Baker v R [2022] NSWCCA 195

Baker v R [2022] NSWCCA 195 · Read the judgment on AustLII

Catchwords: Sentencing – aggravating features – threats

In this decision the CCA has considered how threats can be taken into account as an aggravating factor on sentencing. By majority, the Court has held that a statement can constitute a threat even if it is not explicit, and even if it does not include the time-honoured words ‘or else’, so long as the context allows the inference that there will be consequences of non-compliance.

The applicant was convicted following a jury trial of a range of serious sexual offences committed against a complainant who was a few months short of 18 years old and had a cognitive impairment. The complainant was walking down the road at 10pm in her pyjamas when the applicant drove past and offered her a lift. The complainant initially declined the lift but eventually relented; she got in the car. The applicant took the complainant to a secluded lake and brutally sexually assaulted her. When they were disturbed by voices nearby, the applicant and the complainant returned to the car and the applicant eventually left the complainant in a dark secluded spot behind a warehouse. Crucially to this summary, he told her ‘not to tell anybody what happened, not to tell dad or the police or anybody what happened’ (she in fact immediately called her father).

The applicant was sentenced to an aggregate term of imprisonment of 19 years with a non-parole period of 13 years and 4 months. He appealed against that sentence, on grounds including that the sentencing judge had erred by taking into account as an aggravating factor on sentence that the applicant had threatened the complainant (relying on the quoted passage above).

By majority, the Court (Adamson J, with whom N Adams J agreed; Brereton JA dissenting on this point) held that it was open to the sentencing judge to regard the statement as a threat (at [61]). On the appeal the applicant had argued that it was not open to characterise the conduct as a threat because it was not expressly said that telling anybody would have any consequence, whether particular or general. The majority considered this argument to be unduly technical. Whether a form of words amounts to a threat depends not only on the words used but also on the surrounding circumstances. In this case, the relevant context included that the statement had been made after a sexual assault; it was not an invitation to keep it secret because it was private to the participants. Rather, in the context of an assault perpetrated against the complainant’s will, it was an edict that telling anybody in authority would result in consequences. That is, because the applicant’s conduct was criminal, the statement carried an implication of further adverse consequences at the hands of the applicant if she told anybody (at [59]-[60]). In order for a statement to amount to a threat, it is not necessary that the precise consequences be spelled out. Nor is it necessary for the time-honoured words ‘or else’ to be added at the end. It is only necessary that there is something to indicate to the recipient that non-compliance will bring adverse consequences (at [61]).

Brereton JA’s dissent on this point relied in part upon the Macquarie Dictionary definition of the word ‘threat’, which provides that it means ‘a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course’. In this case the statement, according to his Honour, involved no connotation of punishment, pain or loss, or even an ‘or else’ – indeed there was not even a suggestion that they would ever meet again (at [27]). A mere statement that the complainant should not tell anybody is not a threat, and amounts to no more than a request that she keep to herself what had happened. The complainant herself did not say that she regarded it as a threat, and in fact immediately reported what had happened to her father, and then the police.

Without intending to criticise Brereton JA, it isn’t clear why it is that his Honour commenced with a dictionary definition, given that what is being discussed in this case was not a statutory aggravating factor (although there is an aggravating factor in s 21A(2)(b) of ‘the actual or threatened use of violence’, not discussed in the judgment). Nevertheless, given the length of the overall term of the sentence (19 years, with a non-parole period of more than 13 years), which was untouched on the appeal, it remains possible that this topic could be revisited in another jurisdiction at some point.