Baldwin-Davies v R

Court of Criminal Appeal (NSW)|2024-10-02|Before: Mitchelmore JA, Wright J

Background

On 23 March 2023, the applicant pleaded guilty in the Local Court at Port Macquarie to 5 charges of aggravated sexual intercourse with a child aged between 14 and 16 years, 2 charges of intentionally sexually touching a child aged between 10 and 16 years and 3 charges of use of a child aged between 14 and 16 years for the production of child abuse material. The matter was committed to the District Court.
After a sentence hearing on 20 September 2023 in Port Macquarie, the applicant was sentenced on 20 November 2023 in the District Court at Sydney to an aggregate sentence of imprisonment for 12 years commencing on 4 January 2022 and expiring on 3 January 2034, with a non-parole period of 7 years 9 months, expiring on 3 October 2029.
As required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the sentencing judge indicated that the applicant would have been sentenced to the sentences set out in the table below had separate sentences been imposed instead of an aggregate sentence. These indicative sentences were after the application of a 25% discount for the applicant's early guilty pleas. The table also includes the maximum penalty and, if applicable, the standard non-parole period (SNPP) and the indicative non-parole period (NPP) for relevant offences. Seq Offence Maximum Penalty and SNPP (if applicable) Indicative Sentence and NPP (if applicable) 6 Intentionally sexually touch a child (aged 10 - 16 years) contrary to s 66DB(a) of the Crimes Act 1900 (NSW) 10 years 1 year 6 months 7 Aggravated sexual intercourse with a child (aged 14 - 16 years) contrary to s 66C(4) of the Crimes Act 12 years 5 years SNPP 5 years NPP 3 years 3 months 8 Aggravated sexual intercourse with a child (aged 14 - 16 years) contrary to s 66C(4) of the Crimes Act 12 years 6 years SNPP 5 years NPP 4 years 6 months 9 Aggravated sexual intercourse with a child (aged 14 - 16 years) contrary to s 66C(4) of the Crimes Act 12 years 5 years SNPP 5 years NPP 3 years 3 months 10 Aggravated sexual intercourse with a child (aged 14 - 16 years) contrary to s 66C(4) of the Crimes Act 12 years 6 years SNPP 5 years NPP 4 years 6 months 11 Intentionally sexually touch a child (aged 10 - 16 years) contrary to s 66DB(a) of the Crimes Act 10 years 4 years 12 Aggravated sexual intercourse with a child (aged 14 - 16 years) contrary to s 66C(4) of the Crimes Act 12 years 6 years SNPP 5 years NPP 4 years 6 months 13 Use a child (aged 14 or above) for production of child abuse material contrary to s 91G(2)(a) of the Crimes Act 10 years 3 years 14 Use a child (aged 14 or above) for production of child abuse material contrary to s 91G(2)(a) of the Crimes Act 10 years 3 years 15 Use a child (aged 14 or above) for production of child abuse material contrary to s 91G(2)(a) of the Crimes Act 10 years 3 years

Application for leave to appeal and grounds

The applicant's application for leave to appeal was filed within time on 20 August 2024 and originally raised only two grounds of appeal. Subsequently, the applicant served amended grounds of appeal dated 30 September 2024 containing three grounds of appeal and the Crown did not object to the amendment. The three grounds were: "1 The sentencing judge failed to assess the objective seriousness of each offence. (a) A failure to assess the objective seriousness of sequences 6 and 11 (b) A failure to assess the objective seriousness of sequences 7, 8, 9, 10 and 12. 2 The sentence was manifestly excessive. 3 The sentencing judge failed to provide adequate reasons regarding any findings made as to objective seriousness."
In order to address those grounds, it is necessary to review in some detail the sentencing judge's remarks on sentence.

Remarks on sentence

King SC DCJ commenced his remarks by identifying the maximum penalties and, where applicable, the standard non-parole periods for the 10 offences for which the applicant was to be sentenced. His Honour then noted that the applicant had been arrested on 4 January 2022, the day after the offending, and had been in custody since that time.
The sentencing judge recorded that the facts were agreed between the parties and effectively made findings in accordance with the agreed facts. The findings included what is set out in the following paragraphs.

The background

The applicant was 37 years of age and the victim was approximately 14 years and 9 months of age at the time of the offences. The victim had been diagnosed with autism spectrum disorder (ASD) and "[i]n accordance with the diagnostic statistical manual, it was recommended that she be provided with Level 1 support."
The applicant had been in a relationship with Ms J, the cousin and close friend of the victim's mother, and the applicant had met and spent some time with members of Ms J's family including the victim and her mother. Before the date of the offending, the applicant's relationship with the cousin had come to an end although they remained friends and the applicant moved into a granny flat at the rear of Ms J's house. While the applicant was living in the granny flat, the victim visited Ms J and stayed with her for periods of up to a week. At the time of the offences, the applicant was aware of the victim's age, that she had behavioural problems at school and home and that she had been diagnosed with ASD.
More specifically, in August 2021, a psychologist noted a diagnosis for the victim of "complex comorbid developmental disorders of ASD Level 1, attention deficit hyperactivity disorder and oppositional defiant disorder" and reported that a functional assessment showed that she would require support "as if she had an intellectual disability".

The offending

On 2 January 2022, the victim was staying at Ms J's house, in her own bedroom. That evening she attended a family function with Ms J and the applicant. They returned to Ms J's house about 12:30 am on 3 January 2022. The three talked for some time and the victim drank a premixed gin drink in the presence of the applicant. The applicant and Ms J were "smoking mushrooms". Ms J went to her bedroom while the victim and the applicant had a conversation. Following the conversation, the victim went to the granny flat where the offending occurred, some of which was recorded on the applicant's mobile telephone.
At the granny flat, the applicant directed the victim to take her clothes off and digitally penetrated her vagina (sequence 7).
The applicant also instructed her to perform fellatio on him, which she did while he video-recorded it for a duration of 2 minutes and 17 seconds (sequences 8 and 13).
Further, the applicant touched and rubbed the victim's breasts and kissed her on the mouth and breasts (sequence 6). While doing this, the applicant told the victim that he owned her and she had to do what he said.
The victim then lay on her back and the applicant digitally penetrated her genitalia three or four times (sequence 9).
The applicant motioned for the victim to sit on top of him and she did so with his penis touching her genitalia as she moved on top of him (sequence 11).
At about 4:10 am, the applicant took a photograph of the victim's mouth near his penis and at about 4:11 am commenced video-recording her fellating his penis for about 90 seconds (sequences 10 and 14).
The video recording continued and recorded a conversation including that the victim was asked who owned her pussy and she answered it was the applicant. They had penile/vaginal intercourse with the victim encouraging the applicant till she told him to stop filming her, which had gone on for 4 minutes and 21 seconds (sequences 12 and 15).
Ms J woke up at about 5:30 in the early morning and noticed the granny flat door was open. She entered and discovered the applicant and a female naked together in the bed. Ms J slapped the applicant and, when she discovered the female was the victim, she screamed at her to leave the room. The victim went to the main house, still naked. The applicant then left the property.
Later that morning, the victim's mother came to collect her, and Ms J informed the victim's mother about the victim being naked in the applicant's bed. Police were contacted and the victim made a partial disclosure, in front of her mother, father and police officers, which was recorded on body worn video. The applicant's DNA was later detected on the inside of the victim's underwear. An examination was completed at hospital and the police interviewed the victim.
Police arrested the applicant on 4 January 2022 and seized his phone. The photographs and videos taken of the offending were discovered in the deleted items folder on the applicant's telephone.

Objective seriousness

The sentencing judge then considered the offending and noted the following: 1. all of the offending occurred on the one night between 12:30 am and 5:30 am; 2. in respect of each of the offences contrary to s 66C(4), sequences 7, 8, 9, 10 and 12, the circumstance of aggravation relied on was that the victim had a cognitive impairment and this was also relevant to the other offending even though it did not form part of the elements of those offences; 3. the age difference between the victim and the applicant was noted; and 4. the offending involved the victim being directed to comply with the applicant's desires and to acknowledge his dominance over her.
His Honour then referred to his approach to expressing his findings as to objective seriousness: "As a result, the offences are all in effect a sequence of continuing offending, and there is little utility in referring to the objective seriousness of each individual offence. What occurred before or after any individual offence is relevant to understanding the seriousness of the intervening offence. The fact is that this was, on the facts, a spontaneously entered into sequence of serious offending against a cognitively impaired child, known to the offender to be cognitively impaired."
The sentencing judge then noted other relevant circumstances of the offending: 1. the applicant was in the position of a trusted person and each of the offences was an abuse of that trust; and 2. the offending was aggravated by the fact it occurred in the granny flat which was essentially part of the home which the victim used to visit on a regular basis and where she could expect to be safe from such conduct.
His Honour then observed that the relevant acts included digital penetration, penile penetration, and fellatio and noted that, depending on the circumstances in which the act was committed, the objective seriousness might vary. The following assessments of the seriousness of the various offences were then made: "Acts of sexual intercourse include by definition a wide variety of events. The acts included here in these charges include digital penetration, penile penetration, and fellatio. While the defining section itself makes no distinction between the different acts, depending on the circumstances in which the act is committed, the objective seriousness might vary. In my view in this matter Sequences 7 and 9 can be regarded as being objectively less serious than Sequences 8 and 10 involving fellatio and Count 12 involving penile genital intercourse. Digital penetration does not carry the same risk of the transmission of disease or the risk of causing pregnancy, and in my view the digital penetration is not as significant as the fellatio or the penile penetration. While the recordings referred to in Sequences 13, 14 and 15 are of varying lengths, they are each of either fellatio or penile penetration. It is the fact that they were recorded rather than the length of the recording that is significant in my view, and of course those that involve fellatio on my viewing of the recordings included showing the victim's face. While there is no evidence that the videos have been distributed or that there was any intention to distribute them, the fact that they were made is of serious concern, not simply because the offender might have wished to revisit his activities in the future in the absence of the victim, but because they may, by way of being available on his phone, have fallen into the hands of others. It is a matter of serious concern to victims of sexual assaults that have been recorded that they do not know what has necessarily happened to the recordings or how far they have been dispersed, or whether in 20 years' time they may show up on the internet to their disadvantage."
The sentencing judge noted that there was no victim impact statement but inferred that the conduct would be likely to have a very significant effect on the victim in the future as she matures and understands the nature of the offending against her. Nonetheless, it was held that the anticipated consequences did not go beyond what can be ordinarily expected, such as to constitute an aggravating factor.
His Honour then returned to the assessment of objective seriousness and said: "The extent that any offence varies in terms of its seriousness from any other offence will be evident, and my finding therefore will be evident from the indicative sentences to be stated later in these reasons. I will simply refer to the objective seriousness in my view as being in the circumstances a very serious example of sexual offending against a child."

Subjective matters

King SC DCJ then turned to subjective matters.
It was noted that the applicant's criminal history included only one offence of stalking or intimidating, for which he received a 12-month conditional release order and which was apparently unrelated to the victim in this matter. It was said that he was otherwise of good character "until he went entirely off the rails on this occasion".
The sentencing judge then referred to the Sentencing Assessment Report, the Sex Offender Sentencing Consultation report, the psychological report of Allan Anderson, a number of certificates obtained by the applicant in custody, and references from Kirrily Slater and Taylah Broadrick.
As to the references, his Honour noted the exact same wording occurred in parts of each reference. As a result, it was found that they were "almost proforma and carr[ied] little weight, even if genuinely expressed by their authors, which I don't doubt".
It was also observed that the applicant, and the referees, appeared to be seeking to diminish the applicant's responsibility by saying that "[t]his incident was the result of the use of illicit drugs (magic mushrooms), a hallucinogenic drug, mixed with alcohol". Nonetheless, it was said that there was no evidence before the court that the applicant had consumed such a sufficient quantity of alcohol that he would be unable to remember the events of the night, nor was there any evidence that the "magic mushrooms" caused memory loss, or that the combination of alcohol and magic mushrooms caused memory loss. The sentencing judge then summarised some of the applicant's evidence given on sentence as follows: "That he consumed some mushrooms at about 4.00pm at the family gathering although he could not say how much and that he had consumed some more later that evening when it was dark. As to the effects, he said he did not feel any but after he arrived home at [the cousin's] premises, he saw the cousin and the victim standing there and he started to feel physically there but mentally not and asserted that he then had no control over what he was doing. He said he could remember about 10 minutes [or a short period] … having ecstasy and otherwise chopping up marijuana and smoking it with [the cousin] in front of the victim. He said he went into his flat, and 10 minutes later, the victim walked in to his flat and said, 'I want to have sex with you' and he said, 'No' and asked her to leave. He agreed that he had read the facts as I have previously referred to and said that he could not remember what had happened after asking her to leave. He simply remembered walking away from her and sitting on the lounge, and that his next memory was being slapped the next morning by [the cousin]. As to the recordings on his phone, in effect his evidence was that after he left the premises that morning in his car, he had looked at his phone and realised that the recordings were on the phone and deleted them immediately, in effect because he realised he should not have them".
The sentencing judge's assessment was that the applicant was endeavouring to explain away his own conduct by claiming not to recall it or to not know what he had done and to have had no control over what he had done.
His Honour also recorded that the applicant had said he was "terribly sorry to the victim and her family, that this should not have happened" and claimed to have drunk ten beers before getting home that night.
King SC DCJ recorded that, in his view, one of the applicant's comments in cross-examination was "so totally unbelievable as to reflect badly on any evidence given by him that is supportive or tends to assist in obtaining a lesser sentence". The comment was: "I am not sexually attracted to her that night ... I was heavily affected by drugs and can't remember what happened. … the mushrooms had a big part of it".
The sentencing judge did not accept that the applicant had somehow been unaware of what he was doing. In that regard, it was also noted that the Sentence Assessment Report included the observations that the applicant: "minimised his culpability by attributing his actions to alcohol and drug use, and … he claimed to the Sentence Assessment Officer to have no recollection of committing the offences, linking it back to the effects of his substance use. Although he accepted responsibility for the offences, he minimised his culpability by stating he had no recollection of them."
As to his risk of reoffending, it was recorded that the sentence assessment officer assessed the applicant as being "a medium to low risk of reoffending, according to the Level of Service Inventory - Revised" and "a medium risk of sexual reoffending" according to the "Sex Offender Sentencing Assessment Report" which appeared to be the Sex Offender Sentencing Consultation report referred to above.
It was noted that the applicant had no significant medical or psychiatric history.
The sentencing judge then recorded the applicant's personal history including that he was an Indigenous person and his mother had been murdered when he was 16 years old by her then boyfriend. It was accepted that this left him with unresolved trauma. In addition, it was noted that his mother had been a serious alcoholic and irresponsible in caring for him. As to his education, it was recorded that he finished Year 12 being a moderate student but excelling at sport. He has worked as a roof tiler and in fencing, then in the produce and liquor departments of Woolworths before commencing work in the solar power industry which he had worked in for the preceding 15 years.
His drug use was said to include beginning to drink and use cannabis at age 17 and later dabbling in speed and cocaine.
It was noted that the applicant has been married and he has children aged 16 and 13, as well as a stepdaughter from a previous marriage. He saw his 13-year-old child regularly.
It was also said that the applicant described a happy childhood (presumably before his mother's murder and despite her alcoholic neglect) with no physical or sexual abuse during his developing years. He did not report any mental illness in the family or in himself, although he did take anti-depressants for a period in 2016. The applicant has maintained a high level of fitness.
The sentencing judge also recorded that the psychologist, Mr Anderson, assessed the applicant as being "a low risk of future reoffending". In the circumstances identified, his Honour accepted that the risk of reoffending was "moderate to low".
As to the prospects of rehabilitation, King SC DCJ found that: "there is at least a reasonable prospect that he will not re-offend and a reasonable prospect that he can be rehabilitated. That will in my view however depend on him finally acknowledging to himself his full responsibility for the offending conduct, rather than trying to hide from himself behind assertions of it being the alcohol and/or the mushrooms that did it."
His Honour took into account the problems in custody caused by the COVID-19 pandemic and recorded that there was nothing contained in the applicant's past history "which satisfie[d] the considerations of Bugmy" or any other matter that might be relevant to reducing his moral culpability.

Summary and sentence

His Honour concluded that: "[i]t is, in effect, entirely inexplicable that a man who was 37 years of age at the time of this offending, who had no previous criminal history other than the one stalk intimidate charge in 2020 could so seriously go off track and commit this relatively horrendous series of offences against a cognitively impaired child. I can find no explanation for his conduct in any of the material before me but accept that it was relatively spontaneous in the circumstances that then arose. There is no information or sign in the evidence that the offender had tried to cultivate the victim prior to this offending. One of the most appalling features in relation to the sentence hearing is the offender's endeavour to directly blame the victim for the offending by suggesting that she asked him or informed him that she wanted to have sex with him, and the absurd suggestion during cross-examination on sentence that he was not sexually interested in her that night, which is of course completely at odds with the offending, the nature of the individual offences and the period of time over which they occurred. The offending was both opportunistic and predatory."
After taking into account the sentencing statistics and cases to which the parties had directed attention, the principles concerning sentencing for sexual offending against children and s 25AA(3) of the Sentencing Procedure Act and other matters to which he had already referred, his Honour said he would proceed by way of an aggregate sentence, with the indicative sentences discounted by 25% for the pleas. A finding of special circumstances was made which led to the non-parole period being 65% of the term of the sentence.
His Honour then identified the indicative sentences as set out in the table above and specifically referred to totality before announcing the aggregate sentence and the non-parole period.

Grounds 1 and 3

The first and third grounds of appeal both relate to the assessment of objective seriousness of the offences for which the applicant was to be sentenced and can conveniently be dealt with together. The first ground of appeal asserted two errors by the sentencing judge in the assessment of objective seriousness, namely: 1. a failure to assess the objective seriousness of sequences 6 and 11; and 2. a failure to assess the objective seriousness of sequences 7, 8, 9, 10 and 12.
The third ground was to the effect that there had been a failure to provide adequate reasons for any findings that had been made concerning objective seriousness.

Submissions

The applicant referred to the principles, derived from authorities including JM v R [2014] NSWCCA 297; 246 A Crim R 528 (JM), relating to aggregate and indicative sentences and the assessment of objective seriousness in respect of each offence. It was submitted that there was a failure to assess the seriousness of each offence in the present case.
More particularly, it was submitted that, in the remarks on sentence, there was no specific assessment of the objective seriousness of the acts of sexual touching, sequences 6 and 11, and no delineation between those acts and other sexual acts. It was submitted that the statement that "[t]he extent that any offence varies in terms of its seriousness from any other offence will be evident, and my finding therefore will be evident from the indicative sentences to be stated later in these reasons" was demonstrative of error and employed a form of backward reasoning.
As to sequences 7, 8, 9, 10 and 12, the sexual intercourse offences, it was submitted that the sentencing judge's discussion of differences between different forms of sexual intercourse did not expose in a transparent way the process of reasoning used to assess the seriousness of each offence. The two offences of digital penetration, sequences 7 and 9, were submitted to have involved different conduct yet resulted in the same indicative sentence without the basis for this being exposed. A similar submission was made based on the differences between the conduct involved in sequences 8, 10 and 12.
Effectively in the alternative, the applicant submitted that, if the sentencing judge did make assessments of the objective seriousness of each offence, the reasons given were inadequate as the basis for the assessments were not disclosed.
The Crown submitted that, when the remarks on sentence were read fairly as a whole, although there was no express assessment of objective seriousness of sequences 6 and 11, it could be inferred that such an assessment had been made because all the relevant factors had been outlined, including acknowledging that those sequences needed to be understood in the context of the entire incident. The Crown referred to various authorities including Daher v R [2018] NSWCCA 287.
As to sequences 7, 8, 9 and 12, the Crown submitted that the applicant's essential point was that there had been a failure to expose sufficiently the reasoning process which led to the assessments of objective seriousness made. Once again, it was submitted that the sentencing judge identified relevant factors and considered the different types of sexual conduct involved and the overall circumstances and was mindful of the obligation to assess objective seriousness for each offence. The fact that the sentencing judge nominated the same indicative sentence for some of the offences did not, it was submitted, demonstrate a failure to assess objective seriousness but rather was explained by the fact that many of the relevant factors were common to all of the offending.
The reference to the varying seriousness of the offences being evident from the indicative sentences was submitted not to be a form of backward reasoning but rather, to be an acknowledgement that there would be some variation between the seriousness of the offending and that it was not intended to place the offences on a hypothetical scale.

Consideration

The leading authority on aggregate and indicative sentences under s 53A of the Sentencing Procedure Act remains JM and especially the principles collected by R A Hulme J at [39]. A recent comprehensive and useful discussion of these issues is also found in Dorsett v R [2024] NSWCCA 192 (Dorsett) at [134]-[157] (N Adams J, with Harrison CJ at CL and Dhanji J agreeing).
When imposing an aggregate sentence for a number of offences, the criminality involved in, or the objective seriousness of, each offence must be assessed individually: JM at [39(4)]; Dorsett at [135]. This is required in order to assist in the application of the principle of totality and to allow victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: JM at [39(4)]; Dorsett at [135]. The fact that the offences in question are all part of one sequence of continuing offending does not constitute a reason for not applying that principle.
If the sentencing judge's comment that "the offences are all in effect a sequence of continuing offending, and there is little utility in referring to the objective seriousness of each individual offence" were taken to mean that his Honour did not make an assessment of the objective seriousness of each offence in the present case, it would amount to an error of principle. In my view, however, when the remarks on sentence are read as a whole including the indicative sentences, it is apparent that the sentencing judge did assess the objective seriousness of each offence as part of the process of determining the indicative sentences for the various offences and did explain his reasoning.
The fact that the objective seriousness of each offence was assessed is evident from the different indicative sentences imposed for the various offences and from the sentencing judge's discussion of the relevant factors and comparative seriousness of the offences. Indeed, his Honour expressly stated that "[t]he extent that any offence varies in terms of its seriousness from any other offence will be evident, and my finding therefore will be evident from the indicative sentences". Such a statement necessarily implies that the sentencing judge did make relative findings of objective seriousness when sentencing for the multiple offences involved in the present case. It is not a form of backward reasoning but a recognition that the indicative sentences imposed reflected, as was appropriate, the assessments of objective seriousness made by the sentencing judge.
More particularly, as to the sexual touching offences, the indicative sentences for sequences 6 and 11 were 1 year 6 months and 4 years, respectively. It can be readily perceived that this reflects the different seriousness of the sexual touching involved in rubbing the victim's breasts and kissing her on the mouth and breasts (sequence 6) compared with having the victim sit on top of him with his penis touching her genitalia as she moved on top of him (sequence 11).
As to the sexual intercourse offences, sequences 7, 8, 9 and 12, the sentencing judge expressly stated that sequences 7 and 9 were to be regarded as "objectively less serious" than sequences 8, 10 and 12. This statement necessarily involves an assessment having been made of the objective seriousness of all those offences. Furthermore, the sentencing judge explained his reasoning for making the assessments, referring in particular to the nature of the intercourse, the risk of disease and the risk of pregnancy. The different assessments of objective seriousness were then reflected in the different indicative sentences: 5 years with a non-parole period of 3 years 3 months for sequences 7 and 9, and 6 years with a non-parole period of 4 years 6 months for sequences 8, 10 and 12.
Finally, in relation to the three production of child abuse material offences arising out of the video-recording of the offending, sequences 13, 14 and 15, his Honour noted the different durations of the recordings but reasoned that the fact of recording, the subject matter and the potential for the recordings to become available many years into the future were more significant than the duration of the recording. Although the sentencing judge discounted the significance of the length of the recordings in comparison to the fact of the recording and the victim's face being shown when considering the objective seriousness of those offences, the reasoning did not involve the proposition that the length of the recording was totally irrelevant to the assessment of objective seriousness. The fact that the indicative sentences were the same for all three video-recording offences where two involved fellatio showing the victim's face and the other penile/vaginal penetration, was readily explained by the fact that the first two involved materially shorter recordings than the latter. It was clearly open for the sentencing judge to assess the objective seriousness of each of the sequence 13, 14 and 15 offences as being substantially the same, especially since the other circumstances were not materially different.
In these circumstances, in my view, the sentencing judge's comment that "there is little utility in referring to the objective seriousness of each individual offence" is properly to be understood as stating that there was little utility in referring to the objective seriousness of each offence by reference to where it might be placed on some notional scale extending from the least to the most objectively serious examples of the type of offending in question. It is well accepted that a sentencing judge is not required to assess objective seriousness by reference to a notional range: Dorsett at [145] and [149]-[155] and the authorities there cited. The sentencing judge's comment is also consistent with N Adams J's comment in Dorsett at [157]: "I do not intend to suggest that a separate finding needs to be made for every single offence no matter how many offences are before the court, even if there are no differences between them. That there is no need to make a separate assessment of every offence if many of them are similar can be seen from decisions such as [Turner v R [2021] NSWCCA 5]."
In Baydoun v The King [2024] NSWCCA 65 at [42], Chen J (with Wilson and Huggett JJ agreeing) said: "42 Whilst it is undoubtedly 'preferable' for there to be an express finding dealing with the objective gravity of the offending, an absence of such a finding is not necessarily erroneous, if it is apparent that the sentencing judge did so implicitly by referring to, and making findings about, the facts that bear upon the objective seriousness of the offending: Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]."
In short, the sentencing judge's discussion of factors relevant to assessing objective seriousness and his findings as to the comparative seriousness for various offences, together with the different indicative sentences nominated, demonstrates that his Honour did not fall into error. In particular, his Honour did not make the error, identified in Dorsett at [137], of making a "blanket assessment" of objective seriousness for all the offences by simply indicating the same sentence for a number of offences.
The present case is also an illustration of the principle that even where offences were given the same indicative sentence, it does not follow that error is thereby established: Dorsett at [138] citing Turner v R [2021] NSWCCA 5 (Turner). In Turner at [59], Garling J (with Payne JA and Davies J agreeing) explained that the mere fact that the same indicative sentence is fixed for multiple offences does not of itself and without more indicate an impermissible approach to determining the objective seriousness of the offence and "[t]his is particularly so in circumstances where … each of the offences were contrary to the same section of the Crimes Act and each was committed during a single sustained course of offending over a lengthy period of time".
That explanation is especially applicable in the present case where the same indicative sentences were in some cases nominated for offences contrary to the same section of the Crimes Act. In the present case, all of the offending occurred on the same night, against the same victim, in the same circumstances, as part of what was appropriately described by the sentencing judge as "a sequence of continuing offending" and "a spontaneously entered into sequence of serious offending against a cognitively impaired child, known to the offender to be cognitively impaired". To take the sexual intercourse offences which were given the same indicative sentences as an example, the differences in the nature of the offending can properly be seen, given the sentencing judge's quite detailed findings as to precisely what occurred, to have been balanced against the other circumstances of the relevant offending such as the degree of humiliation or control or direction involved. A similar point has already been made concerning the same indicative sentences nominated for the video-recording offences.
For all these reasons, in my view, there was no failure by the sentencing judge to assess the objective seriousness of any of the offences, as contended under grounds 1(a) and (b). Nor was there a failure to provide adequate reasons for any findings made concerning objective seriousness, as contended under ground 3.
While grounds 1 and 3 were arguable and leave to appeal should be granted in respect of them, those grounds should not be upheld.

Ground 2

The second ground of appeal was that the aggregate sentence was manifestly excessive. For the reasons given by Basten AJA, I agree that the applicant should succeed on this ground.
I therefore agree with the orders proposed by Basten AJA.

Endnotes

Sentencing judgment, 20 November 2023, p 9.
[2024] NSWCCA 192 (Harrison CJ at CL and Dhanji J agreeing); emphasis in original.
PG v R [2017] NSWCCA 179.
(2001) 207 CLR 584; [2001] HCA 64, albeit in dissent, but in a passage cited with approval by the Court in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [47].
Wong at [57].
(1936) 55 CLR 499; [1936] HCA 40.
Hili at [54]; [2010] NSWCCA 194; 243 FLR 28 at [303]-[305].
[2022] NSWCCA 158 (Leeming JA, Garling and Lonergan JJ).
[2024] NSWCCA 164 (N Adams, Ierace and Sweeney JJ).
[2024] NSWCCA 139 (Adamson JA, Price AJA and Garling J).
[2021] NSWCCA 285 (Fullerton J, Macfarlan JA and Lonergan J agreeing).
[2013] NSWCCA 122 (Hoeben CJ at CL, Hall and Davies J agreeing).
[2018] NSWCCA 42 (Hidden AJ, Beazley P and Garling J agreeing).
[2018] NSWCCA 280 (Payne JA, Schmidt J and Fagan J).
[2023] NSWCCA 95 (N Adams J, Wilson and Cavanagh JJ agreeing).
[2016] NSWCCA 143 (N Adams J, Hoeben CJ at CL and Campbell J agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2024

HEADNOTE [This headnote is not to be read as part of the judgment] On 23 March 2023, Luke Baldwin-Davies (the applicant), entered pleas of guilty in the Local Court to five charges of aggravated sexual intercourse with a child, two charges of sexually touching a child and three charges of production of child abuse material. The charges all related to the applicant's conduct over the course of one night in January 2022. The matters were transferred to the District Court for sentencing. On 20 November 2023 King SC DCJ (the sentencing judge) imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 7 years 9 months. On 20 August 2024, the applicant filed an application for leave to appeal which was subsequently amended on 30 September 2024. The issues for determination on appeal were whether: the sentencing judge failed to make findings or provide adequate reasons as to the objective seriousness of the offences; and the sentence was manifestly excessive. The Court held, allowing the appeal in part: As to issue (i) (objective seriousness) 1 When imposing an aggregate sentence for a number of offences the objective seriousness of each offence must be assessed to allow for the principle of totality to be applied and for the public to understand the level of seriousness attached to each individual offence: [110] (Wright J); (Mitchelmore JA at [1], Basten AJA at [3] agreeing). Dorsett v R [2024] NSWCCA 192; JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 applied. 2 The sentencing judge did assess the objective seriousness of each offence as part of the process of determining the indicative sentences for the various offences and did explain his reasoning. This was evident from his discussion of the relevant factors and comparative seriousness of the offences. He did not fall into the error of making a blanket assessment of objective seriousness for all the offences: [111]-[118] (Wright J); (Mitchelmore JA at [1], Basten AJA at [3] agreeing). As to issue (ii) (manifest excess) 3 A range of comparator cases reveals the following sentencing principles: (i) multiple acts over an extended period of time will warrant higher sentences than multiple acts occurring on one occasion; (ii) offences with elements of aggression require higher sentences, (iii) a higher level of culpability may be found where there is a breach of trust or when a stranger takes advantage of a vulnerable victim, and (iv) although good character as a factor supporting leniency may be given weight with respect to a single occasion, that is not the case where there is an ongoing course of conduct over an extended period: [33]-[37] (Basten AJA); (Mitchelmore JA at [1], Wright J at [123] agreeing). Franklin v R [2013] NSWCCA 122; Kees Langelaar v R [2016] NSWCCA 143; Rainbow v R [2018] NSWCCA 42; GG v R [2018] NSWCCA 280; PB v R [2021] NSWCCA 285; Sausa v R [2023] NSWCCA 95; Director of Public Prosecutions (NSW) v Wolinski [2024] NSWCCA 139 discussed. 4 The starting point used in this instance did not have any precedent in cases which also had a relatively confined number of offences committed on one occasion. The individual sentences indicated by the sentencing judge were double or more than double the indicative sentences in the comparator cases. The aggregate sentence imposed was manifestly excessive; the applicant should be resentenced: [38]-[40], [50] (Basten AJA); (Mitchelmore JA at [1], Wright J at [123] agreeing).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (29)