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Court of Criminal Appeal 14 August 2003

R v Baverstock [2003] NSWCCA 228 revised - 21

[2003] NSWCCA 228

Sexual offences
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT PLEA OF GUILTY FORM 1 CONSIDERATION WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: R v Baverstock [2003] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 14 August 2003
Judge(s): Wood CJ at CL, Simpson J, Adams J

Background

The applicant pleaded guilty in the District Court at Campbelltown to six counts of sexual intercourse without consent under s 61I of the Crimes Act 1900. The offences involved a series of incidents in January and February 2001 during which the applicant tied his wife to a bed using neckties and performed various sexual acts against her will. The complainant, who had recently arrived from China on a temporary resident visa, was in a vulnerable position, and the applicant exploited that vulnerability by threatening to send her back to China if she did not comply.

Judge Sides sentenced the applicant to an effective total of seven years imprisonment with a non-parole period of three and a half years. The sentence for count 6 was six years (commencing one year after the other counts), with a non-parole period of two and a half years, and was fixed after taking into account four further matters on a Form 1. A Form 1 is a procedural mechanism in NSW sentencing under which additional offences are acknowledged and weighed in fixing the sentence for the primary count, without a separate conviction being recorded for those offences.

The applicant sought leave to appeal on two grounds: that the sentencing judge had misapplied the principles governing Form 1 offences, and that the resulting sentence was manifestly excessive.

  • Whether the sentencing judge erred in the method used to take Form 1 offences into account, specifically by quantifying each Form 1 matter individually and then aggregating those amounts.
  • Whether the sentence for count 6, as ultimately imposed, was manifestly excessive.
  • Whether the 20 per cent discount for the guilty plea was appropriate given the circumstances and timing of the plea.

Decision

The Court of Criminal Appeal accepted that the sentencing judge's approach to the Form 1 offences did depart from the preferred method established in R v Barton and subsequent authority. The correct approach requires the sentencing court to assess the overall criminality represented by the primary offence and the Form 1 matters together, rather than quantifying individual sentences for each Form 1 matter and arithmetically adding them to the head sentence. The judge's remarks suggested he had, at least in part, done the latter.

Despite that procedural departure, the Court conducted its own review of the total criminality involved in count 6, considered alongside the Form 1 matters. It concluded that the sentence of six years could not be characterised as manifestly excessive. The Court identified several aggravating features: the flagrant exploitation of the complainant's vulnerability arising from her visa status, the degrading nature of the acts performed against her clearly expressed wishes, and the applicant's persistence even after being told unequivocally that she did not consent.

On the question of the guilty plea discount, the Court was not persuaded that the 20 per cent reduction was inappropriate. The plea was not considered a late plea, but the remorse shown by the applicant was noted to be qualified. The Court also observed, in relation to Judicial Commission statistics relied on by the applicant, that while the sentence was toward the upper end of the range for s 61I offences, it was not outside that range, and statistics of that kind provide only general guidance rather than a precise measure for any individual case.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that when sentencing courts deal with Form 1 offences, the correct approach is to assess the overall criminality of the primary offence and the Form 1 matters together, not to calculate individual sentences for each Form 1 matter and add them to the head sentence.
  • A departure from the preferred Form 1 methodology does not automatically warrant the substitution of a lesser sentence; the appellate court will review the total sentence afresh to determine whether it is manifestly excessive.
  • No error was established in applying a 20 per cent guilty plea discount where remorse was qualified and the circumstances of the plea were not straightforwardly early or cooperative.
  • Judicial Commission sentencing statistics were described as providing general guidance only, and the Court cautioned against treating them as a determinative benchmark given variations in individual circumstances and often small sample sizes.
  • In dismissing the appeal, the Court emphasised that the exploitation of a vulnerable complainant, whose vulnerability arose from her immigration status, was a significant aggravating factor in assessing the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61A and 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Regina v Barton (2001) 121 A Crim R 185
- Regina v Kay [2002] NSWCCA 286
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518