Predator’s ‘live distance child abuse’ case upheld by appeal judges after debate into sentencing remarks
The Court of Criminal Appeal has rejected a man’s argument that the sentencing judge in his child sexual abuse case failed to take into account the utilitarian value of an early plea upon sentencing and an error to assess the objective seriousness of offences.
Matthias Wolfgang Baden, a 60-year-old man in Sydney’s west, has had his sentence of seven years and four months behind bars upheld in the Supreme Court. The orders were handed down in June 2019, but Mr Baden attempted to appeal his conviction on the grounds the judge erred in her assessment of the case and failed to be lenient.
The appeal case centred on whether Mr Baden was granted a 10 per cent leniency for pleading guilty in the first instance of the trial, an issue his counsel submitted. It comes despite the sentencing judge ruling that the discount was not a requirement, given the circumstances of the offending, but that she intended to apply it anyway.
“This was an ambitious submission,” said the Court of Criminal Appeal judges, pointing to the absurdity of the appeal request. “There is no basis, in my opinion, for concluding that the sentencing judge did not take a utilitarian value of the pleas into account.”
“The focus, as reflected in her [honour’s language], was on the objective and utilitarian benefits which flowed from the early guilty pleas, and was not on the subjective aspect of the pleas. The discount of 10 per cent, which her [honour] applied, was consistent in discounts given for the utilitarian value of pleas on the first day of trial,” it said.
Four grounds of appeal were rejected by the Court of Criminal Appeal judges, as they found the sentencing judge was right in handing down the conviction. Mr Baden plead guilty to two counts of procuring a child to engage in sexual activity outside of Australia and one count of engaging in sexual activity other than intercourse with a child.
He was sentenced to an aggregate term of imprisonment consisting of head sentences of 11 years and four months, with a non-parole period of seven years and four months. The two children referred in the courts were aged between six and 11 years old, and two and seven years at the time of the offending and lived with their parents.
Between April 2012 and September 2016, Mr Baden procured two children to engage in sexual activity outside of Australia via video calls. The sisters lived with two siblings and their parents and were exploited by their mother, who was paid over $26,000 due to payment for the arrangement during the four-and-a-half-year period.
Mr Baden was arrested in his home after a raid on the Filipino home, having then been identified by a photograph seized at the property. A lengthy Australian Federal Police investigation began, coining the offending as “live distance child abuse”.
Mr Baden’s appeal fell through as both the sentencing judge and appeal judges found he had an acute consciousness of the wrongdoing he had committed. In one message Mr Baden wrote to the sisters during the offending read: “I’m just some old man in love with little girls and someday I will get found out and locked up.”
The second ground raised by way of challenge was in judge’s assessment of objective seriousness of the offences related to what was said to be the “gradual” process of the grooming and a lack of physical proximity of the children to Mr Baden.
“There was no error in assessment of the objective seriousness of the offences, given the circumstances of the offending, the maximum penalties available for the offences, the paucity of comparable sentences and the necessarily inexact nature of sentencing process,” noted court documents from the Supreme Court of Australia.
“To the gradual natural of the grooming, I struggle to understand how this factor could assist the applicant, especially in circumstances where it is not as though the offences constituted the applicant’s first involvement with unlawful interaction with children.
“There is no basis for thinking that what was characterised as grooming over a period of time started out as innocent friendship and an instance of international charity, and only later morphed into the exploitative relationship which it undoubtedly became.”
Mr Baden’s prior convictions for unlawful sexual intercourse with his 13-year-old stepdaughter in 1992 would also form the basis for this appeal rejection.
“Her honour’s assessment was, in my opinion, not only open to her but correct,” it said.