R v Baker - [2011] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Baker [2011] QCA 33

PARTIES:

R
v
BAKER, Anthony Richard
(applicant)

FILE NO/S:

CA No 224 of 2010
DC No 657 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Hervey Bay

DELIVERED ON:

4 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2011

JUDGES:

Margaret McMurdo P and Chesterman and White JJA
Separate reasons for judgment of each member of the Court, Chesterman and White JJA concurring as to the order made, Margaret McMurdo P dissenting

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, following a trial, of stalking, wilful damage and perpetrating a bomb hoax – where the applicant was sentenced to two years’ imprisonment for stalking, three months’ imprisonment for wilful damage and 18 months’ imprisonment for the bomb hoax, and where all sentences were to be served concurrently – where a parole release date was fixed requiring the applicant to serve 12 months in prison – whether the sentence imposed was manifestly excessive

Criminal Code 1899 (Qld), s 27, s 359E(3), s 359F, s 359F(8)

Channon v The Queen (1978) 20 ALR 1; [1978] FCA 16, cited
R v Gompelman [2002] QCA 191, considered
R v Layfield [2003] QCA 3, considered
R v Macdonald [2008] QCA 384, considered
R v Millar[2002] QCA 382, considered

COUNSEL:

The applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

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

[1] MARGARET McMURDO P: Unlike my colleagues, I would grant the application for leave to appeal against sentence and allow the appeal to the limited extent of setting aside the parole release date fixed at 23 August 2011 and substitute a parole eligibility date fixed at 4 March 2011. These are my reasons.

[2] The applicant, Anthony Richard Baker, was charged in the District Court at Hervey Bay with unlawful stalking with the circumstance of aggravation that he intentionally threatened to use violence (count 1); attempted burglary (count 2); two counts of wilful damage (counts 3 and 4); dangerous operation of a vehicle (count 5) and bomb hoax (count 6). The charged offences occurred between November 2008 and April 2009, a period immediately following the tragic and untimely death from myeloid leukaemia of Tara Bevan, the daughter of the complainant and the erstwhile partner of the applicant. During the period of the charged offences both the applicant and the complainant were grieving for Tara and were in dispute over an engagement ring the applicant had given Tara. The applicant believed Tara intended it to be returned to him. The complainant, a solicitor, believed Tara intended it to be part of her estate which she had bequeathed to…

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 [2011] QCA 33
Case: [2011] QCA 33
Decision Date: 4 March 2011

CaseChat Overview and Summary

The case of R v Baker involved the applicant, who had been convicted following a trial of stalking, wilful damage, and perpetrating a bomb hoax. The applicant was sentenced to two years' imprisonment for stalking, three months' imprisonment for wilful damage, and 18 months' imprisonment for the bomb hoax. The sentences were to be served concurrently, and a parole release date was fixed, requiring the applicant to serve 12 months in prison. The applicant appealed against the sentence, arguing it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive or inadequate. The applicant contended that the total sentence was disproportionate to the nature and circumstances of the offences committed. The court needed to assess whether the sentence was within the range of sentences that could be regarded as appropriate for the offences in question.

In examining the case, the court considered the seriousness of the offences, the need to deter the applicant and others from committing similar offences, and the need to uphold public confidence in the criminal justice system. The court also evaluated the individual sentences and their cumulative effect. After careful consideration, the court concluded that the sentence imposed was not manifestly excessive. The court determined that the sentence was within the appropriate range for the offences committed and that the parole release date was a reasonable reflection of the applicant's culpability and the need for punishment and deterrence. The application for leave to appeal against the sentence was therefore refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 [2011] QCA 33
PARTIES:	R v BAKER, Anthony Richard (applicant)
FILE NO/S:	CA No 224 of 2010 DC No 657 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Hervey Bay
DELIVERED ON:	4 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2011
JUDGES:	Margaret McMurdo P and Chesterman and White JJA Separate reasons for judgment of each member of the Court, Chesterman and White JJA concurring as to the order made, Margaret McMurdo P dissenting
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, following a trial, of stalking, wilful damage and perpetrating a bomb hoax – where the applicant was sentenced to two years’ imprisonment for stalking, three months’ imprisonment for wilful damage and 18 months’ imprisonment for the bomb hoax, and where all sentences were to be served concurrently – where a parole release date was fixed requiring the applicant to serve 12 months in prison – whether the sentence imposed was manifestly excessive Criminal Code 1899 (Qld), s 27, s 359E(3), s 359F, s 359F(8) Channon v The Queen (1978) 20 ALR 1; [1978] FCA 16, cited R v Gompelman [2002] QCA 191, considered R v Layfield [2003] QCA 3, considered R v Macdonald [2008] QCA 384, considered R v Millar[2002] QCA 382, considered
COUNSEL:	The applicant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent