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R v Baker

R v Baker

Case [2018] QCA 209 7 September 2018

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Baker [2018] QCA 209

PARTIES:

R
v
BAKER, David Stanley
(applicant)

FILE NO/S:

CA No 354 of 2016
SC No 471 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 23 November 2016 (Atkinson J)

DELIVERED ON:

7 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2017

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDER:

Refuse the application.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his plea of guilty to trafficking in a dangerous drug over a period of 14 months and sentenced to four years imprisonment – where the applicant was also convicted on his pleas of guilty and not further punished for nine counts of supplying dangerous drugs, possessing a dangerous drug exceeding 50 grams, possessing a thing used in connection with trafficking in a dangerous drug, possession of weapons (Category R), possessing a dangerous drug exceeding 5,000 grams and possessing a dangerous drug – where section 5 Drugs Misuse Act 1986 (Qld) meant the applicant will not be eligible for parole until after he has served 80 per cent of the four year term of imprisonment for the trafficking offence – whether the primary judge erred in not partly suspending the sentence in order to avoid the effect of section 5 – whether this failure rendered the sentence manifestly excessive – whether comparable sentences revealed the sentence to be manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his plea of guilty to trafficking in a dangerous drug over a period of 14 months and sentenced to four years imprisonment – where the applicant was also convicted on his pleas of guilty and not further punished for nine counts of supplying dangerous drugs, possessing a dangerous drug exceeding 50 grams, possessing a thing using in connection with trafficking in a dangerous drug, possession of weapons (Category R), possessing a dangerous drug exceeding 5,000 grams and possessing a dangerous drug – where the drugs were initially in schedule 2 but were moved to schedule 1 during the period of trafficking – where the sentencing judge assumed the maximum penalty applicable was the penalty for trafficking in schedule 2 drugs – where the applicant argued that the sentence of imprisonment was excessive having regard to comparable cases – whether the sentence is manifestly excessive

Drugs Misuse Act 1986 (Qld), s 5(2), s 5(3)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Borowicz (2016) 260 A Crim R 590; [2016] QCA 211, cited
R v Connolly[2016] QCA 132, applied
R v Hesketh;…

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 [2018] QCA 209
Case: [2018] QCA 209
Decision Date: 7 September 2018

CaseChat Overview and Summary

The applicant, Baker, appealed against the sentence imposed by the primary judge following his conviction for trafficking in a dangerous drug over a 14-month period, for which he was sentenced to four years imprisonment. The applicant was also convicted and not further punished for various other drug-related offences. Baker argued that the sentence was manifestly excessive, claiming that the primary judge erred by not suspending part of the sentence to avoid the effect of section 5 of the Drugs Misuse Act 1986 (Qld), which meant he would not be eligible for parole until after serving 80 per cent of the four-year term. Additionally, Baker contended that the sentencing judge had incorrectly assumed the maximum penalty applicable was for trafficking in schedule 2 drugs, rather than schedule 1 drugs, which were the classification during the trafficking period.

The court was required to determine whether the primary judge's failure to partly suspend the sentence rendered it manifestly excessive, and whether the sentence could be considered manifestly excessive when compared to similar cases. The court also had to examine whether the sentencing judge's assumption about the applicable penalty was correct and whether this assumption had influenced the overall sentence.

The court held that the primary judge did not err in not partly suspending the sentence, and therefore the sentence was not manifestly excessive. The court found that the sentencing judge's assumption about the applicable penalty was not a material error and did not unduly influence the sentence. The court concluded that the sentence was not manifestly excessive when compared to other cases and dismissed the appeal.

The court refused the application for a new trial or an appeal against the sentence.

Orders

Orders of the court

Refuse the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Baker [2018] QCA 209

Cases Citing This Decision

No citing cases yet.

Cases Cited

Nguyen v The Queen [2020] HCA 23
Citation 1 (Para 16)

…gime that applies”.[3] [2]Applicant’s Outline of Submissions, para 9.19. [3](2005) 228 CLR 357 at 371 [27]. See also Nguyen v The Queen (2016) 256 CLR 656 at 669-670 [37]; R v Clark [2016] QCA 173 at [68]; R v Hood [2005] 2 Qd R 54 at 67 [47].…
R v Roach [2017] QCA 240
Citation 2 (Para 14)

…Queen (2001) 207 CLR 584. [16] R v Tout [2012] QCA 296 at [8], citing Hili v The Queen (2010) 242 CLR 520 at 538-539. [17][2017] QCA 158. [18][2017] QCA 240. [19][2017] QCA 178. [20](2008) 191 A Crim R 475. [21][2016] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41. [25][2004] QCA 244.…
R v Hughes [2017] QCA 178
Citation 3 (Para 10)

…ument that the sentencing judge committed an error in the exercise of the sentencing discretion which is susceptible of appellate correction. [13][2017] QCA 178 at [38]-[39].…
R v Stamatov [2017] QCA 158
Citation 4 (Para 14)

…, citing Wong v The Queen (2001) 207 CLR 584. [16] R v Tout [2012] QCA 296 at [8], citing Hili v The Queen (2010) 242 CLR 520 at 538-539. [17][2017] QCA 158. [18][2017] QCA 240. [19][2017] QCA 178. [20](2008) 191 A Crim R 475. [21][2016] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41.…
R v Frith [2017] QCA 143
Citation 5 (Para 9)

…r exercise of the sentencing discretion”, the operation of the provision being the consequence of the Parliament’s legislative intention. [35][2017] QCA 143 at [36].…
R v Kalaja [2017] QCA 123
Citation 6 (Para 13)

…imprisonment of twenty years, the sentence imposed upon count 1 is shown to be excessive by reference to comparable sentencing decisions: R v Kalaja [2017] QCA 123; R v Lambert , Dick SC DCJ, District Court, Mackay, 9.12.15; R v Tyler , Ind. 19, 561 and 797 of 2016, Mullins J, Supreme Court, Brisbane, 21.7.16; R…
R v Heckendorf [2017] QCA 59
Citation 7 (Para 14)

…7] and R v Power .[28] [14] Barbaro v The Queen (2014) 253 CLR 58 at 74 [41]; Hili v The Queen (2010) 242 CLR 520 at 537 [54]; R v Heckendorf [2017] QCA 59 at [21]. [15] Hili v The Queen (2010) 242 CLR 520 at 538-539, citing Wong v The Queen (2001) 207 CLR 584. [16] R v Tout [2012] QCA 296 at [8], citing Hili v…
R v Phillips [2017] QCA 41
Citation 8 (Para 14)

…[18][2017] QCA 240. [19][2017] QCA 178. [20](2008) 191 A Crim R 475. [21][2016] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41. [25][2004] QCA 244. [26][2014] QCA 90. [27][2004] QCA 116. [28][2013] QCA 351.…
R v Chan [2017] QCA 8
Citation 9 (Para 4)

…evere penalty upon the most serious offence. [4] R v Connolly [2016] QCA 132 at [16]-[17]; R v Thompson (2016) 260 A Crim R 242 at [30]; R v Chan [2017] QCA 8 at [4] (which concerned counts of possession as well as of a supply).…
R v Laidlaw [2016] QCA 290
Citation 10 (Para 14)

…Hili v The Queen (2010) 242 CLR 520 at 538-539. [17][2017] QCA 158. [18][2017] QCA 240. [19][2017] QCA 178. [20](2008) 191 A Crim R 475. [21][2016] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41. [25][2004] QCA 244. [26][2014] QCA 90. [27][2004] QCA 116. [28][2013] QCA 351.…
R v Borowicz [2016] QCA 211
Citation 11

…cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Borowicz (2016) 260 A Crim R 590; [2016] QCA 211 , cited R v Connolly [2016] QCA 132 , applied R v Hesketh; ex parte Attorney-General (Qld) [2004] QCA 116 , cited R v Hughes [2017] QCA 178 , distinguished R v Kalaja [2017] QCA 123 , disting…
R v Clark [2016] QCA 173
Citation 12 (Para 16)

…of Submissions, para 9.19. [3](2005) 228 CLR 357 at 371 [27]. See also Nguyen v The Queen (2016) 256 CLR 656 at 669-670 [37]; R v Clark [2016] QCA 173 at [68]; R v Hood [2005] 2 Qd R 54 at 67 [47].…
R v Connolly [2016] QCA 132
Citation 13 (Para 4)

…pproach. The sentencing judge adopted a conventional approach by imposing the most severe penalty upon the most serious offence. [4] R v Connolly [2016] QCA 132 at [16]-[17]; R v Thompson (2016) 260 A Crim R 242 at [30]; R v Chan [2017] QCA 8 at [4] (which concerned counts of possession as well as of a supply).…
Nguyen v The Queen [2016] HCA 17
Citation 14 (Para 16)

…th the statutory regime that applies”.[3] [2]Applicant’s Outline of Submissions, para 9.19. [3](2005) 228 CLR 357 at 371 [27]. See also Nguyen v The Queen (2016) 256 CLR 656 at 669-670 [37]; R v Clark [2016] QCA 173 at [68]; R v Hood [2005] 2 Qd R 54 at 67 [47].…
R v Tran [2014] QCA 90
Citation 15 (Para 14)

…. [20](2008) 191 A Crim R 475. [21][2016] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41. [25][2004] QCA 244. [26][2014] QCA 90. [27][2004] QCA 116. [28][2013] QCA 351.…
Barbaro v The Queen [2014] HCA 2
Citation 16 (Para 14)

…hillips ,[24] R v Cooney ,[25] R v Tran ,[26] R v Hesketh; ex parte Attorney-General (Qld) ,[27] and R v Power .[28] [14] Barbaro v The Queen (2014) 253 CLR 58 at 74 [41]; Hili v The Queen (2010) 242 CLR 520 at 537 [54]; R v Heckendorf [2017] QCA 59 at [21]. [15] Hili v The Queen (2010) 242 CLR 520 at 538-539, citin…
R v Power [2013] QCA 351
Citation 17 (Para 14)

…6] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41. [25][2004] QCA 244. [26][2014] QCA 90. [27][2004] QCA 116. [28][2013] QCA 351.…
R v Tout [2012] QCA 296
Citation 18 (Para 14)

…kendorf [2017] QCA 59 at [21]. [15] Hili v The Queen (2010) 242 CLR 520 at 538-539, citing Wong v The Queen (2001) 207 CLR 584. [16] R v Tout [2012] QCA 296 at [8], citing Hili v The Queen (2010) 242 CLR 520 at 538-539. [17][2017] QCA 158. [18][2017] QCA 240. [19][2017] QCA 178. [20](2008) 191 A Crim R 475. [21][…
Hili v The Queen [2010] HCA 45
Citation 19

…ce is manifestly excessive Drugs Misuse Act 1986 (Qld), s 5(2), s 5(3) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Borowicz (2016) 260 A Crim R 590; [2016] QCA 211 , cited R v Connolly [2016] QCA 132 , applied R v Hesketh; ex parte…
R v McAway [2008] QCA 401
Citation 20

…2017] QCA 178 , distinguished R v Kalaja [2017] QCA 123 , distinguished R v McAway (2008) 191 A Crim R 475; [2008] QCA 401 , cited R v Stamatov [2018] 2 Qd R 1; [2017] QCA 158 , cited COUNSEL: B J Power for the applicant J A Wooldridge for the respondent SOLICITORS: Fisher Dore Lawyers for the applicant Director…
R v Ikin [2007] QCA 224
Citation 21 (Para 14)

…010) 242 CLR 520 at 538-539. [17][2017] QCA 158. [18][2017] QCA 240. [19][2017] QCA 178. [20](2008) 191 A Crim R 475. [21][2016] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41. [25][2004] QCA 244. [26][2014] QCA 90. [27][2004] QCA 116. [28][2013] QCA 351.…
Markarian v The Queen [2005] HCA 25
Citation 22

…s 5(3) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Borowicz (2016) 260 A Crim R 590; [2016] QCA 211 , cited R v Connolly [2016] QCA 132 , applied R v Hesketh; ex parte Attorney-General (Qld) [2004] QCA 116 , cited R v Hughes [2017]…
R v Cooney [2004] QCA 244
Citation 23 (Para 14)

…. [19][2017] QCA 178. [20](2008) 191 A Crim R 475. [21][2016] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41. [25][2004] QCA 244. [26][2014] QCA 90. [27][2004] QCA 116. [28][2013] QCA 351.…
R v Hesketh; Ex parte Attorney-General [2004] QCA 116
Citation 24 (Para 14)

…Crim R 475. [21][2016] QCA 290. [22][2007] QCA 224. [23](2015) 255 A Crim R 57. [24][2017] QCA 41. [25][2004] QCA 244. [26][2014] QCA 90. [27][2004] QCA 116. [28][2013] QCA 351.…
R v Campbell [2002] QCA 109
Citation 25 (Para 5)

…nment for an offence such as that involved here would be from about two and a half years to about four years imprisonment”.[34] [32][2002] QCA 109. [33][2004] QCA 116 at [14]. [34][2004] QCA 116 at [17].…
Wong v The Queen [2001] HCA 64
Citation 26 (Para 14)

…) 242 CLR 520 at 537 [54]; R v Heckendorf [2017] QCA 59 at [21]. [15] Hili v The Queen (2010) 242 CLR 520 at 538-539, citing Wong v The Queen (2001) 207 CLR 584. [16] R v Tout [2012] QCA 296 at [8], citing Hili v The Queen (2010) 242 CLR 520 at 538-539. [17][2017] QCA 158. [18][2017] QCA 240. [19][2017] QCA 178. [20]…

Legislation Cited

Drugs Misuse Act 1986 (Qld) 5(2)
2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 144(1)
2 mentions (from Para 3)
Safe Night Out Legislation Amendment Act 2014 (Qld) 23, 24
2 mentions (from Para 14)

CITATION:	R v Baker [2018] QCA 209
PARTIES:	R v BAKER, David Stanley (applicant)
FILE NO/S:	CA No 354 of 2016 SC No 471 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 23 November 2016 (Atkinson J)
DELIVERED ON:	7 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 2017
JUDGES:	Fraser and Philippides and McMurdo JJA
ORDER:	Refuse the application.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his plea of guilty to trafficking in a dangerous drug over a period of 14 months and sentenced to four years imprisonment – where the applicant was also convicted on his pleas of guilty and not further punished for nine counts of supplying dangerous drugs, possessing a dangerous drug exceeding 50 grams, possessing a thing used in connection with trafficking in a dangerous drug, possession of weapons (Category R), possessing a dangerous drug exceeding 5,000 grams and possessing a dangerous drug – where section 5 Drugs Misuse Act 1986 (Qld) meant the applicant will not be eligible for parole until after he has served 80 per cent of the four year term of imprisonment for the trafficking offence – whether the primary judge erred in not partly suspending the sentence in order to avoid the effect of section 5 – whether this failure rendered the sentence manifestly excessive – whether comparable sentences revealed the sentence to be manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his plea of guilty to trafficking in a dangerous drug over a period of 14 months and sentenced to four years imprisonment – where the applicant was also convicted on his pleas of guilty and not further punished for nine counts of supplying dangerous drugs, possessing a dangerous drug exceeding 50 grams, possessing a thing using in connection with trafficking in a dangerous drug, possession of weapons (Category R), possessing a dangerous drug exceeding 5,000 grams and possessing a dangerous drug – where the drugs were initially in schedule 2 but were moved to schedule 1 during the period of trafficking – where the sentencing judge assumed the maximum penalty applicable was the penalty for trafficking in schedule 2 drugs – where the applicant argued that the sentence of imprisonment was excessive having regard to comparable cases – whether the sentence is manifestly excessive Drugs Misuse Act 1986 (Qld), s 5(2), s 5(3) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Borowicz (2016) 260 A Crim R 590; [2016] QCA 211, cited R v Connolly[2016] QCA 132, applied R v Hesketh;…