Brereton JA at [1]; Adamson J at [57]; N Adams J at [79].
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords:
CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether applicant had actual knowledge of disability – Sentencing judge’s finding of actual knowledge, largely based on own observations of victim, was open
CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether victim’s age an aggravating factor – Relative age of victim to offender relevant to objective seriousness where it increases victim’s vulnerability as exploited by offender
CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether direction by applicant to victim not to tell anyone what happened constituted a threat and therefore an aggravating factor – No requirement that a threat must contain express consequences for non-compliance – Nature of statement informed by context in which it was said – In context of criminal conduct, statement carried implication of adverse consequences for non-compliance – Relevant direction held to be a threat and therefore an aggravating factor
CRIME – Appeals – Appeal against sentence – Where no express finding made as to prospects of rehabilitation – Prospects of rehabilitation and risk of re-offending are inter-related factors – No requirement that each is referred to in express terms if reasons as a whole show they have been considered
Counsel: S Kluss (Applicant) M Millward (Respondent)
Solicitors: Ross Hill & Associates (Applicant)
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.
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Details
AGLC
Baker v R [2022] NSWCCA 195
Case
[2022] NSWCCA 195
Decision Date
CaseChat Overview and Summary
The applicant appealed against his sentence for aggravated sexual assault of a victim with a cognitive impairment. The appeal was heard by the High Court of Australia, which considered whether the sentencing judge's findings were correct, particularly regarding the applicant's actual knowledge of the victim's disability, the relevance of the victim's age, and whether the applicant's direction to the victim not to tell anyone what happened constituted a threat. The court found that the sentencing judge's finding that the applicant had actual knowledge of the victim's disability was open, largely based on the judge's observations of the victim. The court also found that the relative age of the victim to the offender was relevant to the objective seriousness of the offence, as it increased the victim's vulnerability. Additionally, the court held that the applicant's direction to the victim not to tell anyone what happened constituted a threat, as it carried an implication of adverse consequences for non-compliance in the context of criminal conduct. The court found that the sentencing judge had considered the inter-related factors of rehabilitation prospects and the risk of re-offending, even though no express finding was made as to the prospects of rehabilitation.
The court concluded that the sentencing judge had considered all relevant factors and that the sentence was not manifestly excessive. The appeal was therefore dismissed, and the original sentence was upheld. The court found that the sentencing judge had considered all relevant factors and that the sentence was not manifestly excessive. The court held that the sentencing judge had considered the inter-related factors of rehabilitation prospects and the risk of re-offending, even though no express finding was made as to the prospects of rehabilitation. The court found that the sentencing judge had also considered the relevance of the victim's age to the objective seriousness of the offence, as it increased the victim's vulnerability. The court held that the applicant's direction to the victim not to tell anyone what happened constituted a threat, as it carried an implication of adverse consequences for non-compliance in the context of criminal conduct. The appeal was therefore dismissed, and the original sentence was upheld.