Baker v R [2022] NSWCCA 195

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Baker v R [2022] NSWCCA 195 Hearing dates: 2 May 2022 Date of orders: 14 September 2022 Decision date: 14 September 2022 Before: Brereton JA at [1]; Adamson J at [57]; N Adams J at [79]. Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether applicant had actual knowledge of disability – Sentencing judge's finding of actual knowledge, largely based on own observations of victim, was open CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether victim's age an aggravating factor – Relative age of victim to offender relevant to objective seriousness where it increases victim's vulnerability as exploited by offender CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether direction by applicant to victim not to tell anyone what happened constituted a threat and therefore an aggravating factor – No requirement that a threat must contain express consequences for non-compliance – Nature of statement informed by context in which it was said – In context of criminal conduct, statement carried implication of adverse consequences for non-compliance – Relevant direction held to be a threat and therefore an aggravating factor CRIME – Appeals – Appeal against sentence – Where no express finding made as to prospects of rehabilitation – Prospects of rehabilitation and risk of re-offending are inter-related factors – No requirement that each is referred to in express terms if reasons as a whole show they have been considered Legislation Cited: Crimes Act 1900 (NSW), ss s 61J(1), 61M(1) Criminal Appeal Act 1912 (NSW), s 5(1)(c) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(b), 12, 21A, 53A(2)(b) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Byrne v R; Cahill v R [2021] NSWCCA 185 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Imbornone v R [2017] NSWCCA 144 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Keeley v R [2014] NSWCCA 139 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Meoli v R [2021] NSWCCA 213 Mohindra v R [2020] NSWCCA 340 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pritchard v R [2022] NSWCCA 130 R v Holdom [2018] NSWSC 1677 R v M.A.K.; R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Shortland [2018] NSWCCA 34 Simmons v R [2019] NSWCCA 20 Stephens v R [2010] NSWCCA 93 SW v R [2013] NSWCCA 103 Tindall v R [2019] NSWCCA 136 Category: Principal judgment Parties: John Baker (Applicant) R (Respondent) Representation: Counsel: S Kluss (Applicant) M Millward (Respondent)