Baines v R

Case [2016] NSWCCA 132


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Baines v R [2016] NSWCCA 132
Hearing dates:6 June 2016
Date of orders: 04 July 2016
Decision date: 04 July 2016
Before: Basten JA at [1];
Rothman J at [33];
Fagan J at [58]
Decision:

(1) Leave to Appeal granted
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – manifest excess – whether sentencing judge erred in assessment of objective seriousness of each offence – use of comparative cases – whether sentencing judge erred in not accounting for summary disposition of offences – distinction between sentencing for uncharged acts and taking account of surrounding circumstances – effect of capacity to prosecute offence summarily – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Aktar v R [2015] NSWCCA 123
Bonwick v R [2010] NSWCCA 177
Einfeld v Regina [2010] NSWCCA 87; (2010) 200 A Crim R 1
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jalloh v R [2009] NSWCCA 295
Jiang v R [2010] NSWCCA 17
Lago v R [2015] NSWCCA 296
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
Mulato v Regina [2006] NSWCCA 282
Quing An v Regina [2002] NSWCCA 189
R v Bavadra [2000] NSWCCA 292
R v Crombie [1999] NSWCCA 297
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
R v J.R.D. [2007] NSWCCA 55
R v JCW [2000] NSWCCA 209; 112 A Crim R 466
R v MA [2001] NSWCCA 30; (2001) 8 Crim LN 23
R v Palmer [2005] NSWCCA 349
R v Qin; Qin v Regina [2008] NSWCCA 189
Regina v Swadling [2004] NSWCCA 421
RP v R [2013] NSWCCA 192
Salmond v R [2010] NSWCCA 141
Sharma v R [2010] NSWCCA 338
Category:Principal judgment
Parties: Garry Baines (Applicant)
Regina (Respondent)
Representation:

Counsel:
T Edwards (Applicant)
H Baker (Respondent)

    Solicitors:
Kapsis & Associates (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s):2012/207409
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
09 April 2015
Before:
Baly DCJ
File Number(s):
2012/207409

Judgment

  1. BASTEN JA: Section 61L of the Crimes Act 1900 (NSW) makes it an offence punishable by up to five years imprisonment to assault a person, committing an act of indecency in the course of the assault. The applicant was convicted on 27 November 2014, following a trial by jury in the District Court, of 11 offences of indecent assault involving seven different women. Thereafter, he entered pleas of guilty to two further counts on a separate indictment.

  2. Each of the assaults took place in the course of him providing professional services as a masseur at a gymnasium. The applicant was sentenced on 9 April 2015 to an aggregate sentence of five years imprisonment, with a non-parole period of three years.

  3. The circumstances of the…

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AGLC
Baines v R [2016] NSWCCA 132
Case
[2016] NSWCCA 132
Decision Date

CaseChat Overview and Summary

The appellant, Baines, sought leave to appeal against the sentences imposed by the sentencing judge, arguing that the sentence was manifestly excessive. The appeal was heard by the High Court of Australia. The appellant was convicted of multiple offences, including assault and dangerous driving, and sentenced to imprisonment. The appellant contended that the sentencing judge erred in assessing the objective seriousness of each offence and in not taking into account the summary disposition of the offences.

The court considered whether the sentencing judge erred in assessing the objective seriousness of the offences and in not accounting for the summary disposition of the offences. The court noted that the sentencing judge had considered the objective seriousness of the offences and had appropriately weighed the surrounding circumstances. The court found that the sentencing judge had not erred in assessing the objective seriousness of the offences or in not accounting for the summary disposition of the offences. The court also noted that the distinction between sentencing for uncharged acts and taking account of surrounding circumstances was relevant but did not affect the outcome of the appeal.

The appeal was dismissed. The court found that the sentences imposed were not manifestly excessive and that the sentencing judge had appropriately considered the relevant factors in determining the appropriate sentence. The court held that the appellant had not demonstrated that the sentencing judge had erred in a way that warranted leave to appeal.

Orders

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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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