Baf v The Queen

Case [2021] SASCA 69

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BAF v THE QUEEN

[2021] SASCA 69

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Kelly and the Honourable Justice Livesey)

1 July 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS

The applicant pleaded guilty to maintaining an unlawful sexual relationship with a child and assault occasioning actual bodily harm.  The offences were committed against the applicant's stepdaughter in the mid-1980s and early 1990s. The sexual offending occurred over the course of about nine years, when the complainant was aged between five and 14.

The complainant’s account of the acts committed and the frequency of the sexual offending were contested in a disputed facts hearing. The sentencing Judge held that he was satisfied beyond reasonable doubt about the complainant’s account of the sexual offending.

Pursuant to s 26 of the Sentencing Act 2017 (SA), the applicant was sentenced to a single sentence of ten years’ imprisonment. This was reduced by 10% to a term of nine years’ imprisonment on account of guilty pleas entered shortly before the trial commenced. A non-parole period of six years was fixed.

The applicant seeks permission to appeal on the grounds that the Judge failed to give adequate reasons and that the sentence and non-parole period are manifestly excessive.

Held (per the Court), giving permission to appeal the ground concerning the adequacy of the reasons, but dismissing the appeal and otherwise refusing permission to appeal:

1. Careful regard must be given to the reasons as a whole, in the context of the conduct of the hearing, as well as to the evidence given by the victim and the applicant, together with admissions made by the applicant to third parties. When these materials are properly considered, it is clear that the Judge’s reasons are not inadequate and the findings are supported by the evidence.

2. Given that there was significant offending involving a gross breach of trust over a sustained period, which caused long term harm to the complainant, it cannot be said that the starting point of 10 years was manifestly excessive.

3. Neither the head sentence of nine years nor the non-parole period of six years is manifestly excessive.

Criminal Procedure Act 1921 (SA) s 157(1); Criminal Law Consolidation Act 1935 (SA) ss 40, 50(1); Sentencing Act 2017 (SA) s 26; Supreme Court Act 1935 (SA) s 19C; Supreme Court Criminal Rules 2014 (SA) s 106A, referred to.
JGS v The Queen [2020] SASCFC 48; IMM v The Queen (2016) 257 CLR 300; DL v The Queen (2018) 266 CLR 1; Keith v Gal [2013] NSWCA 339; Wainohu v New South Wales (2001) 243 CLR 181; Day v The Queen [2021] SASCA 38; R v D (1997) 69 SASR 413

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Baf v The Queen [2021] SASCA 69
Case
[2021] SASCA 69
Decision Date

CaseChat Overview and Summary

The applicant, Baf, appealed to the Court of Criminal Appeal against his conviction and sentence for sexual offences. The appeal concerned the adequacy of the trial judge's reasons for conviction and the severity of the sentence imposed.

The Court was required to determine whether the trial judge's reasons for finding the applicant guilty were inadequate, and whether the head sentence of nine years imprisonment and the non-parole period of six years were manifestly excessive, given the nature of the offending.

In its reasoning, the Court emphasised that the trial judge's reasons must be considered as a whole, in light of the conduct of the hearing and the evidence presented, including the victim's testimony and admissions made by the applicant. The Court found that the judge's reasons were not inadequate and that the findings of guilt were adequately supported by the evidence. Regarding the sentence, the Court noted the significant and sustained nature of the offending, which involved a gross breach of trust and caused long-term harm to the complainant. Consequently, the Court concluded that the starting point of ten years imprisonment was not manifestly excessive, nor were the head sentence and non-parole period.

The Court granted permission to appeal on the ground concerning the adequacy of the reasons but dismissed the appeal on that ground. Permission to appeal on other grounds was refused.

Orders

Orders of the court

Held (per the Court), giving permission to appeal the ground concerning the adequacy of the reasons, but dismissing the appeal and otherwise refusing permission to appeal:

1. Careful regard must be given to the reasons as a whole, in the context of the conduct of the hearing, as well as to the evidence given by the victim and the applicant, together with admissions made by the applicant to third parties. When these materials are properly considered, it is clear that the Judge’s reasons are not inadequate and the findings are supported by the evidence.

2. Given that there was significant offending involving a gross breach of trust over a sustained period, which caused long term harm to the complainant, it cannot be said that the starting point of 10 years was manifestly excessive.

3. Neither the head sentence of nine years nor the non-parole period of six years is manifestly excessive.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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