R v Baker - [2008] VSC 390

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1545 of 2006

THE QUEEN

KHALID BAKER

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	26-27, 31 March, 1-2, 7-11, 14-15, 17-18, 21-24, 28-30 April, 1-2, 5-9, 12-16, 19-24, 26 May, 29 August 2008
DATE OF SENTENCE:	2 October 2008
CASE MAY BE CITED AS:	R v Baker
MEDIUM NEUTRAL CITATION:	[2008] VSC 390

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CRIMINAL LAW – Sentence – Murder – Violent attack at a party – Victim fell through a window – Youthful offender – No intention to kill - Reasonable prospects for rehabilitation – Prison especially onerous - Sentenced to 17 years’ imprisonment with a non-parole period of 12 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Rose SC with Mr A. Lewis	Office of Public Prosecutions
For the Accused	Mr J. Desmond	Doogue & O’Brien

HIS HONOUR:

Khalid Baker, on 8 April 2008 you and a co-accused, who was a minor and I will call AB, were each arraigned on one count of murder. You both pleaded not guilty. On 23 May 2008 the jury hearing the charges found AB not guilty of murder and its alternatives, defensive homicide and manslaughter. On 26 May 2008 the jury found you guilty of murder, and on 29 August 2008 I heard a plea in mitigation on your behalf.

The maximum penalty for murder is life imprisonment.

The circumstances of the offence are as follows.

On Sunday 27 November 2005 you were at a party on the first floor of a converted warehouse in Brunswick. You had arrived at approximately midnight with four associates, including AB and one Ali Faulkner.

At approximately 3 am you and others in your group assaulted various partygoers in the party area, injuring a number of them. Although you are not being sentenced today for this conduct, it is relevant because it gives context to the murder which ensued. Following the assaults in the party area, you and Ali Faulkner went out onto a landing in the stairwell of the warehouse.

Seven people who were on the landing or on the staircase gave evidence in your trial of the events which occurred there. Five other witnesses gave evidence of portions of what occurred there. What occurred on the landing was described differently by the various witnesses.

It is important to emphasise that I am bound to sentence you on a factual basis which is consistent with the jury’s verdict. Otherwise, in relation to matters adverse to you, I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in your favour which are established on the balance of probabilities.[1]
[1] R v Storey [1998] 1 VR 395 at 369; R v Olbrich (1999) 1999 CLR 270; R v Cheung (2001) 209 CLR 1; and R v Ramage [2004] VSC 508 at [25],

I am satisfied beyond reasonable doubt that after the assaults in the party area, you 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: R v Baker [2008] VSC 390
Case: [2008] VSC 390
Decision Date: 2 October 2008

CaseChat Overview and Summary

The case before the court was R v Baker, which involved the sentencing of the accused for the crime of murder. The accused, a young individual, was involved in a violent altercation at a party which resulted in the death of the victim. The victim, during the altercation, fell from a window, leading to fatal injuries. The court was tasked with determining an appropriate sentence for the accused, taking into account the circumstances of the crime and the background of the offender.

The primary legal issue before the court was the appropriate sentence for the accused, considering the nature of the crime, the lack of premeditation, and the potential for rehabilitation. The court had to balance the gravity of the offence with the personal circumstances of the offender, particularly his age and the possibility of rehabilitation. The court also had to consider the non-parole period that would be commensurate with the seriousness of the crime while also taking into account the potential for reform.

In delivering the judgment, the court acknowledged the severity of the offence, which resulted in the death of the victim. However, the court recognised that the accused did not have the intention to kill and the incident occurred in the context of a heated altercation at a party. The court emphasised the accused's young age and the reasonable prospects for rehabilitation, which were significant mitigating factors. The court concluded that while the crime was serious, the sentence needed to be proportionate and allow for the possibility of the accused reforming and reintegrating into society. After considering all relevant factors, the court sentenced the accused to 17 years' imprisonment, with a non-parole period of 12 years. This sentence was deemed appropriate given the unique circumstances of the case and the potential for rehabilitation.

Orders