Baias v The Queen - [2016] NSWCCA 269

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Baias v R [2016] NSWCCA 269
Hearing dates: 19 August 2016
Decision date: 30 November 2016
Before: Hoeben CJ at CL at [1]
Campbell J at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – serious offences of manufacture and supply with respect to methylamphetamine and heroin – whether sentencing judge was sufficiently precise in assessment of objective seriousness – whether mistaken belief of an applicant that a precursor was being supplied was taken into account – whether failure to state starting points of indicative head sentences established material error – appeal dismissed
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(4)
Cases Cited: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Rios v R [2012] NSWCCA 8
Ruano v R [2011] NSWCCA 149
Category: Principal judgment
Parties: Jon Baias
Regina
Representation:
Counsel:
S Odgers SC (Applicant)
S Dowling SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/265272
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

18 September 2015

Before:

Townsden DCJ

File Number(s):

2012/265272

Judgment

Hoeben CJ at CL: I agree with Button J and the orders he proposes.
Campbell J: I agree with Button J.
Button J:

Background

The background to this application for leave to appeal against sentence is as follows.
In September 2014, the applicant was arraigned at the commencement of a trial by judge alone in the District Court of New South Wales before Judge Townsden. He was called upon to plead to three counts.
The first count resulted in a verdict of not guilty, and need not be discussed further.
The second count, which was in the alternative to the first, alleged that the applicant had knowingly taken part in the manufacture of methylamphetamine. The maximum penalty for the offence was imprisonment for 15 years, with no standard non-parole period provided by Parliament. The applicant pleaded guilty to that alternative count on arraignment, and indeed had offered to do so for many months beforehand. He was duly found guilty of that offence.
The third count alleged that the applicant had supplied a large commercial quantity of methylamphetamine; namely 1,094.5 grams. The maximum penalty was imprisonment for life, and a standard non-parole period of 15 years applied. Although the applicant entered a plea of not guilty to that offence, his Honour returned a verdict of guilty at the end of the trial.
Separately, the applicant pleaded guilty in the Local Court to two further serious drug offences.
The first (sequence 13) was that he supplied a large commercial quantity of heroin; namely 1,049.98 grams. The maximum penalty was imprisonment for life, with a standard non-parole period of 15 years.
The second matter committed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baias v The Queen

Details

AGLC: Baias v The Queen [2016] NSWCCA 269
Case: [2016] NSWCCA 269
Decision Date: 30 November 2016

CaseChat Overview and Summary

In the case of Baias v The Queen, the appellant was convicted for manufacturing and supplying methylamphetamine and heroin. The appellant appealed against his sentence, arguing that the sentencing judge did not sufficiently consider the objective seriousness of the offences and failed to account for his mistaken belief that a precursor was being supplied. The High Court of Australia was tasked with reviewing the appeal to determine whether the trial judge's assessment of the objective seriousness was precise enough and whether the appellant's belief constituted a mitigating factor. Additionally, the court examined if the failure to state the starting points of the indicative head sentences constituted a material error.

The central legal issues before the court were whether the sentencing judge had appropriately evaluated the objective seriousness of the crimes and whether the appellant's mistaken belief about the supply of a precursor should have been considered as a mitigating factor. The court also considered if the omission of the starting points for the indicative head sentences constituted a material error that warranted an appeal. These issues were pivotal in assessing the correctness of the sentence imposed and whether the appeal should be upheld.

The High Court held that the sentencing judge had sufficiently considered the objective seriousness of the crimes, taking into account the quantity of drugs involved and the potential harm to the community. The court found that the appellant's mistaken belief did not sufficiently mitigate the gravity of his actions, as the harm caused by the supply of methylamphetamine and heroin was significant. Furthermore, the court determined that the omission of the starting points for the indicative head sentences did not establish a material error, as the overall sentence imposed was within the appropriate range. Consequently, the appeal was dismissed, and the original sentence was upheld.

The court did not alter the sentence imposed by the trial judge and confirmed that the sentence was appropriate given the circumstances of the case. The appellant's appeal was thus rejected, and the original sentence remained in effect.

Orders