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R v Baker

R v Baker

Case [2017] NSWCCA 233 27 September 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Regina v Baker* [2017] NSWCCA 233
Hearing dates: 28 July 2017
Decision date: 27 September 2017
Before: Hoeben CJ at CL at [1]
McCallum J at [4]
Bellew J at [66]
Decision:
Crown appeal allowed; sentence imposed in the District Court quashed and in substitution therefor the respondent sentenced to a term of imprisonment with a non-parole period of 5 years and 10 months commencing on 24 April 2015 and expiring on 23 February 2021 and a balance of term of 3 years and 10 months expiring on 23 December 2024. The first date on which the applicant will be eligible for release to parole is 23 February 2021.

Catchwords: CRIME – Crown appeals – sentence – manifest inadequacy – two counts of soliciting to murder – child victims – mid-range seriousness – whether sentence reflecting a starting point of nine years’ imprisonment for each offence too lenient
Legislation Cited: Crimes Act 1900 (NSW), s 26
Cases Cited: Benitez v R [2006] NSWCCA 21
Carroll v The Queen [2009] HCA 13
CMB v Attorney General for New South Wales [2015] HCA 9
Efthimiadis [2013] NSWCCA 276
Lewis (1998) 100 A Crim R 361
Lindstrom v R [2008] NSWSC 198
Louizos v R [2014] NSWCCA 242
Louizos v R; R v Louizos [2009] NSWCCA 71
Muldrock v R [2011] HCA 39
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Harris [2015] NSWCCA 81
R v Potier [2004] NSWCCA 136
Category: Principal judgment
Parties: Regina (applicant)
Sally Baker (respondent)(pseudonym)
Representation:
Counsel:
S Dowling SC, K Ratcliff, B New (applicant)
F Coyne (respondent)
R Grady (Commissioner NSW Police)
Solicitors:
Solicitor for Public Prosecutions (applicant)
Hammond Nguyen & Turnbull Solicitors (respondent)
Crown Solicitors Office NSW (Commissioner of NSW Police)

File Number(s): 2015/121906
Publication restriction: Non-publication order as to the name of a complainant or an offender if that may lead to identification of a child complainant; suppression order as to anything identifying the prisoner informant or the undercover operative, including his assumed name
Decision under appeal

Court or tribunal:

Wollongong District Court

Jurisdiction:

Crime

Date of Decision:

10 April 2017

Before:

Haesler SC DCJ

*A pseudonym

Judgment

HOEBEN CJ at CL: I agree with the analysis of McCallum J and in particular her Honour’s observation that “with one exception the specific errors alleged in the present case were no more than different expressions of the proposition that the sentence passed was inadequate; they did not assist to explain why or how an inadequate sentence was reached.”
Unfortunately, I differ from her Honour on the issue of re-sentence. In my opinion, this is not an appropriate matter for the two sentences to be concurrent. Not only were there two separate victims but the steps taken by the respondent in respect of each victim were different in that it was necessary for her to provide the supposed “hit man” with different details of each victim and…

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: Regina v Baker* [2017] NSWCCA 233
Case: [2017] NSWCCA 233
Decision Date: 27 September 2017

CaseChat Overview and Summary

The matter before the court was an appeal by the Crown against the sentences imposed on the respondent, Baker, who was convicted on two counts of soliciting to murder. The victims in this case were children. The appeal was heard in the Court of Appeal, which was required to consider whether the sentences imposed were manifestly inadequate. The Crown argued that the sentences did not appropriately reflect the seriousness of the offences, particularly given the vulnerability of the victims.

The court was tasked with determining whether the sentence imposed by the primary judge was manifestly inadequate. The Crown submitted that the sentences were too lenient given the nature of the offences. Each count of soliciting to murder was assessed to be of mid-range seriousness, and the starting point for each offence was nine years’ imprisonment. The court needed to consider whether this starting point was appropriately applied and whether the sentences reflected the gravity of the crimes committed against the child victims.

In its reasoning, the court noted the high threshold required to successfully appeal a sentence on the basis of manifest inadequacy. However, it found that the primary judge had failed to sufficiently take into account the seriousness of the offences. The court held that the sentences imposed did not reflect the appropriate starting point of nine years for each offence, and therefore were manifestly inadequate. The court quashed the sentences and ordered a re-sentencing hearing.

Orders