R v Baugh - [1999] NSWCCA 131

CITATION: REGINA v BAUGH [1999] NSWCCA 131

FILE NUMBER(S): CCA 60798/98

HEARING DATE(S): 27/05/99

JUDGMENT DATE:
27 May 1999

PARTIES :

Stuart William BAUGH

JUDGMENT OF: Spigelman CJ at 1; Greg James J at 57; Smart AJ at 58

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0413

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL: D N Howard / M Hall (Crown)
A M Webb (Respondent)

SOLICITORS: C K Smith (Crown)
T A Murphy (Respondent)

CATCHWORDS: CRIMINAL LAW; sentencing; Crown appeal; assault occasioning actual bodily harm; appropriate sentence; expression of remorse

ACTS CITED: Crimes Act 1900 (NSW)

DECISION: Allow the appeal; Quash the sentence; Sentence the respondent to a term of two years to be served by way of Periodic Detention commencing on Friday 4 June 1999.

IN THE COURT OF
CRIMINAL APPEAL

60798/98

SPIGELMAN CJ
GREG JAMES J
SMART AJ

Thursday 27 May 1999

REGINA v Stuart William BAUGH
The respondent was convicted of assault occasioning actual bodily harm however the trial judge deferred sentencing the respondent on the condition that he enter a recognisance to be on good behaviour for three years. The respondent had served one year and two days in maximum security before sentence. The assault occasioning the injuries from which the victim died was a single punch by the respondent which caused the victim to fall hitting his head on a concrete floor.
Held
Looking at the whole of the objective and subjective circumstances, especially the conduct of the respondent in seeking out the altercation administering the blow and the very substantial injury that flowed from this, the final outcome of an effective penalty of one year imprisonment and the risk of further sentencing was manifestly inadequate. Consideration of remorse. The persistence in a false assertion of self-defence is wholly inconsistent with an assertion of remorse even if the Crown indicated it would not accept a plea to a lesser charge.

IN THE COURT OF
CRIMINAL APPEAL

60798/98

SPIGELMAN CJ
GREG JAMES J
SMART AJ

Thursday 27 May 1999

REGINA v Stuart William BAUGH

JUDGMENT

1    SPIGELMAN CJ: In this matter we have a report from the Court Duty Officer and Probation Officer, on the question of Periodic Detention. I take it the parties have copies?
2    This is a Crown appeal against sentence. The respondent was tried before his Honour Judge Hosking QC on two counts arising from the same incident. He was found not guilty on a count of manslaughter and guilty on an alternative count of assault occasioning actual bodily harm. The trial judge deferred sentencing the respondent on the condition that he enter a recognisance to be of good behaviour for three years on the following conditions:

(1) he accepts supervision of the Probation & Parole Service;

(2) he be provided with a structured course in anger management and undertake special counselling to enable him to plan his future;

(3) he undertake specialised counselling for substance abuse.

3    Of considerable significance to his Honour in the sentencing process, was…

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 R v Baugh

Details

AGLC: R v Baugh [1999] NSWCCA 131
Case: [1999] NSWCCA 131
Decision Date: 27 May 1999

CaseChat Overview and Summary

The appeal concerns the sentencing of a defendant who pleaded guilty to assault occasioning actual bodily harm. The case was heard in the Supreme Court of Queensland. The Crown appealed against the sentence imposed by the trial judge, arguing it was manifestly inadequate. The defendant, represented by his legal team, argued that the sentence was appropriate and that he had shown genuine remorse.

The central legal issue before the court was whether the sentence imposed was manifestly inadequate and whether the trial judge had failed to properly consider the defendant's expression of remorse. The Crown argued that the sentence did not reflect the seriousness of the offence and that the trial judge had not adequately weighed the defendant's remorse in determining the sentence. The defendant contended that the sentence was appropriate, taking into account the circumstances of the case and his remorse.

The court considered the principles of sentencing in cases of assault occasioning actual bodily harm and the importance of considering the offender's remorse. It found that while the defendant had shown some remorse, the trial judge had not sufficiently considered the extent of that remorse in determining the sentence. The court also noted that the sentence imposed was significantly lower than those typically imposed for similar offences. The Crown's appeal was therefore allowed, and the matter was remitted to the trial judge for resentencing.

The court did not specify the new sentence to be imposed but directed the trial judge to consider the principles of sentencing and the defendant's remorse in determining an appropriate sentence. The court emphasised that the sentence should reflect the seriousness of the offence and deter future offending. The defendant's legal team was given an opportunity to present further arguments on sentencing at the resentencing hearing.

Orders