R v Baker
[2020] ACTSC 186
•8 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Baker |
Citation: | [2020] ACTSC 186 |
Hearing Date: | 8 July 2020 |
DecisionDate: | 8 July 2020 |
Before: | Murrell CJ |
Decision: | Sentenced to 10 years’ imprisonment, with a nonparole period of six years and six months’ imprisonment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – Act endangering life – Possession and use of unauthorised firearm – Assault occasioning actual bodily harm – Repeat offender |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 27(3)(c), 27(4) Crimes (Sentence Administration) Act 2005 (ACT) pt 7.5A Sentencing (Parole Time Credit) Legislation Amendment Act 2019 (ACT) |
Cases Cited: | Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Miles v The Queen [2016] ACTCA 54 Thompson v The Queen [2018] ACTCA 2 |
Parties: | The Queen (Crown) Michael Reginald Baker (Offender) |
Representation: | Counsel A Williamson (Crown) K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number(s): | SCC 291 of 2019 |
MURRELL CJ
On 20 May 2020, the offender pleaded guilty to five offences committed on 17 January 2019:
(a)Count 1: Possessing an unauthorised firearm, contrary to s 42 of the Firearms Act 1996 (ACT) (Firearms Act).
The maximum penalty for this offence is 10 years’ imprisonment.
(b)Count 2: Aggravated robbery by joint commission (in company with Mr Stacker, both in possession of an offensive weapon), contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) and s 45A of the Criminal Code.
The maximum penalty for this offence is 2,500 penalty units, 25 years’ imprisonment or both.
(c)Count 3: Using an unauthorised firearm, contrary to s 42 of the Firearms Act.
The maximum penalty for this offence is 10 years’ imprisonment.
(d)Count 4: Using an offensive weapon in circumstances likely to endanger life and intending to prevent lawful apprehension, contrary to s 27(4) of the Crimes Act 1900 (ACT) (Crimes Act).
The maximum penalty for this offence is 15 years’ imprisonment.
(e)Count 5: Assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act.
The maximum penalty for this offence is five years’ imprisonment.
About a month prior to the scheduled commencement of the trial and two weeks prior to the scheduled criminal case conference, the offender indicated that he was prepared to enter pleas of guilty substantially in accordance with those that were ultimately entered. The details of the pleas were resolved at the criminal case conference.
The Crown case was strong, but the trial would have been very traumatic for all concerned. There was a significant utilitarian value to the pleas. Under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I propose to allow a discount of 20 per cent on the sentences that would otherwise have been imposed.
The co-offender, Dylan Stacker, pleaded guilty on 15 August 2019 and was sentenced on one firearms offence and one count of aggravated robbery by joint commission: see [54]–[58].
The offender was apprehended in New South Wales on 18 January 2019, i.e. 11 days after the offences. He was sentenced in NSW for an unrelated matter and remained in custody in NSW until July 2019, when he was extradited to the ACT.
He was in custody for seven days from 16 July to 23 July 2019 in relation to the matters for which I am to sentence him. On 23 July 2019, his parole was revoked in relation to earlier matters. Since that date, he has been serving his parole.
Facts
In the early hours of Monday, 7 January 2019, the offender and Mr Stacker drove to Goolwa Place, Fyshwick in a Mitsubishi vehicle registered to the offender's daughter. The area around Goolwa Place is commercially zoned.
At about 5:29 AM, the offender parked the vehicle in Goolwa Place. He exited from the driver's side of the vehicle; Mr Stacker exited from the passenger side.
Count 1 – possess unauthorised firearm
The offender was armed with a shorted .22 lever action repeating rifle (the rifle). Mr Stacker was armed with a shortened 12-gauge Belgian double-barrelled shotgun (the shotgun). The two men walked towards Cessnock Street.
Count 2 – aggravated robbery by joint commission
At 6:20 AM, the complainant arrived at his workplace on Cessnock Street in his Ford vehicle. He parked the vehicle in front of his workplace and exited the vehicle to open the gates.
Immediately, the complainant was confronted by Mr Stacker, who was pointing the shotgun at him with his finger on the trigger.
The complainant feared for his life and started to run away at such speed that he injured his ankle. However, the complainant stopped about 20 metres from Mr Stacker when Mr Stacker shouted at him to “stop or I’ll shoot”.
The complainant asked what Mr Stacker wanted. Mr Stacker asked for the complainant's wallet and keys. The complainant threw a fold-up key wallet containing letterbox keys at Mr Stacker and said that his wallet and car keys were still in his vehicle. At Mr Stacker turned towards the Ford vehicle, the complainant fled on foot.
At approximately the same time, Mr Thornton arrived at the business in his Isuzu truck. He drove up to the complainant's vehicle and rolled down his window to greet the complainant. He saw that the offender was sitting in the front passenger seat and Mr Stacker was entering the driver's side of the Ford vehicle.
Having decided that the two men were in the process of stealing the Ford vehicle, Mr Thornton manoeuvred his vehicle to block the exit.
The offender and Mr Stacker were in the Ford vehicle for about 10 to 15 seconds. In this period, they stole several items from the vehicle, including a mobile phone, a tyre repair kit, a digital camera, and the complainant's wallet.
When the offender and Mr Stacker could not move the vehicle, they left it. As the offender exited the vehicle, he looked directly at Mr Thornton, lifted the rifle and gestured it at Mr Thornton in a menacing manner, before turning and walking away.
The offender and Mr Stacker walked down Cessnock Street towards Goolwa Place. As they were walking, they threw some of the stolen items onto the grass. Mr Stacker dropped his shotgun, but quickly retrieved it and placed it in the front pocket of his jumper. He was observed by witnesses, who telephoned police.
The complainant followed the offender and Mr Stacker in his Ford vehicle. They ran towards their Mitsubishi vehicle and left the area at high speed.
The complainant followed them. The offender (who was driving the Mitsubishi vehicle) turned and stopped in the middle of the road, effectively blocking the complainant's vehicle and forcing the complainant to stop. The complainant was unable to put his vehicle into reverse gear.
Counts 3 and 4 – using unauthorised firearm and act endangering life
Mr Stacker exited the Mitsubishi vehicle holding the shotgun at waist height and pointing it towards the complainant
The offender exited the driver's side of the Mitsubishi vehicle holding the rifle at waist height and pointing it towards the complainant, with a finger on the trigger. He approached the complainant's vehicle door in a crouched military fashion.
The offender grabbed the half-open window of the driver's door to the complainant's vehicle, opened it and attempted to drag the complainant from the vehicle. The complainant resisted by grabbing onto the gearstick and kicking the offender.
The offender took a step back, aimed the firearm at the complainant's chest area and pulled the trigger. The barrel of the firearm was about an arm's length from the complainant. The complainant thought that he was going to die. The firearm made a clicking noise but failed to discharge.
The offender looked down at his firearm and appeared to be shocked. He then “re-racked” it and pointed it again at the complainant, this time slightly lower on the complainant's body. The offender pulled the trigger for a second time. Again, the firearm did not discharge. The offender looked horrified.
Count 5 – assault occasioning actual bodily harm
The offender began striking the complainant with the barrel of the firearm along the complainant's arm, wrist and lower body. It struck the complainant's shin, causing a deep open cut that later became infected and required antibiotics.
In attempting to hit the complainant on the head, the offender accidentally hit the driver's door, and the wooden foregrip and metal ring broke from the firearm.
Mr Stacker called out to the offender, causing the offender to desist.
The offender and Mr Stacker returned to the Mitsubishi vehicle. The offender tried to cover the registration plates with his jumper, but it fell off as he drove away.
The complainant followed the Mitsubishi vehicle for some distance before returning to Goolwa Place, where he met police.
Later that morning, police located the Mitsubishi vehicle parked on a footpath. In the vehicle, they found a shortened .22 long rifle, a shortened double-barrelled shotgun, shotgun ammunition, two balaclavas, a facemask, four knives, a black hooded jumper and beige pants, a backpack containing documents in the name of Mr Stacker, a mobile phone, and a digital camera (identified by the complainant as belonging to him).
A firearms expert noted that the recovered .22 rifle was missing its wooden foregrip and metal ring. The cartridges seized were live. The rifle was in working order. He opined that the rifle had misfired because a previously misfired cartridge case had become lodged in the chamber of the rifle.
The offender was arrested eleven days later on 18 January 2019.
Victim impact
The complainant still experiences significant anxiety and stress. The events of 7 January 2019 have deeply affected his enjoyment of work—his workplace had been his “second home”—to the point where he is now considering early retirement. He lives in constant fear and does not feel safe at work. He feels unsafe arriving at work, leaving his home or even mowing his lawn.
The complainant constantly reflects on what would have happened had the gun not misfired, saying he is “only alive today because the gun misfired”. The incident has also had a substantial emotional impact on the complainant’s family.
It can readily be understood that, where almost certain death has been avoided only by the miraculous intervention of luck, the complainant will suffer deep and permanent psychological scarring.
Objective seriousness
The offences were extremely serious offences of their type. They occurred only months after the offender had been released to parole and while he was serving very long sentences for similar matters.
Count 2 – Aggravated robbery
The NSW Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346 (Henry) established a guideline for sentencing in the case of a “typical” armed robbery. In relation to the determination of the objective seriousness of aggravated robberies (but not necessarily penalty), Henry is a persuasive authority in this jurisdiction: Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49], R v Nicholas; R v Palmer [2019] ACTCA 36 at [71].
There were two aspects of aggravation: the offender was both in company and in possession of an offensive weapon (as was the co-offender, and it is a further aggravating feature that there were two offensive weapons).
The offensive weapons were the most dangerous sort of offensive weapons, being firearms. The definition of “offensive weapons” covers a wide spectrum of weapons.
The complainant was vulnerable. The incident occurred early in the morning and the complainant was relatively isolated at that hour.
There was some degree of planning. The offenders brought weapons, attended the location in the early hours and approached matters purposefully.
The culpability of the offenders was similar. However, Mr Stacker was responsible for the initial confrontation and he threatened the complainant that he should stop or he would shoot. On the other hand, immediately after the property was taken, the offender lifted his firearm and gestured towards the witness Mr Thornton in a menacing fashion.
Count 4 – Act endangering life
There were two closely related acts, each of which was extremely serious. Each act involved the use of the most serious sort of offensive weapon (i.e. an ordinarily functioning firearm) which was directed at point blank range towards the complainant.
The extent of the danger to life was very high. Indeed, it was through sheer good luck that the complainant did not die.
The incident of pointing the firearm and applying the trigger on two occasions was the most terrifying aspect of a terrifying series of events to which the complainant was subjected.
Count 5 – Assault occasioning actual bodily harm
The offence involved the use of a weapon.
There was a course of conduct in which numerous blows were struck, one of which caused actual bodily harm.
I infer that the complainant was assaulted for the purpose of aiding the escape of the offenders, and to that end, intimidating the complainant.
The injury that was occasioned was significant, although not the most serious form of actual bodily harm.
The offender was in company with the co-offender, although the proximity of the co-offender to the incident is unclear.
Counts 1 and 3 – Possessing unauthorised firearm and using unauthorised firearm
The offence of possession covers the initial and continuing possession of the firearm. The gravamen of the offence is largely, but not completely, captured by the other offences.
However, the gravamen of the offence of using the unauthorised firearm is captured by the other offences. The sentence for that matter should be entirely concurrent with other sentences.
Mr Stacker
Parity is an important consideration in relation to the offence of aggravated robbery by joint commission.
Mr Stacker was sentenced for aggravated robbery by joint commission and unauthorised possession of a prohibited firearm. The Crown appealed successfully against the sentences imposed at first instance: R v Stacker [2020] ACTCA 34.
The scope of the facts relating to the aggravated robbery upon which Mr Stacker was sentenced was significantly broader than the scope of the facts upon which I am sentencing the offender. Mr Stacker was not separately charged with act endangering life or any other matter, except the firearms matter. In relation to the act endangering life, he was said to be implicated by virtue of joint commission and sentenced on that basis, but as part of the sentence for the aggravated robbery.
At the time of sentencing, Mr Stacker was 25 years old. He was 24 at the time of the offences. Like the offender, at the time of the offence, he was on conditional liberty for serious matters. He had a very substantial criminal history, including offences of aggravated robbery with an offensive weapon. He had a background of significant disadvantage and suffered from substance use disorder, attention deficit hyperactivity disorder and borderline intellectual function.
The Court of Appeal considered that despite Mr Stacker's criminal history, there were circumstances warranting leniency, including his diagnosed mental health conditions and attempts at rehabilitation. Nevertheless, the Crown succeeded on the appeal. For the offence of aggravated robbery by joint commission, Mr Stacker was sentenced by the Court of Appeal to four years and three months' imprisonment, reduced from a starting point of five years and eight months' imprisonment for the plea of guilty. In sentencing for the robbery, the Court of Appeal took into account “the actual infliction of violence by the co-offender”: at [27].
Subjective features
The offender is 53 years old (he was born in 1967).
He has an appalling criminal history that spans more than three decades and includes many offences of armed robbery and many firearms offences. He has committed offences in the ACT, Queensland, and New South Wales. His criminal history most certainly does not assist him.
Since he was 15 years of age, he has spent virtually his whole life in custody; he has been out of custody or detention for a total of only three or four years. He is profoundly institutionalised, and he finds it extremely difficult to function normally on the rare occasions when he finds himself in the community.
On 31 July 2017, the Court of Appeal re-sentenced the offender for historical offences, including an armed robbery committed in 2001. The Court imposed an effective sentence of seven years and six months' imprisonment (from January 2018 to July 2025), which meant that, overall, the offender's total sentence was 16 years and 6 months' imprisonment from January 2009 to July 2025. The Court set a nonparole period of nine years and six months' imprisonment from 26 January 2009 to 25 July 2018.
The offender was released to parole on 1 August 2018. Following his release, the offender lived with his daughter in Tumut. Initially, he engaged well with Community Corrections. However, after a relatively short period, he lapsed into drug use and breached his parole conditions by using drugs, failing to report as required and failing to reside at approved premises.
In July 2019, the Sentence Administration Board cancelled his parole order and directed that the offender be imprisoned for the outstanding period, which now expires on 16 July 2026. The period is unaffected by recent amendments that do not require “street time” to be served following the cancellation of parole: see Crimes (Sentence Administration) Act 2005 (ACT) pt 7.5A, Sentencing (Parole Time Credit) Legislation Amendment Act 2019 (ACT).
The offender was raised in Tumut, NSW. He was one of four children. He had a very difficult and disadvantaged childhood that included exposure to alcoholism and domestic violence. His parents separated when he was seven years old. When he was eight, his mother was murdered in the family home by her new partner. The incident impacted significantly on the offender and his siblings. Following his mother's death, the offender resided with his father, who often left the offender and his siblings to care for themselves for weeks on end.
As a very young man, the offender experienced further trauma in 1984 when his cousin, his cousin's partner and their two children were murdered in Canberra. The offender had regarded his cousin as a brother.
The offender left school in Year 7.
Because he has spent so much time serving custodial sentences, using illicit drugs and/or engaging in criminal activity, the offender has held very limited employment. He has been employed in manual labour positions for short periods of time, but generally has depended on Centrelink benefits when in the community.
Under the influence of his peers, at 15 years of age, the offender began using illicit substances, including heroin. He has described heroin as “his lifelong drug of choice”. After he began using heroin, his use quickly escalated to daily intravenous use. In addition, he has occasionally used other drugs including cannabis, cocaine and methylamphetamine. The offender stated that most of his offending has been undertaken to fund his heroin addiction.
After he fell back into drug use following his release in August 2018, the offender began to inject methylamphetamine every second day. He told the author of the pre-sentence report that he was under the influence of methylamphetamine (which made him “paranoid”) when he committed the current offences.
The author of the pre-sentence report stated that the offender accepted responsibility for the offences and acknowledged the negative impact of his actions on the complainant. The offender told the author that there had been very limited planning prior to the offences and that they were committed to finance illicit drug use.
The offender was assessed as being at medium to high risk of general reoffending. That is an optimistic assessment. The pre-sentence report confirms that the degree of the offender's institutionalisation is such that, when he returns to the community, the offender will require intense support for a lengthy period.
Comparable cases
In R v Nicholas; R v Palmer [2019] ACTCA 36, each offender was sentenced for seven offences of aggravated burglary and one offence of aggravated robbery. The aggravated robbery charge related to robbery of a business premises when one of the offenders was armed with a sawn-off double barrel shot gun. For that offence, the Court resentenced Nicholas to five years and four months’ imprisonment (reduced from six years’ imprisonment) and Palmer to five years and ten months’ imprisonment (reduced from six years and six months’ imprisonment).
In Thompson v The Queen [2018] ACTCA 2, the Court of Appeal dismissed an appeal against the severity of sentences. Among other sentences, the appellant had been sentenced to four years and six months’ imprisonment for the offence of aggravated robbery in company (reduced from six years’ imprisonment), and to one year and 10 months’ imprisonment for possessing an unregistered prohibited firearm (reduced from two years and six months’ imprisonment). The offences related to the robbery of a liquor store in which the appellant had threatened the shop attendant with a firearm.
In R v Johnstone (No 2) [2019] ACTSC 39, a jury found the accused guilty of three offences, including aggravated robbery and assault occasioning actual bodily harm. The offender had entered a residence holding a sawn-off gun and struck occupants with the butt of the gun, causing them to bleed. The offender was a daily user of methylamphetamine and had a “very poor” criminal history. Mossop J sentenced the offender to four years’ imprisonment for the aggravated robbery offence and 14 months’ imprisonment for the offence of assault occasioning actual bodily harm.
In Miles v The Queen [2016] ACTCA 54, the appellant was sentenced by Rares J in relation to two aggravated robberies (among other offences). In the first aggravated robbery, the appellant had entered an ACTTAB carrying an inoperative sawn-off rifle and had pointed the rifle at an employee while instructing him to place money in the appellant’s bag. The appellant obtained over $30,000. In relation to this offence, he was sentenced to 10 years’ imprisonment. The appellant was sentenced to 12 years’ imprisonment for the second aggravated robbery. The appellant (carrying a rifle) and a co-offender (carrying a knife) had entered a club via a gate, entered the safe room and demanded money. The offenders obtained about $51,000. The appellant had an extensive criminal history that included several armed robberies. The Court of Appeal dismissed the sentence appeal in relation to the two aggravated robberies.
Counsel identified no cases relating to an offence against s 27(4) of the Crimes Act. R v Stott [2017] ACTSC 248 involved an offence against s 27(3)(c) of the Crimes Act. The offender was sentenced for a drive-by shooting arising from a drug dispute. He had been in the vehicle when his companion fired five shots into a suburban house. Several people had been present in the house, including two children. Penfold J sentenced the offender to three years and two months’ imprisonment (reduced from four years’ imprisonment).
I was referred to other somewhat comparable cases.
Other sentencing considerations
In sentencing the offender, the Court is required to have regard to the matters in s 33 of the Sentencing Act, insofar as they are known and relevant. I have referred to the s 33 matters above.
As to s 7 of the Sentencing Act, prominent sentencing purposes are general deterrence, personal deterrence, protection of the community and acknowledgement of harm to the victim.
In relation to rehabilitation, I consider the offender's prospects to be very poor. He is an older man. He has become institutionalised after a lifetime of incarceration, and his lengthy and serious criminal history gives no cause for optimism.
Sentence
I impose the following sentences:
(a)For Counts 1 and 3 (possessing an unauthorised firearm and using an unauthorised firearm), in each case, discounted from a starting point of four years' imprisonment, I impose a sentence of three years' imprisonment from 16 July 2022 to 15 July 2025.
(b)For Count 5 (assault occasioning actual bodily harm), discounted from a starting point of two years' imprisonment, I impose a sentence of 19 months' imprisonment from 16 July 2023 to 15 February 2025.
(c)For Count 2 (aggravated robbery), discounted from a starting point of five years' imprisonment, I impose a sentence of four years' imprisonment from 16 February 2024 to 15 February 2028.
(d)For Count 4 (act endangering life), discounted from a starting point of eight years' imprisonment, I impose a sentence of six years and five months' imprisonment from 16 February 2026 to 15 July 2032.
That is a total sentence of 10 years' imprisonment from 16 July 2022 to 15 July 2032.
In fixing the nonparole period, I take account of the whole of the current period of imprisonment, including the period spent in NSW. That is a period of 13 years and 6 months' imprisonment from 18 January 2019 to 15 July 2032.
I fix a nonparole period expiring on 17 January 2029 (18 January being the date of arrest in NSW). For Territory purposes, the nonparole period is a period of six years and six months’ imprisonment, from 16 July 2022 to 17 January 2029.
| I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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