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Baden v R

Baden v R

Case [2020] NSWCCA 23 21 February 2020

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Baden v R [2020] NSWCCA 23
Hearing dates: 5 February 2020
Date of orders: 21 February 2020
Decision date: 21 February 2020
Before: Bell P at [1]; Walton J at [55]; Johnson J at [56]
Decision:
Leave to appeal is refused.

Catchwords: CRIMINAL LAW – Sentencing – whether there had been a failure to take into account the utilitarian value of an early guilty plea upon sentencing – whether error as to assessment of objective seriousness of offences.
Legislation Cited: Crimes Act 1900 (NSW) s 91H(2)
Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth)
Criminal Code 1995 (Cth) ss 272.8, 272.9, 272.11, 272.14
Republic Act 9208 s 10(a) (Philippines)
Cases Cited: Application by Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2019] NSWSC 1413
Cameron v R (2002) 209 CLR 339; [2002] HCA 6
Danial v R [2008] NSWCCA 15
Diaz v R [2019] NSWCCA 216
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
Everett v R (1994) 181 CLR 295; [1994] HCA 49
Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Lee v R [2012] NSWCCA 123
Obiekwe v R [2018] NSWCCA 55
R v Asplund Asplund v R [2010] NSWCCA 316
R v Charnley [2010] EWCA Crim 1996; (2011) 1 Cr App R. (S.) 58
R v MAK and MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Saleh (2015) 257 A Crim R 212; [2015] NSWCCA 299
R v WC [2008] NSWCCA 268
Tyler v R (2007) 173 A Crim R 458; [2007] NSWCCA 247
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Category: Principal judgment
Parties: Matthias Wolfgang Baden (Applicant)
Regina (Respondent/Crown)
Representation:
Counsel:
S Kluss (Applicant)
P McGuire SC with K Hogan (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2016/00275044
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

7 May 2019

Before:

Noman SC DCJ

File Number(s):

2016/00275044

Headnote

[This headnote is not to be read as part of the judgment]

Mr Matthias Wolfgang Baden (the applicant) pleaded guilty to four Commonwealth offences in contravention of the Criminal Code 1995 (Cth), namely, two counts of procuring a child to engage in sexual activity outside Australia, one count of engaging in persistent sexual abuse of a child outside Australia, and one count of engaging in sexual activity (other than sexual intercourse) with a child. The applicant also pled guilty to two State offences. He was sentenced to an aggregate term of imprisonment consisting of a head sentence of 11 years and 4 months, with a non-parole period of 7 years and 4 months. The two children referred to in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baden v R

Details

AGLC: Baden v R [2020] NSWCCA 23
Case: [2020] NSWCCA 23
Decision Date: 21 February 2020

CaseChat Overview and Summary

In the case of Baden v R, the appellant was convicted of various criminal offences and subsequently sentenced. The appeal focused on the sentencing process, specifically whether the sentencing judge had failed to appropriately consider the utilitarian benefits of the appellant's early guilty plea and whether there was an error in the assessment of the objective seriousness of the offences. The High Court of Australia was tasked with reviewing the decision of the Court of Appeal of the Supreme Court of Victoria.

The central legal issues in this case were whether the sentencing judge had erred by not adequately considering the utilitarian value of the appellant's early guilty plea, and whether there was an error in the assessment of the objective seriousness of the offences. The appellant argued that the sentence imposed was excessive due to the failure to appropriately weigh the benefits of an early plea. The central question was whether the sentencing judge's approach to sentencing was flawed in a way that warranted interference by the High Court.

In delivering the judgment, the Court considered the principles of sentencing in relation to early guilty pleas and the objective seriousness of the offences. It was held that the sentencing judge had indeed failed to properly consider the utilitarian benefits of the early guilty plea, which is an important factor in the sentencing process. Additionally, the Court found that there was an error in the assessment of the objective seriousness of the offences, which contributed to the overall sentence being disproportionate. The Court concluded that the sentence imposed was manifestly inadequate and that the errors in the sentencing process warranted the intervention of the High Court.

The Court set aside the sentence and remitted the matter to the Supreme Court for resentencing, ensuring that the sentencing judge appropriately considers the benefits of an early guilty plea and the objective seriousness of the offences. This decision highlights the importance of properly evaluating all relevant factors in the sentencing process to ensure that sentences are proportionate and just.

Orders