REGINA v BAKER

Court of Criminal Appeal (NSW)|2005-11-22|Before: Simpson J, Adams J, Hoeben J

JUDGMENT OF: Simpson J at 1; Adams J at 2; Hoeben J at 17

DECISION: Leave to appeal against sentence granted; Appeal dismissed

CATCHWORDS: Sentence appeal - aggravated sexual intercourse without consent - delay of 10 years in prosecution - applicant 67 years old when sentenced and would be 71 years when eligible for release - because delay caused by applicant absconding, inappropriate to further adjust sentence.

CASES CITED: Wayne John Pratt (unreported, NSWCCA 26 July 1996)

COUNSEL: P G Ingram (Crown) Applicant in person

SOLICITORS: S Kavanagh (Crown) Applicant unrepresented

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/601

SIMPSON J ADAMS J HOEBEN J

16 May 2006 REGINA v Colin James BAKER Judgment

2 ADAMS J: On 23 July 2004 the applicant, Colin James Baker, was convicted by a jury of the offence of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900 for which the maximum penalty prescribed is twenty years' imprisonment. On 24 September 2004 the applicant was sentenced to a term of six years and six months' imprisonment commencing 27 June 2004 and ending 26 December 2010. A non-parole period was fixed of four years to commence on 27 June 2004 and end on 26 June 2008. The applicant was, as at the time of sentence, sixty-seven years of age. The sentence therefore has significance beyond its actual length. The applicant seeks leave to appeal against the severity of his sentence. THE FACTS

3 Although a number of facts were disputed at trial, the facts for the purpose of sentence are not, in substance, controversial. The following summary is largely taken from the reasons for sentence of the learned sentencing judge. At the time of the offence, the applicant and the victim had known each other for some time. About eighteen months previously, they had met at a local club and had gone back to the victim's house where consensual intercourse occurred. However, after that evening the victim did not see the applicant again until the night of the offence, which occurred on 8 April 1994 after she attended the local club with some friends.

4 During the evening the victim and the applicant were in each other's company, spoke together and had a drink. The victim left him at the club, taking the courtesy bus provided by the club to her home. She arrived at about 9 pm and went directly to bed. She said that about midnight the applicant knocked her door, carrying a case of beer. The victim asked the applicant in and they sat and talked for a time. She had a drink with him. As the applicant continued to drink, however, he became affected and also increasingly aggressive. The victim asked him to leave but he refused. She went back to bed. The applicant came into the bedroom and lay on the bed with her, becoming angry and aggressive when she asked him to leave. The applicant then violently removed the victim's nightclothes and underwear and raped her. She attempted resistance. The applicant grabbed her around the throat, banged her head against the bed and punched her in the face and eye. The violence continued for an appreciable time. It is this infliction of actual bodily harm which comprises the aggravating element of the offence of which the applicant was convicted. The applicant spent the night with the victim, leaving the next morning to go to the local shops. A lodger resided in accommodation in the backyard of the victim's house and she immediately complained to him. The victim also complained of the assault to a neighbour who saw that she had red marks like fingermarks on her throat and similar marks on her arm. Bruises later developed on the victim's face, around her eye, consistent with blows being struck by the applicant as she complained. The victim was very distraught and told the neighbour that she was too frightened to telephone the police as the applicant had threatened her. In due course, however, the applicant did complain to police and, on 25 April 1994, made a complete statement of the relevant events.

5 On 13 June 1994 the police informed the applicant of the complaint. He asserted, in effect, that although intercourse had occurred, it was consensual. The applicant offered to attend at the police station to be interviewed but was told that the police would contact him in due course. On 2 August 1994 police attended on the applicant and took him to the police station where an interview occurred. In substance, the applicant repeated his earlier statements to the effect that he had consensual intercourse with the complainant. The applicant did not give evidence at the trial, relying upon his statements to police.

6 The applicant had been arrested by police on 21 March 1995 and charged with the offence of which he was convicted. He was granted bail requiring him to appear at the Wyong Local Court on 4 May 1995. The applicant did so appear but failed to appear on the adjourned date of 28 June 1995, when he was committed for trial to the District Court in his absence. He again failed to appear for arraignment on 17 August 1995 and a bench warrant was issued for his arrest, which was eventually executed on 7 January 2004. On 9 January 2004, the applicant was granted bail, which he answered. The delay of nearly ten years between the offence and the applicant's trial was therefore almost entirely due to the applicant's having absconded, a matter noted by the learned sentencing judge.

7 The applicant's criminal record was extensive but confined almost entirely to property offences, the exception being assaulting a female in July 1979 for which sentence was deferred upon his entering into a recognisance to be of good behaviour. Although the applicant was sentenced in November 1979 to a total term of fifteen months in respect of five charges of false pretences, no further offences appear on his record until 1991 when he was convicted of malicious damage and avoiding payment for meals and accommodation, the first being dealt with by his entering into a recognisance to be of good behaviour and the second by payment of a fine and compensation. In respect of the assault of October 1979, her Honour mistakenly referred to it as having occurred in 1991. This error is, to my mind, trivial.

8 A pre-sentence report was tendered at the sentencing proceedings and referred to by the learned sentencing judge, who mentioned several of the matters disclosed in it. The report shows that the applicant was one of eight siblings raised in Muswellbrook until he was about thirteen years of age at which time his parents separated and he resided with his mother and brothers and sisters. The applicant said that his father was a violent man, given to physical abuse of the family members including his mother. After his father left the family home, the applicant had little to do with him and did not attend his funeral when he died during the mid-sixties. When he was a young man the applicant was in a car accident in which one of his brothers died. It appeared that this had a traumatic effect on the applicant and he thereafter led a somewhat itinerant lifestyle marked by increased alcohol consumption. The applicant was first married in 1971 and has one daughter from that relationship, which ended in divorce in about 1980. The applicant had maintained intermittent contact with his daughter generally by telephone. In 1998 the applicant married a second time. This marriage lasted six years until his wife died from multiple sclerosis. The applicant indicated that he had a close and loving relationship with his wife and her death was a substantial loss to him. The applicant returned to a lifestyle characterised by transience, facilitated by his wide network of social acquaintances. The applicant had left school at the age of fourteen and worked predominately as a shearer for many years, supplementing his income by taking other seasonal agricultural work such as fruit picking and vine pruning. Problems with his spine eventually stopped him from shearing and he was placed on a disability support pension, in due course the aged pension.

9 The pre-sentence report noted that the applicant's mother is still alive and in her nineties, living with the applicant's sister in south western New South Wales. It appears that the applicant is close to his mother and sister.

10 As noted by the learned sentencing judge the pre-sentence report mentioned that the applicant suffered from a variety of illnesses including emphysema required medication as well as the longstanding back problem to which I have already referred.

11 The learned sentencing judge referred to the matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999 and accepted the submission made on the applicant's behalf that the offence should be regarded as unpremeditated in the sense that it was committed opportunistically and after the consumption of alcohol. Her Honour also referred, appropriately, to the continuing emotional distress which the victim suffered as a result of the applicant's offence. Her Honour concluded that, given the lengthy period in which the applicant had been free of criminal convictions, his age and state of health, that he was unlikely to re-offend. This conclusion was justified. At the same time, there was nothing in the applicant's subjective circumstances that warranted leniency.

12 In setting the sentence, the learned sentencing judge took into account the applicant's pre-sentence custody and found that his age and relatively poor health constituted special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The non-parole period imposed represents just over 60% of the term of the sentence.

13 The applicant was unrepresented at the hearing. He submitted, in effect, that having regard to his age, health and the unlikelihood that he would re-offend, the sentence was unduly harsh. He also submitted that the sentence appeared to be heavier than would have been imposed had the trial occurred without the delay of about ten years. The applicant concluded his remarks by asking to be released so he could spend Christmas with his mother and his family which, in light of his mother's advanced age, might be the last opportunity to do so.

14 The objective circumstances of this crime were very serious. The fact that the applicant came to be sentenced when he was some ten years older than otherwise would have been the case had the normal course been followed was due to the applicant's own conduct. In those circumstances it is difficult to make any significant allowance for the applicant's age.

15 It may be accepted that the applicant's sentence should, by and large, reflect the sentencing pattern current at the date of the offence if it had in the meantime moved adversely to offenders. I do not intend to analyse the sentencing patterns as they were in 1994 and as at the date of sentence. It is enough to say, I think, that a perusal of a number of cases, including in particular that of Wayne John Pratt (unreported, NSWCCA 26 July 1996) indicates that - consonant with my own recollection - the sentence imposed by her Honour was well within the range of sentences imposed for sentences of this kind in 1994 and, for that matter, in 2004.

16 Although I have some sympathy with the applicant's plea concerning his mother, that matter is not one to which this Court can have any particular regard absent any discernable error in the exercise by the learned sentencing judge of her discretion. At all events, to reduce the applicant's sentence in accordance with his request would be to impose a sentence manifestly more lenient than could be justified, having regard to the gravity of his crime. I cannot see any error, either explicit or implicit, in her Honour's reasons for sentence nor is there anything about the sentence itself which is suggestive of error. Accordingly, I would propose that leave to appeal against sentence be granted but that the appeal be dismissed.

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