Baker (a pseudonym) v The Queen - [2021] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0005

JOHNIE BAKER (A PSEUDONYM) [1]	Applicant
v
Respondent
THE QUEEN

[1]To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	McLEISH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 May 2021
DATE OF JUDGMENT:	9 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 158
JUDGMENT APPEALED FROM:	[2019] VCC 2096 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Causing injury recklessly – Applicant pushed complainant’s head into pot of boiling water, failed to call ambulance and urged complainant to conceal offending – Context of ongoing family violence in breach of intervention orders – Guilty plea – Serious offending – Whether sentence of 3 years’ imprisonment manifestly excessive – Despite mitigating factors, sentence not outside available range – Crimes Act 1958 s 18.

CRIMINAL LAW – Appeal – Sentence – Attempting to pervert the course of justice – Applicant urged complainant to withdraw complaint, threatening suicide, distribution of intimate images, and withholding ashes of stillborn child – Whether sentence of 2 years’ imprisonment with 1 year cumulation manifestly excessive – Neither sentence nor cumulation manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Tyler Tipping & Woods
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA
OSBORN JA:

The applicant pleaded guilty in the County Court to 14 charges arising out of violence inflicted by him on his former partner over a period of some 18 months. He seeks leave to appeal against the sentence imposed on two of those charges (being charges 5 and 8).

The offending involved four charges of causing injury recklessly,[2] three charges of contravening a family violence intervention order intending to cause harm or fear for safety,[3] one charge of attempting to pervert the course of justice,[4] one charge of stalking,[5] one charge of persistent contravention of a family violence intervention order[6] and four related summary charges.[7]
[2]Crimes Act 1958 s 18.
[3]Family Violence Protection Act 2008 s 123A(2).
[4]Contrary to the common law.
[5]Crimes Act 1958 s 21A.
[6]Family Violence Protection Act 2008 s 125A.
[7]Two charges of unlawful assault, one charge of throwing a missile and one charge of threatening to distribute an intimate image: Summary Offences Act 1966 ss 7(g), 23, 41DB.

Charge 5 was one of the recklessly causing injury charges. Charge 8 was the charge of attempting to pervert the course of justice.

After a plea in mitigation, the applicant was sentenced on 12 December 2019 to be imprisoned for 5 years and 3 months, with a non-parole period of 3 years and 6 months, as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1

Causing injury recklessly

5 years

6 months

2 months

2

Contravening a family violence intervention order intending to cause harm or fear for safety

5…

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 Baker (a pseudonym) v The Queen

Details

AGLC: Baker (a pseudonym) v The Queen [2021] VSCA 158
Case: [2021] VSCA 158
Decision Date: 9 June 2021

CaseChat Overview and Summary

The appeal heard by the court involved the sentencing of an individual referred to as Baker, who had been convicted of causing injury recklessly and attempting to pervert the course of justice. The case was before the court due to Baker's dissatisfaction with the sentences imposed by the lower court. The lower court had sentenced Baker to three years' imprisonment for causing injury recklessly and two years' imprisonment for attempting to pervert the course of justice, with a one-year cumulation. The primary legal issue the court was required to decide was whether these sentences were manifestly excessive.

The court examined the nature and circumstances of the offences, including the fact that Baker had pushed the complainant's head into a pot of boiling water, failed to call an ambulance, and urged the complainant to conceal the offending. The court also considered the context of ongoing family violence in breach of intervention orders, as well as Baker's guilty plea and the mitigating factors presented. The court found that, despite these mitigating factors, the sentences were not outside the available range and were not manifestly excessive. The court also considered the sentence for attempting to pervert the course of justice, which involved Baker urging the complainant to withdraw their complaint, threatening suicide, distributing intimate images, and withholding the ashes of a stillborn child. The court determined that neither the sentence nor the cumulation was manifestly excessive.

Ultimately, the appeal was dismissed, and the original sentences were upheld. The court found that the lower court had appropriately considered the relevant factors in determining the sentences and had not erred in its approach. The court emphasised the seriousness of the offences and the need for appropriate deterrence and denunciation. The court also noted that the sentences reflected the gravity of the offences and the need to protect the community. The final orders of the court were that the appeal be dismissed, and the original sentences be upheld.

Orders