R v Baulch

[1999] QCA 173

99.173

COURT OF APPEAL

PINCUS JA DAVIES JA CHESTERMAN J

CA No 394 of 1998
THE QUEEN
v.

DAVID JOHN BAULCH Applicant

BRISBANE
..DATE 14/05/99

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PINCUS JA: This is an application for an adjournment of an application for leave to appeal against sentence. The applicant, Mr Baulch, was sentenced to imprisonment for 12 years in respect of an offence of maintaining a sexual relationship and also sentenced to imprisonment for 12 years in respect of six offences of unlawful carnal knowledge. There were other offences for which lesser sentences were imposed.

The applicant has given two grounds for the proposed adjournment. One is that he hopes to obtain legal representation and that he has not yet been able to obtain the funds for that purpose. The second ground is that until a few days ago his papers, including the record, were with the solicitor and he has not had time, since he got them back, to prepare himself to appear.

It seems to me that there are, possibly or potentially, legal issues in the case. One of them is this, that the offence of unlawful carnal knowledge with a circumstance of aggravation, particularly in relation to a child close to the age of 16, would not ordinarily attract a sentence of 12 years. A question arises whether or not the course which the trial Judge took, which plainly was to include in that sentence of 12 years to which I have referred for the unlawful carnal knowledge offences, consideration of the other offences which were committed.

There is a question whether that is a proper way to sentence and legal assistance on that point might be of

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some use. As against that, it might be thought it does
not make much difference, because the argument does not
apply to the maintaining offence, the 12-year maintaining
offence. But that is not quite so; in the High Court
decision in KBT the Court expressed the view that the
relevant offence makes the actus reus the individual
offences which are referred to in the section, in the
absence of proof of which a conviction cannot be entered.

Now, accepting that, there is a question whether or not it is proper to do as the primary Judge did, namely, take into account in fixing the 12 year sentence for maintaining offences other than those specified in the indictment; the reason for doubt about that is the High Court's expression of view in KBT as to what is the true construction of the maintaining section.

If I could repeat that, to make my points clear, the legal issues which possibly arise are firstly, whether or not it is proper when sentencing for offence A to impose sentence at a level which takes into account also the sentence for offence B which is being dealt with contemporaneously. There is authority on the point which tends to support what the learned primary Judge did, but the matter is not clear beyond argument.

The second point is whether the KBT case allows or does not allow, in sentencing for a maintaining offence, the Judge's taking into account offences other than those specifically charged.

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PINCUS JA: Mr Heaton, I suppose you might or might not be appearing in the matter when it comes on again - we are going to adjourn it - but assuming that you are not appearing I would be grateful if you could draw that to the attention of the-----

MR HEATON: I certainly will.
PINCUS JA: And perhaps also to the attention of counsel on the other side.
MR HEATON: Yes.
PINCUS JA: If there is any counsel on the other side.

PINCUS JA: For the reasons that these legal questions arise and that it is desirable that the Court obtain some assistance, the order I would make is that the application be adjourned to a date to be fixed. I would make that order having in mind and having carefully considered Mr Heaton's point that the complainant is anxious to have the matter disposed of. Unfortunately, although that is an extremely desirable end it does not seem to me practicable to achieve that in the present case and therefore, as I say, I would be in favour of adjourning the case.

DAVIES JA: I agree.

CHESTERMAN J: I agree.

PINCUS JA: The application will be adjourned to a date to be fixed.

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