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R v Baker

R v Baker

Case [2019] NSWCCA 58 29 March 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Baker [2019] NSWCCA 58
Hearing dates: 18 February 2019
Decision date: 29 March 2019
Before: Hoeben CJ at CL at [1];
Adamson J at [102];
Button J at [105]
Decision:
(1)   Crown appeal allowed.
(2)   The sentence imposed in the District Court on 20 July 2018 is quashed.
(3)   In lieu thereof the respondent is sentenced to imprisonment for 15 years and 3 months commencing 15 January 2015 and expiring 14 April 2030 with a non-parole period of 11 years and 5 months expiring 14 June 2026.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – three counts of sexual intercourse with a child, two counts of solicit to murder and firearm offences – whether error in assessment of objective seriousness of offences – whether sentence manifestly inadequate – need to take into account modest assistance to authorities – Crown appeal made out – whether residual discretion should be exercised – need to resentence – aggregate sentence increased.
Legislation Cited: Crimes Act 1900 (NSW) – ss 26, 66C(3)
Crimes (Appeal and Review) Act 2001 (NSW) – Pt 7
Criminal Appeal Act 1912 (NSW) – s 5D
Criminal Procedure Act 1986 (NSW) – s 166
Firearms Act 1996 (NSW) – ss 7A(1), 36(1), 39(1)(c)
Cases Cited: Bou-Antoun v Regina [2008] NSWCCA 1
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Efthimiadis v R [2013] NSWCCA 276
Everett v The Queen [1994] HCA 49; 181 CLR 295
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223
Louizos v R [2014] NSWCCA 242
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mulato v Regina [2006] NSWCCA 282
R v Barker [2016] NSWCCA 193
R v Brown [2012] NSWCCA 199
R v Lewis (1998) 100 A Crim R 361
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
Ramos v R [2015] NSWCCA 313
Regina v Baker [2017] NSWCCA 233
Regina v Potier [2004] NSWCCA 136
Sabongi v R [2015] NSWCCA 25
ZA v R [2017] NSWCCA 132
Category: Principal judgment
Parties: Regina – Applicant Crown
Adam Baker – Respondent
Representation:
Counsel:
E Balodis – Applicant Crown
R Wilson – Respondent
Solicitors:
Solicitor for Public Prosecutions – Applicant Crown
Douglass & Ford Criminal Law – Respondent

File Number(s): 2015/122234; 2015/013873; 2015/114597
Publication restriction: Non-publication order as to the identity of a complainant or an offender if that may lead to identification of a child complainant. Suppression order as to anything identifying the prison informant (pseudonym RS) or the undercover operative (pseudonym Undercover Operative or UCO) including the assumed name.…

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 [2019] NSWCCA 58
Case: [2019] NSWCCA 58
Decision Date: 29 March 2019

CaseChat Overview and Summary

The matter before the court was an appeal by the Crown against the sentence imposed on the respondent, Baker, for multiple serious criminal offences. Baker was convicted on three counts of sexual intercourse with a child, two counts of solicitation to murder, and various firearm offences. The Crown contended that the sentence imposed by the trial judge was manifestly inadequate, failing to appropriately reflect the objective seriousness of the crimes committed.

The court was tasked with determining whether the trial judge had erred in assessing the objective seriousness of the offences and whether the sentence was manifestly inadequate. The court also considered the extent to which the trial judge had appropriately factored in Baker's modest assistance to the authorities as a mitigating factor. After carefully reviewing the evidence and the sentencing principles, the court concluded that the trial judge had indeed erred in the assessment of the objective seriousness of the offences, and that the sentence was indeed manifestly inadequate. The court found that the Crown's appeal was well-founded and that the aggregate sentence needed to be increased to reflect the true gravity of Baker's crimes.

The court exercised its residual discretion to resentence Baker. It imposed a new aggregate sentence that more accurately reflected the seriousness of the offences committed. The court considered the principles of totality and proportionality in arriving at the new sentence. The court also acknowledged the modest assistance provided by Baker to the authorities but determined that this factor did not sufficiently mitigate the severity of the crimes. The court's final orders included an increased aggregate sentence, ensuring that the punishment was commensurate with the nature and gravity of Baker's criminal conduct.

Orders