R v Baker - [2021] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

R v Baker [2021] QCA 150

PARTIES:

R
v
BAKER, James Steven
(applicant)

FILE NO/S:

CA No 257 of 2019
DC No 2535 of 2018
DC No 2536 of 2018
DC No 2537 of 2018
DC No 2538 of 2018
DC No 785 of 2019
DC No 953 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 4 September 2019 (Smith DCJ)

DELIVERED ON:

23 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2020

JUDGES:

Fraser and McMurdo JJA and Henry J

ORDERS:

1. Grant leave to appeal.

2. Vary the orders made by the sentencing judge by substituting, as the sentence for count 9 on indictment 2535 of 2018, a sentence of nine and a half years imprisonment, with a declaration that the applicant committed a serious violent offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 22 offences, 19 of which were on five separate indictments – where the applicant was sentenced to 11 years’ imprisonment with a serious violent offence declaration – whether the sentence was manifestly excessive

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TOTALITY – GENERAL PRINCIPLES – where the sentencing judge employed the Nagy principle – where the sentencing judge fixed a sentence for the most serious offence, malicious act with intent, which was higher than that which would have been fixed had it stood alone – where the malicious act with intent was declared a serious violent offence – whether the sentence was manifestly excessive

R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered

COUNSEL:

The applicant appeared on his own behalf
D Nardone for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.
McMURDO JA: The applicant was sentenced in the District Court for a total of 22 offences, 19 of which were charged on indictment. The list of offences is helpfully set out within this table in the respondent’s outline of submissions:

Ind/ Count	Date of offences	Nature of offences	Sentence:
2535/18 1	On 21 November 2016	Supplying a dangerous drug (methylamphetamine).	2 years imprisonment.
2	On 23 November 2016	Unlawful possession of a weapon used to commit an indictable offence.	18 months imprisonment.
3	On 23 November 2016	Common assault.	2 years imprisonment.
4	On 23 November 2016	Intentionally endangering the safety of a person travelling in a vehicle.	5 years imprisonment.
7	On 24 November 2016	Assault occasioning bodily harm while armed, in company.	3 years imprisonment.
8	On 24 November 2016	Unlawful possession of a weapon used to commit an indictable offence.	18 months imprisonment.
9	On 24 November 2016	Malicious act with intent.	11 years imprisonment. Serious…

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 [2021] QCA 150
Case: [2021] QCA 150
Decision Date: 23 July 2021

CaseChat Overview and Summary

In the case of R v Baker, the applicant appealed against his sentence, which was imposed following his guilty plea to 22 offences, 19 of which were on five separate indictments. The applicant was sentenced to 11 years’ imprisonment, with a serious violent offence declaration. The primary issue before the court was whether the sentence was manifestly excessive.

The court considered the principles of totality and the application of the Nagy principle in the sentencing process. It noted that the sentencing judge had fixed a sentence for the most serious offence, malicious act with intent, at a level higher than that which would have been fixed had it stood alone. The court also considered that the malicious act with intent was declared a serious violent offence. Based on these factors, the court determined that the sentence was not manifestly excessive and dismissed the appeal.

The court found that the sentence imposed was appropriate, considering the totality of the offences and the nature of the most serious offence. Consequently, the court granted leave to appeal but varied the orders made by the sentencing judge by substituting, as the sentence for count 9 on indictment 2535 of 2018, a sentence of nine and a half years imprisonment, with a declaration that the applicant committed a serious violent offence.

Orders

Orders of the court

1. Grant leave to appeal.

2. Vary the orders made by the sentencing judge by substituting, as the sentence for count 9 on indictment 2535 of 2018, a sentence of nine and a half years imprisonment, with a declaration that the applicant committed a serious violent offence.

Background

Background to the litigation

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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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CITATION:	R v Baker [2021] QCA 150
PARTIES:	R v BAKER, James Steven (applicant)
FILE NO/S:	CA No 257 of 2019 DC No 2535 of 2018 DC No 2536 of 2018 DC No 2537 of 2018 DC No 2538 of 2018 DC No 785 of 2019 DC No 953 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 4 September 2019 (Smith DCJ)
DELIVERED ON:	23 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2020
JUDGES:	Fraser and McMurdo JJA and Henry J
ORDERS:	1. Grant leave to appeal. 2. Vary the orders made by the sentencing judge by substituting, as the sentence for count 9 on indictment 2535 of 2018, a sentence of nine and a half years imprisonment, with a declaration that the applicant committed a serious violent offence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to 22 offences, 19 of which were on five separate indictments – where the applicant was sentenced to 11 years’ imprisonment with a serious violent offence declaration – whether the sentence was manifestly excessive CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TOTALITY – GENERAL PRINCIPLES – where the sentencing judge employed the Nagy principle – where the sentencing judge fixed a sentence for the most serious offence, malicious act with intent, which was higher than that which would have been fixed had it stood alone – where the malicious act with intent was declared a serious violent offence – whether the sentence was manifestly excessive R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
COUNSEL:	The applicant appeared on his own behalf D Nardone for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent