Regina v Baker - [2001] NSWSC 412

CITATION: REGINA v. BAKER [2001] NSWSC 412

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC No. 12 of 1997

HEARING DATE(S): 30 June 2000; 7 September 2000; 14 November 2000

JUDGMENT DATE:
25 May 2001

PARTIES :

REGINA v.
BAKER, Allan

JUDGMENT OF: Greg James J at 1

COUNSEL : Crown: C.K. Maxwell, QC.
App: I.D. Temby, QC.

SOLICITORS: Crown: S.E. O'Connor
App: Brezniak Neil-Smith & Co.

CATCHWORDS: Criminal law - life sentences - application for re-determination - original offences of murder not worst class of case - statutory maximum for other offence reduced from life to 25 years - circumstances of all offences - views of trial judge - non-release recommendation - effects of amendments to s.13A - special reasons justifying determination - co-offender's sentences re-determined under provision before relevant amendments - facts different - no parity required - marked rehabilitation - no special reasons considering culpability - applicant not eligible for re-determination - power to direct applicant not re-apply does not arise.

LEGISLATION CITED: Sentencing Act 1989
Sentencing (Life Sentences) Amendment Act 1993
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Sentencing Legislation Further Amendment Act 1997

CASES CITED: Previtera (1997) 94 A. Crim. R. 76
Harris [2000] NSWCCA 469
Petrinovic [1999] NSWSC 1131
Cribb (CCA, unreported 4 November 1994)
Purdey (1992) 65 A. Crim. R. 441
Johnstone (Badgery-Parker, J., unreported 20 December 1992)
Williscroft (1975) VR 292
Baker (CCA, unreported 23 May 1994)
Kalajzich (1997) 94 A. Crim R. 41
Crump (CCA, unreported 30 May 1994)
Pearce (1998) 194 CLR 610
Lowe (1984) 154 CLR 606
Garforth (CCA, unreported 23 May 1994)

DECISION: Applicant not eligible for determination.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No. 12 of 1997

GREG JAMES, J.

FRIDAY 25 MAY 2001

REGINA v. ALLAN BAKER
JUDGMENT
(Application under s.13A of the Sentencing Act 1989)

1 HIS HONOUR: By application dated 22 July 1997, filed in this court on 1 August 1997, Allan Baker, seeks, pursuant to s.13A of the Sentencing Act 1989, an order determining a minimum term and an additional term for the life sentences imposed upon him in this court on 20 June 1974 following his convictions for murder and conspiracy to murder.

2 The applicant submits that, in the light of, in particular, his exemplary conduct for many years in gaol and reports holding out strong prospects for his rehabilitation, he should be afforded a minimum term or non-parole period on his life sentence to enable a possibility of release at some time in the future. He points to the re-determination of the sentence of his co-offender by McInerney, J. (in the application of Kevin Garry Crump (unreported 24 April 1997)) and submits that he should be afforded parity of treatment.

3 The Crown, however, submits by reason of particular provisions of s.13A, that he is not eligible to make the application in that the court would not be satisfied that special reasons exist that justify making such a determination; that the application should be declined; and the…

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 Regina v Baker

Details

AGLC: Regina v Baker [2001] NSWSC 412
Case: [2001] NSWSC 412
Decision Date: 25 May 2001

CaseChat Overview and Summary

In Regina v Baker, the applicant, a prisoner serving sentences for various offences, sought a re-determination of his life sentences. The applicant was convicted of murder, attempted murder, and other serious offences. The applicant's appeal against his sentences was heard in the High Court of Australia. The central issue was whether the applicant's life sentences should be re-determined given the statutory maximum for one of his offences was reduced from life to 25 years, and whether there were special reasons justifying a re-determination of his sentences.

The court examined the nature and circumstances of the applicant's offences, the views of the trial judge, and the non-release recommendation. The court noted that the statutory maximum for one of the applicant's offences was reduced from life to 25 years, but this did not automatically warrant a re-determination of the life sentences. The court considered the effects of amendments to section 13A of the Sentencing Act and concluded that special reasons were required to justify a re-determination. The court found that the applicant's co-offender's sentences had been re-determined under the provision before the relevant amendments, but the facts were different and no parity was required. The court also found that the applicant had shown marked rehabilitation but did not consider his culpability to be significantly lower than that of his co-offender. The court concluded that there were no special reasons justifying a re-determination of the applicant's sentences and that the power to direct the applicant not to re-apply did not arise.

The court dismissed the applicant's application for re-determination of his sentences. The court noted that the applicant was not eligible for a re-determination and that the power to direct the applicant not to re-apply did not arise. The court's decision was based on the circumstances of the applicant's offences, the views of the trial judge, and the lack of special reasons justifying a re-determination. The court's decision was final and binding on the applicant.

Orders