Baillie v Dixon - [2006] NTSC 10

Baillie v Dixon [2006] NTSC 10
PARTIES:BAILLIE, Neil
v

DIXON, Garnet Alan

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 40/2005 (20511816)
DELIVERED:  13 February 2006
HEARING DATE:  9 February 2006
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

Magistrates – appeal against sentence – police officer – previous good character – indecent assault on a female - manifestly excessive – appeal dismissed.

R v Anzac 50 NTR 6; Cranssen v The King (1936) 55 CLR 509; House v The King (1936) 55 CLR 499; applied
R v Harrop [1979] VR 549; White v Brown (2003) 175 FLR 325, referred to

REPRESENTATION:
Counsel:
Appellant:M Preston
Respondent:  A Barnett
Solicitors:
Appellant:
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Sou0621
Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Baillie v Dixon [2006] NTSC 10

No. JA 40/2005 (20511816)
BETWEEN:

NEIL BAILLIE

Appellant

AND:

GARNET ALAN DIXON

Respondent

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 13 February 2006)
Introduction

This is an appeal against a sentence of three months imprisonment, to be suspended after seven days, that was imposed on the appellant by the Court of Summary Jurisdiction on 14 October 2005 for the crime of indecent assault on a female. The appeal is brought pursuant to s 163 Justices Act by a notice of appeal dated 14 October 2005. An appeal against conviction was abandoned on 9 February 2006.
On 9 February 2006 the appellant was granted leave to amend the grounds of appeal. The appellant relies on four grounds of appeal. First, the Court of Summary Jurisdiction erred in finding that the fact that the appellant was a serving police officer was an aggravating circumstance. By so doing it is said that the Court of Summary Jurisdiction took an extraneous factor into account. Second, the Court of Summary Jurisdiction misapprehended the facts in that it found without any evidence that the appellant misused his position as a police officer. Third, the Court of Summary Jurisdiction misapprehended the facts in that it found without any evidence that the appellant stood in a position of trust to the victim and that he breached that trust. Fourth, the Court of Summary Jurisdiction imposed a sentence of imprisonment on the appellant that was manifestly excessive.
Nature of the appeal
An appeal against sentence is an appeal against the exercise of a judicial discretion. The Supreme Court may intervene and exercise its own discretion in an appeal against sentence from the Court of Summary Jurisdiction if a sentencing magistrate acts upon a wrong principle, if the magistrate allows extraneous or irrelevant matters to guide or affect the sentence that is imposed, if the magistrate mistakes the facts or if the magistrate does not take into account some material consideration: House v The King (1936) 55 CLR 499 at 505.
On occasion it may not appear how the…

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 Baillie v Dixon

Details

AGLC: Baillie v Dixon [2006] NTSC 10
Case: [2006] NTSC 10
Decision Date: 13 February 2006

CaseChat Overview and Summary

The case of Baillie v Dixon involves an appeal by the appellant, a police officer, against a sentence imposed by the Magistrates Court. The appellant was convicted of indecent assault on a female, and the central issue in the appeal was whether the sentence was manifestly excessive. The appellant argued that the sentence was excessive considering his age, previous good character, the hardship he would face due to the conviction, the risks he faces in prison, and the relatively lower seriousness of the offence. The offence in question involved the appellant, while in civilian clothes and not on duty, entering the victim's home and making inappropriate physical contact. Despite the appellant's arguments, the court found that the sentence was appropriate and not manifestly excessive.

The legal issues the court needed to address were whether the sentence imposed by the Magistrates Court was manifestly excessive and whether the aggravating factor of the appellant’s breach of trust as a police officer should be considered. The court examined whether the sentence was disproportionately severe in relation to the crime and the appellant's personal circumstances. Additionally, the court considered the appellant's conduct as a police officer and whether his position had been misused to gain entry into the victim's home, potentially increasing the moral culpability of the offence.

In its reasoning, the court found that the appellant's conduct did breach a relationship of trust, making the offence more morally culpable. Despite the appellant's arguments, the court held that the sentence was not manifestly excessive. The sentencing magistrate had appropriately weighed the aggravating factors, such as the breach of trust, against the mitigating factors presented by the appellant. The court also noted that the appellant had not shown genuine remorse, which further justified the sentence imposed. The appeal was therefore dismissed.

The court confirmed that the sentence imposed by the Magistrates Court was appropriate and did not constitute a manifestly excessive punishment. The final orders of the court were that the appeal against the sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Finally, the appellant argues that the sentence imposed was manifestly excessive. It is not argued that the sentence imposed is out of line with what is commonly accepted. It is not a disparity case. It is a case in which the appellant argues that the excess of the sentence is obvious. In this regard the appellant relies on the appellant’s age, his previous positive good character, the hardship that he will incur as a result of a conviction, the risk he faces in prison and the fact that the offence is at the lower end of seriousness for an offence of this type. The offence was of momentary duration and involved touching outside of the victim’s clothing. The facts The facts of the offending are as follows. The victim, a married woman, lived with her husband at a house in Patterson Crescent, Alice Springs. On Sunday 15 May 2005 she arrived home at approximately 4.30 pm. She had spent part of the day working for St Johns Ambulance volunteers at an off road racing event. Her parents were at home. She showered and changed into an old baggy t-shirt and basketball shorts. The sleeves of the t-shirt came down to about her elbows and the shirt itself almost to her knees. Her parents left the premises. She remained at home waiting for her husband to arrive home from work. At approximately 7.50 pm she heard tapping on the front window of her house. She opened the front door and was startled by the appellant who was a male police officer with whom she and her husband were acquainted. He was in civilian clothes. Upon recognising him she invited him inside. The appellant had a standing invitation to visit the victim and her husband. However, this was the first occasion he had visited them. The appellant was not on duty. He gave the victim a kiss on the cheek on entering the house and the victim asked the appellant to take a seat. They sat on sofas in the living area of the victim’s house. They had a general discussion about a number of matters. The victim told the appellant that her husband was due home from work shortly. The appellant told the victim that he was just checking up on things in the neighbourhood. After a short time the appellant told the victim that he was going to leave. He got up and went towards the door. As he did so he observed a collage of photographs on the wall near the door and he commented that he wanted to do something similar for a friend. They walked over to the photographs and the appellant complimented the victim on the quality of the photographs. When he did so he placed the palm of his hand on the victim’s back and he rubbed his hand up and down. He commented on the fact that victim was not wearing a bra. She said that it was her house and she did not need to wear a bra at home. The victim began to feel uncomfortable. However, she did not convey this fact to the appellant. The appellant then made a hand gesture indicating that the victim should lift up her t-shirt so he could see her breasts. The victim declined to do so. She was shocked at what the appellant had done and she wanted him to leave her house. The appellant stated that he had to leave and walked towards the door.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the respondent submitted that an aggravating feature of the offending is that the appellant’s conduct, as a police officer, is a breach of trust. Counsel for the respondent said that although the appellant was not on duty that evening, when he attended at the house he gave the impression that he was checking on the neighbourhood and acting in a quasi official capacity.Conclusion The factual issues raised by the first, second and third grounds of appeal were substantially conceded by Mr McBride who appeared on behalf of the applicant in the Court of Summary Jurisdiction. These factors were rightly conceded. If the sentencing magistrate simply meant that crimes by police officers are always to be treated more seriously than crimes by other citizens he would be in error. While it is true that police officers take an oath or make an affirmation to see and cause the peace to be kept and preserved and to prevent, to the best of their powers, all offences against all laws in force in the Northern Territory, each offence by a person who is a police officer must be looked at in the context of its particular circumstances. Likewise the sentencing magistrate would be in error if he meant that the appellant had planned the offending and had misused his status as a police officer to gain entry into the house for the purpose of perpetrating the crime on the victim. There was no evidence to support such a conclusion and it was common ground between the parties that this was not the case. However, in my opinion the sentencing magistrate intended to convey by his remarks no more than what I have stated in paragraph [23] above. He did not fully adopt the submissions made on behalf of the respondent. It is apparent that a relationship of trust did exist between the victim and the appellant and that the appellant took opportunistic and predatory advantage of a social situation that arose because of the trust that existed between the appellant and the victim. A trust that was created in part by the fact that he was a police officer who had assisted and offered to further assist the victim and her husband. The appellant used his position as a police officer to put himself in the best light and when that and the other sexual advances he made were unsuccessful he simply assaulted the victim by grabbing her left breast. He did so in circumstances where the victim was extremely vulnerable because she had trusted him and allowed him to come into her home at night while she was alone. Such conduct is more morally culpable than conduct where such a relationship and such circumstances do not exist. While the offence is at the lower end of seriousness for such an offence, it is an objectively serious offence. Further the sentencing magistrate did not give the moral culpability of the offender or the objective serious of the offence undue weight. He had regard to all other sentencing factors. He stated:I take into account the matters put on his behalf with the exception of the extent of his remorse. Although he cannot be penalised for exercising his right to have the matter proceed to hearing. He does not attract the benefit of the discount to which he would have been entitled had he pleaded guilty. In that regard he went further in this case then merely putting the prosecution to proof. He entered the witness box on his own behalf and gave evidence which I ultimately did not accept, denying the commission of the offence. This can only be taken to be a clear indication of a lack of remorse in the true sense for the hurt that he has occasioned the victim.…This offence attracts the operation of s 78BB of the Sentencing Act which requires that following a finding of guilt the court must record a conviction and must impose a term of actual imprisonment or one that is suspended partly but not wholly. It was put on behalf of the defendant that I should consider imposing a sentence that provides for the defendant’s release on the rising of the court. I might have given serious consideration to such a disposition had this matter proceeded by way of a guilty plea that allowed some leeway for its utilitarian value and the remorse that would have been inherently demonstrated, however, that was not the case here.

Ratio Decidendi

Legal Principle Established

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