Citation: Baldwin-Davies v R [2024] NSWCCA 220
Court: Court of Criminal Appeal, New South Wales
Date: 2 December 2024
Judge(s): Mitchelmore JA; Basten AJA; Wright J
Background
The applicant pleaded guilty in the Local Court to ten offences arising from a single night of conduct in January 2022: five charges of aggravated sexual intercourse with a child, two charges of sexually touching a child, and three charges of producing child abuse material. All offences involved a 14-year-old girl. The matters were committed to the District Court for sentencing.
On 20 November 2023, King SC DCJ imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of seven years and nine months. The applicant had entered his pleas early, attracting a 25 per cent discount on the indicative individual sentences.
The applicant sought leave to appeal, contending that the sentencing judge had failed to properly assess the objective seriousness of each offence and that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to make findings, or provide adequate reasons, as to the objective seriousness of each individual offence when imposing an aggregate sentence
- Whether the aggregate sentence of 12 years was manifestly excessive by reference to comparable cases
Decision
Objective seriousness (Grounds 1 and 3): Dismissed
Wright J, with whom the other judges agreed, held that the sentencing judge had not failed to assess the objective seriousness of the individual offences. Although the judge described the offences as forming a continuous sequence and declined to assess each in strict isolation, he did explain his reasoning through the indicative sentences he nominated and the comparative seriousness he attributed to each charge. This was a pragmatic approach justified by the circumstances, not an abdication of the sentencing obligation.
Basten AJA noted that the judge had expressly referenced "objective seriousness" on four occasions and had detailed the nature and circumstances of each offence. The argument that the judge had made only a blanket assessment was characterised as a triumph of form over substance. The approach was consistent with the Court of Criminal Appeal's reasoning in Dorsett v R [2024] NSWCCA 192, which acknowledged that separate findings need not be made for every offence when many are relevantly similar.
Manifest excess (Ground 2): Upheld
Basten AJA, with whom the others agreed, found that the indicative sentences set by the sentencing judge were double, or more than double, those in comparable cases involving a similarly confined number of offences committed on a single occasion. No precedent supported the starting point adopted. The aggregate sentence was therefore manifestly excessive, and the applicant required resentencing.
Basten AJA also addressed how plea discounts interact with aggregate sentences. Under the current statutory framework, an aggregate sentence is not mechanically reduced by a discount percentage; the court is instead required to proceed on the assumption that the statutory benefit of the plea has been obtained. On the figures in this case, had the applicant gone to trial, the equivalent head sentence would have been approximately 16 years. This analysis informed the comparison with the comparable sentencing cases.
Orders Made
No orders were made in this decision.
Key Takeaways
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When imposing an aggregate sentence across multiple offences, a sentencing judge must assess the objective seriousness of each offence individually to enable the principle of totality to be applied and to inform the public of the gravity attached to each charge. However, this does not require a formulaic separate finding for every offence where many are relevantly similar.
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A pragmatic, combined discussion of objective seriousness can satisfy the sentencing obligation where the judge's indicative sentences and reasoning make the relative seriousness of each offence apparent from the reasons as a whole.
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Comparative cases confirm the following sentencing gradations for child sexual offending: multiple acts over an extended period warrant heavier sentences than equivalent acts on a single occasion; offences involving aggression attract higher sentences; breach of trust or exploitation of a vulnerable victim elevates culpability; and good character carries reduced mitigatory weight where offending is part of an ongoing course of conduct rather than an isolated incident.
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An aggregate sentence that produces indicative individual sentences double or more than those in comparable cases involving a single occasion of offending will be manifestly excessive.
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Under the current framework, an aggregate sentence is not directly reduced by a guilty plea discount; rather, the sentencing court proceeds on the basis that the statutory benefit of the plea has been factored in, meaning an aggregate sentence imposed after a plea cannot be directly compared with a hypothetical aggregate sentence following a contested trial.
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 22, 23, 25AA, 53A
Cases
- Dorsett v R [2024] NSWCCA 192
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Hili v R (2010) 242 CLR 520; [2010] HCA 45
- Turner v R [2021] NSWCCA 5
- Rainbow v R [2018] NSWCCA 42
- 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
- Du Plessis v R [2024] NSWCCA 164
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v SS (a pseudonym) [2022] NSWCCA 258
- Shalida v R [2024] NSWCCA 55
- Sharma v R [2022] NSWCCA 190