Baker v The King

Case [2022] SASCA 109

Supreme Court of South Australia

(Court of Appeal: Criminal)

BAKER v THE KING

[2022] SASCA 109

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Auxiliary Justice Buss)

21 October 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE

Appeal against sentence.

The appellant pleaded guilty to four offences of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA); two offences of making off without payment, contrary to s 144 of the CLCA; two offences of aggravated threatening life, contrary to s 19(1) of the CLCA; one offence of aggravated assault causing harm, contrary to s 20(4) of the CLCA; and one offence of using a motor vehicle without consent, contrary to s 86A of the CLCA.

The appellant’s offending was violent, random, intense and very dangerous. It involved robbery with the use of weapons, threats to life using firearms and a serious assault. The offending occurred in a suburban home, on suburban streets and in a public park.

On 16 March 2022, a District Court judge imposed a head sentence of 15 years’ imprisonment with a non-parole period of 12 years’ imprisonment. The head sentence and the non-parole period were backdated to 11 December 2020 to take account of time the appellant had already spent in custody in relation to the offending.

The appellant appealed on the grounds that the sentencing judge made an error by failing to take into account, in applying the totality principle, the sentence imposed in the Magistrates Court for other offending; the head sentence of 15 years’ imprisonment as a single sentence was, in all the circumstances, unreasonable or plainly unjust; and the sentencing judge erred by failing to take into account the secondary purpose of sentencing stated in s 4(1)(e) of the Sentencing Act 2017 (SA), namely promotion of the rehabilitation of the defendant.

The appellant asks that the matter be remitted to the District Court for resentence. The appellant wishes to adduce affidavit and psychological evidence in support of an application that the court find that there are “exceptional circumstances” within s 54(2) of the Sentencing Act 2017 (SA).

Held (by the Court), allowing the appeal:

1.After considering all relevant facts and circumstances and all relevant sentencing factors, the length of the head sentence was longer than was necessary to recognise and give effect to all relevant sentencing considerations. The length of the head sentence was unreasonable or plainly unjust. 

2.The sentence imposed in the District Court is set aside.

3.The matter is remitted to the District Court for resentence on that basis that an application under s 54 is made as soon as practicable.

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Baker v The King [2022] SASCA 109
Case
[2022] SASCA 109
Decision Date

CaseChat Overview and Summary

The appellant, Baker, appealed against a sentence imposed by a lower court. The dispute concerned the severity of the head sentence of 15 years' imprisonment and the associated non-parole period, which Baker argued were unreasonable or plainly unjust given the circumstances of the offences. The appeal was heard by the Court of Appeal.

The Court of Appeal was required to determine whether the head sentence and non-parole period imposed were manifestly excessive or inadequate, constituting grounds for interference. Specifically, the court needed to assess if the sentence was unreasonable or plainly unjust in light of the totality of the offending conduct and the surrounding circumstances.

The Court of Appeal found that the head sentence of 15 years' imprisonment was, in all the circumstances, unreasonable or plainly unjust. The court allowed the appeal on this basis, setting aside the head sentence and the non-parole period. The court determined it was unnecessary to consider all the grounds of appeal advanced by the appellant, and permission to appeal on an additional ground was refused. The court indicated it would resentence the appellant.

Orders

Orders of the court

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Background

Background to the litigation

As we will explain, we are satisfied that the head sentence of 15 years’ imprisonment as a single sentence was, in all the circumstances, unreasonable or plainly unjust. The appeal should be allowed on that basis. The head sentence and the non‑parole period imposed by his Honour should be set aside and this Court should resentence the appellant. It is therefore unnecessary to deal with the first and third propositions advanced by counsel for the appellant. Permission to appeal on the additional ground raised at the hearing of the appeal (which, in essence, advanced the third proposition) should be refused.The facts and circumstances of the offending As to count 1, on the evening of 30 November 2019, the appellant and two others stopped a car in which they were travelling next to the complainant HL who was walking alone on a suburban street. The appellant approached HL and attempted to take a bag that HL was carrying. During a struggle with HL, the appellant punched HL in the face. The appellant then produced a trolley pole and threatened HL by saying, “do you want me to hit you with this?”. HL released the bag which contained his mobile telephone, wallet and identification cards. The appellant returned to the car with the bag and departed. As to count 2, at about midnight on 20 December 2019, the appellant went to a house in a suburban area. The complainant RT was at the house. The appellant took RT’s car keys from her handbag and drove away in her Hyundai car without her consent. As to count 3, at about 1.25 pm on 21 December 2019, the appellant put $22.02 worth of petrol into the Hyundai car at a service station. He drove away without paying for the petrol. As to count 4, at about 2.20 am on 22 December 2019, the appellant put $28.69 worth of petrol into the Hyundai car at another service station. He drove away without paying for the petrol. As to count 5, at about 5.15 am on 22 December 2019, the appellant approached the complainant JM as JM was walking on a suburban footpath. The appellant asked JM where he was going. JM replied, “going to buy smokes”. The appellant followed JM. After JM had purchased cigarettes and was returning to his home, the appellant stopped the motor vehicle he was driving next to JM. The appellant pointed a revolver at JM’s face and demanded his bumbag. JM said there was nothing in the bumbag. The appellant demanded that JM give him half of the cigarettes or the appellant would shoot him in the face. The appellant produced a sawn‑off shotgun, pointed it at JM’s face and said, “don’t think about running because I have got this”. The appellant then said, “give me half the smokes you went and got”. The appellant alighted from the vehicle and walked towards JM, who gave the appellant his cigarettes. The appellant then punched JM in the face, causing him to fall. The appellant departed in his vehicle. As to count 6, at about 7.00 am on 22 December 2019, the male complainant JT and the female complainant RW were having coffee while standing next to their car in a suburban street. The appellant stopped the motor vehicle he was driving about 20 to 30 metres away. He shouted, “do you know me?”. JT replied, “no”. The appellant then reversed his vehicle towards JT and RW. He alighted from his vehicle with a sawn‑off shotgun in his right hand and a revolver in his left. The appellant pointed the shotgun and the revolver at JT and said, “are you giving me attitude?”. JT responded, “no”. The appellant demanded JT’s wallet, mobile telephone and the passcode to the mobile telephone. JT complied. The appellant returned to his vehicle and drove away.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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