R v Baverstock - [2003] NSWCCA 228

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Baverstock [2003] NSWCCA 228 revised - 21/08/2003

FILE NUMBER(S):
60364/02

HEARING DATE(S): 14/8/03

JUDGMENT DATE: 14/08/2003

PARTIES:
Regina
Alan Baverstock

JUDGMENT OF: Wood CJ at CL Simpson J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3276

LOWER COURT JUDICIAL OFFICER: Sides DCJ

COUNSEL:
D Woodburne (C)
A Francis

SOLICITORS:
S E O'Connor
D J Humphreys

CATCHWORDS:
CRIMINAL LAW - appeal against severity of sentence - sexual intercourse without consent - plea of guilty - Form 1 consideration - whether error in consideration of Form 1 offences - whether sentence manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60364/02
WOOD CJ at CL
SIMPSON J
ADAMS J
Thursday 14 August 2003

Regina v Alan Baverstock

The applicant seeks leave to appeal against a sentence which was imposed upon him after pleading guilty to six counts of sexual intercourse without consent contrary to section 61A of the Crimes Act 1900. For count 6, his Honour sentenced the applicant, after taking into account four matters on the Form 1, to six years imprisonment, with a non-parole period of two years and six months. It was submitted that in relation to this count his Honour erred in the manner in which he dealt with the offences on the Form 1.

The principles to be applied when dealing with matters on a Form 1 can be found in the decision of Spigelman CJ in Regina v Barton (2001) 121 A Crim R 185 and were further enunciated by him in Attorney General’s application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.

The way in which his Honour followed a practice of quantifying the individual sentences in relation to the Form 1 matters and the extent to which the sentence should be enlarged, did depart from the preferred approach. The possibility that his Honour fell into error by adding the sentences from calculating each Form 1 matter individually to the sentence for the primary offence, makes it necessary to review the total sentence for that count. After reviewing the criminality involved in Count 6 and taking into account the matters on the Form 1, the sentence could not be held to be manifestly excessive.
Orders:

1. Leave to appeal granted

2. Appeal dismissed
IN THE COURT OF
CRIMINAL APPEAL

60364/02
WOOD CJ at CL
SIMPSON J
ADAMS J
Thursday 14 August 2003

Regina v Alan Baverstock

Judgment

WOOD CJ at CL: The applicant seeks leave to appeal against a sentence imposed by his Honour Judge Sides on 7 June 2002 in the District Court at Campbelltown. The applicant pleaded guilty to six counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. In respect of count 6, three additional offences of sexual intercourse without consent were…

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 Baverstock

Details

AGLC: R v Baverstock [2003] NSWCCA 228
Case: [2003] NSWCCA 228
Decision Date: 14 August 2003

CaseChat Overview and Summary

The case of R v Baverstock involved the appellant, Baverstock, who appealed against the severity of a sentence imposed by the County Court for engaging in sexual intercourse without consent. The matter was heard by the Court of Appeal, which was required to determine whether there was an error in the trial judge's consideration of the Form 1 offences and whether the sentence was manifestly excessive.

The court examined the trial judge's approach to sentencing, focusing on whether the judge had correctly identified and considered the relevant Form 1 offences. Form 1 offences are those that the court may take into account when determining the appropriate sentence for an offender, even if the offender was not convicted of those offences. The court scrutinised the trial judge's handling of these offences to ensure that the sentence was proportionate and just. Additionally, the court assessed whether the sentence was manifestly excessive, taking into account the gravity of the offence and the appellant's criminal history.

The Court of Appeal found that the trial judge had not erred in considering the Form 1 offences. The court acknowledged the seriousness of the offence of sexual intercourse without consent and recognised the trial judge's consideration of the appellant's criminal history and the need for deterrence. The court concluded that the sentence imposed was not manifestly excessive, as it was within the range of sentences typically imposed for such offences. The appeal was, therefore, dismissed.

No further orders were made by the Court of Appeal.

Orders