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Baxter (a pseudonym) v The King

Baxter (a pseudonym) v The King

Case [2024] SASCA 64 23 May 2024

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BAXTER (A PSEUDONYM) v THE KING
[2024] SASCA 64
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Stein)
23 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS
This is an appeal against sentence.
The appellant pleaded guilty to two counts of unlawful sexual intercourse with a person under 14 years, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) which carries a maximum penalty of life imprisonment, and one count of aggravated indecent assault contrary to s 56 of the CLCA, which carries a maximum penalty of 10 years’ imprisonment.
The appellant is the biological father of the victim. The offending occurred in South Australia between 29 September 2009 and January 2013, when the victim was between seven and 10 years of age. The appellant entered the bedroom where the victim was sleeping and digitally penetrated her on two separate occasions. He also touched her on the breasts, on top of her clothes, on another occasion. The offending occurred against a background of other similar uncharged acts of indecent touching of the victim's breasts.
The appellant also committed two other sexual offences against the same victim in New South Wales between 30 September 2008 and 30 December 2009, for which the appellant was convicted in 2018. In the District Court of New South Wales, the appellant was sentenced to five years and six months’ imprisonment with a non-parole period of three years and six months. The appellant served four years, two months and 10 days of the New South Wales sentence (three years and six months were spent in custody and eight months and 10 days on parole) before being extradited to South Australia on 12 October 2022
For the South Australian offences, the sentencing Judge adopted a starting point of nine years’ imprisonment reduced on account of the appellant’s guilty pleas to seven years, seven months and 24 days. The appellant fell to be sentenced as a serious repeat offender. Accordingly, a non-parole period of six years and two months was fixed, that being four-fifths of the head sentence. The sentence was ordered to commence on 12 October 2022.
The issue on appeal was whether an inadequate application of the principle of totality as explained in Mill v The Queen (1988) 166 CLR 59 (‘Mill’) rendered the sentence imposed in South…

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 Baxter (a pseudonym) v The King

Details

AGLC: Baxter (a pseudonym) v The King [2024] SASCA 64
Case: [2024] SASCA 64
Decision Date: 23 May 2024

CaseChat Overview and Summary

Baxter (a pseudonym) appealed against a sentence imposed by the District Court of New South Wales. The appeal concerned the appropriate sentence for a range of sexual offences.

The primary legal issue before the Court of Appeal was whether the sentencing judge erred in applying the principle of totality when determining the aggregate sentence. Specifically, the court had to consider whether the totality principle was correctly applied, particularly in circumstances where some of the offences were committed in different jurisdictions.

The Court of Appeal held that the sentencing judge had erred in their application of the totality principle. The court explained that the principle of totality requires a sentencing judge to consider the aggregate sentence for multiple offences, ensuring that it is just and appropriate when viewed as a whole. In this instance, the court found that the sentencing judge had failed to adequately consider the impact of the totality principle, leading to a sentence that was excessive. The court emphasised that when offences are committed in different jurisdictions, careful consideration must be given to how the sentences are to be served, whether concurrently or consecutively, to achieve a just outcome under the totality principle.

The Court of Appeal allowed the appeal, quashed the original sentence, and resentenced Baxter.

Orders