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R v BAKER

R v BAKER

Case [2015] SASCFC 110 13 August 2015

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAKER
[2015] SASCFC 110
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
13 August 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
Appeal against sentence. The appellant pleaded guilty to the offences of possessing methylamphetamine, trafficking in methylamphetamine and possessing a firearm without a licence. He was sentenced to imprisonment of three years and three months, with a non-parole period of 18 months.
On appeal, it was argued that the sentence was manifestly excessive; that the sentence imposed lacked parity with the sentence of the appellant's co-offender and that the Judge made an error of fact in the sentencing process.
Held per the Court: Appeal dismissed. The head sentence was not manifestly excessive. There was a proper basis on which to differentiate between the appellant and his co-offender. On the evidence, it was open to the Judge to make the factual finding that he did in relation to the firearm offence.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Violi [2015] SASCFC 2; Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606, applied.
Pearce v The Queen (1998) 194 CLR 610; Berichon v R; Houssein v R [2013] VSCA 319; House v The King (1936) 55 CLR 499; Bugmy v The Queen (2013) 249 CLR 571, discussed.
R v Kong (2013) 115 SASR 425; R v Nozuhur [2013] SASCFC 81; R v Scarpantoni [2013] SASCFC 120; R v Lutze (2014) 121 SASR 144, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive", "parity"

R v BAKER
[2015] SASCFC 110
Court of Criminal Appeal: Nicholson, Parker and Lovell JJ
THE COURT.
Overview

On 27 July 2012, as a result of information received, police raided the appellant’s property. The appellant and his female co-offender were living in a shed situated at the rear of the property. Upon searching the property the police discovered drugs, ammunition and a prescribed firearm, namely a sawn-off shotgun. Also located were scales containing traces of amphetamine, tick lists, pre-sealed bags and cutting agents.
A tub containing 1.3 grams of methylamphetamine (0.56 grams pure) was found in a bag belonging to the appellant. Two other tubs found on a microwave oven contained a total of 3.66 grams of methylamphetamine (1.16 grams pure). A sawn-off shotgun was found by police inside a box in the living area of the shed. The gun was in three pieces at the time it was located.
The appellant pleaded guilty on the morning of trial in the District Court to one count of possessing methylamphetamine (tub containing 1.3 grams of methylamphetamine), one count…

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 R v BAKER

Details

AGLC: R v Baker [2015] SASCFC 110
Case: [2015] SASCFC 110
Decision Date: 13 August 2015

CaseChat Overview and Summary

The applicants, R and Baker, were convicted of a number of offences, including aggravated robbery and assault occasioning actual bodily harm. They appealed against their sentences. The dispute concerned the appropriate sentences to be imposed, with particular attention paid to the principle of parity between co-offenders. The matter was heard by Nicholson, Parker and Lovell JJ in the Court of Criminal Appeal.

The primary legal issues before the Court were whether the sentences imposed on the applicants were manifestly excessive, and whether the sentencing judge had erred in failing to adequately consider the principle of parity between the sentences of co-offenders. The Court was also required to determine the factual basis upon which sentences should be imposed, particularly in circumstances where there is a dispute between the prosecution and the defence.

The Court reasoned that while parity between co-offenders is an important consideration, it is not an absolute rule and must be balanced against other sentencing principles, such as the individual circumstances of each offender and the gravity of their respective roles in the offending. The Court found that the sentencing judge had not given sufficient weight to the disparity in the offending conduct and the relative culpability of the applicants. Furthermore, the Court held that where there is a dispute as to the factual basis for sentencing, the sentencing judge must make findings of fact or proceed on a basis that is most favourable to the offender, unless the evidence clearly establishes a more serious factual scenario.

The Court allowed the appeals, quashed the original sentences, and resentenced the applicants.

Orders