher comparators (at [46]-[47]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C, 66DB, 91G
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25AA, 53A

Cases
- Baydoun v The King [2024] NSWCCA 65
- Daher v R [2018] NSWCCA 287
- Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581
- DL v R [2020] NSWCCA 164
- Dorsett v R [2024] NSWCCA 192
- Du Plessis v R [2024] NSWCCA 164
- Hili v R (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v SS (a pseudonym) [2022] NSWCCA 258
- Rainbow v R [2018] NSWCCA 42
- Shalida v R [2024] NSWCCA 55
- Sharma v R [2022] NSWCCA 190
- Turner v R [2021] NSWCCA 5