R v Baker - [2009] NSWDC 105

CITATION: R v Baker [2009] NSWDC 105

HEARING DATE(S): 08/02/08, 19/03/09, 11/07/08, 25/08/08, 26/09/08, 24/10/08, 05/12/08, 23/01/09, 19/02/09, 27/05/09

JUDGMENT DATE:
27 May 2009

JURISDICTION: Criminal

JUDGMENT OF: Toner SC DCJ

DECISION: Mr Baker was convicted .
Sentenced to a non-parole period of 3 years and 6 months to commence on 27 May 2009 and expire on 26 November 2012.
Sentenced to a total term of imprisonment of 10 years and 6 months to commence on 27 May 2009 and expire on 26 November 2019.
Eligible for release on parole on 26 November 2012.

CATCHWORDS: Quadriplegic at the time of the offence. - Can a quadriplegic be accommodated in prison? - Conspiracy to manufacture not less than a large commercial quantity of MDMA. - Is the very substantial extra cost to the State of accommodating an offender who is quadraplegic a relevant factor in sentencing? - The extraordinary social and physical isolation of a prisoner who is quadraplegic as a factor to reduce the sentence.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: R v Barci & Asling (1994) 76 ACrimR 103
R v Burchell (1987) 34 ACrimR 148
R v Cartwright (1989) 17 NSWLR 243
R v Daetz (2003) 139 ACrimR 398
R v Genz [1999] NSWCCA 285
R v Nomchong NSWCCA 10 April 1997 unreported
R v Thomson and Houlton (2000) 49 NSWLR 285

PARTIES: Regina v Paul Baker

FILE NUMBER(S): 2007/000014939

COUNSEL: Ms Olender - Solicitor
Mr Peluso - Counsel

SOLICITORS: Depatment of Public Prosecution
Michael Jokovic and Associates

JUDGMENT

1 Mr Baker has pleaded guilty to one offence of conspiracy to manufacture not less than a large commercial quantity of MDMA. The co-conspirators were MS, AD and CR. The offence was committed between 1 September 2005 and 1 August 2006 at Sydney.

FACTS

2 The agreed facts, which need not be recited in all their detail, are these:

3 The offence of manufacturing prohibited drugs is created by s.24(2) of the Drug Misuse and Trafficking Act 1985. Section 26 of that Act provides that a person who conspires to commit such an offence is liable for the same punishment as one who committed the offence of manufacture a prohibited drug.

4 Section 33(1)(a) and (3) prescribe a maximum penalty for the offence of 5,000 penalty units or life imprisonment or both.

5 It is accepted by the Crown that Mr Baker (“Baker”) entered his plea at the earliest opportunity and as indicated during the course of submissions I propose to discount his sentence by 25% to allow for the utilitarian value of that plea. There is no dissent from the Crown that I ought to adopt that course.

6 Mr Baker was born in 1972 and is thus now 36. He was about 33 at the time of this offence. His criminal record is insignificant and plays no role in the sentence to be imposed.

7 I do not propose to read out all of the agreed facts as they extend over about 15…

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 [2009] NSWDC 105
Case: [2009] NSWDC 105
Decision Date: 27 May 2009

CaseChat Overview and Summary

The case of R v Baker involved the defendant, Mr Baker, who was convicted of conspiracy to manufacture not less than a large commercial quantity of MDMA. The case came before the court to determine an appropriate sentence. Given that Mr Baker was quadriplegic at the time of the offence, the court had to consider the implications of his disability in the context of imprisonment, including the substantial additional costs to the state for accommodating his needs. Furthermore, the court had to weigh the profound social and physical isolation that Mr Baker would experience in prison due to his quadriplegia.

The court was tasked with several legal issues, including whether the additional costs of accommodating Mr Baker's condition in prison could be considered in sentencing, and if his quadriplegia could result in a reduction in his sentence due to the extreme isolation it would cause. The court also needed to address whether the nature and severity of the offence warranted a lengthy sentence despite Mr Baker's disability.

The court determined that while the extra cost to the state was a relevant factor, it was not determinative of the sentence. The primary consideration was the seriousness of the offence and the need for deterrence. However, the court acknowledged the extraordinary social and physical isolation Mr Baker would face due to his quadriplegia. This factor, along with the mitigating aspects of his disability, led the court to impose a sentence that balanced the need for punishment and deterrence with the unique circumstances of Mr Baker's condition.

Ultimately, Mr Baker was sentenced to a non-parole period of 3 years and 6 months, with a total term of imprisonment of 10 years and 6 months. He was eligible for release on parole after serving the non-parole period. This sentence reflected a careful consideration of both the gravity of the offence and the mitigating circumstances arising from Mr Baker's disability.

Orders

Orders of the court

Mr Baker was convicted . Sentenced to a non-parole period of 3 years and 6 months to commence on 27 May 2009 and expire on 26 November 2012. Sentenced to a total term of imprisonment of 10 years and 6 months to commence on 27 May 2009 and expire on 26 November 2019. Eligible for release on parole on 26 November 2012.

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 [2009] NSWDC 105
HEARING DATE(S):	08/02/08, 19/03/09, 11/07/08, 25/08/08, 26/09/08, 24/10/08, 05/12/08, 23/01/09, 19/02/09, 27/05/09
JUDGMENT DATE:	27 May 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Toner SC DCJ
DECISION:	Mr Baker was convicted . Sentenced to a non-parole period of 3 years and 6 months to commence on 27 May 2009 and expire on 26 November 2012. Sentenced to a total term of imprisonment of 10 years and 6 months to commence on 27 May 2009 and expire on 26 November 2019. Eligible for release on parole on 26 November 2012.
CATCHWORDS:	Quadriplegic at the time of the offence. - Can a quadriplegic be accommodated in prison? - Conspiracy to manufacture not less than a large commercial quantity of MDMA. - Is the very substantial extra cost to the State of accommodating an offender who is quadraplegic a relevant factor in sentencing? - The extraordinary social and physical isolation of a prisoner who is quadraplegic as a factor to reduce the sentence.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	R v Barci & Asling (1994) 76 ACrimR 103 R v Burchell (1987) 34 ACrimR 148 R v Cartwright (1989) 17 NSWLR 243 R v Daetz (2003) 139 ACrimR 398 R v Genz [1999] NSWCCA 285 R v Nomchong NSWCCA 10 April 1997 unreported R v Thomson and Houlton (2000) 49 NSWLR 285
PARTIES:	Regina v Paul Baker
FILE NUMBER(S):	2007/000014939
COUNSEL:	Ms Olender - Solicitor Mr Peluso - Counsel
SOLICITORS:	Depatment of Public Prosecution Michael Jokovic and Associates